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2018 DIGILAW 893 (CAL)

Bhola Mondal v. State of West Bengal

2018-12-06

SHIVAKANT PRASAD

body2018
JUDGMENT : Shivakant Prasad, J. This appeal is directed against the judgment and order of conviction dated 20.12.2008 and 22.12.2008 passed by Additional Sessions Judge, Fast Track Court No. 5, Barrackpore, North 24- Parganas in Sessions Trial No. 01(12)/07 arising out of Sessions Case No. 12(09)/07 convicting the appellants under Section 307/34 of the Indian Penal Code. 2. The brief facts leading to the instant appeal, inter alia, is that Shyamal Sen of Village- Halisahar, Subhasnagar. Police Station Bijpur, District-North 24-Parganas lodged to the effect that on 25.10.2006 at 8.30 a.m. his neighbour Sri Amar Mondal and his son Bholanath Mondal, being instructed by his father assaulted his son Sriman Sajib Sen aged about 14 years, on his head by a hard object, and grounded him and gagged him in such a manner that if he was kept in that position for a couple of minutes he would have been dead. Immediately, the injured was admitted in J.N.M hospital for his treatment and was discharged on 27.10.2006. 3. The instant appeal has been preferred by the appellants, inter alia, on the ground that the learned Judge failed to consider that no witness has stated that the appellants had an intention to commit murder of the victim as such order of conviction under Section 307 of the Indian Penal Code cannot be maintained. That apart, the First Information Report was lodged on 31.10.06 though the incident allegedly took place on 25.10.06 without any explanation of delay in lodging the First Information Report. 4. It is further contended that there is no injury on the neck of the victim Sajib Sen in respect of alleged case of injury by throttling as in such case, there must be sign of abrasion which is absent and the evidence of the prosecution witnesses are full of contradictions inasmuch as the de facto complainant Shymal Sen P.W. 1 at the time of admission of his son on 25.10.06 stated before doctor that patient developed convulsion but in the First Information Report he stated that the victim was assaulted with a hard substance on his head and there is head injury which is not supported by the medical report. Moreover, the evidence of P.W.1 reflects that he was unconscious but according to the medical report the patient was conscious. 5. Moreover, the evidence of P.W.1 reflects that he was unconscious but according to the medical report the patient was conscious. 5. It is also submitted that independent witnesses P.W. 2 Rupa Bakali and P.W. 3 Rakhal Biswas, are not witnesses to the incident who heard it from the mother of the victim that Bhola assaulted Sajib and Sajib was shifted to Hospital but they have not heard that Sajib was unconscious and Bhola assaulted at the instruction of his father. 6. Dr. Ratan Lal Banerjee P.W. 10 who treated Sajib Sen P.W. 5 deposed that the patient was conscious but the victim and his relative stated that the patient was unconscious which is contradictory. 7. In second fold argument, it is contended that Section 34 of the Indian Penal Code applies where there is common intention in the sense of a pre-arranged plan between the two but here the prosecution has failed to prove the common intention. 8. Mr. Apurba Kr. Dutta learned counsel for the appellants in support of his contention referred to the authority of the Hon'ble Supreme Court in case of Hari Kishan & State of Haryana vs. Sukhbir Singh & Ors. reported in, (1988) AIR SC 2127, to argue that conviction under Section 307 IPC cannot be sustained against the appellants. It has been observed that conviction under Section 307 cannot generally be made where the fight arose out of sudden quarrel. In the cited case the two parties in the course of the fight inflicted on each other injuries both serious and minor. The accused though armed with ballam (spear), never used the sharp edge of it even though attacked by the blunt side. 9. In that set of fact it was held that the accused had no intention to commit murder. They had no motive either. Where the fight is accidental owing to a sudden quarrel, the conviction under Section 307 IPC is generally not called for. "Attempt to murder" under Section 307 IPC, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. They had no motive either. Where the fight is accidental owing to a sudden quarrel, the conviction under Section 307 IPC is generally not called for. "Attempt to murder" under Section 307 IPC, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. 10. Learned counsel for the appellants has also relied on a decision in case of Garib Singh and others vs. State of Punjab reported in, (1972) 3 SCC 418 , wherein it has been held that appraisement of evidence involves weighing of one set of inferences from them against the opposite ones fairly and reasonably. Where the Trial Court had not weighed evidence so much as given a catalogue of reasons for suspecting the prosecution case without considering what could be said in answer, and where it was misled by attaching undue importance to individual features of the case and where it had ignored the very fact that it is contrary to the ordinary course of human conduct of injured persons to omit the names of the actual assailants and to substitute wrong persons, the Appellate Court can reappraise the evidence. 