JUDGMENT
Arun Kumar Dutta, J.
1. This Appeal is directed by the Appellant-accused Kanai Mistry (hereinafter referred to as accused) against the judgment and order of conviction and sentence dated 27th April, 1992 passed by the Learned Additional Sessions Judge, 14th Court, Alipore, in S. T. Case No. 2(4)/91 before him.
2. The accused, along with 10 others, stood charged for having allegedly committed offences punishable under Sections 148, 325/149, and 302/ 149, IPC, on the allegations made in the FIR.
3. Briefly stated, the prosecution case is that on 15th August, 1987 at about 3.00 p.m. the accused Kanai Mistry, who is a cousin of complainant Ananda Mohan Mistry, along with others, were putting up fencing with thorny branches of trees on the ejmali passage at Kumropara Lot No. 25, Hajrar Gheri, Police Station – Malhurapur, when the complainant, his brothers, parents and their children protested; whereupon a quarrel ensued. The accused persons then started assaulting the complainant party with lathi, spears and iron rod. The accused Kanai struck Ram Chandra, a brother of complainant Ananda, with the back side of spade on the upper side of his right eye. Ram Chandra fell down bleeding. Gobordhan then hit Ram with iron rod on his back. Nebu Bala tried to rescue her son Ram, but she was also assaulted on her head with iron rod and fell down with bleeding injuries. The injured persons were being taken to Raidighi Hospital for treatment; but on the way Ram Chandra died for which he was not taken to the Hospital, but his mother was taken to the Hospital and was admitted there. On the FIR lodged by the informant Ananda Mohan Mistry on the same day, the relevant case was started against the appellant-accused and 14 others under Sections 148, 149, 325 and 304, IPC. After completion of investigation, the police had submitted charge-sheet against the accused persons under Sections 148, 149, 323, 325 and 304, IPC. During consideration of charge, the learned Trial Judge had, however, framed charges against the appellant-accused and 10 others for offences punishable under Sections 148, 325/149 and 302/149, IPC, to which they had pleaded not guilty and claimed to be tried.
4. The learned Trial Judge, upon consideration of the entire evidence on record and upon hearing the submissions of both sides, had found the appellant/ accused Kanai Mistry guilty to the offence punishable under Section 302, IPC, and convicted him thereunder and sentenced him to suffer imprisonment for life by passing the impugned judgment and order. The other 10 accused persons who had also faced trial, along with the Appellant-accused, had been found by the learned Trial Judge not guilty to any of the aforesaid charges framed against them and they all were acquitted from the said charges and released from their respective bail bonds.
5. Being aggrieved by the judgment and order of conviction and sentence so passed by the learned Trial Judge against him, the accused Kanai Mistry has come up with the instant Appeal before this Court. No appeal/cross appeal has, however, been filed by the Respondent-State or anybody else against the judgment and order of acquittal in respect of the remaining 10 accused persons, which order stands final and absolute as such.
6. The point for decision here before us is how far the learned Trial Judge was justified in finding the Appellant guilty to the offence punishable under Section 302, IPC, and convicting him thereunder and sentencing him therefore, the way he did.
7. The learned Trial Judge, as already indicated above, had, upon consideration of the entire evidence on record, together with the relevant Inquest Report, Exhibit 2, read with the evidence of PW20, Dr. Pulin Behari Das, regarding the injuries detected on the dead body of the deceased Ram in terms of the relevant Post-Mortem Report, come to the conclusion that the accused Kanai had hit Ram on the right side of his forehead by the back side of a spade, on that vital part of his body, causing death to him, with the intention of causing such bodily injury to him (deceased) as was sufficient in the ordinary course of nature to cause his death. The learned Trial Judge had, accordingly, found the accused-appellant guilty to offence punishable under Section 302, IPC, and had convicted him thereunder and sentenced him therefore in terms of the impugned judgment and order.
8. In view of the overwhelming and cumulative evidence, on record, such as they are, we find it difficult to differ from the conclusion arrived at by the learned Trial Judge for the reasons discussed by him at length, which we do not propose to reiterate. We would like to add that the PW1 Ananda, PW4, Gayaram, PW5, Poornima, PW6, Lakshman, PW14, Nebu Bala and the PW16, Bharat, who are all close relatives of the deceased Ram, as also the PW8, Md. Elai Ali Molla and the PW17, Phani Bhusan, who are undisputedly local persons, had all stated in the same voice that the accused Kanai had hit the deceased Ram by the back side (“aal/ulti/aaltii”) of a spade on the upper side of his right eye/forehead over the right eye on the relevant day at the relevant place and at the relevant time, whereupon he (Ram) had fallen down and was bleeding through nose and mouth. The evidence of the aforesaid close relatives could not clearly be discarded for the reasons recorded by the learned Trial Judge, relying upon the decisions of the Supreme Court, referred to by him. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person as they would be post reluctant to screen the real assailant and falsely mention the name of another person. The evidence of the aforesaid PWs. 1,4,5,6,14 and 16 could not but be relied upon as such. The PWs. 8 and 17 also appear to be local non-partisan witnesses, who are also competent and qualified to testify on the point deposed by them. All the aforesaid PWs further appear to have firmly stood the test of cross-examination; and their evidence remained unshaken. There seems little reason for refusing to rely upon their evidence as such. There is neither any such suggestion against any of them so as to render their evidence unworthy of credit. The learned Trial Judge, to our Judgment, was, therefore, perfectly justified in relying upon their evidence and coming to the conclusion, as he did. As held by him, the evidence of the aforesaid witnesses further get support from the Inquest Report, Exhibit 2, read with the evidence of the PW 20, Dr. Pulin Behari Das, who has stated about the injuries found on the dead body of the deceased Ram. We find no infirmity in the conclusion arrived at by the learned Trial Judge from the premises discussed by him in the judgment.
