Surajit Bhunia vs The State Of West Bengal & Ors
2022 Latest Caselaw 705 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                             C.R.A 416 of 2017

                               Surajit Bhunia
                                     Vs.
                       The State of West Bengal & Ors.

      For the Appellant:              Mr. Malay Bhattacharya, Adv.,
                                      Mr. Pradip Paul, Adv.,
                                      Mr. Subhrajyoti Ghosh. Adv.

      For the Respondents:            Mr. Sourav Chatterjee, Adv.,

Ms. Aniruddha Bhattacharya, Adv.

      For the State:                  Mr. Ranabir Roy Chowdhury, Adv.,
                                      Mr. Mainak Gupta, Adv.



Heard on: 13 December, 2021.
Judgment on: 21 February, 2022.

BIBEK CHAUDHURI, J. : -

1. This is an appeal against the judgment and order of acquittal

passed by the learned Additional Sessions Judge, 1st Court at Contai in

Criminal Appeal No.2 of 2016 reversing the judgment and order of

conviction and sentence passed by the learned Judicial Magistrate, 1st

Court at Contai in GR (E) Case No.79 of 2004 under Sections 148/323/34

of the Indian Penal Code.

2. The defacto complainant of G.R (E) Case No.79 of 2004 is the

appellant before this Court.

3. The defacto complainant, namely, Surajit Bhunia lodged a

complaint before the learned Sub-divisional Judicial Magistrate at Contai

on 25th February, 2004 against six accused persons/private respondents

stating, inter alia, that he was a member of the managing committee of

Mokrampur Nilkanta Siksha Sadan during the year 2004. Sometimes in

the last quarter of 2003, Test Examination of the students of Class-X to

qualify for the Madhyamik Examination of 2004 was conducted by the

school and as per the result, five students failed in the said test

examination. As they were not qualified to appear in Madhyamik

Examination of 2004, the said students filed an application under Article

226 of the Constitution. Over the said issue a meeting of the Managing

Committee was convened on 13th February, 2004 in the evening. In the

said meeting the defacto complainant and accused No.5 being the teacher

representative of the managing committee were present along with other

members. The accused No.6 brought accused No.1-5 who assembled on

the varanda of the school at the time of commencement of the meeting. In

course of the meeting the accused No.6 made some derogatory remarks.

Over the said issue he was asked to tender his apology. At this the

accused No.6 demanded that no meeting would be held as per the

resolution of the President and the Secretary of the Managing Committee.

When the informant protested against such unruly act and behaviour of

accused No.6 he asked the informant to leave the meeting. The informant

and witness No.2 came out of the meeting room to ask accused No.6 the

date when he intended to hold the said meeting. At this the accused No.6

became excited and pushed him holding his neck. He also ordered the

other accused persons to kill the informant. Then accused No.3 assaulted

the informant with the help of a lathi on his head causing bleeding injury

on the back side of his head. The defacto complainant immediately sat

down on the ground holding his injured head by his hands. Immediately

thereafter accused No.6 kicked him on his chest. The informant had

Rs.6000/- in the pocket of his shirt. The accused persons also assaulted

him with the help of fists, blows and kicks. When his brother came to

save the informant, the accused No.1 assaulted him with the help of a

lathi on the left side of his head. Accused No.2 also assaulted him with

the help of iron rod on his back. Other accused persons also assaulted

the brother of the informant by fists, blows and kicks. The witnesses who

were present there saved the informant and his brother from the hands of

the accused persons. They were admitted to the hospital for medical

treatment and subsequently referred to Contai Sub-divisional Hospital for

better treatment.

4. The said complaint was lodged on 25th February, 2004. The learned

Sub-divisional Judicial Magistrate, Contai sent the said complaint to the

concerned P.S under Section 156(3) of the Code of Criminal Procedure as

a direction to treat the same as FIR against the accused persons.

