GOPAL DAS Vs. BONITA GHOSE

JUDGEMENT

(1.) THE application under Section 401 read with Section 482 of Cr. P. C. filed by the petitioner, Gopal Ghosh (convict) is taken up for hearing in the presence of learned Advocate for the petitioner, Mr. Sanjoy Chakraborty and learned Advocate for the State, Ms. Minoti Gomes.

(2.) IN this application the petitioner has challenged the propriety of the judgment and order dated 3rd July, 2006 passed by learned Additional Session judge, Kalna, District Burdwan in Criminal Appeal No. 01 of 2006 affirming thereby the conviction and sentence passed by learned Assistant Session judge, Kalna, District Burdwan against the petitioner in Sessions Case No. 307 of 1991 dated 20. /12/2005.

(3.) THE trial in the Court below was stated on the basis of a FIR lodged by the de facto complainant, O. P. No. 1, Bonita Ghosh and as a result manteswar P. S. Case No. 29 of 1991 dated 16th March, 1991 was registered and investigation was started. The I. O. after completion of investigation submitted charge sheet against the petitioner and others under Section 338/ 304a/304/34 of I. P. C. The backdrop of the case is that on 13th March, 1991 at about 5. 30 p. m. accused Kshudubala could not trace one of their ducks in spite of sincere search, she went to the house of the de facto complainant, bonita Ghosh, O. P. No. 1 and charged her for stealing the duck and hiding the same in her house. Thereafter, the accused Kshudubala left the house of the de facto complainant and after some time Kshudubala along with other accused persons including the petitioner came in front of the house of the de facto complainant armed with lathi, brick-bats etc. and started pelting brick-bats towards the de facto complainant and her husband, Basudeb Ghosh who was then engaged in cutting straw. The brick-bats thrown by the petitioner hit basudeb on his head causing bleeding injury and as a result he fell to the ground and lost sense, the neighbour of the village took him to burdwan Hospital where he succumbed to his injury. A postmortem was held on the dead body of the victim and the I. O. after completion of investigation submitted charge sheet against the petitioner and others as indicated above. The Session Case no. 306 of 1991 in respect of Gopal Ghosh, Biswanath Ghosh, Dinabandhu ghosh and Kshudubala Ghosh was held before Assistant Session Judge at kalna, District Burdwan where the petitioner was charged under Section 304 of I. P. C. whereas the other accused persons were charged under Section 338/304a of I. P. C. The learned trial Court after recording evidence of witnesses and taking into account all the circumstances, convicted the present petitioner under Section 304 of I. P. C. and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year, whereas, the other convicts, namely, Biswanath ghosh, Kshudubala Ghosh, Dinobandhu Ghosh were sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- each in default to suffer simple imprisonment for six months for the offence under section 338 of I. P. C.