Calcutta High Court (Appellete Side)

Sasanka Biswas @ Jordan vs The State Of West Bengal on 2 January, 2023

Item No. 36-37



                 IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL APPELLATE JURISDICTION
                          APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                 And
The Hon'ble Justice Ajay Kumar Gupta


                             C.R.A. 613 of 2014

                         Sasanka Biswas @ Jordan
                                   -Vs-
                         The State of West Bengal

                                   With

                              G.A. 23 of 2007

                          State of West Bengal
                                   -Vs-
                       Sashi Bhusan Biswas & Anr.


For the Appellant        :    Mr. Fazlur Rahman, Adv.
                              Mr. Ashraf Ali Mandal, Adv.
                              Md. Afzal Hussain, Adv.
                              Ms. Farnaz, Adv.

For the State            :    Mr. N. Ahmed, ld. APP
                              Mrs. Amita Gaur, Adv.

Heard on                 :    2nd January, 2023.

Judgment on              :    2nd January, 2023.


Joymalya Bagchi, J. :-

1.

Appellant Sasanka Biswas @ Jordan being convicted of

murder has assailed his conviction and sentence in Criminal Appeal

No. 613 of 2014. His parents viz. Sashi Bushan and Nanibala being

acquitted of the charge, State has preferred an appeal being G.A. 23 of

2007 against their acquittal.

2. Gist of the prosecution case alleged against the convict

Sasanka Biswas @ Jordan and his parents viz. Sashi Bushan and

Nani Bala is as follows :-

3. On 26.06.1995 at 12.30/1 PM a quarrel broke out between

Sashi Bushan and his neighbour Haradhan Roy. Sashi Bhusan alleged

Haradhan had lodged a false diary against him and threatened to

teach him a lesson. His brother Gouranga (PW1) raised protest which

enraged Sashi Bhusan. Sashi Bhusan attacked him. At that time his

nephew Sudhanshu @ Kala, son of Haradhan came to his rescue.

Sasanka Biswas @ Jordan, son of Sashi Bhusan brought out a khur

(razor) and chased Gouranga. Kala embraced Jordan and both of them

fell into a pond. A scuffle ensued and Jordan struck Kala with the

khur on his neck and other parts of his body. It is alleged Sashi

Bhusan and his wife Nanibala held the hands and legs of Kala. As a

result of assault, Kala died at the spot.

4. Written complaint was lodged by Gouranga (PW1) against

Sasanka Biswas @ Jordan and his parents viz., Sashi Bhusan and

Nanibala. Charge sheet was filed and charges were framed under

Sections 302/34 of the Indian Penal Code.

5. To prove its case, prosecution examined 14 witnesses and

exhibited a number of documents. In conclusion of trial, the trial

Judge by the impugned judgment and order dated 28.06.2006 and

29.06.2006 convicted Sasanka Biswas @ Jordan for commission of

offence punishable under Section 302 IPC and sentenced him to suffer

rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in

default, to suffer to rigorous imprisonment for five months more. His

parents viz., Sashi Bhusan and Nandibala were acquitted of the

charges levelled against them.

6. Learned Advocate for the appellant viz. Sasanka Biswas @

Jordan in CRA 613 of 2014 argues that the prosecution case has not

been proved. Incident occurred in course of a scuffle. Sasanka @

Jordan did not have the intention to commit the murder. Without

prejudice to the aforesaid submission, he contends Sasanka @ Jordan

was a juvenile at the time of occurrence. He was 17 years old and

ought not to have been tried as an adult.

7. Mr. Neguive Ahmed, learned Additional Public Prosecutor

with Mrs. Amita Gaur submits evidence on record particularly that of

the eyewitnesses viz. PWs. 1, 3, 4, 6, 11 and 12 clearly establish the

role of Sasanka Biswas @ Jordan in the murder. Sashi Bhusan and

Nanibala had aided and abetted the murder. They held the hands and

legs of the victim when he was stabbed.

8. With regard to the plea of juvenility, it is contended incident

occurred in 1995 when the age of juvenility was 16 and not 18 years.

Sasanka Biswas @ Jordan being 17 years old at the time of occurrence

cannot take advantage of such plea.

9. I have gone through the evidence on record.

10. PW1 (Gouranga Roy) is the uncle of the deceased. He is an

eye witness and the de-facto complainant. He deposed on 26.06.1995

at 12.00/1.00 PM a dispute arose. Sashi Bhusan alleged his brother

Haradhan had falsely accused him. When PW1 objected Sashi Bhusan

attacked him. Kala came to his rescue. At that time Jordan attacked

them with a khur. Kala embraced Jordan. They fell into a pond. A

scuffle ensued. In course of scuffle, Jordan hit Kala on the neck and

other parts of the body. As a result of assault, Kala died at the spot.

Sashi Bhusan hit him with a bamboo on the head and Nanibala with

broom sticks. He lodged written complaint.

11. The manner in which PW1 depicted the incident would show

that the incident occurred in course of a sudden quarrel between two

families. During the quarrel Jordan had come out with a khur in hand.

