Shib Nath Koley & Ors vs The State Of West Bengal
2022 Latest Caselaw 3879 Cal

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                     IN THE HIGH COURT AT CALCUTTA

                      (Criminal Appellate Jurisdiction)

                              APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                              CRA 191 of 2000

                           Shib Nath Koley & Ors.
                                     Vs.
                          The State of West Bengal.



For the Appellants            : Mr. Abhijit Kumar Adhya.



For the State                  : Mr. Narayan Prasad Agarwal,

                                Mr. Raju Mondal.



Heard on                       : 09.06.2022

Judgment on                    : 01.07.2022



Shampa Dutt (Paul), J.:

     This is an appeal against judgment and order dated 19.05.2000 by the

Ld. Additional Sessions Judge, 2nd Court, Purba Burdwan, convicting the

appellants for commission of offence punishable under Section 148 and under
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Section 323 read with Section 149 of the Indian Penal Code and sentencing

then to suffer simple imprisonment for 6 months under Section 148 of Indian

Penal Code and to further suffer simple imprisonment for 6 months for offence

punishable under Section 323 read with Section 149 of Indian Penal Code.

Both the sentences to run concurrently. The prosecution case against the

appellants is as follows:-


        That on 11.10.1996 at about 14.00 hours, all the accused persons armed

with Lathi, Da, Ballom, Tangi, Chain etc. entered into the house of the defacto

complainant Anil Mondal and assaulted the complainant and outraged the

modesty of the women-folk and also assaulted the witnesses who came to the

rescue of the complainant. Some of the persons sustained severe injuries and

were admitted at Burdwan Medical College and Hospital. The accused person

allegedly also damaged and ransacked the household articles belonging to the

complainant and the complainant sustained a loss of Rs. 1500. FIR was lodged

being    Memari    P.S.   case   no   233   dated     11.10.1996   under   Section

147/148/149/448

/341/379/326/354/307 I.P.C. On completion of

investigation police submitted chargesheet against the accused persons under

Section 147/148/341/379/326/354/307 I.P.C.

Charge was framed against all the appellants for offence punishable

under Sections 148/149/380/307 I.P.C. and all pleaded not guilty and claimed

to be tried.

In course of trial, prosecution examined in all 14 witnesses and eight

documents were marked as exhibits. Defence case was that of innocence,

denial and false implication. On conclusion of trial, the Trial Judge by the

impugned judgment and order dated 19.05.2000 convicted and sentenced the

appellants as aforesaid.

Ld. Lawyer for the appellants submits that the Ld. Trial Judge altered

the charge at time of pronouncing judgment, which is illegal and has thus

caused prejudice and has also caused mis carriage of justice to the appellants.

The Trial Judge at the time of pronouncing judgment, found the accused

persons guilty under Section 148/323/149 IPC instead of under Section

380/307 IPC, which the Ld. Lawyer for the defence submits is against the

provisions in Section 222 of Cr.P.C.

It is further case of the defence that after alteration of charge, they were

not allowed to re-examine the witnesses and as common object to commit an

offence was not made out, conviction by aid of section 147/149 IPC is not

permissible. Ld. Lawyer for the defence has further argued that the weapons

as described being Bows, Lathis and Stones are not deadly weapons and that

the findings of the Ld. Trial Court to the extent that " It is clear from the

evidence of PW1 to PW9 with reference to the evidence of the PW12 that the

accused voluntarily caused hurt of PW1 to PW9 with common object by way

violence" is wrong and illegal. Evidence of PW1 to PW9 could not prove any

motive. PW9 has stated that as she had rebuked the accused persons, they

assaulted them. The Doctor PW(12) has deposed that the injuries he found on

the persons of PW2, 8 and 9 might have been caused by fall on hard, blunt

substance or broken tiles. PW1 Anil Mondal has deposed that on the date of

incident that is 11.10.1996 at about 2 P.M. the incident took place over the

construction of "latrine" by adjoining neighbour Satya Nayek and on being

assaulted he became senseless and he regained his sense in the hospital,

where he was medically treated and so it was impossible for the complainant to

lodge a FIR on 11.10.1996 at 2.25 hours. The writer of the FIR Supriyo

Samanta has not being examined to prove the written complaint. No Doctor

has been examined to prove the other injury reports. That PW2, 8, and 9 did

not state before the Doctor (PW 12) the history of their injury and also did not

state the names of the assailants before the Doctor. Further case of the

defence is that the investigation is not proper and that the Trial Court totally

erred in the findings against the accused persons and convicted the appellants

without there being any evidence against them to prove the charge beyond

reasonable doubt and wrongly convicted the appellants and as such the appeal

is liable to be allowed and the accused should be acquitted and the order under

appeal should be set aside.

