Nanda Patihar vs The State

N.G. Chaudhuri, J.—Charged with an offence u/s 302 I.P.C. but actually convicted for an offence u/s 323 I. P. C. and sentenced to simple imprisonment for six months and a fine of Rs. 500/-, in default- to suffer S. I. for three months, in Sessions trial No. 2(6) of 1978 by the 2nd Court of Additional Sessions Judge, Bankura, the convict has come up in appeal. The learned Additional Sessions Judge has further directed that if the fine be realised the same shall be paid to the son of the deceased. The outline of the prosecution case may be briefly given as follows : On 20th Pous 1382 B. S. around 9/10 P.M. in the night Chandra Kanta Mondal (P.W. 11), a resident of village Mosinapur was returning to his. house. Near the house of his neighbour Gopal Midday (P. W. 6) Chandra Kanta noticed Bibhuti Dighar alias Neul carrying some bundles of paddy and a bucket. He asked Neul as to wherefrom he got the bundles of paddy and did not get any reply. Suspecting theft of paddy he roused from sleep neighbors Biswanath Midday (P. W. 4) and Gopal Middya (P.W.6). P.W.4 and 6 roused from sleep Khudiram Das (P.W.5). All of them decided to inform the accused Nanda Pratihar who was then the Gram Adhakshya of Hosinapur. P.Ws.4 and 6 went to the accused and reported the matter to him. After receiving the information the accused came to the spot taking with him Saktipada Das (P.W.10) and Parbati Das (P.W. 12). Reaching the house of Neul the accused enquired of him if he had stolen any paddy and the accused is alleged to have replied negative. It is alleged that accused began to assault him with a lathi. It is reported that P.W.2 Subhas Dighar a child witness and the son of the deceased began to cry seeing his father assaulted and he himself was also beaten. It is reported that when Saktipada Dhara (P.W.3) tried to intervene he was again assaulted by the accused with a lathi. After Neul was severely assaulted the accused with the help of P.W. 10 Saktipada and P.W. 12 Parbati carried Neul inside his room and left him there. In the morning following Kanailal Dighar (P. W. 1) and Subal (P. W. 21) on their way to field came across Subhas Dighar who informed them that as a result of assault by accused his father had died. P.W. 1 and 21 reached the room of the deceased and found him lying dead with multiple injuries on his person and many people arrived there. Then P.W. 1 and 21 went to Siromonipur Police outpost and lodged information which was entered in G. D. by P.W. 22 as per Ext. 3. P. Ws. 1 and 21 were advised to report the matter to Kotolpur P.S. and accordingly P.Ws. 1 and 21 went to Kotolpur P.S. and lodged information which was recorded by P.W. 25 as case No. 3 dated 6.1.76 started. After investigation and commitment the sessions trial was held with the result as indicated above. It is worthy of note that Police submitted a charge-sheet against the accused u/s 324 I.P.C. while the learned trial Judge framed a charge u/s 302 I.P.C.

Mr. Ashoke Ganguly, learned advocate appearing for the appellant assault the findings of fact arrived at by the learned Additional Sessions Judge. He contends that the prosecution case is improbable and unbelievable, the witnesses were interested and politically motivated and there were obvious discrepancies in their testimony on important points which should have led the learned court below to hold that the prosecution case was not proved beyond reasonable doubt. He contends that in arriving at a conclusion that the appellant had committed an offence u/s 323 I.P.C. and along with him some others assaulted the deceased, the court below made out a case which the prosecution itself did not spell out, He contends that the finding of guilt and the judgment of conviction are liable to be set aside.