5. On the basis of the said complaint police registered Potashpur P.S

Case No.11 of 2004 dated 22nd March, 2004 under Sections

147/148/323/325/307/379/34 of the Indian Penal Code against the

accused persons. The investigation culminated in filing charge-sheet

against the accused persons/private respondents.

6. The learned Judicial Magistrate, 1st Court at Contai conducted trial

of the case and on conclusion of trial held the accused persons guilty for

committing offence under Sections 148/323/34 of the Indian Penal Code.

They were convicted and sentenced to suffer simple imprisonment for one

year with fine and default clause for commission of offence punishable

under Section 148 of the Indian Penal Code. They were also sentenced to

suffer imprisonment for six months with fine and default clause for the

offence committed under Sections 323/34 of the Indian Penal Code.

7. The respondents being aggrieved against the said judgment and

order of conviction filed Criminal Appeal No.2 of 2016 in the 1st Court of

the learned Additional Sessions Judge at Contai. In appeal, the judgment

and order of conviction and sentence passed by the learned Judicial

Magistrate, 1st Court at Contai was, however, reversed and the accused

persons were acquitted from the charge.

8. Hence the instant appeal filed by the defacto complainant of G.R (E)

Case No.79 of 2004.

9. During trial of the case prosecution examined as many as 17

witnesses. Amongst them the defacto complainant deposed as PW1. PW2

Sambhu Bhuniya is the brother of the defacto complainant. Both of them

were injured on 13th February, 2004. PW3 Ardhendu Sk. Mondal, PW4

Bholanath Jana, PW5 Gour Hari Jana, PW7 Dibakar Bhunia, PW8 Subal

Ch. Jana are the local witnesses who claimed that they saw the incident

of assault perpetrated upon PW1 and PW2 by the accused persons. They

also claimed that they saved the injured persons from the hands of the

accused persons and brought them to Patashpur P.S. It would not out of

place to mention that PW6 Dhananjoy Jana and PW9 Nishikanta Das did

not support the prosecution case. While PW6 was declared hostile by the

prosecution, PW9 stated that he does not know anything about the

incident. PW10 Subal Chandra Bhuniya was the Secretary of the

Managing Committee of the said school at the relevant point of time.

PW12 Dr. Asish Ranjan Kuar and PW13 Dr. Sudhangshu Sekhar Patra

are the Medical Officers who treated the injured persons on 13th February,

2004 and subsequently. During trial PW13 Dr. Sudhangshu Sekhar Patra

was examined twice as also PW15. PW14 is a retired Sub-inspector of

police. He was posted at Patashpur P.S on 22nd March, 2004. On that

date he received the complaint under Section 156(3) of the Code of

Criminal Procedure and registered Patashpur P.S Case No.11 of 2004

against the accused persons. PW16 is S.I Dulal Chakraborty who

conducted investigation of the case. PW17 Dr. Pulak Deb was posted at

Bangur Institute of Neuro Sciences as Assistant Professor on 27.02.2004

and 02.04.2004. On 27.02.2004 he medically examined Surajit Bhunia

and Sambhu Bhuniya in the hospital. Again on 2.4.2004 he examined the

above named patients in the hospital. PW16 Dr. Bhabani Prasad

Bhattacharya is a Radiologist attached to Ultrasono Diagonistic Center at

Tamluk. The accused persons/respondents were examined under Section

313 of the Code of Criminal Procedure. They pleaded innocence during

their examination under Section 313. They also pleaded that they were

falsely implicated in the case due to political rivalry.

10. On conclusion of trial, it was held by the learned Magistrate that

the prosecution was able to prove by adducing satisfactory evidence that

on 13th February, 2004 in the evening there was a meeting of the

Managing Committee of Mokrampur Nilkantha Siksha Sadan High

School. PW3 Ardhendu Sekhar Mondal further deposed that he was

present in the said meeting because his daughter failed in the test

examination in 2003 which was held by the school to qualify the

candidates who would appear in the Madhyamik Examination of 2004.