The Ld. Additional Public Prosecutor has argued against the defence

and has submitted that the Trial Court came to the right findings by holding

that the charge under Section 380/307 IPC had not been proved against the

accused persons. The Ld. Trial Judge also rightly came to the findings that the

allegation for offence punishable under Section 148/323/149 IPC has been

proved beyond all reasonable doubt against the appellants in view of the

evidence of PWs 1 to 12. It has been further submitted that the Ld. Trial Judge

was completely right in applying the provision of Section 222 of the Cr.P.C. for

altering charge at the time of conviction for proper adjudication of the case.

It has been further submitted that Dr. Modan Mohan Roy has been

examined as PW12 and this witness had examined the victim Jagabandhu

Mondal (PW 2) and found of fracture on the right forearm and has deposed that

it might have been caused by a blow of Iron Rod/Bamboo stick. P.W. 12 also

stated that he found a fracture on right forearm bone of Arati Das (PW 9) and

that the injury might have been caused by any hard substance like Iron Rod

and Bamboo. This witness also found some cut mark injury on both upper

arm and right leg of Nemai Sarkar (PW 10) (tendered).

The prosecution has further stated that the Trial Court rightly considered

the evidence of the prosecution witnesses and came to a finding of guilt against

the appellants. Hence, the appeal is liable to be dismissed.

Accused no.1 Shibnath Koley died on 22.04.2019 during the pending

of this appeal. Appellant no. 5 Rampada Koley died on 05.10.2003. From the

record it seen that none of the near relatives of these appellants have prayed

for leave to continue the appeal. As such the appeal finally abates in respect of

accused/appellants Shibnath and Rampada Koley under Section 394(2) Cr.P.C.

On analysis of the evidence on record adduced before the Trial Court, both

oral and documentary and on careful scrutiny of materials on record, it is seen

that PW 1, Anil Kumar Mondal is the complainant in this case. This witness

on oath has admitted that he had bad terms with his adjoining neighbour,

Satya Nayek regarding construction of a latrine. On the date of incident that is

on 11.10.1996, when the complainant returned from the market, the accused

persons (identified on Dock) at about 2.00 P.M. entered the complainant's

house armed with Lathi, Tangi and Chain and began assaulting him

mercilessly, as a result he became senseless. This witness has stated that he

regained his sense at Memari Hospital where he was treated. This witness has

proved his signature in the written compliant (exhibit 1/1) which he stated was

written by one Supriyo Samanta. It is seen by this court that the prosecution

did not produce the said Supriyo Samanta, as a witness, though it is admitted

by the complainant, that there is no endorsement on the written compliant of

Supriyo Samanta as its scribe, to prove the contents of the written complaint.

On being cross examined, this witness has stated that he suffered bleeding

injuries and admitted on being cross examined that he did not mention in his

written complaint about his dispute which Satya Nayek regarding construction

of the toilet. It is seen from exhibit 8 that it is a general injury report dated

23.12.1996 relating to 11 persons including that of Anil Mondal, the

complainant. The injuries as noted in respect of the complainant Anil Mondal

in exhibit 8 is noted as simple injury. These specific injuries noted are :

      (i)     Lacerated injury over left thumb.

      (ii)    Abrasion (5cm x 1cm) over left shin.

      (iii)   Swelling (3cm x 2cm) over left calf muscle.

On careful perusal of the said injury report in respect of the complainant

this court finds that there is no note by the Doctor regarding any bleeding

injuries suffered by the complainant, as deposed by the complainant in his

examination in chief as PW 1.

