RUPAM BHAKTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This Court is hearing this appeal as against the judgement and order of conviction dated 17-01-2012 and 18-01-2012 respectively as passed by the the then Additional Sessions Judge, Fast Track 2nd Court, Alipore, South 24-Parganas, in Sessions Trial No. 8(5) 2007 arising out of Sessions Case No. 41(3) of 2007 wherein the present appellant along with another was convicted in respect of the charge punishable under Sections 148/304 Part-II read with Section 34 of the Indian Penal Code (hereinafter called as the said Code). That Sessions Case arose out of Budge Budge P.S. Case No. 24 of 2005 dated 18-02-2005 under Sections 341/447/323/304/506/34 of the I.P.C. The complaint was lodged by the son of the victim, Kartick Chandra Adhikari, wherein he claimed that the present appellant along with his father and others attacked the victim party including the victim and the daughter-in-law of the victim by various weapons. They also attacked the de facto complainant. Those attackers were armed with deadly weapons. The primary victim was assaulted by those miscreants with fist and blows and by kicks, he fell down on the ground and did not recover. He was shifted to a nearby hospital at Budge Budge where he was declared brought dead. After the case was registered, investigation was taken up by S.I., Kaushik Kundu and during the course of investigation, he visited the place of occurrence, collected the injury report, prepared the sketch map with index and also collected the injury report. The age of the victim was 60 years. The victim suffered fracture injury on the 5th and 6th cervical vertebra that evidenced vital reaction. The doctor opined that the death was due to cardiomyopathy. Charge sheet was submitted against 8 persons including the present appellant and his father. It may be mentioned that the father of the present appellant, namely, Benu Bhakta @ Benulal Bhakta, died on 31st July, 2014 and the said death was registered with the Budge Budge Municipality on 31-07-2014 as per Registration No. 267. It is true that when the said photocopy was placed before this Court, no formal order was passed that the appeal had abated as against the said appellant. Now through this judgement, it is made clear that the said appellant died during the pendency of the appeal and as such, the appeal has abated as against the said appellant. As per order dated 19-1-2015 while disposing of the CRAN No. 2653 of 2015, this Court held as per application filed by the accused, Rupam Bhakta and after necessary enquiry made by the learned Chief Judicial Magistrate, Alipore, that the present appellant, Rupam Bhakta, was juvenile at the time of the incident giving extended benefit to him as per the decision of the Apex Court as Hariram vs- State of Rajasthan & Anr., 2009 13 SCC 211

(2.) Now the question is what is the power of this Appellate Court wherein the appellant has been proved to be a juvenile. Learned defence Advocate, Mr. Kushal Kumar Mukherjee, has cited a decision of the Apex Court as in the case of Ketankumar Gopalbhai Tandel vs- State of Gujrat, 2013 5 Supreme 582 wherein the Apex Court in such a case held that the Appellate Court has the power to determine as to whether the appellant was guilty or not and to set aside the sentence. The further duty of the Appellate Court is to make an order to transfer the case to the Juvenile Justice Board of the concerned District for imposing adequate sentence.

(3.) Mr. Keshari, learned Advocate appearing on behalf of the State, submitted that this is the law as enunciated by the Apex Court in Ketankumar Gopalbhai Tandel .