Accused Jagadish Giri did not deny his presence in the said meeting.

Therefore, it was held by the learned Magistrate that the factum of holding

a Managing Committee Meeting of the said school on 13th February, 2004

was proved by the prosecution.

11. The learned Magistrate further held that PW10 Subal Chandra

Bhuniya was the Secretary of the Managing Committee of the said school

at the relevant point of time. According to the learned Magistrate he was

the disinterested witness. It is stated by him that on 13th February, 2004

the Managing Committee Meeting started at about 5 pm and it ended at 7

pm. After the said meeting fighting took place between the accused

persons and PW1 and PW2 in the school ground.

12. The learned trial judge on careful consideration of the ocular

testimony of PW1 and PW2 along with the evidence of the Medical Officers

came to the conclusion that the accused persons assaulted PW1 and PW2

on 13.02.2004 at the school premises after conclusion of Managing

Committee Meeting. It is also held by the learned Magistrate that the

prosecution was able to explain the delay in lodging the complaint. The

incident took place on 13th February, 2004. Both PW1 and PW2 sustained

injury in the said incident. They were under medical treatment. The

informant lodged the complaint 12 days after the incident when he

recovered from his illness. It also appears from the evidence that both

PW1 and PW2 were admitted to Contai Sub-Divisional Hospital for ten

days. They were discharged from the hospital on 23rd February, 2004. The

written complaint was filed one day after the discharge of the PW2 from

the hospital.

13. The learned Magistrate undoubtedly found certain contradictions

and omissions in the evidence of the witnesses, but according to him, the

said contradictions are absolutely minor in nature and the accused

persons cannot get any benefit out of such contradictions and omissions.

14. Thus, the learned Magistrate held the accused persons guilty for

committing offence under Section 148/323/34 of the Indian Penal Code

and convicted and sentenced them accordingly.

15. In appeal, the judgment and order of conviction and sentence was

reversed by the learned Additional Sessions Judge, 1st Court at Contai on

the following grounds:

i) Delay in lodging the complaint.

ii) Contradictions in the evidence of the eye-witnesses.

iii) Place of occurrence remain doubtful and it was not

proved by the witnesses with absolute certainty.

iv) The sketch map prepared by the Investigating Officer of

the place of the occurrence is silent about the fact as to

who identified the same.

v) There is existence of counter case filed against the

informant and his brother by accused Kalipada Punda

and the witnesses on behalf of the prosecution failed to

explain the injuries received by the accused in course of

the same transaction.

vi) The charge relates to the assault on PW1 Surajit

Bhunia accused persons were not charged for

committing assault to PW2 Sambhu Bhuniya.

vii) The witnesses on behalf of the prosecution are

interested witnesses and there is possibility of false

implication of the accused persons.

16. Thus, the learned Additional Sessions Judge allowed the appeal,

reversing the order of conviction and sentence and acquitted the accused

persons.

17. Learned Advocate for the private respondents at the outset has

challenged the maintainability of the appeal. It is submitted by him that

the right to appeal is not a natural right of the appellant. It is the

statutory right and an appeal lies only when statute provides for the

provision to file appeal. According to the learned Advocate for the

respondents the Criminal Appeal No.2 of 2016 which was filed by the

respondents assailing the order of conviction and sentence before the

learned Additional Sessions Judge, 1st Court at Contai against the order

of conviction passed by the learned Judicial Magistrate, 1st Court at

Contai was under the provision of Section 374(3) of the Code of Criminal

Procedure. Against the said judgment passed by the learned Additional

Sessions Judge the appellant being the injured and victim of the case had

the statutory right to prefer an appeal before this Court under the proviso

of Section 372 of the Code of Criminal Procedure. But the instant appeal

was filed under the provision of Section 378(4) of the Code of Criminal

Procedure. The said provision is not applicable under the facts and

circumstances of the case. Therefore, the instant appeal is not

maintainable.

