Badal Ghosh & Anr vs The State Of West Bengal
2022 Latest Caselaw 5588 Cal

                                      1




                     IN THE HIGH COURT AT CALCUTTA

                      (Criminal Appellate Jurisdiction)

                               Appellate Side



Present:

The Hon'ble Justice Debangsu Basak

            And

The Hon'ble Justice Bibhas Ranjan De


                             C.R.A 84 of 2020
                            Badal Ghosh & Anr.
                                     Vs
                         The State of West Bengal


For the appellants        :Mr. Sudipto Moitra, Advocate
                          Mr. Samiran Mandal, Advocate
                          Mr. Abhinaba Dan, Advocate
                          Mr. Vijay Verma, Advocate
                         Mr. Dwaipayan Biswas, Advocate


For the State             :Mr. Madhusudan Sur, Ld. APP
                          Mr. Dipankar Pramanik, Advocate


Heard on                   : July 21, 2022
Judgment on                : August18, 2022



Bibhas Ranjan De, J.:-

  1. This is an appeal directed against the judgement passed by

      Ld. Additional District and Sessions judge, 1st Court,
                               2


 Bankur and Special Court under Schedule Caste and

 Scheduled Tribe (prevention of Atrocities) Act (for short S.C

 S.T (POA) whereby, Ld Judge convicted appellants Badal

 Ghosh and Sristidhar Ghosh for the offence under Section

 302 Indian Penal Code (for short IPC) by an order dated 28th

 January 2018 and sentenced them to suffer rigorous

 imprisonment for life for the offence punishable under

 Section 302 IPC also to pay fine of Rs. 50,000/- in default to

 suffer further rigorous imprisonment for six (6) months. But,

 13 accused persons were found not guilty of the charge

 under Sections 148/302/149 of IPC read with Section 3(i)

 (ii) of the S.C & S.T (POA) Act and they were acquitted.

 Brief Facts

:-

2. One Basudeb Digar son of late Ratan Digar, a resident of

village Bhirbandi lodged a written complaint before officer in

charge of Indus PS, Bankura to the effect that on

09.12.1997 at about 5 p.m. 26 accused persons and many

others armed with weapons like gun, tangi, spear came for

Bhurbandi village and threatened Basuded to withdraw

Bihsnu MP Case No. 374 of 1997 otherwise he would be

killed. Those accused person assaulted Gopal Digar

Abhiram Dhara. One of the injured namely Abhiram Dhara

was dragged to the house of Badal Ghosh.

3. On receipt of the written complaint this case was registered

being no. 37/97 dated 9.12.1997 for the offence under

Section147/148/149/323/325/326/307 of the Indian

penal Code. Prosecution witness no. 14 (Aloke Kumar

Mitra) took up investigation of this case. Formal FIR was

drawn up. During investigation he visited place of

occurrence (for short PO) and prepared rough sketch map

with index (exhibit-9). Interregnum, both the injured

succumbed to their injuries at Burdwan Hospital for which

Burwan PS UD Case No. 895 of 1997 and Burdwan PS UD

Case No. 902/ 1997 were started. During investigation he

collected injury report from Indus BPHC and recorded

statement of available witnesses under Section 161 of the

Criminal Procedure Code (for short Cr.P.C.). After

completion of investigation charge sheet was filed against

21 accused persons under Section 147/148/149/302 of

the IPC read with Section 3 (i) (ii) of the S.C S.T (POA) Act.

4. Among 21 Accused persons Durgapada Ghosh and

Dhurabapada Ghosh died before commitment of the Case

and the case was filed against them on 28th April, 2004 and

18th March, 2005. Further it reveals from the record that

after commitment out of 19 accused persons, Sukumar

Ghosh and Shaymal Ghose died and case was file against

them also on 19th March, 2008.

5. On 04.09.2010 learned trial judge framed charge under

Section 148/302/149 of the IPC and Section 3 (i) (ii) of S.C

S.T (POA) Act 1989 against 17 accused persons who

pleaded not guilty and claimed to be tried. Subsequently,

on 08.07.2019 further charge was framed under Section

148/302/149 of the Indian Penal Code read with Section 3

(i) (ii) of the S.C & S.T (POA) Act against all 15 accused

persons facing trial.

