Rupam Bhakta vs State of West Bengal

Indrajit Chatterjee, J.—This Court is hearing this appeal as against the judgement and order of conviction dated 17-01-2012 and 18-01-2012 respectively as passed by the the then Additional Sessions Judge, Fast Track 2nd Court, Alipore, South 24-Parganas, in Sessions Trial No. 8(5) 2007 arising out of Sessions Case No. 41(3) of 2007 wherein the present appellant along with another was convicted in respect of the charge punishable under Sections 148 /304 Part-II read with Section 34 of the Indian Penal Code (hereinafter called as the said Code). That Sessions Case arose out of Budge Budge P.S. Case No. 24 of 2005 dated 18-02-2005 under Sections 341 /447 /323 /304 /506 /34 of the I.P.C. The complaint was lodged by the son of the victim, Kartick Chandra Adhikari, wherein he claimed that the present appellant along with his father and others attacked the victim party including the victim and the daughter-in-law of the victim by various weapons. They also attacked the de facto complainant. Those attackers were armed with deadly weapons. The primary victim was assaulted by those miscreants with fist and blows and by kicks, he fell down on the ground and did not recover. He was shifted to a nearby hospital at Budge Budge where he was declared brought dead.

After the case was registered, investigation was taken up by S.I., Kaushik Kundu and during the course of investigation, he visited the place of occurrence, collected the injury report, prepared the sketch map with index and also collected the injury report. The age of the victim was 60 years. The victim suffered fracture injury on the 5th and 6th cervical vertebra that evidenced vital reaction. The doctor opined that the death was due to cardiomyopathy. Charge sheet was submitted against 8 persons including the present appellant and his father. It may be mentioned that the father of the present appellant, namely, Benu Bhakta @ Benulal Bhakta, died on 31st July, 2014 and the said death was registered with the Budge Budge Municipality on 31-07-2014 as per Registration No. 267. It is true that when the said photocopy was placed before this Court, no formal order was passed that the appeal had abated as against the said appellant. Now through this judgement, it is made clear that the said appellant died during the pendency of the appeal and as such, the appeal has abated as against the said appellant.

As per order dated 19-1-2015 while disposing of the CRAN No. 2653 of 2015, this Court held as per application filed by the accused, Rupam Bhakta and after necessary enquiry made by the learned Chief Judicial Magistrate, Alipore, that the present appellant, Rupam Bhakta, was juvenile at the time of the incident giving extended benefit to him as per the decision of the Apex Court as reported in Hari Ram Vs. State of Rajasthan and Another, .

Now the question is what is the power of this Appellate Court wherein the appellant has been proved to be a juvenile.

Learned defence Advocate, Mr. Kushal Kumar Mukherjee, has cited a decision of the Apex Court as reported in Ketankumar Gopalbhai Tandel Vs. State of Gujarat, , wherein the Apex Court in such a case held that the Appellate Court has the power to determine as to whether the appellant was guilty or not and to set aside the sentence. The further duty of the Appellate Court is to make an order to transfer the case to the Juvenile Justice Board of the concerned District for imposing adequate sentence.

Mr. Keshari, learned Advocate appearing on behalf of the State, submitted that this is the law as enunciated by the Apex Court in Ketankumar Gopalbhai Tandel (supra).

I have heard the learned Advocates appearing on behalf of the defence and also the prosecutor as to the merit of the appeal.

The witnesses examined before the Trial Court were Bappa Adhikary, (P.W.1) i.e. the de facto complainant. Smt. Mira Adhikary, (P.W.2) is the widow of the victim and also the mother of the de facto. Rumpa Adhikary (P.W.3) is the wife of P.W.1. Ashis Shaw (P.W.4), i.e. the neighbour of the victim party but this witness only heard as to the incident. Biplab Mandal (P.W.5) i.e. the relation of the deceased but he did not see the incident and he is one post-occurrence witness. Sabyasachi Majumdar (P.W.6) i.e. the another neighbour of the victim who accompanied the victim to hospital and admittedly, he did not see the incident. This witness wrote the complaint as per the instruction of P.W.1. Babulal Sadhukhan (P.W.7) is the son-in-law of the victim but he also did not see the incident and was a post-occurrence witness. Dr. Debasish Sarkar (P.W.8) is the autopsy surgeon who deposed that on examination of the dead body of the victim, he found crack fracture over the 5th and 6th cervical vertebra.

Thus, considering the evidence on record, the documentary evidence relied upon by the prosecution and on hearing the argument, this Court is satisfied that this accused was the member of one unlawful assembly and his act resulted in the death of the victim and the knowledge can safely be derived from the circumstances. Thus, this Court is satisfied that the said appellant was rightly convicted in respect of the charge punishable under Sections 148 /304 Part-II read with Section 149 of the Code. This conviction is maintained and affirmed with this alteration from Section 34 to Section 149 of the Code.