18. This court is not in a position to accept such argument advanced by

the learned Advocate for the respondents at the time of final hearing of

the appeal. It is found from the record that the appellant initially filed an

application for special leave to appeal which was registered as CRM SPL

No.69 of 2017. The said application was disposed of by a Coordinate

Bench of this Court on 6th July, 2017 granting leave to the defacto

complainant to prefer the appeal against the order of acquittal dated 12th

April, 2017 passed by the learned Additional Sessions Judge, 1st Court at

Contai.

19. Upon such order having passing by a Coordinate Bench of this

Court the appellant filed the memorandum of appeal. The memorandum

of appeal was accepted and the appeal was admitted for hearing by an

order dated 22nd August, 2017. Both the orders mentioned above have

reached finality. The accused persons did not challenge the said orders

before the Hon'ble Supreme Court. In view of such circumstances, the

claim of the respondents that the appeal is not maintainable, does not

hold any substance. Thus, this Court is of the view that the instant

appeal is maintainable in accordance with law.

20. Learned Advocate for the respondents filed a server copy of the

order passed in CRR No.1641 of 2017 dated 16th May, 2017 wherein an

application under Section 401 read with Section 482 of the Code of

Criminal Procedure filed by the present appellant was dismissed holding,

inter alia, that the order passed by the learned Additional Sessions Judge,

1st Court at Contai in a Criminal Appeal No.2 of 2016 is appealable at the

behest of the petitioner who is a victim under the proviso of Section 372 of

the Code of Criminal Procedure. Thus, it is submitted by the learned

Advocate for the respondents that the appellant knew before filing of an

application for special leave to appeal under Section 378(4) of the Code of

Criminal Procedure that he was required to present a memorandum of

appeal under the proviso of Section 372 of the Code of Criminal

Procedure. Therefore, the instant appeal is not maintainable.

21. It is not disputed that the rules of procedure are tools of

dispensation of justice and substantial justice cannot be denied on

improper applicability of procedural law. It is already recorded that the

same Court which held that the instant appeal shall lie in accordance

with the proviso of Section 372 of the Code of Criminal Procedure,

subsequently, allowed the application for special leave to appeal. On such

leave having been granted, the appellant preferred the memorandum of

appeal. Since the memorandum of appeal filed by the appellant was

admitted by this Court for hearing, the respondents cannot raise

technical objection regarding maintainability of the appeal.

22. In view of the above discussion, I hold that the instant appeal is

maintainable.

23. The learned court of appeal held that the prosecution failed to

explain delay in lodging complaint. Law is trite on this point that

unexplained delay in lodging the FIR is fatal for the prosecution. Because

law enjoins an obligation upon the defacto complainant to lodge

complaint before the police at the earliest opportunity after the incident.

In the instant matter the alleged incident took place on 13th February,

2004. It is not in dispute that both the informant and his brother were

discharged from the hospital on 23rd February, 2004. Subsequently, on

25th February, 2004 they filed a complaint before the learned S.D.J.M,

Contai. In the said complaint the informant stated that both he and his

brother were hospitalised on being assaulted by the accused persons till

23rd February, 2004. Immediately after their discharge the informant

lodged this complaint before the learned S.D.J.M, Contai.

24. On 25th February, 2004 the learned S.D.J.M, Contai transmitted

the petition of complaint to Patashpur P.S directing the Offiecer-in-Charge

to treat the same as FIR and register a specific case. Police received the

complaint on 22nd March, 2004 and registered Patashpur P.S Case No.11

of 2004 and took up the case for investigation. The learned Additional

Sessions Judge held that there was unexplained delay of about 40 days in

lodging the complaint by the defacto complainant. However, on fact there

was delay of 12 days in lodging the complaint from the date of incident.

The informant explained the delay in his petition of complaint. The

medical papers exhibited during trial also suggest that the defacto

complainant was discharged from the hospital on 23rd February, 2004.

