Haripada Sarkar vs State Of West Bengal
2021 Latest Caselaw 6273 Cal

Form J(2)        IN THE HIGH COURT AT CALCUTTA
                    Criminal Appellate Jurisdiction
                            Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                       C.R.A. 149 of 2018

                         Haripada Sarkar
                               Vs.
                       State of West Bengal


For Appellant:         Mr. Tapan Datta Gupta
                       Mr. Parvej Anam
                       Mr. Bijay Bag

For the State:         Mr. Ranabir Roychowdhury
                       Mr. Sandip Chakraborty


Heard on               : 07.12.2021


Judgment On            : 13.12.2021

Bibek Chaudhuri, J.

In the instant appeal the appellant has assailed the order of

conviction and sentence passed against him under Section 324 of the

Indian Penal Code in Sessions Case No.630 of 2016 corresponding to

Sessions Trial No.4(01)/2017 passed by the learned Additional

Sessions Judge, Fast Track, Second Court, Malda on 22 nd February,

2018. The learned trial Judge sentenced the accused to suffer simple

imprisonment for one year with fine of Rs.1,000/-, in default, to suffer

simple imprisonment of one month more for the offence punishable

under Section 324 of the Indian Penal Code.

Bamangola Police Station Case No.206 of 2016 was registered

on 18th October, 2016 on the basis of a written complaint submitted

by Chandmoni Barman (hereafter described as the de facto

complainant). It is alleged by the de facto complainant that on 17 th

October, 2016 at about 10.30 P.M. the accused came in front of the

house of the de facto complainant in drunken condition. Then he

abused her with filthy language. Hearing such abusing language the

son of the de facto complainant, namely Manik Barman came out of

the house and requested him to go away. But the accused Haripada

Sarkar refused to leave the place and went on abusing the de facto

complainant. The de facto complainant pushed him back so that he

might leave the place. By this the accused assaulted her on her head

with a bamboo causing severe bleeding injury. Seeing the de facto

complainant in injured condition, the accused left the place.

Subsequently, she was medically treated in the local hospital.

Investigation of the case culminated in filing charge sheet

against the accused under Section 448/325/308 of the Indian Penal

Code. Since the offence under Section 308 of the Indian Penal Code

was exclusively triable by the Court of Sessions, the case was

committed to the Court of the learned Sessions Judge and

subsequently it was transferred to the learned trial Court for trial and

disposal.

Lower Court record further reveals that the learned trial Judge

framed charge against the accused Haripada Sarkar under Section

448/325/308 of the Indian Penal Code. As the accused pleaded not

guilty, trial of the case commenced.

During trial prosecution examined seven witnesses to establish

the charge. The learned trial Judge on careful scrutiny of evidence on

record and the exhibits found the accused guilty for committing

offence under Section 324 of the Indian Penal Code and convicted and

sentenced him accordingly. Hence the appeal.

It is already recorded that during trial prosecution examined

seven witnesses. Amongst them P.W.1 is the de facto complainant.

P.W.2 Rina Bibi, P.W.3 Mithibala Barman, P.W.4 Iyub Ali Mondal and

P.W.6 Sk. Tujubuddin Sk. are the neighbours of the de facto

complainant. P.W.5 Dr. Jagodish Chandra Mondal is the Medical

Officer attached to Bamangola Rural Hospital on 17 th October, 2016.

P.W.7 is the Investigating Officer of the case. Before dealing with the

evidence adduced by the witnesses let me adjudicate at the outset

the technical objection raised by Mr. Tapan Datta Gupta, learned

advocate for the appellant on the issue of error in charge. It is

pointed out by Mr. Datta Gupta that the charge framed by the learned

trial Judge does not contain particulars as to time and place which are

mandatory to be stated to the accused under Section 212 of the Code

of Criminal Procedure.

On perusal of the charge framed by the learned trial Judge this

Court is in conformity with the learned advocate for the appellant that

the learned trial Judge while framing charge did not mention the

name of the place where the incident allegedly took place. However,

the charge contains the time of the alleged occurrence and it is also

recorded that the incident took place in front of the house of the de

fact complainant, namely Chandmoni Barman.

Purpose of framing proper charge as enunciated by the Hon'ble

Supreme Court in Esher Singh versus State of U.P. reported in

(2004) 11 SCC 585 is as hereunder:-

"It is the precise formulation of the specific

accusation against a person who is entitled to know its

nature at the earliest stage. A charge is not an

accusation made or information given in the abstract but

an accusation made against a person in respect of an act

committed or omitted in violation of penal law forbidding

or commanding it. In other words, it is an accusation

made against a person in respect of an offence alleged to

have been committed by him. A charge is formulated

after inquiry as distinguished from the popular meaning

of the word as implying inculcation of a person for an

alleged offence as used in Section 224 of the Indian

Penal Code."

Therefore, plain reading of the above mentioned observation

goes to suggest that the charge must contain the details of the time

and place of the incident for which the accused is charged so that the

accused can understand for what act or omission he is going to face

trial.

