BIKASH CHANDRA MONDAL Vs. SUSANTA MONDAL

JUDGEMENT

(1.) SUSANTA Mondal, the opposite party no. 1 before us, stood charged along with four others accused persons, Sm. Hiranmoyee mondal, Sm. Sabitri Mondal, Sm. Purnima mondal and Upendra Nath Misra under sec. 302/34 I. P. C. for committing murder of one Kalipada Mondal on 29 12-78 at village Nishindra under P. S. Farakka, in furtherance of their common intention. They also stood charged under Sec. 323/34 i. P. C for voluntarily causing hurt to one binod Tanti at the same place and at the same time, in furtherance of their common intention. Ten prosecution witnesses were examined in the case. After considering the evidences of the P. Ws. and the materials on record, the learned Additional Sessions judge, Fourth Court, Murshidabad found the opposite party no. 1 and the other four accused persons not guilty under Sec. 302/34 I. P. C. Instead, the learned Additional sessions Judge found the opposite party no. 1 guilty under Sec. 304 Part II I. P. C. for causing the death of Kalipada Mondal, convicted him thereunder and sentenced him to suffer rigorous imprisonment for one year. He was also pleased to find the opposite party no. 1 guilty under Sec. 323 I. P. C. and convicted him thereunder. No separate sentence was passed by the learned Judge against the opposite party no. 1 on his conviction under Sec. 323 I. P. C. Thereafter the present revisional application has been filed by the de facto complainant, Bikash chandra Mondal, younger brother of the deceased Kalipada Mondal, for enhancement of sentence of the opposite party no. on his conviction under Sec. 304 Part II, i. P. C.

(2.) THE contentions of the learned Advocate for the de facto complainant/the petitioner and the learned Advocate for the State are that in the facts and circumstances of the case and when the learned Judge was himself of the opinion that the offence was a very heinous one, the sentence on the opposite party no. 1 on his convention under Sec. 304 Part II, I. P. C. should be enhanced. Mr. Roy, appearing for the opposite party no. 1, has, on the other hand, contended that the opposite party no. 1 is entitled to plead for his acquittal in this revisional application for enhancement of sentence and that, in the facts and circumstances of the present case, the opposite party no. 1, is to be acquitted for the offence under sec. 304 part II, I. P. C.

(3.) THE revisional powers of the High Court are enumerated in Sec. 401 of the new code of Criminal Procedure, 1973 (corresponding to Sec. 439 of the old Code of criminal Procedure, 1898 ). Sec. 439 (6) of the old Code read as follows :-