Calcutta High Court (Appellete Side)
Sanjit Sarkar & Four Others vs State Of West Bengal on 18 May, 2011
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
1
FORM NO.(J1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
Hon'ble Justice Girish Chandra Gupta
And
Hon'ble Justice Raghunath Ray
C.R.A. No.300 of 1998
SANJIT SARKAR & FOUR OTHERS
VS.
STATE OF WEST BENGAL
Advocate for the petitioner: Mr. Y.Z. Dastoor
Mr. P. Mazumdar
Advocate for the respondent: Mrs. Minoti Gomes
Hearing concluded on: 22nd February 2011 Judgment delivered on: 18th May 2011 GIRISH CHANDRA GUPTA J.
This appeal is directed against a judgment dated 1st September 1998 passed by the learned Additional Sessions Judge, Nadia, 2nd Court, Krishnanagar, in Sessions Case No.15(9) of 1997 corresponding to Sessions Trial No.6(VII) of 1998 by which the learned Trial Court convicted the appellant Sanjit Sarkar of the offence punishable under Section 302 IPC and the rest of the appellants were convicted of an offence punishable under Section 323 IPC. By an order dated 2nd September 1998 the convict Sanjit was sentenced to suffer imprisonment for life as also to pay a fine 2 of Rs.1000/-, in default to suffer further rigorous imprisonment for a period of six months. Rest of the convicts were sentenced to suffer rigorous imprisonment for one year each as also to pay a fine of Rs.1000/- each for the offence punishable under Sections 323/34 IPC, in default to suffer further rigorous imprisonment of six months each.
The facts and circumstances of the case are as follows:-
Sanjit, Arijit, Shankar and Ranjit are the four brothers and the accused Bimala is their mother. The victim Abani Sarkar was the uncle of the Sarkar Brothers. The aforesaid Sarkar Brothers are the sons of late Jiban Sarkar. The victim Abani was the younger brother of the said Jiban Sarkar. On 6th October 1998 the victim had been to his field and in the afternoon he found two bundles of jute missing. He formed an opinion that his nephew Shankar might have stolen the same. He returned home and aired his grievance alleging that Shankar had stolen two bundles of jute. While the victim and his family members were sitting in the verandah of their house the accused persons broke in upon them demanding an answer as to why he had called Shankar a thief. They together started assaulting the victim while one of the accused persons namely Sanjit suddenly rushed back to his house and reappeared with a sorkey (a pointed weapon) and drove the same into the backside of the chest of the victim. The victim as a result died on the spot. The evidence of the eyewitnesses in that regard is as follows:-
PW 3, wife of the victim, deposed as follows:-3
"My husband Abani had been murdered in front of my house on 6.10.88. At the relevant time I was at my house. The rotten jute-
stick were stock from our ditch. Accd. Sankar Sarkar had washed that jute-stick when my husband enquired about the theft of said jute stick to (illegible) after returning home in the evening. My husband told that he might have taken away jute stick (from jaga) when my husband was sitting on our verandah with my two sons. Then the accused Sankar, Arijit, Ranjit, Sanjit and Bimala (illegible) attacked upon my husband.
Accused Arijit had pulled on the hair of my husband and felled him down in our courtyard in front of my room. All the accused persons had assaulted my husband by fists and blows and with torchlight and compelled him to lay down on the floor. My husband's elder brother Raikrishna Sarkar and his son Lakshikanta Sarkar had asked the accused persons as to what they were doing. I along with PW 1 Lakshikanta Sarkar had tried to take away my husband to our house but all on a sudden Sanjit had brought one pointed weapon with cover and pierced the said weapon on the backside of my husband as a result my husband succumbed to that injury. The accused persons thereafter fled away after abusing us and they also threatened me and my son with dire consequences. All the accused persons are present on the dock (idfd.).
After the sradh ceremony of my husband I went away and took shelter at Anandapalli, P.S.-Karimpur. I was not examined by the police nor stated before the police anything to that effect at the relevant time as my mental equilibrium was not so good."
