JUDGMENT
Alok Kumar Basu, J.
1. Sambhu Rajwar, the sole appellant preferred this appeal challenging his conviction under Section 304, Part-I of the IPC by the learned Addl. Sessions Judge, Nadia, in connection with Sessions trial No. II of April, 1999 corresponding to Sessions Case No. 9 (March) of 1999.
2. After conclusion of trial appellant was sentenced to suffer R.I. for 8 years and also to pay a fine of Rs. 2,000/-, I. D. to suffer R. I. For six months more,
3. The prosecution case arose out of a complaint filed by one Pulak Ghosh of village Lakshimitala Para under P. S. Santipur. Sri Pulak Ghosh, in his complaint alleged that on 12th January, 1999, at about 6 O’clock in the evening when his uncle Bimal Ghosh along with Kalu Ghosh were coming home after grazing their cows, near Bathna Nath Para field, the appellant Sambhu Rajwar after hurling abuses towards the said Bimal Ghosh, assaulted him with a lathi.
4. Pulak Ghosh stated that Kalu witnessing assault on the person of Bimal Ghosh, rushed to the house of Bimal Ghosh and informed Pulak Ghosh and others and thereafter Pulak Ghosh along with others came to the place of occurrence, rescued Bimal Ghosh and brought him to hospital. Bimal Ghosh during his treatment at Santipur hospital expired within a few hours.
5. On the basis of written complaint of Pulak Ghosh, Santipur P. S. started the present case under Section 304 of the IPC and after completion of investigation submitted charge-sheet accordingly against the appellant.
6. The learned Addl. Sessions Judge on perusal of police papers and after hearing both the prosecution and the defence framed charge against the appellant under Section 304, Part-I of the IPC and the appellant pleaded not guilty to the said charge and claimed for trial.
7. The prosecution during trial examined in all 17 witnesses including Pulak Ghosh, the FIR maker, Arindam Banerjee, the scribe of the FIR, Kalu Ghosh, the star witness for prosecution, who had the occasion to see personally assault made by the appellant on the victim, Bimal Ghosh, witnesses to the seizure of bamboo pole/lathi at the instance of appellant during investigation, the P. M. doctor and also the Investigating Officer.
8. The learned Addl. Sessions Judge, on perusal of the prosecution evidence and after hearing submissions of both the prosecution and the defence came to the conclusion that on 12th January, 1999 at about 6 O’clock Kalu was with deceased Bimal Ghosh and both of them were coming back their home after grazing their cows and at that point of time in presence of Kalu Ghosh, the appellant Sambhu Rajwar assaulted Bimal Ghosh on different parts of his body with a bamboo pole/lathi.
9. The learned Addl. Sessions Judge, after considering evidence of Kalu came to the further conclusion that Kalu alone come to the house of Pulak Ghosh and informed about assault of Bimal Ghosh and thereafter Pulak Ghosh and others came at the place of occurrence and Bimal Ghosh was shifted to Santipur hospital.
10. The Addl. Sessions Judge, after considering evidence of Arimdom Banerjee and other neighbours came to the further conclusion that on receipt of the injury as stated by Kalu, Bimal Ghosh ultimately expired at Santipur hospital and within a shortest possible time Pulak Ghosh with the help of Arindom Banerjee presented the FIR before the Police Station to start a case against the appellant.
11. The learned Addl. Sessions Judge also considered the P.M. report which is an exhibited document of the case and also the statement of the doctor who conducted P.M. examination and the learned Judge observed that the statement of Kalu Ghosh and the subsequent seizure of the bamboo pole/lathi from a nearby garden at the instance of appellant lent support to the prosecution case that the appellant actually assaulted Bimal Ghosh with a bamboo pole/lathi resulting into his death.
12. The learned Addl. Sessions Judge, thus, having regard to the prosecution case found no difficulty in convicting the appellant under Section 304, Part-I of the IPC and he sentenced the appellant to suffer R.I. for 8 years.