11. It is well settled that the powers of the Appellate Court in an appeal against acquittal are not different from the powers of the court in hearing an appeal against conviction. 12. It is specifically contended by learned counsel for the appellants to argue in respect of the applicability of Section 34 of Indian Penal Code that it would have been possible to apply Section 34 of Indian Penal Code (in short "IPC") even though no charge was framed for it if the evidence establishing it had been clear and free from doubt. 13. It is also argued that where the occurrence which led to the launching of prosecution has arisen out of a sudden quarrel over some exchange of words in circumstances which have not been brought out by the evidence in the case, it was not proper to convict the accused with the aid of Section 34 of IPC. 14. 13. It is also argued that where the occurrence which led to the launching of prosecution has arisen out of a sudden quarrel over some exchange of words in circumstances which have not been brought out by the evidence in the case, it was not proper to convict the accused with the aid of Section 34 of IPC. 14. Therefore, no conclusion can be made that the appellants had the intention to kill the victim because no witness has stated such before the trial Court. 15. Next, it is argued on behalf of the appellants that the First Information Report, Exhibit-1/1 was lodged on 31.10.2006 though incident took place on 25.10.2006 and there is no explanation of delay in lodging the complaint which must go against the prosecution. 16. It would appear from the First Information Report, Exhibit-1/1 and the Formal FIR, Exhibit-3 drawn up on the basis of the complaint that date of occurrence is on Wednesday on 25.10.2006 at about 8:30 hours whereas the information was received at the Police Station on 31.10.2006 on 16:15 hours. 17. It is also revealed that on the same day Sajib Sen, P.W. 5 injured the son of de facto complainant Shyamal Sen, P.W. 1 was admitted in J.N.M. Hospital, Kalyani. Injury Report Exhibit-4 depicts that the patient was admitted on 25.10.2006 at 10:40 A.M. when the patient was conscious, neck-slightly swollen but no mark or abrasion seen. No trash/no apparent injury on the part of the body. The history so written in the Injury Report Exhibit-4 proved by Dr. Ratan Lal Banerjee, P.W. 10 goes to show that the patient was injured after the collusion with 2/3 boys and patient developed convulsion. 18. The Discharge Certificate, Exhibit-5 under objection reveals that patient was hospitalized on 25.10.2006 till 27.10.2006. Therefore, the circumstances itself proves satisfactory explanation as to delay in lodging the First Information Report. In my view, a little time consumed was due to treatment of the injured. So, it cannot be said that the FIR is an embellished FIR with the concocted story made out by the prosecution bearing in mind the evidence of P.W. 1, the injured P.W. 5, the doctor, P.W. 10 and the Medical Report. 19. In my view, a little time consumed was due to treatment of the injured. So, it cannot be said that the FIR is an embellished FIR with the concocted story made out by the prosecution bearing in mind the evidence of P.W. 1, the injured P.W. 5, the doctor, P.W. 10 and the Medical Report. 19. Insofar as the contradiction in the evidence of prosecution witnesses is concerned, there may be exaggeration in statement of some witnesses with regard to assault on the victim with a hard substance on his head as not being supported by the Medical Report but that does not go to the root of the prosecution case of assault perpetrated by the accused Bhola Mondal inasmuch as the injured P.W. 5 has stated on oath that on the date of occurrence his younger brother Joy and the younger brother of accused Bhola namely, Biswanath were in the puja pandel and a quarrel took place in between them whereas Biswanath assaulted younger brother Joy. Thereafter, his mother asked Biswanath as to why he had assaulted her son which led to an altercation between his mother and Biswanath. Then Biswanath called his father and brother Bhola in front of the gate of his house. Then again altercation ensued between his mother and the accused Amar Mondal. The accused Amar Mondal assaulted his mother by hurling abusive languages at her. On protest being made by the injured, the appellant Amar Mondal instructed his son Bhola to assault him. Thereafter, Bhola throttled him by gagging his neck resulting in which he became senseless but this fact of his becoming unconscious is not supported by medical evidence. 20. The prosecution witnesses namely, the father of the victim P.W. 5 being the de facto complaint P.W. 1 simply heard from his wife about the incident on return from market that accused Bhola Mondal, son of Amar Mondal had throttled his son Sajib Sen by gagging severely resulting asphyxia. On that date neighbours were there at the place of occurrence. According to him, his son had lost his sense and the doctor was called immediately and as per his advice the injured was sent to J.N.M. Hospital at Kalyani. Evidence on record reflects that there was scuffle in between Joy his younger son and younger son of accused Amar Mondal. According to him, his son had lost his sense and the doctor was called immediately and as per his advice the injured was sent to J.N.M. Hospital at Kalyani. Evidence on record reflects