JUDGMENT
Monoranjan Mallick, J.
1. This is an appeal by the three accused- appellants being aggrieved by the conviction and sentence passed by the Asst. Sessions Judge, Malda against the appellants Nos. 1 and 2 Under Sections 304/107, I PC and the sentence of R.I. of five years each and a fine of Rs. 4000/- each in default to undergo six months R.I. and Under Section 304, IPC against the appellant No. 3 Dhirendra Nath Mondal and sentencing him to eight years R.I., and fine of Rs. 2500/- in default four months R.I. and directing half of the fine to be realised to be remitted to Khukibala, the next of kin of the victim. The facts may be briefly stated as follows :–
2. The present appellants along with several others were charged Under Section 146, IPC, for committing the offence of rioting armed with deadly weapons in prosecution of common object of such assembly, namely, in assaulting Khagendra Nath Mondal of Baguntala punishable Under Section 148, IPC and also Under Section 304 read with Section 149, IPC as one of the members of such assembly committed culpable homicide not amounting to murder of Khagendra Nath Mondal. The Ld. Trial Judge on considering the prosecution evidence found all the accused persons not guilty Under Sections 148 and 304/149, IPC but on being satisfied from the evidence adduced that appellant No. 3 committed the culpable homicide not amounting to murder convicted him Under Section 304, IPC Part I and appellants Nos. 1 and 2 for abetting the said offence by instigating Dhirendra Nath Mondal to commit the above offence and passed the sentences against them as mentioned in the above.
3. Being aggrieved the appellants have preferred this appeal.
4. Mr. Balai Chandra Roy appearing for the appellant has urged that the prosecution evidence was not sufficient to bring home the charge against the appellants Nos. 1 and 2 that they instigated Dhirendra Nath Mondal to commit the offence and that it cannot be said beyond all reasonable doubt that but for such instigation Dhirendra Nath Mondal would not have committed the offence. Mr. Roy has also raised the point that the offence for which the appellants Nos. 1 and 2 had been charged being an offence Under Sections 148 and 304/149, IPC, the appellants Nos. 1 and 2 should not have been convicted for an entirely distinct offence of abetment of the culpable homicide not amounting to murder without framing a proper charge even alternatively Under Sections 304/107, IPC.
5. So far as the appellant No. 3 is concerned Mr. Roy has urged that the evidence of the prosecution is of all interested witnesses and it cannot be held that the offence has been proved beyond reasonable doubt. He further submits that regard being had to the fact that only one lathi blow was given by the appellant No. 3 as is the case of the prosecution, then even if the Court could convict him for culpable homicide not amounting to murder yet the conviction should have been Under Section 304, Part II and not Under Section 304 Part I and in such case in view of the decision of the Supreme Court in AIR 1984 SC 759 : (1984 Cri LJ 478), the appellant No. 3 should have been sentenced to R.I. for five years and, therefore, submits that the conviction and sentence shall have to be modified in view of the fact that there was no ingredient that the appellant No. 3 committed the offence Under Section 304, Part 1, IPC.
6. The appeal has been contested by the State. A notice has also been served upon the next of kin of the victim and the Ld. Advocate has also appeared and submitted that he also agrees with the Ld. Advocate for the appellant that the appellants Nos. 1 and 2 should not have been convicted Under Sections 304/107, IPC without framing a proper charge under the said section. He also submits that the appellant No. 3 should have been convicted under Section 304, Part II, IPC.
7. On perusal of the judgment passed by the Ld. Trial Judge, we find that before the Ld. Trial Judge eight accused persons including the three appellants together with fifteen unknown persons were charged Under Section 148 and Under Section 304/109, IPC.
8. On consideration of the evidence adduced by the prosecution the Ld. Trial Judge held that the prosecution has not been able to bring home the charge against the accused Nos. 4 to 8 that they along with three appellants committed the offence of rioting with deadly weapons with the common object of assaulting Khagendra Nath Mondal. He held that the prosecution has been able to prove that it was accused Ramesh Mondal and Bhutesh Mondal, the father and son instigated the accused Dhirendra Nath Mondal to assault Khagendra Nath Mondal and Dhirendra Nath Mondal on being so instigated brought a bamboo pole and struck on the head of Khagendra Nath Mondal and Khagendra Nath Mondal fell down on the ground.
9. On considering the evidence of P.W. 1, Subal Mondal, P.W. 5 Khukibala Dassi and P.W. 6, Pramilabala Dassi we are of the view that the Trial Judge had sufficient evidence to come to the above conclusion. It is disclosed in evidence that the other accused persons came after Dhiren had assaulted Khagen and they did not take any part in assaulting Khagen.
10. Therefore, there is no doubt that the charge against all the accused persons Under Sections 148 and 304/149, IPC were not proved by the prosecution and the Ld. Trial Judge rightly acquitted them but the Ld. Trial Judge convicted the appellants Nos. 1 and 2 under Section 304/107, IPC. There is no doubt that no such specific charge was framed by the Ld. Trial Judge even as an alternative charge. The offence of rioting with deadly weapons by the appellants Nos. 1 and 2 along with the other accused persons and the offence punishable Under Section 304/149 are definitely distinct offences from the offence of abetment of culpable homicide not amounting to murder. Mr. Roy rightly points out that by framing the above charges the accused appellants Nos. 1 and 2 were to meet the charge of rioting with deadly weapons as well as their constructive liability of the offence of culpable homicide not amounting to murder being the members of such unlawful assembly whose common object was the assault of Khagendra Nath Mondal and in prosecution of such common object one of the members committed the offence of culpable homicide not amounting to murder. He submits that the accused appellants Nos. 1 and 2 have definitely been taken by surprise when they have been convicted Under Sections 304/107, IPC and have, therefore, been highly prejudiced by such conviction.
