Calcutta High Court (Appellete Side)
Bhim Chandra Giri & Ors vs State Of West Bengal on 17 March, 2016
Author: Ishan Chandra Das
Bench: Ishan Chandra Das
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:
The Hon'ble Justice Ishan Chandra Das C.R.A. NO. 320 of 1987 Bhim Chandra Giri & Ors.
Vs. State of West Bengal For the Appellants : Mr. Amitabha Karmakar, Advocate Mr. Arup Kumar Bhowmick, Advocate.
For the State : Mr. Anjan Kumar Datta, Advocate.
Heard on : 17.03.2016
Judgment on : 17.03.2016.
Ishan Chandra Das, J:-
Heard the learned Counsel for both the parties.
This criminal appeal has been directed against the judgment and order of conviction dated 31.07.1987 passed by learned Sessions Judge, 3rd Court, Midnapore (Sadar) in Sessions Trial Case No. IX/November, 1985 where learned trial Court found the appellants guilty of the offence punishable under Sections 147, and 323/149 of the Indian Penal Code, convicted and sentenced them and directed them to be released on probation subject to suitability and admissibility of the convicts to remain on probation for one year, in terms of Section 4 of the probation of offenders Act, 1958.
The brief facts of the case is that on 26.08.1983, the appellants forming an unlawful assembly rushed to the courtyard of the de facto complainant, Srihari Charan Maity with a view to uprooting a fencing in front of his house, beside the village pathway as the said fencing was fixed for preventing the villagers from using it as it was causing inconvenience to the de facto complainant and other members of his family. On being obstructed, the appellants beat Niranjan, the son of the de facto complaint, mercilessly and while his parents came to rescue him, they were equally beaten by them (appellants). In course of such action, some of the appellants strangulated said Niranjan, with a nylon rope around his neck with an intention to kill him and threw him to a nearby tank. The local people somehow rescued the victim and gave him the first aid. He was also medically treated by the local doctor and ultimately on 01.09.1983 they could lodge the written complaint against the appellants herein. Accordingly, a case was started against the appellants for committing the offence punishable under Sections 147,307/149 and 323/149 of the Indian Penal Code and ultimately on conclusion of trial, upon examination of six witnesses, the learned trial Court found the appellants not guilty of the offence punishable under Sections 307/149 of the Indian Penal Code but found them guilty of the offence punishable under Sections 147 and 323/149 and sentenced them for keeping them on probation under the Probation of Offenders Act, 1958, as noted earlier.
Assailing the said order of conviction, the present appeal has been preferred in terms of Section 11(2) of the Probation of Offenders Act, 1958.
Now, the point for consideration left before this Court is - whether the learned trial Court was justified in requesting conviction of the appellants and sentencing them to release them on Probation as noted earlier.
Learned trial Court in the impugned judgment placed reliance on the statements of the witnesses, i.e. the de facto complainant (Srihari Charan Maity) and the victim, Niranjan Maity, who claimed themselves to be the eye witnesses of the said incident. It was argued before me that there was delay of 5/6 days in lodging the F.I.R. and no other independent witness came forward before the court to corroborate these statements. Learned Counsel for the state argued with a confident tune that delay in lodging the F.I.R. cannot always be fatal, if it is properly explained by the prosecution. In the instant case the victim and his father who were assaulted over the incident ultimately lodged the F.I.R. on 01.09.1983, i.e. 6 days after the incident and taking into consideration the nature of the offence committed against the victim and his parents, I do not consider it unreasonable for taking legal action against the miscreants at a belated stage. Learned trial Court in the impugned judgment categorically held that the delay in lodging the F.I.R. was not 'unpardonable' fault and concurring with the views expressed by learned trial Court, I firmly hold that the said delay in lodging the F.I.R. cannot be fatal, effecting the merits of the case.
On careful scrutiny of the statement of the victim (PW-3) coupled with the oral testimony of the de facto complainant, Srihari Charan Maity (PW-1), I find that learned trial Court rightly held that the appellants were not guilty of the offence punishable under Section 307 of the Indian Penal Code. Learned Counsel for the state with all fairness also admitted the same.