6. It is also revealed from the record that during trial two

accused persons namely, Kartick Ghosh and Aditya Ghosh

died and the case was filed against both of them by the

order dated 22.07.2015.

7. To prove the charge prosecution examined as many as

fourteen(14) witness and in course of evidence a good

number of documents were admitted in evidence as exhibit

1to 9.One document was relied on behalf of the accused

persons and that was admitted in evidence as exhibit A.

Argument Advanced:

8. Sudipta Moitra, Ld. Senior Advocate has pointed out that

from the evidence it would be revealed that there are

several litigations pending between the parties and as a

result of which appellants have been falsely implicated. He

also pointed out that Prosecution witness no. 4 and 5 being

resident of the same locality did not support the

prosecution case they were declared hostile. Besides, Mr.

Moitra, pointed out some contradiction in the evidence of

witnesses and no independent witness was examined in

this case. He also assailed that Ld. Trial Judge did not

evaluate interestedness of the witnesses.

9. Mr. Moitra further submitted that in this case charge sheet

was submitted by an officer below the rank of Deputy

Superintendent of Police in violation of provision of the S.C

and S.T (prevention of Atrocities) Act, 1989.

10. Mr. Moitra has again contended, that accused person

was acquitted of the charges under Section 148/149/302 of

the Indian Penal Code and no separate charge under

Section 302 of the Indian penal Code was framed against

the accused person the thereby the sentence is not

sustainable in law. Mr. Moitra also pointed out the belated

examination of witness under Section 161 Cr.P.C. It has

been further submitted that neither any weapon nor any

wearing apparels were ever seized by the Investigating

Officer.

11. Referring to the examination of appellant under

Section 313 Cr.P.C Mr. Moitra has submitted that no

question relating to the offence under Section 302 of the

IPC was asked. In support of his contention Mr. Moitra

relied on the following decisions:

 (1955)1 SCR 1201(Nank Chand v. State of Punjab)

 AIR 1966 SC 1742 (Lkhan Mahto and others v. State

of Bihar.

 (2019) 2 Supreme Court Cases 237

12. Mr. Madhusudan Sur, Ld. Advocate, appearing on

behalf of the State supported the judgement and contended

inter alia that the ocular evidence conjointly with the

medical evidence clearly established without any shadow of

doubt that the appellants committed murder of Gopal Digar

and Abhiram Dhara. Mr. Sur further submitted that

prosecution witnesses remained unshaken in cross-

examination. Accordingly he has submitted that the

judgment assailed in this case does not suffer either from

any infirmity or illegality warranting interference.

13. In the judgement the learned Trial Judge relied on the

evidence and came to his final opinion that prosecution

evidence was sufficient to establish that appellants are

responsible for murder of Gopal Digar and Abhiram Dhara.

But, he found insufficient evidence against rest 13 accused

persons. Accordingly, he acquitted those 13 accused

persons and convicted appellants for committing offence

punishable under section 302 of the Indian Penal Code.

Decisions:

14. Before evaluating the evidence is would be appropriate

to reiterate the settled proposition of law relating to the

term "beyond reasonable doubt" embedded in criminal

justice system.

15. Proof beyond reasonable doubt is a guideline not a

fetish and guilty man cannot get away with crime because

truth suffers some infirmity when projected through human

processes. Any probability of bias or predetermined

conclusion has to be excluded. A fact is said to be proved

when, after considering the matter, the Court either

believes is to exist or considers its existence so probale that

a prudent man ought under the circumstances of a

particular case, to act upon the supposition that it exists.

16. It is, therefore, the duty of the Court to scrutinize the

evidence carefully and, in terms of the felicitous metaphor,

separate the grain from the chaff. But, it cannot obviously

disbelieve the substratum of the prosecution case or the

material facts of the evidence and reconstruct a story of its

own out of the rest.