that there was scuffle in between Joy his younger son and younger son of accused Amar Mondal. But P.W. 1 has not mentioned in the FIR about unconscious state of his son. He has also not mentioned with regard to the abusive languages hurled at his wife. There is no mention in the FIR about scuffle taking place in between younger son of the P.W. 1 and younger son of the accused Amar Mondal. There is no evidence of any long standing dispute between his son and the accused Amar Mondal. Parties are also not inimical to each other. Therefore, it cannot be said that out of grudge, a false FIR was lodged or it can be said that intention was writ large to attempt to kill the injured P.W. 5. P.W. 3 a neighbour is also a hearsay witness. According to P.W. 4 Smt. Shyamali Debnath another neighbour on hearing cry, she came out of her house and found Sajib Sen lying on the street in front of the house of P.W. 1 and mother of Sajib Sen was crying by saying- "Bj l -R-m-L -i m -j-l-R". Therefore, it cannot be said that the accused Bhola gagged by throttling the injured P.W. 5 being the son of P.W. 1 and P.W. 7, on being instigated by Amar Mondal, the father of Bhola Mondal appellants herein. Admittedly, P.W. 4 has not seen the incident. She later on heard that a quarrel took place in between the minors of both the families but she did not see any injury on the person of Sajib Sen. 21. Ranjit Sen, P.W. 6 deposed that hearing hue and cry, he rushed to the P.O. and found Sajib lying on the road. He called Dr. T.K. Roy over telephone and Dr. Roy came to the house of the injured and as per his advice, injured was shifted to J.N.M. Hospital, Kalyani but Dr. Roy has not been examined by the prosecution. P.W. 6 came to know from the mother of the injured that Bhola had throttled her son as per the instruction of his father Amar Mondal. Roy came to the house of the injured and as per his advice, injured was shifted to J.N.M. Hospital, Kalyani but Dr. Roy has not been examined by the prosecution. P.W. 6 came to know from the mother of the injured that Bhola had throttled her son as per the instruction of his father Amar Mondal. According to P.W. 6, he took the injured P.W. 5, Sajib Sen to his house when he was unconscious and he regained his sense in hospital. P.W. 6 has admitted that there was a good relationship between the two families before the incident. Smt. Bipula Rani Sen, P.W. 7 the mother of injured deposed that on 25.10.2006 the younger son of accused Amar Mondal assaulted her younger son Joy Sen at about 8-8.30 A.M. and for his acts, she raised protest. The younger son of the accused Amar called his father and his elder brother Bhola and his mother who abused P.W. 7 with filthy languages. Hearing that noise, her elder son came out of the room and requested accused Amar not to utter indecent languages. P.W. 7 further deposed that accused Amar Mondal instigated her son Bhola to assault Sajib by uttering- "j l -u -ll h Q -L j l". Then, Bhola Mondal throttled her son Sajib resulting in unconscious state for which he was shifted to hospital for treatment. The story of prosecution that the injured become unconscious due to throttling also not find corroboration by the evidence of the doctor as there is no mark of strangulation around the neck of Sajib injured P.W. 5. 22. P.W. 8 and P.W. 9 are the Investigating Officers who after investigation submitted Charge-sheet. 23. In view of the facts and circumstances as revealed from the totality of the evidence of the prosecution witnesses discussed above and on weighing the real facts of the case, I am of the considered view that the incident is the result of sudden quarrel over exchange of words. Accordingly, I hold that the learned trial Judge has erred in convicting and sentencing Amar Mondal for the offence punishable under Section 307/34 IPC as there was no common intention shared by him in the act of attempt to kill the injured. As discussed, incident is outcome of sudden quarrel. Accordingly, I hold that the learned trial Judge has erred in convicting and sentencing Amar Mondal for the offence punishable under Section 307/34 IPC as there was no common intention shared by him in the act of attempt to kill the injured. As discussed, incident is outcome of sudden quarrel. Therefore, I am unable to hold the appellant Amar Mondal guilty of any offence with the aid of Section 34 of Indian Penal Code. Ergo, the order of conviction and sentence of Amar Mondal under Section 307/34 IPC is hereby set aside and be set at liberty at once. 24. Moreover, so far as the offence under Section 307 IPC is concerned, there is no evidence of intention on the part of the appellant Bhola Mondal in attempt to commit murder of the injured. 25. So, charge under Section 307 IPC does not lie. 26. However, the order of conviction under Section 325 IPC is considered in the facts of the case and the appellant Bhola is held guilty of the offence punishable under Section 325 IPC for inflicting injury in the neck of the injured. 27. It is pertinent to take note of the order dated 03.9.2018 regarding the Juvenility of the appellant Bhola Mondal that he has been adjudged a juvenile less than 18 and more than 17 years as on the date of occurrence. 28. Having regard to the principle laid down by the Hon'ble Supreme Court in case of Hari Kishan (supra) and finding no previous history of inimical relationship between the parties and for the reason that the appellant Bhola Mondal was a juvenile on the date of incident, he may be dealt with lenity in awarding sentence. 