Between the date of incident and the date of discharge, the police did not

take any step by recording statement of the defacto complainant to cause

investigation of this case. Thus, there was practically delay of 12 days in

lodging the complaint and the appellant satisfactorily explained the delay.

The learned S.D.J.M also passed order on the date of filing of the

complaint directing the Officer-in-Charge of Patashpur P.S to treat the

petition of complaint as FIR and start a specific case against the accused

persons. After the said order being passed by the learned S.D.J.M and the

petition of complaint is dispatched, the defacto complainant has no

obligation to explain the delay in registering the case by the Officer-in-

Charge of Patashpur P.S. It is found from the record that the Officer-in-

Charge of Patashpur P.S received the complaint on 22.03.2004 that is

after about 28 days from the date of dispatching the FIR on the strength

of the order passed by the learned S.D.J.M, Contai. Therefore, so far as

the informant is concerned, he was under obligation to explain the delay

in lodging the complaint up to the date when he filed the complaint before

the learned S.D.J.M, Contai. The informant satisfactorily explained the

same. Therefore, a bald observation made by the learned Additional

Sessions Judge that there was delay in lodging the complaint does not

hold any ground under the facts and circumstances of this case.

25. According to the learned Additional Sessions Judge the witnesses

on behalf of the prosecution failed to establish the place of occurrence

where the alleged incident took place. So far as the place of occurrence is

concerned it is found from the evidence of appellant that during the

meeting respondent No.6, teacher-in-charge abused PW1 and his elder

brother Sambhu Bhunia with filthy language. Then the accused No.6 left

the meeting PW1 followed him. When PW1 asked accused No.6 about the

next date of meeting, he pushed him holding his neck. Other accused

persons had assembled on the varanda of the school. Under the

instruction of accused No.6, Narayan Giri assaulted him on his head by a

piece of wood. Accused Umapada Panda also assaulted him by a piece of

wood from his behind on the back side of his head and PW1 sustained

injury on his head. He raised hue and cry. Accused No.6 also snatched

away sum of Rs.6000/- from his pocket. Other accused persons were also

assaulted him by fists, blows and kicks. The accused persons also

assaulted his brother Sambhu Bhunia when he came to save PW1. He

also sustained bleeding injury on his head.

26. PW2 Sambhu Bhunia another injured also stated that the place of

occurrence was on the varanda of the school.

27. So far as the names of the assailants, the evidence of PW1 and

PW2, the two injured persons corroborates with each other. There is

absolutely no contradiction between the evidence of PW1 and PW2. It is

urged vigorously by the learned Advocate for the appellant that PW5

Gourhari Jana stated in his evidence that the incident took place on the

adjacent ground of the school. Placing reliance on the above evidence of

PW5 the learned Additional Sessions Judge in appeal held that the

witnesses on behalf of the prosecution failed to prove the place of

occurrence of the alleged incident. As the place of occurrence shifted from

varanda of the school to the school ground, the prosecution case becomes

doubtful. The learned Additional Sessions Judge, 1st Court at Contai

failed to appreciate the evidence of the witnesses. It was stated by the

PW1 during trial that on being assaulted by Narayan and Umapada with

the help of lathi or wooden batam he fell down on the ground lying with

face on the ground. He could not see if his brother was behind him or not.

It is also stated by him that in order to save himself he tried to catch hold

of the earth of the ground. From conjoint reading of the evidence of PW1

and PW5 it is ascertained that the incident of assault took place on the

varanda of the school and it spreaded subsequently on the ground in

front of the school. Therefore, there is no discrepancy between the

evidence of PW1 and PW5 with regard to the place of occurrence.