17. In this case, prosecution examined 14 witnesses. One

of them prosecution witness (for short P.W) no. 1 & 2 were

declared hostile by the prosecution. But both of them

admitted the incident of assault alleged in this case.

According to them Gopal Diger and Abhiram Dhara

succumbed to injuries caused by Sukumar Ghosh,

Shyamal Shosh, Dhrubapada Ghosh and Durgapada

Ghosh who are now dead. They also deposed that both

Gopal Diger and Abhiram Dhara were taken to hospital at

Indus and thereform to Burwan hospital where both of

them dead. PW-1 (Janani Diger) in her cross-examination

on behalf of the prosecution, has stated that her father-in-

law, Gopal Diger was assaulted by Shyamal Ghosh,

Dhrubapada Ghosh, Durgapada Ghosh and Sukumar

Ghosh. PW-2 also deposed in same. Both of them were in

the field at the time of incident and they heard the incident.

18. Complainant, Basudeb Diger, has been examined as

PW-3. He has testified that incident take place on

09.12.1997 at about 5 p.m. He was in his house. All

accused persons armed with lathi, "tangi", gun came to his

house and abused and threatened him to withdraw M.P

case no 374/97 otherwise he would be killed. Abhiram

Dhara has assaulted by Badal Ghosh by "Tangi" and other

accused persons assaulted him by lathi. At that time, Gopal

Diger came over there and accused Sristidhar Ghosh

assaulted him with "tangi" and other accused persons

assaulted by lathi. Both of them were taken to Police

Station and complaint (exhibit-1) was lodged. Those injured

were taken to Indus Primary Health Center and thereafter

to Burdwan Hospital where Abhiram Dhara died. After two

days Gopal Diger expired.

19. During cross-examination of the complainant (PW-3) it

is revealed that there were several litigations between the

parties over the land issue. After the incident he took Gopal

Diger to Police Station by a Bullock Cart. Thereafter Police

sent him to Hospital.

20. Before further proceeding to the evidence of individual

witnesses it would be appropriate to focus on the time of

happening of incident of assault on the alleged date of

incident. From the cross-examination of witness

particularly suggestion put to the witnesses it is revealed as

follows: There are two separate localities, one is called as

"Dom Para and other as "Ghosh Para". Complaint and other

witness of this case belong to "Dom Para" and all accused

are of "Ghosh Para". Both the locality are situated side by

side. It is also not disputed that there was land dispute

between those two localities. From the specific suggestion

put to the prosecution witness we find a defence theory of

attack of "Ghosh Para" by the people of "Dom Para". But it

is not the case of defence that any of their locality (Ghosh

Para) suffered injury due to alleged attack. It is also not

suggested any particular reason of injuries sustained by

Abhiram Dhara and Gopal Diger.

21. Therefore, it is an admitted position of this case that

on 09.12.1997 one incident took place in the area of "Dom

Para" and "Ghosh Para"

22. From the sketch map (exhibit-9) and the evidence

investigating officer (PW-14) it is clear that incident of

assault took place in the area where both the parties to this

case reside.

23. Sikha Rani Diger (PW-4) in her evidence deposed that

the incident took place in their locality on 23rd Aghrayan

1407 BC. at about 5 p.m. She corroborated PW-3 regarding

threat to withdraw case. She has stated that Badal Ghosh

attacked Abhiram by a 'tangi' and other accused persons

assaulted by lathi. She further stated that Shristidhar

assaulted Gopal Diger who fell on the ground and then

other accused persons assaulted him. Injured persons were

taken to hospital and both of them died. On careful perusal

of cross-examination of PW-4 we find suggestions put to

their witness further fortified the happening of an incident

but reason behind the dispute is that two boys were cutting

upper portion of paddy. PW-4 denied the suggestion put to

her regarding assault of Abhiram and Gopal by the

appellants.