29. It appears from the sentencing part of the judgment that while hearing the convict namely, Bhola on the question of sentence, the learned Judge did not find it expedient to release him on probation of good conduct either under Section 360 of Code or under the provision of Probation of Offenders Act on the observation that in present day society where moral bankruptcy is galloping, social disorder is rampant in a case like this, grant of probation would be a grant of licence to commit such offence in future. Accused Amar Mondal by his disparaging utterances insulted a female member of the society and the supercilious attitude of the accused persons was an affront to the dignity of the mother of the injured. Hence, the convicts do not deserve for any sympathy and mercy and relied on the principle laid down in decision of the Hon'ble Apex Court in (2007) Vol. I SCC (Cri.) 72 to the effect that "law regulates social interest, arbitrates conflicting claims and demands. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation, sentencing process is stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant facts which would enter into the area of consideration. Undue sympathy to impose inadequate sentence would do more harm to the justice system, to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be." 30. In conclusion the learned Judge taking into the submission of the learned defence and the principle of sentencing system was of the view that an appropriate and adequate sentence should be imposed and accordingly, Bhola was sentenced to suffer R.I. for four years and a fine of Rs. 5,000/- in default R.I. for three months more. 31. In conclusion the learned Judge taking into the submission of the learned defence and the principle of sentencing system was of the view that an appropriate and adequate sentence should be imposed and accordingly, Bhola was sentenced to suffer R.I. for four years and a fine of Rs. 5,000/- in default R.I. for three months more. 31. It appears that in view of the principle laid down in the above cited decision, the convicts/appellants were not considered with lenity in awarding sentence and even after considering the case of the appellant Bhola Mondal being a tender aged boy. And the learned Trial Judge turned down his prayer for considering him to release on probation of good conduct either under Section 360 of Code or under the provision of Probation of Offenders Act. I find from the evidence as discussed above that the incident is the result of quarrel between the parties with the exchange of abuses that too has not been proved in the given case so as to insult a female member of the society. Rather it is simply based on the version of the mother and the injured which has not been corroborated and proved by the neighbours present at the scene, otherwise, the learned Judge could have considered the conviction and sentence for the offence under Section 504 IPC. 32. Be that as it may, taking into consideration the version of the injured P.W. 5 and the evidence of his mother P.W. 7 in respect of a fight being a bilateral one for the reason that younger brother of the appellant Bhola was also involved leading to the genesis of scuffle and fight between children, and further bearing in mind that the appellant Bhola Mondal has voluntarily caused hurt indulging life of the injured, he is held guilty under Section 325 IPC on being altered from charge under Section 307 IPC. Taking into account the juvenility of the appellant Bhola Mondal, the learned Trial Court ought to have given benefit of provision under Section 360 Cr.P.C. or under the curative provisions of Probation of Offenders Act bearing in mind the legal principle for consideration of probation, i.e. the nature and character of the offence being relevant are required to be considered in order to arrive at a conclusion as to whether it is expedient to release him on probation of good conduct or not. Therefore, I am of the view that the appellant Bhola Mondal be released on probation for a period of one year. 33. In my considered view the appellant Bhola Mondal should serve the community as a mandate for restorative community service for making a positive contribution to a community or its institutions- to develop critical thinking and problem solving skills; to gain a better understanding of how to make constructive changes in his life; to form meaningful relationships with others and to gain a sense of individual effectiveness so that he learns from the offense and to never again victimize other people. 34. Therefore, the appellant Bhola Mondal shall appear before the learned Trial Court to furnish probation bond of good behavior for a period of one year within a week from the date hereof and the learned Trial Court shall relegate him for the mandatory community service in Gourya Math in the District of Nadia on terms to be imposed by the learned Trial Court. 35. Thus, the appeal being CRA 15 of 2009 is allowed with the above modification of order of conviction and sentence. 36. Let a copy of this judgment together with the LCR be sent down to the learned Trial Court forthwith for information and needful action. Urgent certified Photostat copy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.