Calcutta High Court (Appellete Side)

Gobinda Mondal vs State Of West Bengal on 22 August, 2022

Form No.J(1)
                       IN THE HIGH COURT AT CALCUTTA
                      CRIMINAL APPELLATE JURISDICTION
                               APPELLATE SIDE

Present:

The Hon'ble Justice Tirthankar Ghosh


                                CRA 352 of 2018


                                  Gobinda Mondal
                                       -vs-
                                State of West Bengal



      For the appellant :      Mr. Partha Pratim Das empanelled in (H.
                                                         C. L. A. S. A)

    For the State :          Mr. Iqbal Kabir


    Heard on:                18th August, 2022, 22nd August, 2022.

    Judgement on:           22nd August, 2022.


    Tirthankar Ghosh, J.

The present appeal has been preferred against the judgment

and order of conviction and sentence dated 30.05.2018 and 31.05.2018

passed by the learned Additional District and Sessions Judge, Fast

Track Court No.II, Bichar Bhawan, Calcutta in Sessions Trial No. 1(8) of

2014 arising out of Sessions Case No. 41 of 2014, wherein the learned

trial court was pleased to convict the appellant under Section 307 of the

Indian Penal Code and sentenced him to suffer Rigorous Imprisonment

for seven years and fine of Rs.5000/- i.d., Rigorous Imprisonment for

another six months.

The genesis of the case relates to Muchipara P. S. Case No.

477 dated 30.08.2011 under Section 307 I.P.C. The said case was

registered on the basis of a statement of Rabin Mondal, P

W.1(hereinafter referred to as the complainant). The complainant, it has

been stated used to sell vegetables in the morning by the side of Surya

Sen Street in front of Bina Sweets. On 30.08.2011, while the

complainant like any other day was selling vegetables in the morning, at

about 10.15 a.m., the accused, Gobinda Mondal, a co-villager assaulted

him on his head with a hammer. After being hit with the hammer on

two/three occasions, the complainant in order to save himself put his

hands over his head, while the accused struck also on his hands. The

complainant suffered severe bleeding injuries and as such he was

shifted to Medical College & Hospital by the local people and from there

he was admitted to CB Top Ward. Several stitches had been

administered during treatment. The complainant alleged that he had

previous business rivalry with the accused and prayed before the

Investigating Officer to take appropriate steps. The Investigating Agency

on conclusion of investigation, submitted chargesheet under Section

307 of the Indian Penal Code.

The case was thereafter transferred by the learned Chief

Metropolitan Magistrate, Calcutta to the learned Metropolitan

Magistrate, 19th Court, Calcutta and the order dated 24.02.2014

reflects that the learned Metropolitan Magistrate, 19th Court, Calcutta

on receipt of chargesheet no. 372 of 2013 of Muchipara PS filed against

the present appellant was pleased to take cognizance of the offence, on

perusal of the materials available therein. The learned court on a

subsequent date was pleased to commit the case to the Court of

Sessions after the documents/statements proposed to be relied upon by

the prosecution were served upon the accused/appellants. The case

records were finally transmitted to the learned Additional District and

Sessions Judge, Fast Track, 2nd Court, Bichar Bhawan, Calcutta.

On or about 18th August, 2014, the learned trial court framed

charges against the appellant under Section 307 of the Indian Penal

Code and the records reveal that the prosecution relied upon 11

witnesses namely, PW.1, Rabin Mondal - injured victim/complainant ;

PW. 2, Kajal Basak who was present in the market ; PW 3, Amar Kumar

Ghosh, person attached with sweet meat shop; PW 4, Mohan Sahoo, who

was also a vegetable seller ; PW 5, Goutam Basu Mallick was associated

with the market; PW 6, Sanjay Mondal who is the brother of the PW 1;

PW 7, Israfir Hazra was associated with the market who reached the

place of occurrence after hearing hue and cry; PW 8, Surajit Majumder,

the doctor who treated PW1; PW 9, Basudeb Dolui was attached with

Medical College & Hospital who handed over the bed head tickets to the

Investigating Agency; PW 10, Subhojit Banerjee is the Investigating

Officer of the case; PW 11 is Dr.(Mrs.) Sipra Ray, FSL expert.

The documents relied upon by the prosecution included Exhibit

1 and Exhibit I/2 relating to signatures of seizure list dated 30.08.2011;

Exhibit 2 signature of P.W 4 on complaint; Exhibit 2/1, signature of

PW10 on the complaint; Exhibit 3 medical report; Exhibit 4 Bed Head

Tickets; Exhibit 5 and 6, seizure listed dated 30.08.2011; Ext. 7, G. D

Entry, Ext. 8, Formal FIR; Ext. 9 FSL report.

