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High Court Of Calcutta
P. N. Sinha And P. S. Datta, JJ.
MEETING SK. - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. A. 246 Of 2004
Decided On : 09/27/2006
CRIMINAL APPEAL - Ingredients of section 307/34, 326/34 and 458 of the Indian Penal Code - Identification of the accused - Section 34 of the IPC - Lurking house-trespass - Common intention - Sentence.
Fact of the Case:
The appellants were convicted by the trial court for the offences punishable under sections 307/34, 326/34 and 458 of the Indian Penal Code. They were sentenced to undergo rigorous imprisonment for 8 years and to pay a fine of Rs.2000/- each, in default to suffer further rigorous imprisonment for 3 months each for the offence under section 307/34 of the IPC. They were also sentenced to undergo rigorous imprisonment for 7 years each and to pay a fine of Rs.1000/- each, in default, to suffer further rigorous imprisonment for 1 month each for the offence under section 326/34 of the IPC. Further sentence of rigorous imprisonment for 8 years each and to pay a fine of Rs.2000/- each, in default to suffer further rigorous imprisonment for 3 months each for the offence under section 458 of IPC was also imposed.
Finding of the Court:
The Court found that the evidence of the eye-witnesses and the post-occurrence witnesses was consistent and reliable. The identification of the appellants was also found to be reliable. The Court held that the appellants had the common intention to cause grievous injury to the victim and that they had committed lurking house-trespass by night. The Court, however, reduced the sentence of the appellants considering the fact that one of the appellants did not throw any bomb and the other appellant had already spent some time in custody.
Issues: 1. Whether the identification of the appellants was reliable? 2. Whether the elements of sections 307/34, 326/34 and 458 of the IPC were established? 3. Whether the appellants had the common intention to cause grievous injury to the victim? 4. Whether the appellants had committed lurking house-trespass by night? 5. Whether the sentence imposed by the trial court was appropriate?
Ratio Decidendi: 1. The Court held that the identification of the appellants was reliable as it was made by the eye-witnesses in torchlight and they were able to recognize the appellants from their previous acquaintance. 2. The Court held that the elements of sections 307/34, 326/34 and 458 of the IPC were established as the appellants had the intention to commit murder and had caused grievous injury to the victim, they had entered the victim's house at night by scaling the boundary wall and had caused grievous hurt to the victim. 3. The Court held that the appellants had the common intention to cause grievous injury to the victim as they had entered the victim's house together, one of them had tried to break open the padlock while the other had hurled the bomb. 4. The Court held that the appellants had committed lurking house-trespass by night as they had entered the victim's house at night by scaling the boundary wall and had concealed their entry from the victim. 5. The Court held that the sentence imposed by the trial court was harsh and reduced the sentence of the appellants considering the fact that one of the appellants did not throw any bomb and the other appellant had already spent some time in custody.
Final Decision: The appeal was allowed in part and the sentence of the appellants was reduced. The appellants were directed to surrender before the Trial Court within 30 days from the date of the order to serve out the sentence. In default, the learned trial Court was directed to take steps in accordance with law for securing their attendance before him to serve out the sentence.
( 1 ) THIS appeal is directed against the judgement and order of conviction passed by the learned Assistant Sessions Judge, Rampurhat, birbhum in Sessions Case No. 58 of 1999 thereby sentencing the appellants to suffer R. I. for 8 years and to pay a fine of Rs. 2000/- each in default further r. I. for 3 months each for the offence under section 307/34 of the Indian penal Code (in short IPC), to suffer R. I. for 7 years each and to pay fine of rs. 1000/- each, in default, to suffer further R. I. for 1 months each for the offence under section 326/34 of the IPC and further sentence of R. I. for 8 years each and to pay a fine of Rs. 2000/- each, in default to suffer further r. I. for 3 months each for the offence under section 458 of IPC.
( 2 ) THE prosecution case, in short, is that at about 2 a. m. night intervening between 25. 4. 95 and 26. 4. 95 three unknown persons entered into the house of informant Kajem Hossain (P. W. 1) and they called his father by name and hurled a bomb which struck on the left hand of his father Najibur Rahaman (P. W. 3) as a result of which his father got serious injury on his left hand as well as on nose and left eye. His father fell down on the co rtyard and he and other inmates who were daughters-in-law of P. W. 3 came out of their rooms and raised alarm as a result of which the miscreants fled away. While the miscreants were fleeing away P. W. 1 Kajem Hossain could recognise two out of three miscreants in torch light which he had in his hand and the said miscreants were Meeting Sk, son of Matai Sk. and Moslem Sk, son of riasat Sk. of village Kharasinpur. The miscreants who had entered into their house could not take away anything from their house. His father was taken to Rampurhat Sub-Divisional Hospital and from there he was shifted to Burdwan Medical College and Hospital for treatment and after admitting father into Burdwan Hospital P. W. 1 returned to village and lodged the written complaint/fir (Exit. l) on 27. 4. 95 explaining the delay in lodging FIR in that manner. On the basis of such complaint/fir Mayureshwar P. S. Case No. 39/95 dated 27. 4. 95 under section 460 of the IPC read with section 9 (b) (ii) of the Indian Explosives Act (in short I. E. Act) was started against accused meeting Sk. and Moslem Sk. (the present appellants ). After completing investigation the Investigating Officer (in short I. O.) submitted chargesheet against the appellants Moslem Sk. and Meeting Sk. under section 458/326/ 307/34 of IPC and under section 9 (b) (ii) of the I. E. Act. The trial that followed ended in conviction and the sentence of the appellants as mentioned above.
( 3 ) IN this case, the prosecution examined 13 witnesses in all in order to prove its case namely, P. W. 1 Kajem Hossain (informant), P. W. 2 Biswanath hazra, P. W. 3 Najibur Rahaman (injured), P. W. 4 Emdad Hossain (another son of injured), P. W. 5 Soharab Ali, P. W. 6 Yasmenna Begam (daughter-in-law of injured), P. W. 7 Tajel Ali, P. W. 8 Furkan Ali, P. W. 9 Dr. Sudhangsu sekhar Patra, P. W. 10 Dr. Sajal Roy, P. W. ll Sudhir Kumar Kundu (I. O.), p. W. 12 Falguni Majhi (first I. O.) and P. W. 13 Dr. Madan Mohan Roy.
( 4 ) OUT of aforesaid 13 witnesses P. W. 2 was the record supplier of Bardwan medical College and Hospital who supplied the bed head-ticket, X-Ray plates etc. in respect of injured Najibur Rahaman to the I. O. who seized the same. P. W. 9 is a medical officer attached to Rampurhat Sub-Divisional Hospital who on 26. 4. 95 examined the injured Najibur Rahaman admitted in the said hospital with injuries due to bomb blast. P. W. 10 is another medical officer who was attached to Burdwan Medical College and Hospital on 26. 4. 95 and the injured was admitted at that hospital on that day at 2. 05 p. m. and he examined the injured. P. W. 13 is the another medical officer who was also attached to Burdwan Medical College and Hospital on 26. 4. 95 and he also examined the injured. Besides the three doctors, the ot
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