Shri Keshab Mistry v. The State
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY CRA(SB)/8/2022 SHRI KESHAB MISTRY ... Appellant
Versus
The State ... Respondent For the appellant :
Ms. Shipra Mondal For the respondent :
Ms. A. S. Zinu Heard on :
22nd November, 2023 Judgment on :
23rd November, 2023 SIDDHARTHA ROY CHOWDHURY, J.
1.
Challenge in this appeal is to the judgment and order of conviction passed by the learned Additional Sessions Judge, Andaman and Nicobar Islands, Port Blair in Session Case No. 49 of 2016. 2.
By the impugned judgment, learned Trial Court was pleased to record an order of conviction under section 326 of the Indian Penal Code and sentenced the convict Keshab Mistry to suffer rigorous imprisonment for five years and to pay fine of Rs. 5000/- (rupees five thousands) with a default clause, subject to the provision of section 428 of the Indian Penal Code.
3.
Briefly stated one Shri Ranjit Munda set the criminal administration of justice into motion by informing the Station House Officer, Kadamtala Police Station that on 12th June, 2016 at about 8 P.M. Keshab Mistry, a co-villager came to his house and told him that Keshab Mistry wants to sale ten bighas of agricultural land at a consideration of rupees eight lakhs out of which he would pay a sum of rupees two lakhs to the informant if he could arrange for a customer. In course of discussion Chiranjit Minj alias Chella living in the neighbourhood came to the house of Ranjit Minj with stick in his hand and after listening to the conversion he is started abusing Keshab by call him a thief, who was thus defaming the co-villagers. 4.
He was about to hit Keshab Mistry with a stick in his hand, Keshab ran away towards the backside of the house being chased by Chiranjit. Ranjit followed them with a torch in his hand and found Keshab. Landing a blow of spade kept beside the house of Ranjit on the head of Chiranjit Minj and made Chiranjit Minj suffer bleeding injury. Keshab however fled away. Ranjit informed Francis Minj, brother of Chiranjit Minj. Francis Minj and Suresh Barwa came to the house of Ranjit and they took Chiranjit Minj to medical. 5.
The information so given, was reduced into writing and as the information disclosed offence cognizable in nature, Kadamtala PS Case no. 24 of 2016 was registered. Police took up investigation which
culminated into submission of charge sheet against the accused person.
6.
After compliance of the provision of the sections 207 and 209 of Code of Criminal Procedure, on 13th January, 2017 learned Trial Court framed charges under section 307 of the Indian Penal code against the accused person, who pleaded his innocence and claimed to be tried.
7.
To crown success prosecution examined as many as fifteen witnesses and upon perusal of evidence both oral and documentary, learned Trial Court was pleased to record the order of conviction under section 326 of the Indian Penal Code and passed the impugned judgment.
8.
Assailing the impugned judgment, Mrs. Shipra Mondal, learned counsel for the appellant submits that the learned Trial Court while recording order of conviction did not take into consideration the provisions of the section 335 of the Indian Penal Code. The FIR that contains maiden information about the alleged incident unerringly indicates the grave provocation given by the Chiranjit Minj (alias) Chella by calling the accused as thief and even he chased the accused person with a lathi in his hand.
9.
It is further contended by Ms Mondal, drawing my attention to the oral testimony of the PW-1, the defacto complainant, PW-2 Chiranjit Minj, the victim and the statement recorded by PW-13.
Learned Civil Judge, Senior Division under section 164 of the Code of criminal are incoherent in nature. The statement made by defacto complainant verbally to the Station House Officer of jurisdictional police station indicates that Keshab came to his house at about 8 in the night and in course of discussion, Chiranjit Minj @ Chell came there with a lathi in his hand. He chopped in when Ranjit Minj and Keshab Mistry were discussing an issue, abused Keshab as a thief and chased him with a lathi in his hand.
10.