PW 2 is Jagabandhu Mondal on being examined on oath has stated that

on the date and time of incident when he was sitting in his room, accused

Shibnath, Rampada, Sasthi, Gour, and Satyanarayan entered his house and

began to assault him with Lathi/Rod. They also assaulted his wife Sucharita

and son Arun. Jagabandhu Mondal is the brother of the complainant Anil

Mondal. This witness has identified all the accused persons on dock. On being

cross examined this witness has stated that he was assaulted with Lathi and

Rod by the five accused persons. This witness has also admitted that accused

Satyanarayan has filed a false case against him. This witness has further

stated that at about 2.30 P.M. he had heard a commotion from the house of the

complainant but he did not go there, as before that he had suffered injury. On

perusal of the documents relating to the case on record, this court finds that

Jagabandhu Mondal PW 2 was treated as an indoor patient at Memari Rural

Hospital, Burdwan on 11.10.1996 and was discharged on 15.10.1996. On

perusal of the said medical papers exhibit 3 and 8 this court finds that the

injuries suffered by Jagabandhu Mondal is as follows:

(i) That there was swelling in both the forearms.

(ii) Abrasion on left shin. On prescription dated 11.10.96 the Doctor

noted abrasion over left shoulder (4cm x 1cm). Swelling and abrasion

over right forearm.

(iii) Fracture of both bone in right forearm.

Surprisingly, none of the medical papers (exhibit 3 and 8) relating to the

injuries sustained by Jagabandhu Mondal allegedly during the incident in this

case, showing the nature of injuries, have been corroborated by PW 2

Jagabandhu Mondal in his evidence on oath. There is no statement as PW 2

that he suffered fracture in his hand.

On deposing as PW 2 this witness did not state that he had suffered a

fracture. He has only stated that he has assaulted by some of the accused

persons with Lathi and Rod.

PW 3 is Anjali Chakrobarty. This witness has stated in her examination

in Chief that she had found that accused Bhola and Madhai (both identified)

assaulted Hari with Bamboo. She has further stated that when she was going

to the Tank, she found all the accused persons returning after assaulting. On

being cross examined, this witness has admitted that she has not stated this

fact to anybody including the police and was stating the said fact for the first

time in court on the date of her evidence.

PW 4 is Arun Mondal. This witness identified all accused persons on

dock. On the date and time of incident this witness saw accused Sasthi Koley

give two blows on the abdomen of his mother who then became senseless.

Bhola and Satyanarayan began to pull the hands of the father (Jagabandhu

Mondal, PW 2) of this witness and accused Rampada Koley and Shibnath Koley

being armed with Bamboo and Iron Rod assaulted his father on the leg and

accused Shibnath Koley assaulted on the right hand of his father and his

father suffered a fracture. This witness has admitted on being cross examined

that he is an accused in a case relating to disturbance caused in the house

of Satya Nayek.

PW 5 is Ramchandra Das. This witness has deposed that accused

Sasthi Koley and Bholanath Koley assaulted his wife inside his house and as

he protested, he was also assaulted by all the accused persons. As a result of

such assault, the wife (Arati Das, PW 9) of this witness suffered a fracture on

her hand and Jagabandhu also fractured his hand, though this court finds

that neither Arati nor Jagabandhu say that they had suffered a fracture

at the time of deposing before the court. On being cross examined this

witness has admitted that he did not tell the investigating officer that the

accused persons had assaulted his wife.

PW 6 Kajal Mondal, has stated that all the accused persons armed with

Bamboo, Iron Rod, Chain and Tangi, assaulted her and her husband. They

were medically treated. It is seen by this court that this witness has not

specified as to the nature of injuries sustained by her. Kajal Mondal is the wife

of Anil Kumar Mondal, the complainant in this case. From exhibit 8 a general

injury report prepared by the Doctor in respect of 11 injured persons, also

includes the note of injuries as sustained by Kajal Mondal. The injury

sustained by her are as follows:

(i) Abrasion over (3cm x 1.5 cm) over left shoulder.

(ii) Abrasion over (2cm x 1.5 cm) over right shoulder.

(iii) Lacerated (mild) injury of right ring finger.