28. Learned Judge in appeal disbelieved the case of the prosecution on

the ground that over the selfsame incident accused Kalipada Panda filed a

counter case against the defacto complainant and his brother and

witnesses on the allegation that some of the accused persons were also

assaulted by them. The defacto complainant and the witnesses on behalf

of the prosecution failed to explain the injury received by the accused

persons during the course of incident. The learned Judge failed to

consider the decision of the Hon'ble Supreme Court in Dhananjay

Shanker Shetty vs. State of Maharashtra reported in (2002) 6 SCC 16

where the Supreme Court held that non-explanation of injuries of the

accused persons assumes significance when there are material

circumstances which make the prosecution case doubtful. It is well

settled that merely because the prosecution has filed to explain injuries

on the accused persons, ipso facto, the same cannot be taken to be a

ground for throwing out the prosecution case, especially when the same

has been supported by eye-witnesses, including injured ones as well, and

their evidence is corroborated by medical evidence as well as objective

finding of the Investigating Officer. The decision of the Hon'ble Supreme

Court in Amar Malla vs. State of Tripura, (2002) 7 SCC 91 and Ram

Avtar vs. State of U.P, (2003) SCC (Cr) 1404 may also be relied on in

this regard. The learned Judge in the Court of Appeal failed to consider

that the accused persons did not state anything about receiving injury in

course of incident during their examination under Section 313 of the

Cr.P.C. The learned Judge also failed to consider that the accused

persons did not adduce any evidence in support of their defence that they

were assaulted by the defacto complainant and the witnesses.

29. There is also no reason to discard the evidence of PW3 on the

ground that he was an interested witness in view of the fact that his

daughter failed in the test examination of 2003 and he had grudge against

accused Jagadish Giri who was the teacher-in-charge at the relevant

point of time. His presence near the scene of occurrence is very natural

because he was interested to know the outcome of the meeting which was

held on 13th February, 2004. The learned Judge had also no reason to

discard the evidence of witness No.4, 8 and 10 on the ground that they

are chance witnesses. On the contrary, this court is of the opinion that

presence of witnesses No.4, 8 and 10 was very natural on the date and

time of occurrence.

30. From the evidence of PW12 Dr. Asish Ranjan Kuar who was posted

as Block Medical Officer of Health at Patashpur BHPC on 13th February,

2004 it is ascertained that he medically examined PW1 and PW2 on the

date of occurrence at about 8.35 pm. In the injury report he recorded the

history of injury to the effect that PW2 was assaulted by, Kalipada Panda,

Umapada Panda, Kanai Prodhan and others and PW1 was assaulted by

Narayan, Umapada and others. Therefore, the earliest version of the

witnesses before the Medical Officer corroborates with their ocular

testimony.

31. Last but not the least, I am also not in a position to accept the

reason assigned by the learned Judge, 1st Court of Appeal that the

witnesses on behalf of the prosecution could not explain how they could

identify the accused persons when the incident took place at about

7/7.30 pm and there was no electricity in the said locality. Such

reasoning falls flat because the witnesses stated that accused Jagadish

Giri came out from the meeting room with a chargeable light and the

witnesses could identify the accused persons in the said light. No cross

examination was made to the effect that accused Jagidish had no

chargeable light in his hand at the time of occurrence.

32. For the reasons recorded above, I am not able to concur with the

findings made by the learned Additional Sessions Judge, 1st Court at

Contai in Criminal Appeal No.2 of 2016. The material evidence on record

in the form of deposition and the documentary evidence, specially the

medical examination reports of the injured persons, namely, Surajit

Bhunia and Sambhu Bhunia are proved through cogent evidence. They

correlate and connect the material particulars regarding the commission

of assault purported by the private respondents upon the injured. There

is no reason to denounce the evidentiary value of the depositions adduced

by the witnesses and the expert's report, viz, medical document. It is

needless to say that there are certain contradictions in the evidence of the

witnesses who saw the incident but those contradictions are not worthy

enough to dislodge the credibility of the testimony of the witnesses.

Therefore, in my considered view the learned Judge in 1st Appellate Court

erred in appreciation of fact placed before the court by way of ocular

testimony as well as the documentary evidence. Improper appreciation of

evidence led him to apply the judicial precedents in wrong perspective.