Giving benefit of a juvenile, the sentence passed by the learned Trial Court is hereby set aside. The case, i.e. Budge Budge P.S. Case No. 24 dated 18-02-2015 (BGR Case No. 590 of 2005) be placed before the Juvenile Justice Board, South 24-Parganss for adjudication afresh and imposing adequate sentence. The entire lower court records be transmitted to that authority.

Department is directed to take early action in this regard.

The accused-appellant must appear before the said Board on 16th December, 2015. The accused-appellant is discharged from the bail bond.

Before I part with this judgement, I feel that it is my duty to see that P.W.2 who is now solely dependent on the income of her son be adequately compensated under Section 357A of the Code of Criminal Procedure. The age of this P.W.2, Mira Adhikary, the widow of Kartick Chandra Adhikary, was 42 years in the year 2009 when she faced the dock. I have already said that the victim was aged about 60 years and as such the said victim is to be compensated through one interim compensation by a lump sum amount of Rs. 2 lakh (two lakh).

The District Legal Services Authority will issue the A/c payee cheque in the name of said Mira Adhikary within one month from the receipt of the order. If the fund is not available to the said Authority for the purpose, the Government of West Bengal be informed to make allotment of adequate fund to run the said scheme. This Court is not satisfied that the life of a human being is not that cheap to be compensated by a small amount of Rs. 2 lakh only.

The Division Bench of this Court in its judgement as passed in CRA No...284 of 2009 in which myself delivered the judgment on 06.07.2015 (unreported) has already formulated one scheme matching with the formula of Section 163A of the Motor Vehicle Act. The principle led down in that decision is set out below:-

"We have had occasion to consider the West Bengal Victim Compensation Scheme 2012 wherein the maximum compensation to be awarded to a victim for loss of life is fixed at Rs. 2 (Two) lacs. This sum is insufficient when compared with loss of a dear one''s life.

It is true that human life is priceless but sometimes death comes otherwise than in normal circumstances and to combat this several compensation schemes have been framed by the Government both Central and State. The most favourable one being the scheme framed under the Motor Vehicles Act, 1988 and Sections 163A and 166 of the said Act in particular.

The 2012 Compensation Scheme has not set out the reasons for fixing the compensation amount. In fact, the Motor Vehicles Act has set out a formula, namely, the factors that need to be looked into while granting compensation, that is, the income of the person at the time of the road traffic accident and his age at that point of time. This formula is reasoned but compensation under the 2012 scheme is without any basis. The State Legal Services Authority (SLSA) OR District Legal Services Authority (DLSA) has been given authority to make enquiry for purposes of fixing compensation. Loss of life whether under the Motor Vehicles Act or Victim Compensation Scheme stands on the same footing and, therefore, the formula laid down under the second schedule of the 1988 Act ought to be followed while granting compensation to a victim and it is only for this purpose that Rs. 2(Two) lacs is granted to each of the victims as an interim compensation and Member Secretary, DLSA, Birbhum at Suri is directed to adjudicate the final compensation based on the formula contemplated under the Motor Vehicles Act, 1988. The Secretary, DLSA, Birbhum at Suri is directed to make payment of the interim compensation within one month from the date of receipt of the order passed and if the funds are not available with DLSA, the State of West Bengal will disburse such amount available within a month from the date of receipt of a copy of this judgment and within a month, thereafter, DLSA, will disburse the same to each of the victim or the legal heirs, as the case may be.

The final compensation to be fixed by DLSA will also be disbursed within one month from the date of determination of such sum. In the event funds are not available with DLSA, the State of West Bengal will disburse such amount within a month from the date of receipt of DLSA''s order and payment be made within a month thereafter."

The Chairman or the Secretary of the DLSA, South 24-Parganas, will make further enquiry to fix the final amount of compensation on the analogy as set out by the Division Bench judgment of this Court stated above. The said authority may also take into consideration of the decision of the Apex Court as passed in AIR 2015 SC 513 (Suresh and Anr. Vs. State of Haryana) wherein the Apex Court granted interim compensation to the tune of Rs. 10 lakh to the mother of the victim under Section 357A in spite of the fact that the compensation scheme of the said State Government was far below the said amount.

After this final assessment is made by such authority, the rest of the amount as calculated deducting the interim benefit to the tune of Rs. 2 lakh be handed over to that Mira Adhikary by one A/c payee cheque by the Chairman or the Secretary of the DLSA, South 24 parganas.

I further reiterate that the State of West Bengal must release adequate fund so that this poor lady, who lost her husband, may be adequately compensated and rehabilitated.

Department is directed to forward a copy of this judgement to the learned Trial Court, being the Fast Track Court-II, South 24-Parganas at Alipore, in connection with that Sessions Trial. Other copy of this judgement be forwarded to the Chairman, District Legal Services Authority, South 24-Parganas at Alipore and third copy of this judgement be forwarded to the Secretary, Government of West Bengal, Judicial Department, Writers'' Building, Calcutta-1, to see that the fund as mentioned in the judgement be placed in advance to the said Authority.

The appeal is, thus, disposed of.

There will be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.