9. Even though we are not in a position to differ from the finding of the learned Trial Judge in respect of the accused-Appellant on the evidence on record, we are not in a position to uphold and sustain the order of conviction and sentence passed by him against the accused-Appellant for the reasons we shall presently indicate.
10. The accused-Appellant, along with the other 10 accused persons, had also been charged with two other charges, one for an offence punishable under Section 148, IPC, and the other punishable under Sections 325/149, IPC. According to the learned Trial Judge, the said two offences could not be established by the prosecution; and the 11 accused persons facing trial on the said two charges, including the accused-Appellant Kanai, had been acquitted from the said two charges. In the absence of any appeal and/or cross-appeal against the order of acquittal, the said finding of the learned Trial Judge must be held to be absolute and final. The accused-Appellant Kanai has, however, been found by the learned Trial Judge to be guilty to the offence punishable under Section 302, IPC, and convicted thereunder and sentenced therefore on the third charge framed against all the 11 accused facing trial before him, which is reproduced below :
“That you, on or about the same date session and at the same place being the members of an unlawful assembly and in prosecution of the common object to wit to inflict injuries and assaults to Ram Chandra Mistry, assaulted him in such a way causing his death being armed with deadly weapons like lathi, ballams, kodals and thereby committed an offence punishable under Section 302/149 of the IPC and within the cognizance of the court of session and I hereby direct that you be tried by on the said charge.”
11. The aforesaid charge framed being, what it is, no charge for a substantive offence punishable under Section 302, IPC, appears to have been framed against the accused-Appellant. The Supreme Court in Nanak Chand v. State of Punjab, , has held that “a charge for a substantive offence under Section 302, or Section 325, IPC, is for a distinct and separate offence from that under Section 302, read with Section 149, or Section 325, read with Section 149. A person charged with an offence read with Section 149 cannot be convicted of the substantive offence without a specific charge being framed, as required by Section 233, Criminal P.C. A wrong conviction under Section 302/34 cannot be converted into one under Section 302.” It has further been held therein that “if there is a conviction for a charge not framed it is an illegality and not an irregularity curable by the provisions of Sections 535 and 537, Criminal P.C.” The Supreme Court went on to add that even assuming that it was merely an irregularity which was curable, in the circumstances of the present case, the irregularity was not curable because the Appellant was misled in his defence by the absence of a charge under Section 302. By framing a charge under Section 302, read with Section 149, IPC, against the Appellant, the court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under Section 302, IPC, was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case.
12. In view of the aforesaid decision of the Supreme Court on the point, the accused-Appellant could not clearly have been convicted for an offence punishable under Section 302, IPC, on a charge framed against him and others for an offence punishable under Section 302, read with Section 149, IPC. The order of conviction and sentence passed by the learned Trial Judge against the accused-Appellant could not clearly, therefore, be sustained. All the more so, the accused-Appellant Kanai does neither appear to have been properly and correctly examined under Section 313, Cr. P.C. While explaining the circumstances appearing in evidence against him (accused-Appellant) under Section 313 of the Code, the learned Trial Judge had stated to him (Appellant) in question No. 6 that the P.Ws. mentioned therein had stated that he (accused) had assaulted the deceased Ram on the upper portion of the right eye with the sharp edge of a spade, as a result of which he had fell down, even though there is no evidence whatsoever on record to suggest that the accused had assaulted the deceased Ram on the upper portion of the right eye with the sharp edge of a spade, though stated in the FIR. It is the consistent evidence of all the P.Ws. mentioned by the learned Trial Judge that the Appellant Kanai had hit Ram by the backside of a spade on the upper side of his right eye-forehead over-right eye. The circumstances appearing in evidence against the accused Appellant do not, therefore, appear to have been correctly explained to him. His attention was not drawn to every inculpatory material so as to enable him to explain the same. Prejudice to him cannot clearly be ruled out as such.
13. In view of the discussions above, we are unable to uphold the order of conviction and sentence passed by the learned Trial Judge against the accused-appellant. We would, accordingly, feel inclined to send back the case on remand to the court below for retrial so as to enable it to alter the charge and examine the accused-Appellant properly and correctly under Section 313, Cr. P.C., in the light of the discussions above.
14. In the above premises, we set aside the impugned judgment and order of conviction and sentence passed by the learned Trial Judge against the accused-appellant. The case be sent back to the court below for retrial in terms of the directions herein below given. The Court below shall alter the charge against the accused-appellant in the light of the discussions above, which shall be read and explained to him (latter). It shall thereafter allow the accused-appellant opportunity to cross-examine the prosecution witnesses, already examined, only with reference to the alteration of the charge, in terms of this order. It shall thereafter examine the accused properly and correctly under Section 313, Cr. P.C., in the light of the discussions above, and conclude the retrial according to law, and record a fresh judgment. The court below shall dispose of the case in terms of the above directions, as early as possible, preferably within a period of 8 months from the date of communication of this order and receipt the Lower Court records.
15. Let the Lower Court records go down to the court below forthwith, along with a copy of this order. The accused-appellant shall remain in custody till the disposal of the case in terms, of this Order.
Satya Narayan Chakrabarty, J.
16. I agree.