PARIMAL GHOSH Vs. STATE

JUDGEMENT

(1.) Six accused respondents herein faced a session's trial on charges under Ss. 148, 302/149, 302/34 and 323/34 I.P.C. The allegations made against them were that while Parimal Ghosh, Krishna Ghosh, Biren Pramanick, Gopinath Ghosh and Nitya Ghosh after watching their cultivation on a piece of Char land were taking rest in a boat anchored in river Bhaghirathi close to village Malinipara, P S. Beldanga, Districst-Murshidabad, the respondents formed themselves into an unlawful assembly with the common object of making murderous assault on the aforesaid persons, equipped themselves with deadly weapons locally known as Pattangi, Jabha etc and attacked the above named persons in the boat aforesaid soon after midnight between 24th and 25th April, 1980 Nitya Ghosh and Gopinath Ghosh succumbed to their injuries within a few hours of receiving them. After considering the evidence adduced, the learned Additional Sessions Judge 4the Court, Murshidabad, by his judgment dated 24.8.81 found the accused respondents guilty of the offences under Ss. 148 and 304 (Part II) read with S. 149 I. P. C. for killing Nitya Ghosh and again under S. 304 (Part II) read with S 1498 I.P.C. For killing Gopinath Ghosh. He, however, acquitted them of the charges under 302/149, 302/34 IPC and 323/34 IPC. The learned Judge fixed the next day, that is, 25.8.81 for hearing the accused in the matter of sentence as required under S. 235(2) of the Cr. P(c)(hereinafter to be referred to as the Code). By his order dated 25-8-81 the learned Judge released the accused respondent Krishna Ghosh on probation under S. 360 of the Code and proposed to release other accused on probation under S.4 of the Probation of Offenders Act, 1958 (hereinafter to be referred to as the Act) subject to receipt of Probation Officer's report regarding them.

(2.) Parimal Ghosh the informant and P.W.1 has filed Criminal Appeal No 352 of 1981 under S.11 (2) of the Act challenging the propriety of the orders of the learned Additional Sessions judge. He has also filed two Revision applications under S. 397 read with S. 401 of the Code numbered as Criminal Revision Petitions 2177 and 2178 of 1981 questioning the propriety of the findings of the learned Additional Sessions Judge and the orders passed by him. The appeal and the revsisional applications are taken up for analogous hearing as common questions of law and fact were canvassed.

(3.) The first question which confronts us is whether or not a revision application lies when an order has been passed under S.360 of the Code and S. 4 of the Act. The second question confronting us is if a revisional application does not lie, them who will file the appeal? More precisely, has the informant (de facto complainant) and right of an appeal under S.11 of the Act?