24. PW-5 (Sushila Dhara) did not corroborate the fact of

threat to PW-3, but she corroborated the assault of

Abhiram Dhara and Gopal Ghosh by Badal Ghosh and

Sristhidhar Ghosh and by other accused persons also. She

further stated that Basudeb Diger and Nemai Diger shifted

Gopal Diger to the Police Station and then to Indus Police

Station. She denied all suggestions put to her in cross-

examination. But cross-examination clearly reveals that

there was an incident arising out of a different reason.

25. PW-6 (Kartick Diger) in his examination chief

corroborated entire incident of threat to Basudeb Diger

(PW-3) and assault of Gopal Diger and Abhiram Dhara. He

specifically stated that Badal Ghosh assaulted Abhiram

Dhara by ' tangi' and Sristidhar Ghosh assaulted Gopal

Diger by 'tangi' and other accused persons assaulted both

of them by lathi. His cross-examination further supported

happening of incident though he denied suggestion

regarding reason behind the incident and participation of

accused in the crime.

26. PW-7 (Sahadat Hossain) only carried dead body of

Gopal Diger to Burdwan Hospital Morgue. He proved his

signature (exhibit-2) on the dead body challan.

27. Nemai Diger (PW-8) corroborated entire incident of

threat to PW-3 and assault of Gopal Diger and Abhiram

Dhara, alleged to have been happened on 09.12.1997. He

specifically deposed that Badal Ghosh gave a blow on the

head of Abhiram Dhara by a 'tangi' as a result the fell down

and other accused persons assaulted him by lathi and

other arms. He further deposed that Sristidhar Ghosh

assaulted Gopal Diger (father of witness) on his dead by a

'tangi' and other accused persons assaulted while he fell

down. Both the injured died in Burdwan Hospital. This

witness denied all suggestions put to him one behalf of the

accused persons with regard to manner of incident and

reason behind the incident alleged in this case.

28. PW-9 (Goutam Bera) has deposed that on behalf of

complainant (PW-3) he lodged written complaint at the

Police Station.

29. PW-10 (Tulsidas Bhattacharyya) Inspector of Police,

submitted charge sheet against accused persons under

Sections 147/148/149/302 of the IPC read with Section

3(i)(ii) of the Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) Act, 1985.

30. PW-11 (Dr. Purnendu Sekhar Kumar) stated in his

evidence that on 09.12.1997 he was posted at Indian Block

Primary Health Centre as B.M.O.H. On that day at about

8.35 p.m. he examine Abhiram Dhara and found following

injury:

"On examination, I found the patient was unconscious with a history of vomiting. Lacerated injury on the scalp - 3" X ½" deep up to scalp. Skull not injured as felt swelling and irregularity on the left elbow suspecting fractures."

PW-11 further examined one Gopal Diger on same day at

07:05 P.M. and doctor following injury:

" On examination, I found the patient unconscious with repeated vomiting Bleeding stopped from the scalp. Lacerated injury on scalp - 1 ½" X ½" with fatty materials coming out from the wound suspecting deep injury. Patient was referred to B.S.M.C.H."

In his cross-examination he deposed that there was nothing

mentioned about sharp cutting injury. Injury report was

admitted as exhibit-4.

31. PW-12 (Tarapada Dhara) being elder brother of

Abhiram Dharar also corroborated the assault of Abiram

Dhara by Badal Ghosh and assault of Gopal Diger by

Sristhidhar Ghosh. In cross-examination he denied all

suggestions.

32. PW-13 (Dr. Rabindranath Karmakar) conducted Post

Mortem over the dead body of Abhiram @ Rabiram Dhara

on 10.12.1997 at Burdwan Medical College. Post Mortem

Report was admitted as exhibit-5. He has stated that the

injury noted in the report was sufficient to cause death in

the ordinary cause of nature.

33. PW-14 (Investigating Officer) after assuming

investigation visited place of occurrence, examined available

witness by recording their statement under Section 161 of

Cr.P.C. He collected inquest report (exhibit 3/1) of Gopal

Diger and that of Rabiram Dhara and admitted in evidence

as exhibit-7.