PW 7, son of the victim who at the relevant time was only 11 years of old deposed as follows:-
"Abani Sarkar (since deceased) was my father. Previously we were the residents of village Chamna. At present we are residing at Karimpur. I along with my mother, my elder brother Amal Sarkar, my father and my Jethima Saraswati Sarkar used to reside at our house at Chamna. On 6.10.88 my father had been 4 murdered at about 7.15 P.M. in front of our house in our courtyard at Chamna. At the relevant time I along with my elder brother Amal Sarkar and mother were sitting beside my father at our verandah. Accused Ranjit, Sanjit, Arijit, Sankar and Bimala Sarkar attacked upon my father on the plea as to why my father called them thief. All on a sudden accused Arijit had dragged my father and felled him down in our courtyard. Other accused persons also had attacked upon my father along with my Jethima Bimala. My mother and my Jetha Raikrishna had forbidden the accused persons not to do anything. My mother and PW 1 Lakshkanta had tried to take away my father to the verandah of our house. Then all on a sudden accused Sanjit had rushed to the room and brought one sharp cutting weapon and pierced the said weapon on the back by the side of backbone of my father. My mother had pressed her cloth on the wound of my father. Subsequently my father succumbed to his injuries. All the accused persons are present on the dock. (idfd.)"
PW 8, another son of the victim, deposed as follows:-
"Deceased Abani Kumar Sarkar was my father. My father Abani Kumar Sarkar had been murdered about 10 years back on 6.10.88 in the evening in the courtyard of our house in front of our room. I along with my brother Animesh were sitting besides our father at our said verandah. When my father was sitting in the verandah, then accused Ranjit Sarkar along with Sanjit Sarkar, Sankar Sarkar, Arijit and Bimala came to my father in a group and Ranjit asked my father why he called his name as thief and also uttered if my father be murdered or killed then nobody would dare to protect him. Then accused Arijit had felled my father down from the verandah to the courtyard. Then all the accused persons attacked upon my father. Then my father's elder brother Raikrishna forbade the accused persons what they were doing. But they did not pay any heed to his words. Then my Jetha's son Lakshikanta and my mother Dulali had tried to take my father to verandah. Then accused Sanjit had brought one sharp cutting pointed weapon and pierced the said weapon on the backside of my father as a result my father fell down on 5 the ground. My said cousin brother Lakshikanta and my mother had taken away my father on the verandah but my father succumbed to his injuries instantaneously."
PW 8 was suggested on behalf of the defence that there was strained relationship between the parties which however he denied. But that fact had actually been deposed to by the brother of the victim the PW 5 although he was declared hostile. He deposed as follows:-
"We were five brothers in all. Accused persons are the sons of my elder brother. Deceased Abani is my younger brother. All the houses of my brothers are situated in the same courtyard but my house is situated in separate courtyard. So long Jiban Sarkar (father of the accused persons) was alive we used to live in joint mess and my said elder brother Jiban Sarkar used to look after everything of our family. Father of accused, Jiban Sarkar died one year prior to the incident. Abani Sarkar used to murmur (?) that his elder brother Jiban had misappropriated some property from the joint family."
The postmortem was conducted by the PW 9 Dr. Biswas who deposed that the injury was homicidal.
Mr. Dastoor, learned Advocate appearing in support of the appeal made two- fold submissions.
His first submission was that the appellants except Sanjit were convicted by the learned trial Court under Section 323 IPC and were sentenced to suffer imprisonment for one year and to pay a fine. He contended that in such a case it was incumbent upon the learned trial Court to consider the desirability of releasing the 6 convicts under Sub-section 3 of Section 360 of the Code of Criminal Procedure which provides as follows:-
"In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860) punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition."
He contended that neither did the learned trial Court consider the question of releasing those appellants under Section 360(3) CrPC nor did he advance special reasons for omitting to do so which according to him was mandatorily required of him under Section 361 CrPC. He in this regard relied upon a judgment in the case of Bishnu Deo Shaw vs. State of WB reported in 1979(3) SCC 714. He based his submission on paragraph 26 of the judgment which reads as follows:-
"Apart from Section 354(3), there is another provision in the Code which also uses the significant expression 'special reasons'. It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the 1898 Code and provides for the release on probation of good conduct or after admonition any person not under twenty-one years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twenty-one years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender, and if it appears to the Court, having regard to the age, character or antecedents of the offender, and to 7 the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct or after admonition. If the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training, or rehabilitation of youthful offenders, where the Court could have done so, Section 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the 'special reasons' for not doing so. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state 'special reasons' if it does not do so. In the context of Section 360, the 'special reasons' contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors."
