30 March 2022 2:30 PM GMT
The Calcutta High Court on Tuesday reduced the sentence awarded to persons concurrently convicted under Section 324 read with Section 34 of the Indian Penal Code after noting that they are mostly agricultural labourers who had fallen prey to the hands of political powers without having any knowledge about politics.In the instant case, the appellants had been convicted for causing the death of...
The Calcutta High Court on Tuesday reduced the sentence awarded to persons concurrently convicted under Section 324 read with Section 34 of the Indian Penal Code after noting that they are mostly agricultural labourers who had fallen prey to the hands of political powers without having any knowledge about politics.
In the instant case, the appellants had been convicted for causing the death of one Saddam Hossain for having cast his vote to a rival political party. The deceased's granddaughter had filed a police complaint against the accused persons alleging that the appellants had assaulted the deceased when he had gone to take a bath and thereafter the deceased had succumbed to his injuries at the hospital.
The concerned Sessions Court had convicted all the appellants jointly under Section 324 IPC (voluntarily causing hurt by dangerous weapons or means) and under Section 34 IPC while accused Salam Mallick was also convicted for committing offence under Section 304(II) of the IPC for causing culpable homicide not amounting to murder of Saddam Hossain.
Justice Bibek Chaudhuri noted that the incident had occurred in the year 2008 and that the appellants had been facing trial for the last 14 years. Opining that the appellants had suffered mental agony due to the long pendency of the instant criminal proceedings, the Court underscored,
"The appellants are facing trial before the learned court below and also in this court for last 14 years. They have suffered tremendous mental agony during these years with pendency of a criminal case on their head. All the appellants are villagers, mostly maintain their livelihood as agricultural labourer. Some of the convicts are village housewives. The appellants do not know the intricacies of political ideology they become supporters of different political parties without having any knowledge about politics. They are practically preys and pawns in the hands of political powers."
Accordingly, the Court proceeded to reduce the sentence imposed upon the appellants by directing,
"Therefore, for the offence punishable under Section 324/34 of the IPC this Court is of the view that the accused persons shall be adequately punished if they are sentenced to suffer simple imprisonment of one year with fine of Rs.1000/- in default to undergo further simple imprisonment for three months each for the offence under Section 324/34 of the IPC."
The Court further observed that for conviction under Section 34 of the Indian Penal Code it is not necessary that each one of the accused must assault the injured persons and that it would suffice if it is proven that they all shared a common intention to commit the offence by carrying out their assigned roles whether similar or diverse.
Justice Chaudhuri at the outset noted that in order to establish the common intention of several persons so as to attract the mischief of Section 34 of the IPC, the following two fundamental facts have to be established; (i) common intention to commit an offence, and (ii) participation of the accused in commission of the offences.
Opining that no overt act on the part of some of the persons sharing common intention is necessary if the aforementioned two ingredients are satisfied, the Court underscored,
"If the above two ingredients are satisfied, even overt act on the part of some of the persons sharing the common intention was held to be not necessary. A finding that the assailant concerned had a common intention with the other accused is necessary for taking resort to Section 34. In other words, to attract Section 34 of the IPC, it is not necessary that each one of the accused must assault the injured persons. It is enough if it is shown that they shared a common intention to commit the offence and in furtherance thereof each one played his assigned role by doing separate acts, similar or diverse."
Perusing the evidence on record, the Court noted that the injuries on the deceased showed evidence of vital reaction and that he had died due to the effects of head injury, antemortem in nature. It was further opined that the deceased had received at least four injuries on different parts of his head and that he was not assaulted alone by Salam Mallick.
Opining that it is not possible to ascertain conclusively as to who gave the fatal blow to the deceased causing his death and that Salam Mallick ought not to have been convicted alone under Section 304 (II) of the IPC, the Court observed,
"From the evidence on record it is found that he received at least four injuries on different parts of his head and he was not assaulted alone by Salam Mallick. He was also assaulted by Nazir Fakir, Bubai Mallick and according to the injury report Sezehar Fakir and seven and eight others. Therefore, this Court is not in a position to hold conclusively as to who gave the fatal blow to Saddam Hossain causing his death. Therefore, Salam Mallick could not be convicted alone under Section 304-(II) of the IPC. Therefore, Salam Mallick, the appellant of Criminal Appeal No.18 of 2017 is entitled to get benefit of doubt and the learned trial judge ought to have passed an order of acquittal of the charge under Section 304-(II) of the IPC."
Thus, it was held that appellant Salam Mallick is entitled to be acquitted of the charge under Section 304(II)/34 of the IPC.
The Court further observed that the Trial judge had rightly held that all the accused persons took part in causing physical assault to the injured witnesses and that they had acted pursuant to a pre-arranged plan
"The facts clearly are consistent only with the hypothesis of their acting in furtherance of a common intention. They have, therefore, rightly been convicted with the aid of Section 34 of the IPC", the Court opined further.
Case Title: Abu Fazel Fakir & Ors v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 98
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