34. Though inquest report were admitted in evidence as

exhibit 3/1 and 7 respectively but maker of those

documents were not examined in this case. On scrutiny of

the inquest report we find a different story. It is true that an

inquest report is not a substantive piece of evidence but

that can be used for purpose of corroboration and

contradiction as inquest report is prepared at the early

stage of investigation in presence of witness under Section

174 of Cr.P.C. However, in our hand we find that statement

of witness given at the time of inquest do not support the

version of witnesses during trial accusing the appellants.

35. According to evidence of PW-1 it is seen that after the

incident injured were taken to Police Station where PW-1

lodged the written complaint (exhibit-1).

36. It is true that written complaint need not be descriptive

including all details of the incident alleged. But, in this

case, complainant having knowledge of all incident shifted

injured to Police Station and lodged complaint. But,

surprisingly he did not disclose the two specific names i.e

Badal Ghosh who alleged to have assaulted Abhiram Dhara

by a 'tangi' and Sristhidhar Ghosh alleged to have

assaulted Gopal Diger by a 'tangi' in his written complaint

(exhibit-1).

37. At this stage, it would be appropriate to quote few

lines of the observation of the Learned Trial Judge:

" From the scrutiny of the evidence I have found clear and cogent evidence against Badal Ghosh and Sristidhar Ghosh that on 09.12.1997 they along with some other miscreants have assaulted Abhiram Dhara and Gopal Digar at village Bhurbandi under P.S Indus and caused serious bodily injury. Abhiram Dhara and Gopal Digar succumbed to such bodily injury in hospital. The prosecution evidence is sufficient to establish before the court that among the present accused

persodns Badal Ghosh and Sristidhar Ghosh are responsible for murder of Abhiram Dhara and Gopal Digar. But prosecution evidence is doubtful about the charge against rest thirteen accused persons namely, 1. Dilip Ghosh, 2. Bijoli Ghosh, 3.

Sudhanshu Ghosh, 4. Rabindranath Ghosh, 5. Prasanta Ghosh, 6. Bhadu Ghosh, 7. Kartick Ghosh (S/O- Kinkar Ghosh), 8. Tapas Ghosh, 9. Sudhakar Ghosh, 10. Adhir Ghosh, 11. Haradhan Ghosh, 12. Utpal Ghosh and 13. Rajkumar Ghosh. The aforesaid evidence is not sufficient to frame the rest accused persons as other miscreants with Badal Ghosh and Sristidhar Ghosh. All witnesses though uttered the name of those thirteen accused persons but did not say any specific role. Their names were not mentioned at the time of medical examination or inquest.

From the aforesaid discussion of evidence and the principle of law I think prosecution evidence as placed before this court is sufficient to prove that Gopal Digar and Abhiram Dhara died from bodily injury which they received on 09.12.1997. Among the present accused persons accused Badal Ghoshd and Sristidhar Ghosh caused such bodily injury to Abhiram Dhara and Gopal Digar which is sufficient in the ordinary course of nature to cause death. The prosecution evidence is not clear against rest accused persons. There are some doubtful evidence

against rest thirteen accused persons. The prosecution evidences are sufficient to establish before the court that accused Badal Ghosh and Sristidhar Ghosh have committed offence under Sections 302 of the IPC.

The prosecution evidence is not sufficient to prove any charge against rest thirteen accused persons beyond reasonable doubt. Hence, it is,"

38. Nanak Chand (supra) held as follows:

" 3. In the Court of Session the appellant along with others was charged under Section 148 and Section 302, read with Section 149 of the Indian Penal Code. The Additional Sessions Judge, however, held that the charge of rioting was not proved. He accordingly found the appellant and three others guilty under Section 302, read with Section 34 of the Indian Penal Code. He acquitted the other three accused. There was an appeal by three convicted persons to the High Court convicted the appellant alone under Section 302 of the Indian Penal Code, confirming the sentence of death but altered the conviction of the other accused from Section 302/34 to Section 323 of the Indian Penal Code. It held that the provisions of Section 34 of the Indian Penal Code did not apply.

