Rakesh Kumar Shil And ORS. v. The State

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

CRR/12/2022 CRAN/1/2022 Rakesh Kumar Shil and others ... Petitioners Vs.

The State ... Respondent Mr. D. Ilango ... for the Petitioners Ms. A.S. Zinu ... for the respondent June 23, 2022 [GNC] Item No.5 In Re:

CRAN/1/2022:

I have considered the application under Section 5 of the Limitation Act wherein the petitioners have prayed for condoning the delay of 49 days. The reasons assigned in paragraphs 7 and 8 are found to be just and sufficient and accordingly, the prayer for condonation of delay, being CRAN/1/2022, is allowed.

In Re:

CRR/12/2022:

Learned Advocate appearing for the petitioners has challenged the order dated 28th January, 2022 passed by the Learned Sessions Judge, Port Blair in Session Case No. 34 of 2021 wherein the learned Court was pleased to reject the application under Section 227 of the Code of Criminal Procedure, 1973 preferred at the instance of the petitioners and fixed the date for framing of charge on 1st March, 2022. Learned Advocate for the petitioners as well as the learned Public Prosecutor appearing for the State has submitted that till date charge not been framed by the learned Trial Court.

The background of the case relate to the registration of a case under Sections 325/34 of the Indian Penal Code which was subsequently converted into Sections 302/34 of the Indian Penal Code.

The prosecution on completion of the investigation submitted a charge-sheet relying upon 15 witnesses. The learned Public Prosecutor appearing for the State has produced the Case Diary and drawn the attention of this Court to the statements of different witnesses.

I find that the accused persons as well as the deceased both were in an inebriated condition when the incident took place. The petitioners assaulted the victim which resulted in his death after about two days of the incident.

The learned Advocate for the petitioners submits that even if the allegations and the materials relied upon by the prosecution are accepted to be true no offences under Sections 302/34 of the Indian Penal Code has been made out. On the other hand, learned Public Prosecutor appearing for the State consistently relied upon the statements of the witnesses and submitted that the prosecution has been prima facie able to make out a case for the accused to be tried for the charges under Section 302/34 of the Indian Penal Code. I have perused the statements of the witnesses who were present at the place of occurrence and I find that the prosecution case emerges from the factum of hurling of abuses at the instance of the present petitioners in view of the dispute arising with the person accompanying the deceased, namely one (Subhankar Das). The victim at the relevant point of time interfered and he was assaulted by the present petitioners.

I have considered the injury report, the postmortem report as also the statements of the witnesses on whom the prosecution has relied upon. On an appreciation of the same, I am of the opinion that although the petitioners did possess the knowledge that there is a possibility of victim/deceased succumbing because of the assault but prima facie there is no intention which surfaced from the evidence as there was no premediation on the part of the accused person. No factum of previous enmity was also reflects from the evidence of the case. Accordingly, I find that there is some force in the submission of the learned Advocate appearing for the petitioners and I thereby hold that although a case of discharge has not been made out but prima facie case has been made out for framing charge under Sections 304 Part-II of the India Penal Code.

The learned Trial Court at the time of framing of the charges would consider the factual background that the charges prima facie disclosed from the materials collected by the Investigating Agency do reveal the offences under Sections 304 Part 2, 504 and 34 of the Indian Penal Code. The charges be framed accordingly on the next date so fixed before the Trial Court.

The order dated 28th January, 2022 passed by the learned Sessions Judge, Port Blair in Session Case No. 39 of 2021 is hereby set aside.

Accordingly, CRR/12/2022 is allowed.

The learned Sessions Judge would follow the aforesaid direction and frame charges on the next date so fixed. Pending application, if any, is consequently disposed of.

The Case Diary be returned to the learned Public Prosecutor.

Parties are directed to act on the server copy of this order duly uploaded on the official website of the Hon'ble Calcutta High Court.

( Tirthankar Ghosh, J.)