Therefore, the judgment and order of acquittal passed by the learned

Additional Sessions Judge, 1st Court at Contai in Criminal Appeal No.2 of

2016 is liable to be set aside and the order of conviction passed by the

learned Judicial Magistrate, 1st Court at Contai be restored.

33. However, it is a point of concern that the learned Magistrate

convicted the accused persons under Sections 148/323/34 of the Indian

Penal Code.

34. Section 148 is a penal provision for rioting, armed with deadly

weapon. The precondition to attract Section 148 is commission of offence

of rioting which is defined in Section 146 of the Indian Penal Code as

hereunder:-

Rioting.--Whenever force or violence is used by an unlawful

assembly, or by any member thereof, in prosecution of the common

object of such assembly, every member of such assembly is guilty of

the offence of rioting.

Unlawful assembly is defined in Section 141 of the Indian Penal

Code. The concept of an unlawful assembly has two elements:- (i) The

assembly should consist of at least 5 persons : and (ii) They should have a

common object to commit an offence or at the any one of the objectives

enumerated therein. For recording a conclusion, that a person is guilty of

the offence under Section 148 of the Indian Penal Code, it must first be

proved that such person is a member of unlawful assembly consisting of

not less than five persons irrespective of the fact whether the entity of

each one of the five persons is proved or not. If that fact is proved, the

next step of judicial inquiry is whether the common object of the unlawful

assembly is one of the five enumerated objectives specified under Section

141 of the Indian Penal Code.

35. From the four corners of the evidence I do not find that the accused

persons formed unlawful assembly under the instruction of accused

Jagadish Giri with deadly weapons. There is no evidence to the effect that

any of the witnesses saw the accused persons forming and assembling

with deadly weapons. The injured persons were assaulted by lathi and

wooden batam. The said two blunt objectives cannot be held to be deadly

weapons by the manner in which the said lathi or wooden batam was

used by the accused persons.

36. Therefore, I am of the view that the learned Magistrate was wrong in

convicting the accused persons/respondents under Section 148 of the

Indian Penal Code.

37. However, the evidence on record irresistibly proves that the private

respondents committed offence under Section 323/34 of the Indian Penal

Code and they were rightly convicted.

38. Now comes the question of sentence. For the offence punishable

under Section 323/34 of the Indian Penal Code the learned Magistrate,

1st Court at Contai imposed simple imprisonment for six months each and

a fine of Rs.1000/- each.

39. The incident took place in 2004. The respondents are facing trial for

almost 18 years. During this period they spent many sleepless nights. It is

the solemn duty of the court to strike a proper balance, while awarding

sentence between the gravity and nature of the crime, role of the accused

persons and the exploitation of the society that a wrongdoer should be

adequately punished by the court of law. Justice must be done tempered

with mercy. Litigation is going on for last 18 years, this Court is of the

view that sentence of adequate fine shall be the just and proper

punishment under the facts and circumstances of the case.

40. For the reasons stated above the instant appeal is allowed.

41. The judgment and order of acquittal passed by the learned

Additional Sessions Judge, 1st Court at Contai in Criminal Appeal No.2 of

2016 is set aside.

42. The order of conviction passed by the learned Magistrate, 1st Court

at Contai in GR (E) Case No.79 of 2004 under Section 323/34 of the

Indian Penal Code is set aside.

43. The private respondents No.2-7 are sentenced to pay fine of

Rs.1000/- each, in default to suffer simple imprisonment for three

months each for the offence under Section 323 read with Section 34 of the

Indian Penal Code.

44. The respondents No.2-7 are directed to surrender before the trial

court to suffer sentence within three weeks from the date of

communication of this order.

45. The instant appeal is thus, disposed of, on contest.

46. Let a copy of this judgment be sent to the court below along with

the lower court record.

(Bibek Chaudhuri, J.)