It was noted that the injury were simple in nature. PW 7 Loton Hazra

knows all the accused persons and has stated that he received injury on his

hand by a blow of "Bankari" near the house of Satyanarayan. This witness has

stated that though there was a free fight, he did not see as to who assaulted

whom and as to how he sustained injury on his hand.

PW 8 Netai Sarkar, knows all the accused persons and he on the date

and time of incident saw the accused persons assaulting the complainant Anil

with Bamboo. This witness has stated that even he was assaulted by Bhola

and Rampada by fists and blows and says that he was treated at Memari

Hospital. Exhibit 5 relates to the medical papers and X-Ray plate of this

witness. On careful perusal of the injury report, this court finds that the injury

as noted by the Doctor shows that this witness suffered swelling over both

shoulders and cut injury over right shin. The Doctor examining him found

extreme restlessness and blunt injury was found over both his upper arm. It is

seen that this witness did not name any of the accused persons before the

Doctor. The general (exhibit 8) injury report in respect of 11 injured persons

shows, that this witness Netai Sarkar sustained the following injuries:

         (i)     Abrasion (3cm x 2cm) over right knee.

         (ii)    Multiple (small) abrasion over chest.

This witness has admitted that he was not examined by the I.O. he has

stated that he did not make any attempt to separate the parties and went to

see as a spectator and has admitted in his cross examination that he had

grudge against the accused persons and they also had grudge against him.

PW 9 Arati Das is the wife of the Ramchandra Das. This witness has

categorically stated that all the accused persons assaulted her with a rod on

her left hand and leg. It is seen that this witness has stated that she had

abused the accused persons for putting fire in her hay stack of straw and as

such the accused persons assaulted her. This witness is the wife of

Ramchandra Das (PW 5). It appears from exhibit 8, general injury report that

Arati Das sustained the following injury:

(i) Left humorous (upper end) it was referred to BMC & H. Final

report to be given by BMC & H.

It is seen by this court that though a fracture has been noted by the

Doctor in the general injury report, the witness Arati Das did not state

anything about suffering a fracture, though she has admitted that on being

assaulted with a Rod on her left hand and leg, she fell down.

PW 10, Nemai Sarkar has been tendered by the prosecution.

PW 11 Purna Chandra Mullick is a police constable, who was a seizure

witness, when S.I. B. Roy seized some blood stained clothes (MAT exhibit I).

This witness has proved his signature on the seizure list (marked exhibit 2).

PW 12 is Doctor Modan Mohan Roy. This witness on 11.10.1996 was

posted at Burdwan College and Hospital and he examined Netai Sarkar (PW 8),

Arati Das (PW 9), Jagabandhu Mondal (PW 2) and 8 other injured persons

(exhibit 8). This witness has stated that Jagabandhu Mondal had a fracture on

his right forearm, which could have been caused by a blow of Iron Rod or

Bamboo Stick. From the X-ray and the bed head tickets this witness saw that

Jagabandhu Mondal had suffered fracture in two bones in the right forearm.

From exhibit 4, this witness found that Arati Das had also sustained fracture

on right forearm, which he deposed, could have been caused by Iron Rod,

Bamboo. This witness found some cut mark injury on both upper arms and

right leg of Nemai Sarkar (PW 10) tendered by the prosecution. On being cross

examined he has stated that such injuries can be caused by falling on hard

and blunt substance.

PW 13 is S.I. A. K. Mullick. This witness received the written complaint

from the complainant, registered formal F.I.R. and endorsed the case for

investigation.

PW 14 is the investigating officer in this case, S.I. Bichitra Bikas Roy.

This witness on oath has proved the documents marked as exhibit in this case

including the injury reports and had submitted the chargesheet. On being

cross examined he has admitted that the blood stained shirt seized were not

sent for chemical examination. On completion of evidence, all the accused

persons were examined under Section 313 of Cr.P.C. and their defence is of

total innocence and being falsely implicated.

Scribe of the written complaint not examined.