Mr. Partha Pratim Das, learned advocate appearing for the

appellant submitted that the complainant was unaware regarding the

contents of the FIR or the complaint, which is available in his cross-

examination. He also stated that the presence of the accused at the

spot is doubtful as none of the prosecution witnesses emphasized

regarding the presence of the accused at the spot.

So far as the expert evidence is concerned, learned advocate

points out that no blood was found in the hammer which was seized by

the police authorities and no light could be thrown on the this issue by

PW 11.

Additionally, it has been submitted that if the cumulative

evidence of the prosecution is accepted, even then it is not possible for

the PW 1 to identify the accused as the narration of evidence reflects

that PW1 was attacked from behind and so the manner in which the

evidence has been portrayed by the prosecution suffers from

inconsistency and thus it would not be safe to rely upon such evidence

for arriving at an order of conviction or guilt so far as the appellant is

concerned.

Consequently, learned advocate for the Appellant prays for

interfering with the order of the learned trial court and setting aside the

order of conviction and sentence so passed.

Mr. Kabir, learned advocate appearing for the State submits

that the prosecution by cogent and reliable evidence has proved the

case beyond all reasonable doubt. He has further submitted that the

evidence of the injured Rabin Mondal who was examined as PW 1 is

believable and acceptable. The detailed cross-examination by the

appellant even could not shake his version. Learned advocate has also

pointed out that the evidence on record reflects that the

accused/appellant was arrested at the spot with the offending weapon

and the medical evidence reflects that PW 1 was severely injured as

deposed by PW 8, Dr. Surajit Majumder.

According to the State, there are overwhelming materials

against the appellant and the prosecution has proved the case beyond

all reasonable doubt as such there is no scope to interfere with the

order of conviction and sentence passed by the learned trial court.

I have considered the evidence of the 11 witnesses and the

documents which have been admitted in evidence in course of the trial.

There has been a consistent version of PW 1, Rabin Mondal

firstly when the statement was recorded by the police authority in the

hospital wherein he named the accused Gobinda Mondal who attacked

him with the hammer and struck 2/3 times on his head. Such version

of the complainant is also available in his examination in chief. In fact,

so far this evidence is concerned, the same could not be dislodged in

cross-examination even after he has been exhaustively cross-examined

on number of dates. Such evidence of the PW 1 is corroborated by the

medical officer, Dr. Surajit Majumder who examined him and his report

was marked as Exhibit 3. The relevant portion of his evidence is set

out as follows:-

"On 30.08.2011 I was posted as emergency officer at Medical College & Hospital. On that day, I medically one Rabin Mondal, aged about 25 years and issued a certificate. This is the said certificate, prepared and signed by me. After examination of his body, I found lacerated injury on his scalp having bleeding injury. It was serious injury."

So far as the other witnesses are concerned, there is no major

discrepancy in their evidence but the evidence of the injured being of

absolute importance while considering the case of this nature, the role

of the other witnesses particularly, PW 2, PW3, PW4, PW6 and PW7 who

reached the spot after hearing the hue and cry are of little importance,

although they supported the incident and did not deny the occurrence.

The other issue which requires consideration is the appellant's

contention regarding the availability of the appellant.

The Investigating Officer of the case has said that on receiving

information, he had been to the place of occurrence when he found that

the appellant/accused was surrounded and withheld by the number of

persons after he had committed the ghastly incident. To that extent, the

evidence of the Investigating Officer regarding the accused who was

arrested at the spot could not be dislodged in the cross-examination.

Further, the evidentiary value of PW1 is to be considered in the

background of the settled proposition of law.

In Laxman Singh -versus- State of Bihar reported in (2021) 9

SCC 191 relying upon an earlier judgement of State of Madhya Pradesh

-versus- Man Singh reported in (2003) 10 SCC 414 it has been held by

the Hon'ble Supreme Court in paragraph 9 which is as follows:-

9. In Mansingh [ State of M. P., v. Mansihgh(2003) 10 SCC

414 : (2007) 2 SCC (Cri) 390] , it is observed and held by this

Court that "the evidence of injured witnesses has greater

evidentiary value and unless compelling reasons exist, their

statements are not to be discarded lightly". It is further

observed in the said decision that "minor discrepancies do not

corrode the credibility of an otherwise acceptable evidence". It

is further observed that "Mere non-mention of the name of an

eyewitness does not render the prosecution version fragile".

Having regard to the proposition of law that the statement of

an injured cannot be lightly considered and is of absolute importance,

when an injury has been suffered, more so in a case of this nature when

the injury is severe, I am of the opinion that the evidence of PW 1, PW8

is sufficient to arrive at a conclusion regarding the involvement of the

present appellant. However, having regard to the manner of attack and

the nature of injury, I am of the opinion that this is a fit case for holding

the appellant guilty under Section 326 of the Indian Penal Code.

Accordingly, the conviction is altered from Section 307 IPC to Section

326 IPC.

Record reflects that the appellant was in custody for about

two months during the period of investigation and after conviction he