The materials-on-record clearly revealed that forming unlawful assembly with a common object to remove the fencing from the plot of the de facto complainant, the appellants herein rushed to the place of occurrence and on being resisted, by the son of the de facto complainant i.e. Niranjan (PW-3), they assaulted him (Niranjan Maity) and his mother Sarnamoyee Maity (PW-4).
Learned Counsel for the appellants in course of his argument pointed out that the prosecution alleged formation of an unlawful assembly on the part of his clients, punishable under Section 147 of the Indian Penal Code but such allegation is not sufficient to hold them guilty unless, it is clearly averred in the written complaint and is proved by cogent evidence. He also reiterated that in the absence of any cogent and convincing evidence, no inference with regard to unlawful assembly can be drawn. He also criticized that no proper medical evidence was produced before learned trial Court to prove the allegation of voluntarily causing hurt within the meaning of Section 321 of the Penal Code, far to speak of an offence punishable under Section 307 as averred therein. It is already admitted by learned Counsel for the prosecution that there was no iota of evidence with regard to the offence punishable under Section 307 of the Indian Penal Code, allegedly committed by the appellants herein and they were rightly acquitted from the said charge, by the impugned judgment, as pointed out earlier.
In the case in hand, the de facto complainants, Srihari Charan Maity (PW-1) while narrating the incident stated on oath i.e. on 26th day of August, 1983 at about 5 p.m., as his second son Niranjan Maity (PW-3) was erecting a barricade with the branches of date leaves to prevent local people from going through their land where turmerics were being cultivated and causing damage to the said crop for avoiding a muddy road, the incident of assault took place when all the appellants arrived at the place of occurrence and started altercation with said Niranjan Maity. They also started uprooting and removing the fence and in course of such altercation the appellants started assaulting Niranjan Maity, placing him on the muddy soil and started beating with the branches of date trees, while de facto complainant and his wife came out of their house hearing a hue and cry and to save their son Niranjan, the appellants also assaulted the couple i.e. the parents of the PW-3. It was also revealed from the oral testimony of the said de facto complainant that appellant Subhash Ghorai and Sanjib Mondal brought a piece of rope, meant for tying cows and handed it over to appellant Bhaskar Majhi to tie it around the neck of Niranjan and immediately thereafter they lifted Niranjan and threw him into a nearby tank. Similar statement to that of the PW-1 was echoed by the victim, Niranjan Maity (PW-3) who was shocked due to the manner in which the offence was committed causing injuries to his person.
Learned trial Court in the impugned judgment categorically held that the appellants formed an unlawful assembly at the place of such occurrence and in furtherance of common object of creating nuisance by showing criminal intimidation assaulted the victim Niranjan Maity and his parents over the alleged incident. Learned Court also held that the appellants committed such offence by way of taking law in their own hands and instead of imposing any substantial harsh punishment, treated them under the Probation of Offenders Act, subject to suitability and admissibility of the appellants/convicts to be released on probation of good conduct for a period of one year.
Considering the nature of the allegations as revealed from the oral testimony of the PW-1 (Srihari Charan Maity), I firmly conclude that learned trial Court was justified in convicting the appellants without seeking any corroboration from any independent corner, since the evidence and materials-on-record clearly justified the same and learned trial Court committed no mistake at all in holding the appellants guilty of the offence, as noted above.
So far as the point of sentence is concerned, it appears to me that the year of conviction was registered in the year 1987 i.e. about 30 years back. Now after a lapse of three decades, the direction of sending the offenders on probation for good behavior lost its relevance. Hence instead of sending them on probation of good conduct, I am of the view that releasing the appellants/convicts after due admonition would be sufficient to meet the ends of justice. Order is passed accordingly. The appeal is thus allowed in part. The order of conviction passed by learned trial Court stands affirmed but the sentence of releasing the appellants on probation for one year is reduced to 'releasing on due admonition' and learned trial Court is asked to record the same.
Let a copy of this judgment be sent to the learned Court below along with the LCR forthwith for information and necessary action.
Urgent Photostat certified copy of this judgment, if applied for, shall be supplied to the advocates for the parties upon compliance with all formalities.
(Ishan Chandra Das, J.)