11. On behalf of the State it is submitted that in view of Sub-section (2) of Section 221 of the Cr. P.C. even if no charge was framed Under Section 304/107, IPC the accused appellants Nos. 1 and 2 have been rightly convicted in view of Sub-section (2) of Section 221. Section 221, Cr. P.C. reads as follows :–
“221. (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provision of Sub-section (1), he may be convicted of the offence which he shown to have committed, although he was not charged with it”.
12. We arc of the view that in order to attract Section 221(2) offence must be cognate offences and not distinct, offences. When in which case the offence of rioting and the offence of constructive liability as members of unlawful assembly for the offence of culpable homicide not amounting to murder are distinct offences from the main offence of Section 304, IPC, Under Section 221(2) Cr. P.C. an accused charged with Section 304 IPC could have been convicted Under Section 304 read with Section 107 IPC. But an accused charged Under Sections 304/149, IPC cannot be convicted Under Sections 304/107, IPC. In that view we are satisfied that the conviction and sentence on the accused Nos. 1 and 2 Under Sections 304/107 without framing a proper charge thereof cannot be sustained and must be set aside.
13. So far as the accused appellant No. 3 is concerned even though he has been charged Under Sections 304/149, IPC he has been convicted Under Section 304, Part I, IPC and sentenced to R.I. for eight years and a fine of Rs. 2500/-.
14. Mr. Roy submits that even though there are several decisions of Supreme Court beginning from Nanak Chand’s case, AIR 1955 SC 274 : 1955 Cri LJ 721 that the offence Under Sections 304 or 302 read with Section 149, IPC are distinct offences from the main offence punishable Under Section 302 or 304, IPC yet in view of the decision of the Supreme Court in, AIR 1989 SC 1094 : 1989 Cri LJ 883, he does not press that the conviction of the accused appellant No. 3 Under Section 304, IPC even though he is charged with Sections 304/149, IPC should be set aside only on the ground that no specific charge Under Section 304 in the alternative has been framed against him. He, however, submits that the witnesses adduced by the prosecution are also interested witnesses and the charge has not been proved beyond reasonable doubt. He further submits that even if the prosecution be held to have proved beyond all reasonable doubt that Dhiren assaulted Khagen with a bamboo pole which ultimately caused his death yet regard being had to the fact that he struck only one blow, he should have been convicted Under Section 304 Part II, IPC and the maximum sentence in such case should be R.I. for five years. We have carefully considered the evidence of main prosecution witnesses adduced against the accused/appellant No. 3. There are several eye-witnesses namely P.W. 1, Subal Chandra Mondal, P.W. 5, Khukibala Dassi, the wife of the deceased and P.W. 6 Pramilabala Dassi who have categorically said that there was a quarrel going on between Pramilabala and the accused appellants Bhutesh and Ramesh over the water of the Nala, that Khagen came out from the house hearing the row and told Bhutesh and Ramesh to discuss the matter with him but Bhutesh and Ramesh instigated Dhiren to assault Khagen and Dhiren brought out a bamboo pole and struck a blow on the head of Khagen and Khagen fell down upon the earth. The victim as well as the prosecution witnesses and the accused appellants were all close neighbours. The incident having taken place in front of their respective residences, the inmates of the house would be the most natural witnesses. Therefore, we are satisfied that the prosecution has been able to prove beyond all reasonable doubt that Dhiren assaulted Khagen with a bamboo pole to which ultimately Khagen succumbed. But we agree with Mr. Roy that regard being had to the fact that only one lathi blow was given, the Ld. Trial Judge should have convicted him Under Section 304, Part II I.P.C. because Dhiren cannot be held to have the intention to cause the death or such bodily injury as is likely to result in death even though there is no intention to cause death. We find that Supreme Court in AIR 1984 SC 759 corresponding to 1984 Cri LJ 478 has held that when the incident occurred on the spur of the moment and only one blow with knife was given by the accused the offence committed is punishable Under Section 304 Part II and maximum sentence in such case is five years R.I. In this case also we find that only one lathi blow was given. If Dhiren had intention to kill he would have persisted in his assault. He gave one blow and then fled away. We are, therefore, of the view that he is guilty of the offence punishable Under Section 304 Part II, IPC. We, therefore, convert the conviction of the accused appellant No. 3 to Section 304, Part II and reduce the sentence inflicted upon him to five years R.I. and a fine of Rs. 2000/- in default R.I. for three months more. Out of the fine realised Rs. 1500/- shall be paid to Khukibala, the widow of the victim.
15. The appeal is, therefore, allowed in part. The conviction and sentence awarded against the appellants Nos. 1 and 2 are hereby set aside and they are acquitted and discharged from their bail bonds. The accused appellant No. 3 is convicted Under Section 304, Part II, IPC and is sentenced to five years R.I. and a fine of Rs. 2000/- in default R.I. for three months more. Fine, if paid by the appellants Nos. 1 and 2 be refunded.
Manabendra Nath Roy, J.
16. I agree.