As regards Sanjit he submitted that there is no evidence to show that the accused Sanjit intended to murder the victim. According to him on a spur of the moment he drove the weapon into the backside of the chest of the victim as a result whereof he died. Therefore the offence, according to him, is one under Section 304 Part II IPC. In support of his submission he relied on the following judgments:-
8The first judgment he relied upon was the in the case of Tholan vs. State of Tamil Nadu reported in 1984 (2) SCC 133. The accused in that case was enraged by the activities of one K.G. Rajan and Chinu who it appears had refused to lend money. The accused was demonstrating his grievance. As a matter of chance he happened to be in front of the house of the victim Sampat. Sampat it appears told the accused not to use vulgar language because ladies were in the house. The appellant was enraged at the conduct of Sampat and stabbed him. Sampat was no way connected with the original transaction which had enraged the accused. The accused in his wildest dream could not have thought of killing Sampat with whom he had no connection whatsoever. It is in such a case that Their Lordships opined that the requisite intention could not be assigned to the appellant. We fail to see how can this case have any application to the facts and circumstances of the present case wherein on behalf of the defence the theory of strained relationship between the parties was advanced which, as a matter of fact, was also deposed to by the elder brother of the victim which we already have noticed. We are, therefore, unable to see any relevance of that case with the one in hand.
The second judgment cited by Mr. Dastoor was in the case of K. Singh vs. State of M.P. reported in AIR 1994 SC 463. This was a case in which the appellant was convicted under Section 304 Part I IPC and was sentenced to undergo six years rigorous imprisonment. In that case the Apex Court reduced the sentence to four years rigorous imprisonment but Their Lordships did not interfere with the conviction. The case of the appellant in that case was that he had acted in self- defence which the High Court had rejected and the Apex Court held as follows:-
"In any event the deceased was not armed and even if the plea of the appellant is to be accepted he has clearly exceeded the right 9 of self-defence and would also be punishable under Section 304, Part I, I.P.C. In any event no interference is called for so far as his conviction is concerned."
No elaborate reasoning is required to demonstrate that this judgment has no manner of application to the case in hand. It is not in self-defence that the victim was killed. Even assuming that the victim had aired his grievance that Shankar had stolen the two bundles of jute, it is not the case of the defence that any altercation ensued when he uttered those words. The evidence on the contrary is that the relationship between the parties was already strained as discussed above. When the victim was sitting in the courtyard of his house with the members of his family, the accused persons in a group, five in number, entered therein and started beating. We are inclined to think that the insinuation, that Shankar had stolen the jute bundles, furnished them with an opportunity to pick up a quarrel. The appellants except Sanjit may not have intended or may not have assembled with the common object of killing the victim but the same is also not true as regards the accused Sanjit. The relevant evidence in this regard has been quoted above.
The last judgment cited by Mr. Dastoor was in the case Madhusudan Sathpathy & Ors. vs. State of Orissa reported in 1995 SCC (cri) 155 The facts and circumstances of the case do not appear from the order reported in the journal. It is however clear that the High Court had convicted the accused under Section 304 Part I of the Indian Penal Code read with Section 34 IPC and had sentenced the appellant to undergo rigorous imprisonment for six years. Their Lordships altered the conviction from Part I to Part II of Section 304 of the IPC and reduced the punishment by 50%. But the facts and circumstances of that case are not dealt with therein. Therefore this judgment can have no relevance to the case in hand.
10We have evidence before us to show that there was enmity between the parties. We also have evidence to show that a deadly weapon was used and the thrust was powerful enough to kill the victim on the spot. In a case like this the provision fourthly of Section 300 IPC which reads as follows is attracted.
"If the persons committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury aforesaid."
The illustrations (c) and (d) appended to Section 300 IPC can also be pressed into service.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual."
