ASHUTOSH HATAI Vs. STATE AND ORS.

JUDGEMENT

(1.) This Rule arises on an application under Sec. 397, 401 and 482 of the Criminal Procedure Code, 1973 and is directed against an order of acquittal passed by Sri S. Mohanti, Assistant Sessions Judge, 1st Court, Midnapore, dated 28.8.79, acquitting the accused persons in respect of the charge under Sec. 304 Part 1/34 of the Indian Penal Code as also in respect of the charges under Sec. 323 of the Indian Penal Code against accused/opposite parties Nos. 2 to 5.

(2.) The prosecution case is that on 4.1.77 corresponding to 20th Pous, 1383 B.S. the deceased Kalipada Maity was murdered while he was engaged in ploughing his land in Dag Nos. 783 and 784 of Mouza Radhaballavchak within Police Station Moyna. Sub-Division Tamluk by engaging P.W. 2 Bhabani Prasad Maity as the ploughman and two female labourers P.W.s 3 and 4. At about 12:30 P.M. the four accused persons came on the land armed with lathis and wanted to know from the ploughman P.W. 2 Bhabani as to why he was ploughing the land and on being told that he was ploughing having been engaged by the owner of the land Kalipade, the accused persons turned towards Kalipada. Opposite Party No. 5 Motilal hit P.W. 2 with a lathi and Panchanan, opposite party No. 2 his the deceased Kalipada on the head with a lathi. Kalipada fell down whereupon all the accused persons started beating him with their lathis. The four accused persons thereafter ran away from the place of occurrence and hearing the cries of Bhabani P.W. 2 and the two female labourers, local people came including P.W. 7. Kalipada was removed to a nearby Khamar and on being advised by the village doctor he was carried to the Thana were P.W. 5 lodged an information with the police. The injuried was thereafter transferred to Moyna A.G. Hospital where Kalipada died on 6.1.77 at 3.45 hours. Investigation was started and on completing the same, charge sheet was submitted. The case was then committed to the Court of Sessions. The learned Assistant Sessions Judge acquitted the accused persons of the charges as stated before. Being aggrieved the present Rule has been obtained.

(3.) Mr. N.C. Banerjee, learned Advocate appearing on behalf of the petitioners, in the first place, contends that the learned Assistant Sessions Judge was not competent to try a case where the charge is under Sec. 304 Part 1/34 of the Indian Penal Code as an offence under Sec. 304 Part I is punishable with imprisonment for life. In this connection Mr. Banerjee submits that an Assistant Sessions Judge cannot pass a sentence of imprisonment for more than 10 years. As the maximum punishment under Sec. 304 Part I is imprisonment for life, the learned Assistant Sessions Judge was not competent to try the case and it was wrong on the part of the learned Sessions Judge to transfer such a case to the learned Assistant Sessions Judge. Mr. Banerjee refers to Sec. 10 of the Code which provides that all Assistant Sessions Judges shall be subordinate to the Sessions Judge, in whose Court they exercise jurisdiction. Mr. Banerjee also refers to Sec. 28(3) of the Code which provides that an Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or imprisonment for a term,not exceeding 10 years. In this connection, Mr. Banerjee contends that as an Assistant Sessions Judge is not competent to try a case under Sec. 302 of the Code because the punishment for an offence under Sec. 302 is either death or imprisonment for life, which the Assistant Sessions is not competent to pass, similarly an Assistant Sessions Judge is also not competent to try a case under Sec. 304 Part I as maximum punishment provides for this offence is imprisonment for life.