Back
HIGH COURT OF CALCUTTA
N. K. SEN, BHATTACHARYYA
LALU - Appellant
Versus
STATE - Respondent
Criminal Appeal 492 Of 1957
Decided On : SEPTEMBER 17, 1958
CRIMINAL APPEAL - Murder - Common Object - Local Inspection - Dying Declaration - Hostile Witness - Charge - F. I. R. - Sanction - Explosives Substances Act - Retrial.
Fact of the Case:
Five appellants were convicted of murder and other offenses related to an incident where bombs were thrown, resulting in the death of one person and injuries to several others. The appellants challenged the convictions on various grounds, including improper local inspection, lack of caution to the jury regarding dying declaration and hostile witness, defective charge, and absence of formal proof of sanction under the Explosives Substances Act.
Finding of the Court:
The court found several irregularities and illegalities in the trial proceedings, including the absence of notice to the accused and lack of a memorandum regarding the local inspection, failure to properly caution the jury about the evaluation of dying declaration and hostile witness, and the omission of the words "hurt to others" in the enumeration of the common object in the charge. The court also noted the absence of formal proof of sanction under the Explosives Substances Act.
Issues: 1. Whether the local inspection was conducted in accordance with the legal requirements and whether the absence of a memorandum vitiated the trial. 2. Whether the jury was properly cautioned regarding the evaluation of dying declaration and hostile witness. 3. Whether the charge was defective due to the omission of the words "hurt to others" in the enumeration of the common object. 4. Whether the reference to the expunged F. I. R. in the summing up created an anomalous impression in the mind of the jury. 5. Whether there was formal proof of sanction under the Explosives Substances Act.
Ratio Decidendi: 1. The court held that the absence of notice to the accused and the lack of a memorandum regarding the local inspection constituted an illegality that went to the root of the case, as it deprived the accused of the opportunity to participate in the inspection and to challenge any irregularities. 2. The court found that the failure to properly caution the jury about the evaluation of dying declaration and hostile witness amounted to misdirection, as it deprived the jury of essential guidance in assessing the credibility and weight of such evidence. 3. The court held that the omission of the words "hurt to others" in the enumeration of the common object in the charge was a material defect, as it affected the very foundation of the prosecution case. 4. The court observed that the reference to the expunged F. I. R. in the summing up could have created an anomalous impression in the mind of the jury, but declined to comment further in view of the order for retrial. 5. The court noted the absence of formal proof of sanction under the Explosives Substances Act and directed the learned Sessions Judge to re-hear this portion of the case.
Final Decision: The court allowed the appeal, set aside the convictions and sentences, and ordered a retrial by the learned Sessions Judge sitting with a fresh Jury. The court also directed the learned Sessions Judge to re-hear the portion of the case related to the charges under the Explosives Substances Act due to the absence of formal proof of sanction.
( 1 ) FIVE appellants were tried by the learned Sessions Judge, Howrah, with the help of a Jury and sentenced to various terms of imprisonment on a finding of guilty under Section 304 (II) and Section 148 I. P. C. so far as the appellant Lalu alias Baliram, alias Sewji Kurmi alias Khatik is concerned, under Section 304 (II)/149 and Section 148 I. P. C. as regards appellants Dinantb Goala and Sankar Kurmi alias Nata, and under Section 304 (11) read with Section 149 as also under Section 147 I. P. C. in regard to appellants Ramabatar Singh and Shyamlal Singh.
( 2 ) WITHOUT a Jury the learned Sessions Judge further tried the five appellants of whom Ramabatar Singh and Shyamlal Singh were acquitted and appellants Lalu and Sankar Kurmi alias Nata were convicted under Sections 3 and 5 of the Explosive Substances Act and were sentenced to rigorous imprisonment for three years on each count, the sentences running concurrently, and appellant Dinanath alias Dina was convicted under Sections 4 (a) and 5 of the Explosive Substances Act and was sentenced to rigorous imprisonment for three years on each count, the sentences running concurrently.
( 3 ) THE prosecution case, briefly stated, is as follows: appellant Dinanath and his two brothers had a quarrel with Giridhari and his brother Suren and his mother Tentri over residence, because the former. had driven out the latter party, from the house and the Jadavas gave shelter to Giridhari and his family about 15 days before the occurrence in question. On the 13th October, 1956, which was Navami day of Durga Puja, at about 2-15 P. M. , Srikissen Jadav (complainant), his brother Jahuri Jadav, and uncle Sundarlal Jadav, Sankar Show, Bhutan alias Bodha, Jhaku Prosad, Giridhari, Lakhi, Hingulal and others were seated by the side of a tank known as Kalibala tank in Nandibagan bye lane, Salkia, (P. S. Golabari), and were discussing Puja affairs. The five appellants and another person came from the south. Appellant Lalu threw a bomb which struck Jahuri Jadav, who fell down wounded. Appellant Sankar threw a bomb which exploded and injured serveral others. Appellant Dinanath threw a bomb which fell into a nearby drain and remained unexploded. Attracted by shouts and sounds of bombs people came and the appellants began to run away with some others in pursuit of them. Ramabatar and Shyamlal fled in one direction while the other three appellants (and Kalu Kahar who was not an accused and not an appellant) fled in another direction. During the chase the appellant Ramabatar and Shamlal threw more bombs at the chasing party. The bombs exploded but nobody was wounded. Ramabatar and Shyamlal were arrested by some members of the public and Sankar was arrested by others in another place. On receiving information from some members of the public over die telephone a police party came from Malipanchghara P. S. and took the arrested persons to the thana. Appellant Dinanath and appellant Lalu were arrested on the 13th October, 1956 and 24th November 1956 respectively by some constables. Jahuri Jadav and other injured persons were removed at first to the house of a local doctor named Parmalal Das, but later they were removed to Howrah General Hospital at about 3 P. M. In the hospital Srikissen Jadav made a statement to the Officer-in-charge Golabari P. S. at 4-15 P. M. It was at first treated as F. I. R: but later it was expunged from the record. Jahuri, Giridhari, Sankar and Lakhi were admitted into the hospital as indoor patients and the other injured persons including the complainant Srikissen Jadav were discharged after first aid. Jahuri's condition was very serious and he died in the hospital at about midnight as a result of the injuries.
( 4 ) THE defence was that the appellants were innocent and had been falsely implicated in the case. It was suggested that the complainant party itself had in their possession bombs which exploded and injured them.
( 5 ) MR. Mukherjee has pointed out sever
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