11. It was urged that in view of the decision of this Court in Karnail Singh v. State of Punjab a

conviction under Section 302, read with Section 149, could be converted into a conviction under Section 302,34 which the trial court did. There could be no valid objection, therefore, to converting a conviction under Section 302/34 into one under Section 302 which the High Court did. This argument is unacceptable. The High Court clearly found that Section 34 was not applicable to the facts of the case and acquitted the other accused under Section 302/34, that is to say the other accused were wrongly convicted by the trial court in that way but the appellant should have been convicted under Section 302. The High Court could not do what the trial court itself could not do, namely, convict under Section 302, as no separate charge had been framed under that section."

39. In Lakhan Mahto (supra) Hon'ble Apex Court laid

down the following principles:

" 6. On behalf of appellant Lakhan learned Counsel submitted that he had been acquitted by the trial court on the specific charge under s. 302, Indian Penal Code for the overt act of shooting at the deceased Sheosahay and he was convicted under Sections 302,149, Indian Penal Code for being a member of an unlawful assembly, the common object of which was to kill deceased Sheosahay. It was pointed out that the State

Government has not preferred an appeal against the acquittal of Lakhan on the charge under s.

302, Indian Penal Code. It was submitted that the High Court cannot, in the absence of an appeal preferred in this behalf, convict Lakhan again under s. 302, Indian Penal Code for the overt act of shooting. It was also pointed out for the appellant that there was the finding of the High Court that there was no unlawful assembly and consequently Lakhan was acquitted of the charge under s. 302, I.P.C. read with s. 149, I.P.C. The argument, therefore, presented on behalf of the appellant Lakhan is that the conviction and sentence of Lakhan for a substantive offence under s. 326,I.P.C. was illegal and must be quashed.

9. In this connection the High Court has taken the view that s. 149, I.P.C. does not constitute a substantive offence and it as only an enabling section for imposition of vicarious liability and the conviction on vicarious liability can, therefore, be altered by the appellate court to conviction for direct liability, though there was an acquittal by the trial court of the direct liability of the offence. In our opinion, the view taken by the High Court is not correct. There is a legal distinction between a charge under s. 302, I.P.C. and a charge of constructive liability under Sections 302/149, I.P.C., i.e., being a member of an unlawful

assembly, the common object of which was to kill the deceased Sheosahay. In Barendra Kumar Ghosh v. Emperor I.L.R. 52 Cal. 197 Lord Summer dealt with the argument that if s. 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then Sections 114 and 149 of that Code would be otiose. In the opinion of Lord Summer, however, s. 149 was certainly not otiose, for in any case it created a specific and distinct offence. It postulated and assembly of five or more persons having a common object, as named in s. 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object. Lord Summer referred, in this connection, to the decision of the Calcutta High Court in Queen v. Sabid Ali and Others (1873) 20 W.R. 5. The observation of Lord Summer was quoted with approval by this Court in Nanak Chand v. The State of Punjab Manu/SC/0026/1955 : 1955 CriLJ721 in which it was pointed out that by framing a charge under s. 302, read with s. 149, Indian Penal Code against the appellant it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under s. 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged. It was accordingly held that the conviction of the appellant under s. 302, I.P.C.

was illegal. The same view has been reiterated by this Court in a later case in Suraj Pal v. The State of Uttar Pradesh MANU,SC/0024/1955."

40. Ramvir (supra) has laid the following observation:

" 16. Now so far as the appellant's conviction under Section 302 IPC is concerned, the same is also not factually and legally sustainable for the following reasons. At the outset, it is apposite to quote how the High Court in para 15 dealt with the issue in question : (Ramvir case [Ramvir v. State of U.P., 2012 SCC OnLine All 4523], SCC OnLine All) " 15....... Even at the cost of repetition, we want to note that there was no evidence on record suggestive of the inference which was drawn by the learned trial Judge against the present appellant that he was author of the shot that hit and killed the deceased Siya Ram."

17. The aforesaid reasoning itself suggests that there was no evidence to prove that the appellant was the author of the gunshot which killed Siyaram. Second, the ballistic report (Ext. C-1) did not support the prosecution case inasmuch as it opined that cartridges fired and recovered from the spot could not have been so fired from the rifle belonging to the appellant and the third, the alleged rifle was not taken in police custody

immediately after the incident but it was surrendered by the appellant in the Court.

