IMPORTANT POINT
Participation in an assault leading to death can sustain a conviction under IPC Sections 304(Part II) and 447, even if the accused did not inflict the fatal blow.

JUDGMENT :

Debangsu Basak, J.

1. Appeal is directed against the judgment of conviction dated July 11, 1989 and the order of sentence dated July 11, 1989 passed in Sessions Appeal No. 5(5) of 1988 by the learned Additional Sessions Judge, North 24 Parganas, Barasat.

2. Three persons were convicted and sentenced under Sections 304 (Part II) read with Section 34 of the Indian Penal Code, 1860 for a period of three years and under Section 447 of the Indian Penal Code read with Section 34 thereof for a period of three months. Both the sentences were directed to run concurrently.

3. Three persons who were convicted and sentenced preferred an appeal being Criminal Appeal No. 311 of 1989. In the appeal, suo motu Rule was issued on August 14, 1989 calling upon the appellants to show cause as to why their conviction under Section 304 (part-II) should not be enhanced or such other order or further orders made as this Court may seem fit and proper.

4. During the pendency of the appeal, out of the three appellants, appellant No. 2 and appellant No. 3 expired. Their death was noted by the order dated July 29, 2024. It was also noted there that appeals of the appellant nos. 2 and 3 abetted consequent upon their death. Appeal survived so far as the appellant No. 1 was concerned.

5. Learned advocate appearing for the appellant No. 1 submits that, the charges framed as against the appellant No. 1 is vague. He submits that, the date of the offence of alleged assault is March 17, 1985, while the date of death is subsequent thereto. He draws the attention of the Court to the charges framed and submits that, the charge sheet contains a date when the alleged incident of assault took place and not the date on which the death occurred.

6. Learned advocate appearing for the appellant No. 1 submits that, the appellant No. 1 did not assault the victim so as to cause any fatal blow on the body of the victim. He draws the attention of the Court to the prosecution witnesses. According to him, the prosecution failed to establish the charges framed as against the appellant No. 1. He submits that, none of the prosecution witnesses saw the appellant No. 1 assaulting the victim in the manner so as to cause the injuries allegedly leading to the death of the victim.

7. In any event, learned advocate appearing for the appellant No. 1 submits that, the victim was removed to the rural hospital initially after the incident of assault, where the victim was given medical treatment. Thereafter, he was removed to the sub-divisional hospital where he was admitted for a number of days. Thereafter, the family members of the victim took away the victim from the hospital. He expired on removal. Drawing the attention of the Court to such fact, learned advocate appearing for the appellant No. 1 submits that, the incident of assault took place a number of days prior to the date of death. Consequently, the appellant No. 1 cannot be said to be instrumental in causing the death.

8. Learned advocate appearing for the appellant No. 1 submits that, given the nature of the evidence adduced by the prosecution, at best, although not admitting such stand, the prosecution established a case under Section 304 (Part-II). He submits that, there is no material on record to enhance the quantum of sentence imposed. Quantum of sentence to be imposed is at the discretion of the Learned Trial Judge. The discretion so exercised cannot be said to be perverse.

9. Learned advocate appearing for the State draws the attention of the Court to the evidence of the prosecution witnesses. She submits that, at least three eye-witnesses attributed active role so far as the appellant No.1 is concerned. Eye-witnesses saw appellant No. 1 to be armed with a wooden stick. Eye-witnesses also saw the appellant No. 1 to be participating in the assault.

10. Learned advocate appearing for the State draws the attention of the Court to the postmortem report as also to the evidence of the Doctor conducing the postmortem. She submits th