Chiranjit Minj @ Chella in his statement under section 164 of the Code of Criminal Procedure disclosed before the Judicial Magistrate that being attracted by loud sound from the house of Ranjit his neighbour, he asked Ranjit as to what happened in his house and in reply Ranjit stated that Keshab Mistry, the thief came to his house. He told Ranjit to drive him out and then he came to the house of Ranjit being called by him.
11.
It is his further statement that Keshab Mistry suddenly assaulted him with a spade (kodal), he also sustained injury on his right hand in a bid to protect the head. He also sustained injury on the upper leap. He fell down and after some time he came to his house, from there he was taken to Kadamtala Primary Health Centre where the doctor managed his injury and referred him to the GB Pant Hospital.
12.
The statement recorded under section 164 of the Code of Criminal Procedure was admitted as exhibit 13. While adducing evidence as PW-2 Chiranjit Minj @ Chella stated on oath that Keshab Mistry called and asked him to come out from room. Accordingly he came out. Keshab came to commit theft, he tried to catch hold of Keshab, when Keshab landed a blow of spade on his head and made him suffer bleeding injury. He fell down on the backside of the room of the Ranjit Munda and became senseless, after gaining sense he went to his house and again became senseless, thereafter he was taken to hospital by somebody and from Kadamtala Health Centre he was sent to GB Pant Hospital at Port Blair.
13.
Prosecution examined him in the light of the section 154 of the Evidence Act and in course of such examination PW-2 stated that Keshab Mistry landed a blow of spade on his forehead. 14.
Upon careful perusal of evidence on record, I find that PW-2 Chiranjit Minj sustained bleeding injury. Evidence on record unerringly indicate that PW2 was assaulted by accused who landed blow of spade on his forehead and made him suffer bleeding injury. 15.
The section of 326 of the Indian Penal Code enunciates. "Voluntarily causing grievous hurt by dangerous weapons or means-Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or
by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 16.
From the FIR, as I have already pointed out, it appears that the victim PW2 came to the spot with a lathi in his hand and he chased the accused person, who landed a blow of spade, before that PW-2 abused the accused person as thief. From oral testimony of the PW-1 we find that Chiranjit Minj drag Keshab Mistry at the backside of his house. Being asked by Keshab Mistry, he brought some water and the found Chiranjit in senseless condition. Chiranjit told him that Keshab Mistry landed a blow of spade on his head when there is altercation in between Chiranjit and Keshab Mistry.
17.
Therefore there is every reason to presume that the victim played a proactive role and provoked the accused person either by calling him a thief and chasing him with lathi or by dragging him to the backside of the house of PW-1.
18.
It is rightly argued by Ms. Mondal that learned Trial Court ought to have taken consideration the prologue to the incident that culminated into landing of blow of spade on the head of the victim by the accused person. There was enough evidence to infer provocation on the part of the victim.
19.
In my humble opinion, learned Trial Court could not have recorded an order of conviction under section 326 of the Indian Penal Code. At best it could be an offence within a meaning of the section 335 of the Indian Penal Code, which says:- "Voluntarily causing grievous hurt on provocation. - whoever (voluntarily) caused grievous hurt on grave and sudden provocation, if he neither intends nor know himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to four years, or with fine which may extend to two thousand rupees, or with both" 20.
. Under such circumstances, I am of the view that accused person is guilty of committing offence within the meaning of the section 335 of the Indian Penal Code where maximum prescribed punishment is four years of imprisonment or fine to the tune of rupees two thousands.
21.
The convict is in custody and it is submitted that he has already undergone four years of incarceration. Since the accused has already spent four years of incarceration, he may be directed to suffer imprisonment for the period already undergone. He be released at once from the custody, if not wanted in any other case. The impugned judgment is thus modified.
22.
The criminal appeal is thus allowed in part and is thus disposed of along with application if any.
23.
A copy of the judgment along with LCR be sent down to the learned Trial Court for information and necessary action. 24.
Another copy of the judgment be sent to the Superintendent of District Correctional Home, Pothrapur for necessary action. 25.
Urgent Photostat certified copy of the judgment, if applied for, be supplied to the parties upon compliance of all legal formalities. (SIDDHARTHA ROY CHOWDHURY, J.)