13. Appearing for the appellant, Mr. Tiwari, the learned advocate, submits that in this case the entire prosecution case actually rested on the sole testimony of Kalu Ghosh, because, there is not a single other witness to come before the trial Court to depose about the assault of Bimal Ghosh.
14. The learned advocate contends that according to prosecution the attack took place at about 6 O’clock and considering calendar period of the year, it was highly improbable that Kalu actually witnessed the occurrence at such a situation and when there is no corroboration from any other witnesses, it would be totally risky and unsafe to support the order of conviction relying on the sole testimony of Kalu Ghosh, who at the same time happened to be highly interested witness and a partisan too.
15. Mr. Tiwari contends that the story of seizure of bamboo pole/lathi from the garden at the instance of appellant also does not appear to be much convincing and, naturally, when there was no other corroborative evidence, the learned Judge was not justified in recording the order of conviction against the appellant.
16. Mr. Tiwari also submitted that in this particular case even if any credit is given to the testimony of the prosecution witnesses, yet it cannot be stated that the appellant was guilty of the offence under Section 304, Part-I of the IPC.
17. Mr. Tiwari, contends that it is accepted by the prosecution that the appellant used a bamboo pole/lathi to assault the victim and from the P. M. report, we do not notice any serious or damaging injury, but, the victim succumbed to the injury as a result of the total effect of injury and he was also an aged person.
18. Mr. Tiwari contends that the sole eyewitness, Kalu also disclosed that the victim was a strong headed man and probably, there was some act of teasing from the side of victim towards the appellant, who suffers from some physical deformity.
19. Mr. Tiwari, contends that in this case since the appellant had no criminal antecedent and since the appellant did not strike the victim with any other purpose extorting money, when it has come from evidence of Kalu that there was some reason for the appellant to get annoyed and to cause the strike and when such strike was not the aggravated form of attack, there are reasons to hold that the appellant even if guilty, he can be convicted for the offence under Section 304, Part-II of the IPC since he had no intention at all to cause strike, but, he had the knowledge that his actions might have resulted in death of the victim.
20. Mr. Tiwari, therefore, contends that if the case of the appellant is treated as a whole he can be convicted at best under Section 304, Part-II of the IPC and in that background the sentence imposed against the appellant should be reduced considering the facts and circumstances of the case and also considering the special fact that the appellant had no criminal antecedent.
21. Mr. Dutta Gupta, representing the State along with Mr. Pinaki Bhattacharya, submits that prosecution case as presented through its evidence is very clear and convincing and there is no way out to avoid the conclusion than that reached by the learned Addl. Sessions Judge.
22. Mr. Dutta Gupta contends that the occurrence took place at 6 O’clock of 12th January, 1999. and the victim expired at about 9 O’clock in the evening and within 15 minutes the FIR was lodged disclosing the name of the appellant and, naturally, there was no chance of making any allegation that the FIR was fabricated to implicate the appellant falsely.
23. Mr. Dutta Gupta, submits that in the FIR. name of Kalu was mentioned and it was specifically stated in the FIR that FIR maker got the information regarding assault on the victim from Kalu Ghosh and at the time of trial the same Kalu Ghosh without any hesitation supported the prosecution case.
24. Mr. Dutta Gupta submits that P. M. report and also the statement of the doctor has supported the ocular evidence of the prosecution and, that apart the seizure of the bamboo pole/lathi at the instance of the appellant during investigation also lent support to the prosecution case.
25. Mr. Dutta Gupta, submits that in this particular case having regard to the prosecution case as a whole there is enough reason to hold that the appellant may not be convicted under Section 304, Part I of the IPC and in that background, the question as to what should be adequate sentence in that situation is left to the judicial discretion of this Court.
26. We have heard and considered the submissions of both Mr. Tiwari and Mr. Dutta Gupta and we have also considered the prosecution evidence both oral and documentary.