Coming to the instant case it is found from the charge framed

by the learned trial Judge that she stated the date and time of the

alleged incident. She also stated the place, i.e., in front of the house

of the de facto complainant, where the alleged incident took place.

However, the learned trial Judge did not mention the name of the

village where the alleged incident took place. This omission to

mention the name of the village, in my considered opinion is not an

error which would vitiate the trial of the case. Therefore, the initial

objection raised by the learned counsel for the appellant cannot

stand. Further more, in view of the provision contained in Section

464 of the Code of Criminal Procedure, no final sentence or order by

the Court of competent jurisdiction shall be deemed invalid merely on

the ground of any error, omission or irregularity in the charge, unless

a failure of justice has in fact been occasioned thereby. In the instant

case, I do not find and also it is not agitated by the learned counsel

for the appellant that as a result of omission to state the name of the

village where the incident occurred a failure of justice had occasioned.

So, the above objection is considered and found to be not

entertainable.

P.W.1 is the de facto complainant and injured of the case. It is

found from her evidence that on 17 th October, 2016 at about 10:30

p.m. the appellant came in front of their house in drunken condition

and abused her with filthy language. Hearing such abusive language,

the de facto complainant and her son came out of their house. The

son of the de facto complainant, namely Manik Barman asked him to

stop but he did not stop abusing the de facto complainant and on the

contrary, he assaulted her with a bamboo stick on the head causing

bleeding injury. After the incident, she was taken to Mudipukur

Hospital for medical treatment. On the next day she lodged complaint

against the appellant. The complaint was marked as exhibit-I during

trial of the case.

It is pointed out by Mr. Dutta Gupta, learned Advocate for the

appellant that Manik Barman, the son of the de facto complainant who

was the eye-witness of the occurrence, was not examined during trial.

Therefore, the evidence of the de facto complainant was not

corroborated by any other eyewitness.

P.W.2, Rina Bibi and P.W.6, Tujubuddin Sk. corroborated the

evidence of the de facto complainant. It is pointed out by Mr. Dutta

Gupta that P.W.3, who is the daughter of the deceased husband of

the de facto complainant having her residence at the same place, did

not support the prosecution case. P.W.4, Iyub Ali Mondal was also

declared hostile by the prosecution. However, it is ascertained from

his evidence that on 17.10.2016, the de facto complainant received

cut injury on her head.

P.W.5, Dr. Jagodish Chandra Mondal was a Medical Officer

posted at Bamangola Rural Hospital on 17th October, 2016. On that

day, he medically examined the de facto complainant and found small

cut injury on the scalp approximately 2 cm length and skin deep on

her person. The injury report was marked as exhibit-II during trial of

the case.

Mr. Dutta Gupta, learned Advocate for the appellant has pointed

out that the de facto complainant did not state the name of the

assailant before the Medical Officer. On the subsequent date, she

filed a complaint in the local police station against the appellant. She

got the opportunity to state for the first time before the Medical

Officer, the name of her assailant but non-disclosure of her name

casts a doubt in the prosecution case.

Learned Public Prosecutor-in-Charge has supported the

impugned judgment with reference to the evidence on record.

I have independently considered the evidence on record. There

is no doubt that on 17 th October, 2016, the de facto complainant

received injury on her head at about 10:30 p.m. From the injury

report it appears that she was medically examined at about 11:55

p.m. on the same day. The Medical Officer recorded the history of

physical assault as the cause of the injury, received by the de facto

complainant.

P.W.2, Rina Bibi who is an independent witness has

corroborated the evidence of P.W.1 in her examination-in-chief.

Credibility of the evidence of the de facto complainant could not be

shaken during her cross-examination.

In my considered view, non-examination of the son of the de

facto complainant is not fatal for the prosecution because the de facto

herself is the injured and evidentiary value of an injured person

carries much weight. The Court can pass an order of conviction on

the basis of the sole testimony of an injured witness. Her evidence

was corroborated on all material particulars with the evidence of the

Medical Officer (P.W.5).

Therefore, the learned Trial Judge rightly held the accused guilty

for committing offence under Section 324 of the Indian Penal Code

and the appellant was convicted and sentenced accordingly.

I do not find any reason to interfere with the impugned

judgment and order of conviction and sentence.

Accordingly, the instant appeal is dismissed and the judgment

and order of conviction and sentence passed in Sessions Trial

No.4(01)/2017 arising out of Sessions Case No.630 of 2016 is

affirmed.

The appellant is directed to surrender before the learned Court

below to suffer sentence within 2 (two) weeks from the date of this

judgment, failing which, the learned Trial Judge is at liberty to issue

warrant of arrest against the appellant.

Let a copy of this judgment be sent to the Court below forthwith

along with lower court record.

The parties are at liberty to act on the server copy of the

judgment.

Urgent photostat certified copy of this judgment, if applied for,

be given to the learned advocates for the parties on usual

undertakings.

(Bibek Chaudhuri, J.)