Calcutta High Court (Appellete Side)
Subhas Baidya And Others vs The State Of West Bengal And ... on 18 August, 2022
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Tirthankar Ghosh
C.R.A. 607 of 2019
Subhas Baidya and others
versus
The State of West Bengal and another
For the Appellants : Mr. Uday Sankar Chattapadhyay,
Mr. Suman Sankar Chattapadhyay
Mr. Santanu Maji,
Mr. Surayu Das,
Ms. Trisha Rakshit.
For the State : Mr. Saswata Gopal Mukherjee, Ld.P.P,,
Mr. Arijit Ganguly,
Mr. Sanjib Kumar Dan.
For the P.W. 4 : Ramij Munsi.
Heard On : 18.08.2022.
Judgement On : 18.08.2022.
Tirthankar Ghosh, J. :
The present appeal has been preferred against the judgment
and order dated 27th August, 2019 passed by the learned Additional
District and Sessions Judge, 3rd Court, Hooghly in Sessions Trial
2
No.27(11)/2017 arising out of Sessions Case No.12/2017 wherein the
appellants were convicted for offence under Sections 447 and 323 of the
Indian Penal Code. Learned trial court was pleased to impose sentence
of three months imprisonment and fine of Rs.1,000/- each, in default
further imprisonment of 15 days for the offence under Section 447 of the
Indian Penal Code and imprisonment for one year and fine of Rs.1,000/-
each, in default simple imprisonment for one month for the offence
under Section 323 of the Indian Penal Code.
The subject matter of the case relates to Pandua Police
Station Case No.499 of 2014 dated 23.09.2014 under Sections
447/323/325/307
/34 of the Indian Penal Code wherein the
complainant alleged that a dispute arose in respect of cutting down
trees. The complainant's son Md. Aftabuddin protested as a retaliation
the appellants attacked him and tried to kill him by drowning and also
tried to damage his eyes. The local residents, however, rushed to the
spot and saved him. However, in spite of resistance, the local persons
were also assaulted by the appellants.
On conclusion of investigation, the investigating agency
submitted charge-sheet under Sections 447/323/325/307/34 of the
Indian Penal Code. The case was thereafter committed to the court of
sessions by the learned CJM, Hooghly and consequently charge was
framed under Sections 447/323/325/307/34 of the Indian Penal Code
on or about 22.11.2017. The contents of the charge were read over and
explained to the accused persons to which they pleaded not guilty and
claimed to be tried.
Prosecution of this case relied upon seven witnesses and
several documents have been exhibited which included the injury report
exhibit 5. The learned trial court on assessment of the evidence
compared the same with that of the evidence of P.W.6, Dr. Anindita
Mitra and elaborated on her evidence as follows:
"On perusal of the Injury Report as well as the evidence of
the doctor, it appears that the doctor did not find any external
injury on the persons of Aftabuddin, though it is settled principle
of law that in case of charge U/s. 307 of I.P.C injuries are not
always necessary to prove the charge. But in this case I do not
find that the accused persons tried to assault. Aftabuddin at his
vital parts. Neither it reveals from the evidence of the doctor that
the patient received any injury on his vital parts. There is no
evidence either from the injury report or from the evidence of
doctor that water was found inside the stomach of the victim,
though it is alleged in the F.I.R. as well as of the evidence of P.W.-
1 and the victim Aftabuddin that the accused persons were trying
to drown him in the water of the pond several times with a view to
kill him. Though it is expected that if the accused persons tried to
kill him by drowning him in the water of the pond on several
occasions, water must have been found in the stomach of the
victim. So, there is difference in between the evidence of P.W.-1,
P.W.-2 and P.W.-4 with the evidence of P.W.-6 i.e. Doctor Anindita
Mitra on this point. Accordingly, in absence of any cogent
evidence on this point, this Court is not in a position to hold that
the ingredients U/s. 307 of the I.P.C. have been proved beyond
reasonable doubt."
After analysing the evidence as a whole the learned appellate
court arrived at a conclusion that the offence under Section 307 of the
Indian Penal Code has not been made out and arrived at its finding that
the offence so complained of are under Sections 447/323 of the Indian
Penal Code and accordingly imposed sentence as stated above.
Mr. Chattapadhyay, learned advocate appearing for the
appellants has submitted an affidavit which reflects that as per their
undertaking given before this Court the appellants have deposited a sum
of Rs.20,000/-each aggregating to a sum of Rs.80,000/- as fine.
Pursuant to the direction passed by this Court, the State
effected service upon the injured P.W.4, Md. Aftabuddin, who is
represented by learned advocate.
Report submitted by Mr. Arijit Ganguly, learned advocate
appearing for the State be kept with the record.
In view of the fine so imposed and sentence which has
already been suffered by the appellants, during investigation of the case,
pendency of the trial as well as the appeal, I am of the firm opinion that
the sentence so imposed by the learned trial court upon the appellants
are reduced to what they have already served out previously. To that
extent, the sentence is modified and reduced.
So far as the amount of Rs.80,000/- which has been
deposited with the learned Chief Judicial Magistrate, Hooghly, P.W.4,
Md. Aftabuddin, who was injured, would be entitled to whole of the
amount. Learned Chief Judicial Magistrate, Hooghly or the trial court
being the learned Additional District & Session Judge, 3rd Court,
Hooghly would on an application, with identification proof of the person
Md. Aftabuddin within a period of seven days release the amount in his
favour.
Accordingly, CRA 607 of 2019 is partly allowed.
Pending application, if any, is consequently disposed of.
Department is directed to send back the lower court records
to the learned sessions court and learned Magistrate court respectively
immediately.
All parties shall act on the server copy of this order duly
downloaded from the official website of this Court.
Urgent photostat certified copy of this judgment, if applied
for, be given to the parties upon compliance of all formalities.
(Tirthankar Ghosh, J.)
bpg.