Kala had embraced him and both fell into a pond. At that juncture

Jordan assaulted Kala with a khur on his neck and other parts of the

body. PW1 is completely silent with regard to the roles of Sashi

Bhusan and Nanibala in the assault on Kala. Even his plea that they

had assaulted him with lathi and broom sticks is not supported by

medical evidence.

12. Other eye witnesses to the incident are PW3 ( Puspa Rani

Roy), PW4 (Sabitri Roy), PW6 (Guru Dasi Roy), PW11 (Paresh Chandra

Acharya) and PW12 (Bimal Krishna Bala). These witnesses while

corroborating PW1 with regard to the assault by Jordan on Kala with a

khur, have embellished the prosecution case vis-a-vis the roles of

Sashi Bhusan and Nanibala.

13. PWs. 3, 4 and 6 claimed Sashi Bhusan and Nanibala had

held the hands and legs of Kala when their son Sasanka Biswas @

Jordan struck him with a khur.

14. PWs. 11 and 12 improved the prosecution case even further

and claimed they even exhorted Jordan to kill Kala.

15. Prosecution case appears to have developed in layers in

order to implicate not only Sasanka Biswas @ Jordan but his parents

viz. Sashi Bhusan and Nanibala.

16. In view of the aforesaid variations in the depiction of the

prosecution case particularly with regard to the roles of Sashi Bhusan

and Nanibala in the assault on Kala, I am of the opinion the view

taken by the trial court to acquit them of the charges under Sections

302/34 of the Indian Penal Code is a reasonable one and does not

require interference. When the view of a trial court is reasonable and

does not suffer from perversity, the appellate court would be loathe to

alter the same and record conviction against acquitted accuseds.

17. However, the role of Sasanka Biswas @ Jordan in the murder

has been established beyond doubt. In course of quarrel, he had taken

out a razor and assaulted Kala repeatedly on vital parts of the body

including neck and shoulder.

18. Ocular version of the eyewitnesses is supported by medical

evidence on record. PW9 (Dr. Rathindra Nath Halder), post mortem

doctor found the following injuries on the deceased:-

"1. Sharp cut injury over the front of neck which was 5" x 2" x cervical vertebrae deep. Trachea and oesophagus were cut.

2. Sharp cut injury over right shoulder joint which was 4" x 2" x bone deep."

The nature and situs of the injuries noted by the post mortem doctor

corroborates the manner of assault as depicted by the eyewitnesses.

19. Be that as it may, I find much force in the submission of Mr.

Fazlur Rahman that Sasanka Biswas @ Jordan ought to have been

treated as a juvenile in conflict with law and not an adult. Materials on

record show he was 17 years old at the time of occurrence.

20. Section 2(h) of Juvenile Justice Act 1986 which was in force

at the time of occurrence i.e. 1995 fixed the age of juvenility at 16

years.

21. Section 2(h) of Juvenile Justice Act 1986 is as follows:-

"S.2(h) "Juvenile" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years."

22. During the pendency of the trial the Juvenile Justice (Care

and Protection of Children) Act, 2000 came into effect from

01.04.2001.

23. Section 2(k) of the Act of 2000 defined juvenile in conflict

with law as a person who is below 18 years of age.

24. Explanation to Section 20 of the Act of 2000 reads as

follows:-

"Section 20:- *** *** *** Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed."

25. The said explanation fell for interpretation in Dharambir Vs.

State (NCT of Delhi)1. The Apex Court held as follows:-

"11. It is plain from the language of the Explanation to Section 20 that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, etc., the determination of juvenility of a juvenile has to be in terms of clause (l) of section 2, even if the juvenile ceases to be a juvenile on or before 1-4-2001, when the Act of 2000 came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed."

1 (2010) 5 SCC 344

26. In the light of the aforesaid interpretation of Explanation to

Section 20 of the Act of 2000 the appellant was entitled to the

beneficial provisions of the Act of 2000 and ought to have been treated

as a juvenile in conflict with law as he had not completed 18 years of

age at the time of occurrence. Similar view has been taken in Satya

Deo vs. State of Uttar Pradesh2.

27. Under such circumstances, though I am inclined to uphold

the conviction of appellant, life sentence imposed upon him is liable to

be set aside. Accordingly, I hold as follows:-

(1) GA 23 of 2007 preferred by the State against acquittal of

Sashi Bhusan Biswas and Nanibala Biswas @ Nani Rani

Biswas is dismissed.

(2) CRA 613 of 2014 is disposed of upholding the conviction of

appellant Sasanka Biswas @ Jordan but setting aside the

substantive sentence of life imprisonment imposed upon him

on the ground of juvenility. Fine imposed on the appellant

remains unaltered.

28. Appellant Sasanka Biswas @ Jordan has already suffered

incarceration for more than 16 years. Hence, he shall be forthwith

released from custody, if not wanted in any other case.

29. In view of disposal of the appeals, connected application(s) if

any stands disposed of.

2 (2020) 10 SCC 555

30. Let a copy of this judgment along with the lower court

records be forthwith sent down to the trial Court at once.

31. Photostat certified copy of this judgment, if applied for, shall

be made available to the appellant within a week from the date of

putting in the requisites.

I agree.