Mrs. Moitra the learned advocate for the State respondent, before going to the facts raises a question of law. She points out that by the judgment under appeal the court directed that the fine if realised should be paid to the son of the deceased, but the son of the deceased, has not been given notice of the appeal. She argues that the convention followed in this High Court is that a person entitled to compensation under a judgment of conviction is to be given notice of the appeal filed by the convict. On this point she relies on the case of Bharasa Now Vs. Sukhdeo and Others, . We understand that a convention to the fact stated is being followed. So we invited Mr. Dilip Dutta and Mr. Balai Ray, learned advocates to express their views on this point. The decision cited is a Division Bench decision. We find therein that on a complaint three persons were fined for an offence u/s 323 I. P. C. and they were sentenced to fine with direction that if the fine is realised Rs. 50/- should be paid to the complainant There was an appeal against the order. Without giving any notice to the complainant or the public prosecutor, the appellate court set aside the order of conviction. In revision the High Court set aside the appellate judgment holding that although there is no express provision of the law with regard to service of notice upon the opposite party one of the principles of law is that no order should be passed to the detriment or prejudice to the party without giving him an opportunity of being heard in defense. The case before us is clearly distinguishable. Herein the case did not arise out of a complaint and the Public Prosecutor has been served with notice of the appeal. We are, therefore of the view that decision cited by Mrs. Moitra does not apply on all. fours to the facts and circumstances of the present case.

Even then we proceed to consider if the convention of giving notice of appeal to the person ordered to be paid compensation, in the event of a line being realised from the convict pursuant to the sentence, has force enough to justify dismissal of the present appeal. In 1973 Criminal Procedure Code has been brought into force repealing the old Code, the new Code amends and consolidate law relating to procedure. Possibly in view of the decision in 1926 Cal. 1054 it has been expressly provided in Section 385 (1)(iii) of the Code of 1973 that notice of appeal is required to be given to the complainant if the appeal is from a judgment of conviction in a case instituted upon a complaint. The convention noticed in the decision cited has thus been given limited statutory basis in the new Code. It is worthy of note that Section 385 of the new Code, which mentions persons or officers on whom notices of appeal against judgment of conviction are to be served, does not provide that such notice is to be given to the person ordered to be paid compensation, if he is not the complainant. This omission to our mind, is deliberate. The reasons for taking such a view are not far to seek. The order for payment of compensation is passed u/s 357. The circumstances in which order for compensation is to be passed are clearly described in clauses (a), (b), (c), (d) of Sub-section (1). In the present case the learned Additional Sessions Judge has not indicated under which clause of Section 357 Sub-section (1) of the Cr. P. C. he exercised his power to order payment of compensation. In order to pass a proper order he should have stated that the person ordered to be paid compensation was so entitled in a civil suit. Further, an order passed under Sub-section (1) will have effect after the fine has been recovered and not before that. In this connection provisions of sub-section (2) and (5) have some importance. According to Sub-section (2) if the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented before the decision of the appeal. It follows therefore that because of the pendency of this appeal the appellant was not obliged to pay the fine and, therefore, no question has arisen with regard to application of any money to be realised by way of fine in payment of compensation to anybody so as to raise a question of prejudice to the person ordered to be paid compensation. Subsection (5) again clearly lays down that at the time of awarding compensation in any civil suit relating to the matter, the court shall take into account any sum paid or recovered as compensation under this section. It follows, therefore, that right to get compensation and amount thereof will be decided in civil suit finally. So even if the person ordered to be paid compensation by the criminal is not given notice of the appeal filed against the order of conviction no prejudice is likely to be caused to him. We are also to take info consideration the proviso to Section 421(1) Cr. P. C. under which the offender has his option to undergo imprisonment in default of payment of fine and if he suffers such imprisonment no question of recovery of fine would arise far less the question of application of the amount recovered as fine. Considering all above we reach the conclusion that the son of the deceased has not yet acquired a vested right in respect of any sum and as such there is no question of his being prejudiced in not being served notice of the. present appeal. We also notice that u/s 401 (2) of the Code a Court is precluded, in the case of revision applications to pass any order to the prejudice of a person unless he has had an opportunity of being heard. The Code has not placed similar limitations on the power of the Court in connection with hearing of appeals dealt with in Chapter XXIX of the Code. The omission in our view is planned and deliberate. A convict aggrieved with an order of conviction and sentence including imposition of fine is most likely to come up in appeal rather than in revision; and if he is ill advised to file a revision case he will not get the benefit of the provisions of Section 357(2) of the Code. Considering all these we arrive at the conclusion that "there is no justification for continuance of the convention that a person, other than the complainant, ordered to be paid compensation out of a fine imposed, on the accused in a criminal case is to be given notice of an appeal filed by the accused." We, therefore, overrule the preliminary objection raised by Mrs. Moitra regarding the maintainability of the appeal.

