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Judgment
Monoranjan Mallick, J.—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 appellant Nos. 1 and 2 Under Sections 304/107 I.P.S. 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 u/s 304 I.P.C. against the appellant No. 3 Dhirendra Nath Mondal and sentencing him to eight years R.I. and a 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:-
The present appellants along with several others were charged u/s 148 I.P.C. 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 u/s 148 I.P.C. and also u/s 304 read with Section 149 I.P.C. 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 I.P.C. but on being satisfied from the evidence adduced that appellant No. 3 committed the Culpable homicide not amount to murder convicted him u/s 304 I.P.C. Part I and appellant 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.
Being aggrieved the appellants have preferred this appeal.
Mr. Balai Chandra Roy appearing for the appellant has urged that the prosecution evidence was Not sufficient to bring home the charge against the appellant 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 investigation Dhirendra Nath Mondal would not have committed the offence. Mr. Roy has also raised the point that the offence for which the appellant Nos. 1 arid 2 had been charged being an offence Under Sections 148 and 304/149 I.P.C., the appellant Nos. 1 and 2 should not have been convicted for an entirely distinct offence of abetment of the culpable homicide not amount to murder without framing a proper charge even alternatively Under Sections 304/107 I.P.C.
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 Mm for culpable homicide not amounting to murder yet the conviction should have been u/s 304 Part II and not u/s 304 Part I and in such case in view of the decision of the Supreme Court in Tholan Vs. State of Tamil Nadu, the appellant No. 3 should have been sentenced 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 u/s 304 Part I I.P.C.
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 appellant Nos. 1 and 2 should not have been convicted Under Sections 304/107 I.P.C. without framing a proper charge under the said section. He also submits that the appellant No. 3 should have been convicted u/s 304 Part II I.P.C.
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 u/s 148 and Under Sections 304/109 I.P.C.
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 Rastesh 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.
On considering the evidence of P.W. 1, Subal Mondal, P.W.5 Khuki bala 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 dis closed in evidence that the other accused persons came after Dhiren has assaulted Khagen and they did not take any part in assaulting Khagen.
Therefore, there is no doubt that the charge against all the accused persons Under Sections 148 and 304/149 I.P.C. were not proved by the prosecution and the Ld. Trial Judge rightly acquitted them but the Ld. Trial Judge convicted the appellant Nos. 1 and 2 Under Sections 304/107 I.P.C. 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 appellant Nos. 1 and 2 along with the other accused persons and the offence punishable Under Sections 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 appellant 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 assaults 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 mat the accused appellant Nos. 1 and 2 have definitely been taken by Surprise when they have been convicted Under Sections 304/107 I.P.C. and have, therefore, been highly prejudiced by such conviction.
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 Sections 304/107 I.P.C. the accused appellant 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 of 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 be may be charged in the alternative with having committed some one of the said offence.
(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".
We are 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 I.P.C. u/s 221(2) Cr. P.C. and accused charged with 304 I.P.C. could have been convicted u/s 304 read with 107 I.P.C. But an accused charged Under Sections 304/149 I.P.C. cannot be convicted Under Sections 304/107 I.P.C. 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.
So far as the accused appellant No. 3 is concerned even though he has been charged Under Sections 304/149 I.P.C. he has been convicted u/s 304 Part I I.P.C. and sentenced to R.I. for eight years and a fine of Rs. 2500/-.
Mr. Roy submits that even though there are several decisions of Supreme Court beginning from Nanak Chand Vs. The State of Punjab, that the offence Under Sections 304 or 302 read with Section 149 IPC are distinct offences from the main offence punishable Under Sections 302 or 304 I.P.C yet in view of the decision of the Supreme Court in Surinder Kumar Vs. Union Territory, Chandigarh, he does not press that the conviction of the accused appellant No. 3 u/s 304 I.P.C. even though he is charged with Sections 304/149 I.P.C. should be set aside only on the ground that no specific charge u/s 304 in the alternative has been framed against him. He, however, submits that the witnesses adduced by the prosecution are all interested witnesses and. the charge has 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 u/s 304 Part II I.P.C. and the maximum sentence in such case should be R,I. for five years. We have carefully considered the efficiency 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 put 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 neighbors. 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 u/s 304 Part II I.P.C. because Dhiren cannot be held to have the intention to cause the death of 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 Tholan Vs. State of Tamil Nadu, corresponding to Tholan Vs. State of Tamil Nadu, has held that when the incident occurred on the spur the moment and only one, blow with knife was given by the accused the offence committed is punishable u/s 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 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 u/s 304 Part II I.P.C. 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. 2,000/- 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.
The appeal is, therefore, allowed in part. The conviction and sentence awarded against the appellant Nos. 1 and 2 are hereby set aside and they are acquitted and discharged from their bail bonds. The accused years R.I. and a fine of Rs. 2000/- in default R.I. for three months more. Fine, if paid by the appellant Nos. 1 and 2 be refunded.
Manabendra Nath Roy, J.
I agree.