Rampada Bhowmik & Ors. vs State Of West Bengal & Ors.

This appeal is directed against the judgement and order dated June 25, 1992 passed by the learned Additional Sessions Judge in Trial Case No. XIV of

February, 1992 convicting the accused/ appellant no. 1 under Section 379 of the Indian Penal Code and sentencing him to suffer simple imprisonment

for five months and also to pay fine of Rs.1,500/- in default to suffer one month simple imprisonment and for the conviction of the accused/appellants

no. 1,2,3 and 4 under Section 323 of the Indian Penal Code were sentenced to suffer simple imprisonment for two months and for the conviction under

Section 379 of the Indian Penal Code the accused/appellant no. 5 was sentenced to suffer simple imprisonment for five months and a fine of Rs.500/-

in default to suffer ten days’ simple imprisonment. The learned Judge further directed that the sentence of imprisonment inflicted upon the

accused/appellant no. 1, under Section 379/324 of the Indian Penal Code do run consecutively and it was also directed that the entire fine, if realized,

be paid to the proforma respondent.

The grounds taken in this appeal is that charges framed against the accused/appellants were descriptive and prejudicial to the defence. Secondly, that

examination of the appellants under Section 313 of the Code of Criminal Procedure was done in a mechanical manner. Accordingly, the appellants

prayed for setting aside the conviction and sentence imposed upon the appellants. Brief facts leading to the instant case is that: -

“ On 29th Falgun, 1397 B.S. corresponding 14th March, 1991 at about 5-00 P.M. the complainant was proceeding towards Ram Tarak Haat by a

cycle along with Annada Pattanaak, accused persons suddenly came out from inside the pan boroze of the accused no. 1 in front of the complainant

and formed an unlawful assembly and thereafter detained the complainant by catching hold of his cycle and picked up altercation with the

complainant. Accused persons suddenly came out from pan Boroze situated on the Eastern side of Gangakhali Khal Bandh and formed unlawful

assembly, picked up altercation with the complainant. In the midst of altercation the accused no. 5 Satish Santra snatched away the cycle of the

complainant and accused persons namely Ram Pada Bhowmick, Bharat Bhowmick, Satrughna Bhowmick and Ajoy Bhowmick beat the complainant

by fists and blows. Ram Pada Bhowmick snatched Rs.1,500/- from the chest pocket of the complainant.â€​

After the case was committed to the Court of Sessions the charges were framed against the appellants and prosecution examined as many as eight

witnesses to bring home charges levelled against the accused/appellants herein. After closure of the evidence the accused persons examined under

Section 313 of the Criminal Procedure Code who pleaded innocence and that they have been implicated falsely out of animosity. The learned trial

Judge held the appellants guilty of the offences charged with and convicted and sentenced as per observation made above.

The learned advocate for the appellants has relied on the evidence of PW-1, PW-2, PW-4. PW-1 has deposed that accused nos. 1 to 4 wanted to

purchase his property at a low price and for that reason they were bearing grudge against him corroborating the first information report to the effect

that on the date of occurrence while he was going to Ram Tarak Haat on account of his rice business accompanied by witness no. 1 named, Annada

Pattanayak, suddenly accused persons from inside of a pan boroze situated at the eastern bank of the bandh named, Gangakhali Khal Bandh

pertaining to mouza Nilkuntha, came out accompanied by other accused persons who were identified on the dock.

According to law, after forming an unlawful assembly they argued with him and accused no. 5 Satish Santra snatched away his hero cycle from his

possession which was purchased by him seven years before and the accused persons also beat him by fists and blows. His oral testimony finds

corroboration by PW-2 and PW-4. In defence the learned advocate for the appellants has relied on the evidence of PW-6, 7 and 8 pointing out that

there is a doubt in the prosecution case because though PW-6 has a cycle shop which belonged to his wife. Cash memo is issued against cash paid for

purchase of any cycle. Learned advocate for the appellants submits that the cash memo produced by prosecution to show the ownership of the cycle

of the complainant is not a genuine one.

PW-7 the proprietor of the cycle store from whom the prosecution witness allegedly purchased the cycle has not been issued by him. PW-8 looks

after the said shop and books of accounts are written and maintained by a Mohurar named Punya Tung but the cash memo in question was not

written by the said Punya Tung. Learned advocate for the appellants submits that the case of the prosecution has not been fully proved. Having

regard to the totality of the evidence on record and in particular the evidence of the complainant who has corroborated the FIR and the other

witnesses namely PW-2 and PW-4, I am of the view that the learned Judge has rightly arrived at a finding that the accused persons are guilty of the

offence punishable under Sections 323 and 379 of the Indian Penal Code. I do not find any ground to interfere into the order of conviction.

Learned advocate for the appellants submits that there are mitigating circumstances for modification of the sentence and reduction term of sentence

already undergone by the appellant. Bearing in mind the relationship between the complainant and the accused persons/appellants, the jail term as

imposed by the learned trial Court may be considered to be modified. It is pointed out that the punishment for theft under Section 379 IPC provides for

imprisonment of either description for a term which may extend to three years, or with fine, or with both. The offence under Section 323 provides for

imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

Impugned order of sentence imposed on the convict Ram Pada Bhowmick is for five months S.I. and a fine of Rs. 1,500/- in default to suffer one

month’s S.I. more for the offence under Section 379 IPC. Appellants namely, Ram Pada Bhowmick, Bharat Bhowmick, Satrughna Bhowmick

and Ajoy Bhowmick have been sentenced to suffer two month’s S.I. for the offence under Section 323 IPC. Whereas, appellant namely Satish

Santra has been sentenced to suffer five month’s S.I. and a find of Rs.500/- in default to suffer ten days’ S.I. more for the offence under

Section 379 IPC. It is further revealed that the sentences of imprisonment inflicted upon the appellant Ram Pada Bhowmick under Section 379 and

323 IPC have been ordered to run consecutively but not simultaneously.

Having regard to the discussion above and in consideration of the conviction clause as embodied under Section 323 and 379 IPC I do not find any

enormity of offence so committed by the appellants and are not on graver footing. Ergo, bearing in mind the mitigating circumstances, the sentences so

awarded by the learned trial Judge is modified to this effect that they need not suffer any jail term but the sentence awarding fine remain unchanged.

The fine amount realized be paid to the victim the PW-1. With the above modification this appeal is allowed in part. Urgent xerox certified copy of this

order, if applied for, be given to the parties after completion of all legal formalities.