27. It is very unfortunate to note that on the date of occurrence when victim Bimal Ghosh along with Kalu Ghosh were returning home after grazing cow, the appellant attacked and assaulted Bimal Ghosh with bamboo pole/lathi and Bimal Ghosh fell down on the ground and subsequently he was shifted to a nearby hospital, where he finally expired.
28. According to the prosecution case, Pulak Ghosh, the nephew of deceased Bimal Ghosh got the information of attack from Kalu Ghosh and, thereafter he came at the place of occurrence and took his uncle to the hospital. At the hospital Arindom Bannerjee, another prosecution witness came and thereafter expiry of Bimal Ghosh, under the direction of Pulak Ghosh, Arimdom prepared the FIR.
29. During trial Kalu Ghosh deposed about the assault made on the victim by the appellant and from cross-examination of said Kalu Ghose we (sic) not notice anything to impeach his credibility and the learned Judge correctly reposed his faith and confidence on the sole witness to sustain his order of conviction.
30. The P.M. report and also the subsequent seizure of the bamboo pole/lathi at the instance of the appellant also supported the prosecution case that he alone inflicted the assault on the person of Bimal Ghosh, resulting into his death.
31. Thus, having regard to the prosecution evidence and considering the submission of both Mr. Tiwari and Mr. Dutta Gupta, we hold that the appellant was rightly held guilty for the homicidal death of deceased, Bimal Ghosh.
32. We find that according to situation, intention and gravity of the situation, the penal code as provided different type of punishment for murder/culpable homicide.
33. The appellant, Sambhu faced the trial under Section 304, Part-I of the IPC and the learned Judge while sustaining the conviction order under the said section was under the impression that the appellant had the intention of causing the homicidal death of the victim. Mr. Tiwari has argued that from the nature of fact and also from the nature of the weapon used by the appellant and also from the factual background that the attack of appellant do not support conclusively that the appellant had any intention to cause attack, it can be concluded that the appellant was guilty of the offence under Section 304, Part-II of the IPC since he had no intention, but, from his attack, it can be presumed that he had the knowledge that such attack might result into the death of the victim.
34. We have considered this point of Mr. Tiwari in the background of prosecution evidence and we find sufficient merit in the contention of Mr. Tiwari. In our considered view also since from the statement of Kalu, we get that the victim was a strong-headed man and, probably, the appellant was a victim of teasing by the victim and in such situation, the appellant used a bamboo pole/ lathi to assault the victim and at that point of time he might have the knowledge that such attack may result into death of the victim, but, it cannot be stated firmly that he had sole intention of causing the death of the victim.
35. Thus, having regard to the totality of the prosecution evidence and the circumstances disclosed thereby, we are of the view that the appellant was guilty of the offence under Section 304, Part II of the IPC and for that consideration, we modify the conviction order accordingly.
36. We find from record that the appellant had no criminal antecedent and when we have modified the conviction of the appellant from 304 Part-I to Part-II, in our view in the interest of justice, the appellant should be sentenced to suffer R.I. to five years and to pay a fine of Rs, 300/-, in default, R.I. for one month more.
37. In the result, we allow this appeal in part. We modify the conviction order of the appellant from Section 304, Part I of the IPC to that under Section 304, Part-II of the IPC and he is accordingly sentenced to suffer R.I, for five years and to pay a fine of Rs. 300/-, I.D., R.I. for one month more.
38. Since the appellant is on bail, his bail order stands cancelled forthwith. He is directed to surrender within fortnight before the trial Court to suffer his imprisonment now imposed. If the appellant does not surrender before the trial Court within the aforesaid period, the trial Court shall take all legal steps to compel his appearance.
39. Send the LCR along with the copy of this judgment forthwith to the trial Court for information and necessary action.
40. Xerox certified copy of this judgment if applied for, may be supplied to the appellant at the earliest.
41. The trial Court shall record the benefit of set of to which the appellant shall be entitled and shall issue a modified jail warrant accordingly.
Pranab Kumar Deb, J.
42. I agree.