We come to the merits of the appeal now. In the present case the doctor holding post-mortem examination over the dead body of Bibhuti Digar deceased found as many as 5 injuries deposed to by him and discussed by the learned Judge in his judgment. All the injuries were simple and superficial. Death in the opinion of the doctor was due to the fact that the man was emaciated and an-aesuic and the injuries were unattended. According to the doctor P.W. 19, the injuries were ante-mortem. The doctor added that the injuries were homicidal. Homicidal injuries mean injuries caused with the intention of causing death or injuries which in the ordinary course of nature are sufficient to cause death. The doctor in the present case did not mean to say that the injuries noticed were serious injuries. Against the above context it is argued on behalf of the appellant that section 323 I. P. C. for which the appellant has been convicted and sentenced, is not an offence cognate to section 302 I. P. C. and as such the learned Judge should not have convicted the appellant of the offence u/s 323 I. P. C. when the charge against him was u/s 302. The argument has substance and validity, In a case u/s 302 the relevant considerations are the nature of injury actually found, the intention of the author of the injuries or the knowledge of him with regard to the injuries intended to be caused. If intention is proved conviction may be made u/s 302 I. P. C, were intention to cause death is not proved but the injury was sufficient to cause death and the offender knew that the injury inflicted was sufficient to cause death the conviction may be u/s 304 I. P. C. In the case of Rambaran vs. State AIR 1958 Patna, 442 it has been held that if the offender intended or knew it to be likely to cause only simple hurt he cannot be convicted for the offence u/s 325 I.P.C. for lack of correspondence between result and intends for the offence u/s 323 I. P. C. is not a minor offence against a charge u/s 302 I. P. C. to come within the ambit of Sec 222 Cr. P. C. We are, therefore, of the view that there was no justification for convicting the appellant u/s 323 I. P. C. against the background of a charge and Sessions trial for an offence u/s 302 I. P. C. Further we see that the witnesses examined are interested and partisan from the discussion of evidence by the learned Judge it does not appear that P.Ws. 10 and 12 reached the place of occurrence called by the accused as alleged. The learned Judge has discussed the discrepancies in the evidence of so called eye witnesses; and the conflict in their evidence in court and statements made before the I.O. The learned Judge has expressed doubt regarding the evidence of P.Ws. 2 and 3 regarding assault on them by the appellant. He has again disbelieved P. W. 1 when he deposed that his father was dragged out by the appellant. He has pointed out that the lantern in the light of which witnesses saw the occurrence was not seized and exhibited. Discussing evidence adduced he concluded that the prosecution failed to prove that all injuries noticed on the deceased were caused by the appellant and the learned Judge concluded, contrary to prosecution case, that the appellant alone was not responsible for all the injuries. On the basis of such finding the learned Judge found guilty of the offence u/s 323 I. P. C. although the C D. Ex. 3 and the F.I.R. did not fully agree with each other. The learned Judge has found that P.W. 1 was a member of C.P.I (M) and the accused was a Jotdar and member of Congress (I). In view of the features of the case as discussed above, the learned Judge should have given the appellant benefit of doubt holding that the prosecution had failed to prove affirmatively beyond reasonable doubt that the appellant had committed to offence for which he was convicted for. In our view this was a fit case for a judgment of not guilty and of acquittal. In the result we allow the appeal, set aside the judgment of conviction and sentence appealed against, find the accused not guilty of any offence whatsoever and acquit him. He may be set at liberty after discharge from bail bond.

Gobinda Chandra Chatterjee, J.

I agree.