RAMESH CHANDRA MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an appeal by the three accused-appellants being aggrieved by the conviction and sentence passed by the Asst. Sessions Judge, Malda against the appellant nos. 1 and 2 u/S. 304/107 I.P.S. and the sentence of R.I. of five years each and a fine of Rs. 4000/ -each in default to undergo six months R.I. and u/S. 304 I.P.C. against the appellant no.3 Dhirendra Nath Mondal and sentencing him to eight years R.I. and a fine of Rs. 2500/ -in default four months R.I. and directing half of the fine to be realised to be remitted to Khukibala, the next of kin of the victim. The facts may be briefly stated as follows: - The present appellants along with several others were charged u/S. 148 I.P.C. for committing the offence of rioting armed with deadly weapons in prosecution of common object of such assembly, namely, in assaulting Khagendra Nath Mondal of Baguntala punishable u/S. 148 I.P.C. and also u/S. 304 read with section 149 I.P.C. as one of the members of such assembly committed culpable homicide not amounting to murder of Khagendra Nath Mondal. The Ld. Trial Judge on considering the prosecution evidence found all the accused persons not guilty u/S. 148 and 304/149 I.P.C. but on being satisfied from the evidence adduced that appellant no.3 committed the culpable homicide not amount to murder convicted him u/S. 304 I.P .C. Part I and appellant nos. 1 and 2 for abetting the said offence by instigating Dhirendra Nath Mondal to commit the above offence and passed the sentences against them as mentioned in the above.

(2.) Being aggrieved the appellants have preferred this appeal. Mr. Balai Chandra Roy appearing for the appellant has urged that the prosecution evidence was not sufficient to bring home the charge against the appellant nos. 1 and 2 that they instigated Dhirendra Nath Mondal to commit the offence and that it cannot be said beyond all reasonable doubt that but for such investigation Dhirendra Nath Mondal would not have committed the offence. Mr. Roy has also raised the point that the offence for which the appellant nos. 1 and 2 had been charged being an offence u/Ss. 148 and 304/149 I.P.C., the appellant nos. 1 and 2 should not have been convicted for an entirely distinct offence of abetment of the culpable homicide not amount to murder without framing a proper charge even alternatively u/Ss. 304/107 I.P.C.

(3.) So far as the appellant no.3 is concerned Mr. Roy has urged that the evidence of the prosecution is of all interested witnesses and it cannot be held that the offence has been proved beyond reasonable doubt. He further submits that regard being had to the fact that only one lathi blow as given by the appellant no.3 as is the case of the prosecution, then even if the Court could convict him for culpable homicide not amounting to murder yet the conviction should have been u/S. 304 Part II and not u/S. 04 Part I and in such case in view of the decision of the Supreme Court in AIR 1984 SC 759 the appellant no.3 should have been sentenced to R.I. for five years and, therefore, submits that the conviction and sentence shall have to be modified in view of the fact that there was no ingredient that the appellant no.3 committed the offence u/S. 304 Part I I.P.C.