In the case of State of MP vs. Ramprasad reported in (1968) 2 SCR 522 Their Lordships opined as follows:-
11"The question then arises, what was the offence which Ram Prasad can be said to have committed? The offence of causing injury by burning is a broad spectrum which runs from Section 324 causing simple injury by burning through Section 326, namely, causing grievous injury by burning to the two major offences, namely, culpable homicide not amounting to murder and even murder itself. The Sessions Judge chose the lowest end of the spectrum which is surprising enough, because the burns were so extensive that they were certainly grievous by all account. The High Court placed the offence a little higher, namely, culpable homicide not amounting to murder. We think that the matter goes a little further than this. As death has been caused the question has to be considered in the light of homicide to determine whether the action of Ram Prasad falls within culpable homicide not amounting to murder or the higher offence of murder itself. Here we see that death has actually been caused by the criminal act in other words, there has been homicide and since it is not accidental or suicidal death, responsibility for the homicide, in the absence of any exceptions or extenuating circumstances, must be borne by the person who caused it. The High Court has apparently stopped short by holding that this was a case of culpable homicide not amounting to murder. The question is whether the offence falls in any of the clauses of Section 300 of the Indian Penal Code. In this connection it is difficult to say that Ram Prasad intended causing the death of Mst Rajji although it might well be the truth. That he set fire to her clothes after pouring kerosene oil is a patent fact and therefore the matter has to be viewed not only with regard to the firstly of Section 300, but all the other clauses also. We do not wish to consider the second and the third clauses, because the question then would arise what was the extent of the injury which Ram Prasad intended to cause or knew would be caused to Mst Rajji. That would be a matter of speculation. In our opinion, this matter can be disposed of with reference to clause fourthly of Section 300. That clause reads as follows:
"... culpable homicide is murder ... if the person committing the act knows that it is so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause 12 death, and commits such act without any excuse for incurring the risk or causing death or such injury as aforesaid".
It is obvious that there was no excuse for Ram Prasad to have taken the risk of causing the death or such bodily injury as was likely to cause death. The question therefore arises whether Ram Prasad knew that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, so as to bring the matter within the clause. Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death. In the present case, Ram Prasad poured kerosene upon the clothes of Mst Rajji and set fire to those clothes. It is obvious that such fire spreads rapidly and burns extensively. No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person. Therefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death. As he had no excuse for incurring that risk, the offence must be taken to fall within fourthly of Section 300 of the Indian Penal Code. In other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst Rajji. He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death. We are accordingly of the opinion that the High Court and the Sessions Judge were both wrong in holding that the offence did not fall within murder."
In the case of Santosh vs. State of MP., reported in 1975(3) SCC 727 Their Lordships opined as follows:-
13"After examining all the evidence relating to the participation of the appellant and others in the riot we are left in grave doubt whether the assembly had a common object of killing any one at all, even if such was really the object of any particular member or members of the unlawful assembly. It may be that those who cut the limbs of men who lost their lives due to bleeding could reasonably be held liable for murder. But, it seems to be unlikely that each member, considering the nature of the riot and the different acts of different members of the riotous assembly, had such an object. This was exactly the view adopted by this Court in Chikkarange Gowda case."
For reasons indicated above we are of the view that the conviction of the appellant Sanjit cannot be interfered with.
Insofar as the first submission of Mr. Dastoor with respect to benefit under Section 360(3) of CrPC is concerned, it may be pointed out that the records reveal that the appellant Bimala was brought under arrest on 10th October 1988 and she was released on interim bail on 11th October 1988 which ultimately was confirmed. The accused Sanjit, Arijit and Shankar surrendered on 28th November 1988 and were granted statutory bail on 27th February 1989. The appellant Ranjit however continued to abscond for a very long time. He, as a matter of fact, was brought under arrest on 10th November 1996 and was released on bail on 17th December 1996. The learned Trial Court was required to give special reasons why were the convicts under Section 323 IPC not entitled to the beneficial protection of Section 360 CrPC which he did not do nor are the necessary materials reflected in the judgment. The incident took place on 6th October 1988. Any further inquiry at this stage into the desirability of extending the benefit of Section 360 does not appear appropriate. We therefore 14 direct the learned trial Court to release the appellants no.2,3, 4 and 5 convicted under Section 323 of the IPC on probation of good conduct under Section 360(1) of CrPC. The appellant no.1 Sanjit is directed to surrender forthwith to serve out the sentence awarded by the trial Court. The trial Court is also directed to take the appellant no.1 in custody if he does not surrender voluntarily. The appeal in the result partly succeeds.
Lower Court Records with a copy of this judgment be sent down forthwith.
Urgent xerox certified copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
(GIRISH CHANDRA GUPTA J.)
I agree. (RAGHUNATH RAY J.)