REPORTABLE
IN THE SUPREME COURT OF
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 876 OF 2012
(Arising out of S.L.P (Crl.) No.546 OF 2011)
Bishnupada Sarkar & Anr. …Appellants
Versus
State of
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. This appeal arises out of a judgment and order dated 15th July, 2010 passed by the High Court of judicature at Calcutta whereby Criminal Appeal No.641 of 2006 filed by the appellants has been dismissed and their conviction for the offence of culpable homicide not amounting to murder punishable under Section 304 Part I read with Section 34 IPC and sentence of rigorous imprisonment for a period of 10 years and fine upheld.
3. Facts giving rise to the commission of the offence by the appellants and their eventual conviction have been set out in the judgment under appeal which need not be recounted again especially because notice in this appeal was issued by us limited to the question of quantum of sentence to be awarded to the appellants. Suffice it to say that the unfortunate incident in which the deceased- Shyamalendu who was then working as Income Tax Inspector did no more than object to the commission of the nuisance in front of his house escalated into an uncalled for assault on him that culminated in his death. The prosecution case is that on
4. The police filed a charge-sheet against the appellants after completing the investigation for commission of offences punishable under Section 304 read with Section 34 IPC. At the trial the prosecution examined as many as 13 witnesses including the Investigating Officer to prove the charge while the defence examined Parvat Kumar Paria besides placing reliance on certain documents. By its order dated
5. Appearing for the appellants Mr. Ranjan Mukherjee submitted that the appellant-Bishnu Sarkar had not inflicted any injury on the deceased and that all that was alleged against him was that he exhorted appellant no.2-Madhab to assault the deceased and teach him a lesson. It was further submitted that the appellant-Bishnu Sarkar is more than 65 years of age and had already undergone 1½ years sentence in jail. He is also afflicted with various age related ailments that call for a lenient view in his case.
6. In so far as appellant no.2 was concerned, Mr. Mukherjee argued that the incident was more than 12 years old and that a drawn long trial and proceedings in appeal have already put the said appellant to tremendous financial and physical hardship. Being the only earning member of the family even appellant no.2, argued Mr. Mukherjee, deserves a reduction in the sentence especially when there was no intention to kill the deceased and the whole incident had taken place in the heat of passion on account of a sudden quarrel unfortunately culminating in the demise of the deceased.
7. Learned counsel appearing for the respondent, on the other hand, argued that the nature of injuries sustained by the deceased and the manner in which the incident had taken place did not justify the reduction in the sentence awarded to the appellants.
8. There is no evidence to suggest any pre-meditation on the part of the appellants to assault the deceased leave alone evidence to show that assailants intended to kill the deceased. There was no previous enmity between the parties who were residents of the same locality except that there was a minor incident in which some hot words were exchanged between the deceased and Sudhir. Even on the following day i.e. on
……………………….……..……J.
(T.S. THAKUR)
………………………….…..……J.
(GYAN SUDHA MISRA)