18. In the light of the foregoing reasons, we are of the view that the appellant is entitled for benefit of doubt and hence deserves to be acquitted of the charges framed against him under Section 302 read with Sections 148/149 IPC. Accordingly, the appeal succeeds and is allowed. The impugned order [Ramvir v. State of U.P., 2012 SCC OnLine All 4523] is set aside. The appellant Ramvir (A-1) is acquitted of the charges for commission of offences punishable under Section 302 read with Sections 148/149 IPC. He is, therefore, set at liberty unless required in any other case. Pending application (s), if any, stand disposed of."

41. In this case, Ld. Trial Judge framed charge under

Section 148/302/149 of the IPC against the appellant along

with other 13 accused persons. Ld. Judge found the

appellants guilty under Section 302 IPC only but the Ld.

Judge acquitted all other 13 and accused persons, which is

squarely identical to the fact of Nanak Chand (supra) and

Lakhan Mahto (supra).

42. The position of law in cases where there is a

contradiction between medical evidence and ocular

evidence can be crystallised to the effect that though the

ocular testimony of a witness has greater evidentiary value

vis-à-vis medical evidence, when medical evidence makes

the ocular testimony improbable, that becomes a relevant

factor in the process of the evaluation of evidence.

However, where the medical evidence goes so far that it

completely rules out all possibility of ocular evidence being

true, the ocular evidence may be disbelieved.

43. Genesis of this case is that the appellant Badal Ghosh

assaulted Abhiram Dhara (since deceased) on his head by a

'tangi' (a sharp cutting instrument) and appellant

Sristhidhar Ghosh also assaulted Gopal Diger (since

deceased) on his head by a 'tangi' and other 23 persons

assaulted both of them by lathi. The aforesaid facts has

been consistently echoed by the witness examined in this

case. It is not the prosecution case that the appellants

rendered blow on the head of injured persons by the

reverse side of the 'tangi' which cannot be said to be a

blunt edged instrument.

44. Proceeding to the evidence of Doctor (PW-11) along

with injury report (exhibit-4) as well as Post Mortem

reports (exhibit 5&6) we find that injured sustained

lacerated injury on the scalp not any incised injury which

can only be produced by sharp edge instrument/ weapon.

45. From a forensic perspective, it is important to use the

correct terminology when describing wounds. Lacerations

are caused by blunt force trauma. The hallmark of

lacerations is the presence of tissue bridging. On the other

hand, incised wounds are caused by sharp-force trauma,

usually by sharp-edged object. The wound edges can help

distinguish a laceration from an incised wound.

46. The aforesaid discussions clearly suggests that the

appellants were not the authors of injuries sustained by

Abhiram Dhara and Gopal Diger. Neither injury report

(exhibit-4) nor the Post Mortem reports (exhibit 5 &6) did

support the prosecution case alleged against the appellants.

That apart, no 'tangi' had ever been seized by the Police.

47. In the aforesaid view of the matter, we are of view that

the appellants are entitled to benefit of doubt and deserve

to be acquitted of the charges framed against them.

48. In the result the appeal succeeds and is allowed. The

judgment dated 28.01.2020 passed by the Learned

Additional Sessions, 1st Court, Bankura, stands set aside.

49. Both the appellants are reported to be on bail. Bail

bonds already submitted by the appellants shall remain in

force for six (6) months from date in view of Section 437A of

the Criminal Procedure Code.

50. All pending applications, if any, stand disposed of

accordingly.

51. Let a copy this judgment along with the Trial

Courts record be sent back forthwith.

52. All parties shall act on the server copies of this

judgment duly downloaded from the official website of

this Court.

53. Urgent Photostat certified copy of this order, if

applied for, be supplied expeditiously after complying

with all necessary legal formalities.

[BIBHAS RANJAN DE, J.]

54. I Agree.

[DEBANGSU BASAK, J.]