MUSTAFA SHEIKH Vs. LALCHAND SHEIKH

JUDGEMENT

(1.) This revisional application at the instance of the de facto complainant, Mustafa Sheikh, is directed against an order of conviction and sentence passed by Shri S.P. Sen Gupta learned Additional Sessions Judge, 3rd Court, Murshidabad, on 25-9-1981 under S.324/34 IPC in Sessions Serial Case No.142 of 1980 in which four persons viz., Lalchand Sheikh, Sukur Sheikh, Fazlu Sheikh and Sademan Sheikh, stood charged under S.304/34 I.P.C.

(2.) The prosecution case, in a nutshell, is that on 21st Chaitra, 1385 B.S., the aforesaid four accused persons (opposite parties Nos.1 to 4 in this revisional application) assaulted one Yakub Ali, the brother of the de facto complainant, Mustafa Sheikh, while he was sleeping in his khalian (a khamar where crops are kept), by lathis and chhanis (big hensuas) and that subsequently, Yakub Ali succumbed to his injuries on 19-4-1979 after the occurrence on 4-4-1979. The learned Additional Sessions Judge found, on a consideration of the evidences of P.Ws. examined in the case, that the accused-opposite parties Nos.1 to 4 conjointly attack Yakub Ali and assaulted him with chhani resulting in several injuries on his persons. One Dr. Baidyanath Biswas (P.W.7) had held post-mortem examination on the dead body of Yakub Ali. He found that the death of Yakub Ali on 19-4-1979 was due to the multiple injuries found by him on the dead body of Yakub Ali which, according to him, were ante-mortern and homicidal in nature followed by secondary infection and toxaemia with pleural infection and peritonitis. The doctor (P.W.7) found pus both in the stomach and pleural cavity. The learned Judge was of the view that this existence of pus in the Stomach and pleural cavity was due to incised wound which was 2" X " deep into the chest cavity. He was further of the view that one of the causes of death of Yakub Ali was secondary infection and toxaemia with pleural infection and peritonitis. As such, the learned Judge was of the opinion that the accused-opposite parties Nos.1 to 4 should be found guilty under S.324/34 I.P.C and not under S.304/34 I.P.C., as per the charge framed against the accused-opposite parties, or under S.326, I.P.C., as per the contention of the learned Assistant Public Prosecutor. The learned Judge was also of the view that having regard to the age, antecedent and financial position of the opposite parties Nos.1 to 4, it would be better to release the opposite parties Nos.1 to 4 under S.360 Cr.P.C. on probation of good conduct. Accordingly, he directed release of the accused-opposite parties Nos.1 to 4 on probation of good conduct under S.360(1) Cr.P.C. on execution of separate personal bonds by each of the opposite parties for Rs. 2,000/- together with one surety for Rs. 1,000/- to the satisfaction of the learned Chief Judicial Magistrate, Berhampore, so as to maintain good behaviour and to keep peace for a period of two years, after finding these accused-opposite parties guilty under S.324/34 I.P.C. and convicting them thereunder. Being aggrieved by this order of conviction and sentence, the present revisional application has been filed by the de facto complainant, who lodged the F.I.R.(Ext. 1/2) leading to the present case.

(3.) The contentions of the learned Advocate for the petitioner are twofold. It is first contended that the learned Judge ought to have found the opposite parties Nos.1 to 4 guilty under S.326/34, I.P.C. instead of under S.324/34, I.P.C. The second contention is that the learned Judge ought to have sentenced the opposite parties Nos.1 to 4 under S.326/34, I.P.C. instead of directing release of these opposite parties on probation of good conduct under S.360, Cr.P.C. The contention of the learned Advocate for the opposite parties Nos.1 to 4, on the other hand, is that the learned Judge was right in directing conviction of these opposite parties under S.324/34, I.P.C. and that under the provisions of S.401(3), Cr. P.C., this revisional court is unable to interfere with the implied order of acquittal of the opposite parties Nos.1 to 4 on the charge under S.304/34, I.P.C. It is also contended that in view of the provisions of Ss.360 and 361, Cr. P.C., the learned Judge acted rightly in directing the release of the opposite parties on probation of good conduct under S.360, Cr. P.C. Mrs. Maitra appearing for the State has argued that the learned Judge was right in convicting the opposite parties Nos.1 to 4 under S.324/34, Cr.P.C., as ingredients of grievous hurt under S.320, I.P.C. are lacking in the present case. She has further argued that in view of the provisions of S.19 of the Probation of Offenders Act, 1958, (hereinafter referred to as the Act for the sake of convenience), the learned Judge was not right in invoking the provisions of S.360, Cr.P.C. and directing the release of the opposite parties Nos.1 to 4 on probation of good conduct.