It is seen by this court that though the complainant PW 1 has stated on oath

that the written complaint was written by scribe Supriyo Samanta as per his

instruction and dictation and though this witness has identified the

handwriting of Supriyo Samanta and signature, admittedly this alleged scribe

Supriyo Samanta was not examined as a witness in this case to prove the

contents of the written complaint. On careful perusal of the written complaint

this court finds that the written complaint marked exhibit 1 series does not

contain any endorsement to the effect that Supriyo Samanta has written the

said written complaint as per instructions of the complainant. As such the

contents of the written complaint has not been proved.

Medical report of Arati Das (PW 9).

From the medical papers of Arati Das this court finds that it has been noted

that a fracture was sustained by the injured (exhibit 4 collectively ) as proved

by the Doctor examined as PW 12. PW 12, Dr. Modan Mohan Roy on being

cross examined has stated that the fractures sustained by the injured may

be caused falling upon hard and blunt substance or falling upon a stack of

tiles. The injured Arati Das (PW 9) has stated on oath that the accused persons

had assaulted her with a Rod on her left hand and leg and as a result she fell

down. PW 12 (Doctor) has stated in his evidence in chief that he found from

medical papers and X-ray report that Arati Das had suffered fracture of right

forearm bone humorous. As such it is seen that Arati Das (PW 9) says that

the accused assaulted her on her left hand and the Doctor (PW 12) found

the fracture on the right hand. Arati Das has stated on oath that she had

fallen down because of the assault and as such it can be presumed that the

fracture on the right forearm could have been caused by falling on the ground.

(PW 12), Doctor also has stated on being cross examined that such fracture

can take place by falling down on hard and blunt substance.

Medical Report of Netai Sarkar (PW 8).

PW 12 the doctor also examined Netai Sarkar (PW 8). No details of any injuries

in respect of Netai Sarkar has been stated by PW 12. From exhibit 8 it is seen

that Netai Sarkar suffered simple injuries being abrasions and in his evidence,

he has stated that he was assaulted with fists and blows by accused Bhola and

Rampada.

Medical Report of Nemai Sarkar (PW 10) (tendered).

PW 12 (Doctor) has proved exhibit 5, the injury report and X-ray plate of Nemai

Sarkar. The Doctor found cut injuries on both upper arms and right leg of

Nemai Sarkar. Exhibit 8, (general injury report in respect of 11 injured)

corroborates the said statement showing that Nemai Sarkar suffered cut injury,

swelling and mild laceration. But PW 10 Nemai Sarkar was (tendered) by the

prosecution and cross examination was declined. As such the evidence of the

alleged victim, witness PW 10 Nemai Sarkar is not before the court.

Medical Report of Jagabandhu Mondal (PW 2).

PW 12 (Doctor) has stated that Jagabandhu Mondal was examined by him and

that Jagabandhu had suffered fracture on the right forearm in both bones and

the reports of Jagabandhu Mondal marked exhibit 3 was proved by PW 12.

Jagabandhu Mondal as PW 2, has stated on oath that he was assaulted

by the accused persons in his room with Lathi and Rod along with his wife and

son. This witness on oath while being examined in chief has not stated

anything specifically about injury sustained by him. This witness has also not

stated that he suffered fracture on his right forearm. From the evidence of

this witness, and other materials on record, it is seen that admittedly there is a

case and counter case between the parties. It is also seen from the evidence

that PW 2 was aged 42 years old at the time of deposing before this court. This

witness though has stated about being assaulted, has not stated anything

specifically about his injuries nor has stated anything about any fracture

sustained by him. But PW 12 the doctor has stated about the fracture. PW 12,

Dr. Tarun Kr. Ghosh is the medical officer who has proved exhibit 8 which is a

general injury report relating to 11 injured persons in this case.

Exhibit 8-General injury report.

On careful perusal and scrutiny of exhibit 8, this court finds that the Dr. Tarun

Kr. Ghosh while deposing as PW 12 has only proved the injury reports of Arati

Das (PW 9), Netai Sarkar (PW 8), Nemai Sarkar (PW 10) and Jagabandhu

Mondal (PW 2) PW 12 has not stated anything about the injuries sustained by

Ramchandra Das, Anil Mondal, Rajkumar Dubey, Santanu Hazra, Loton Hazra

and Kajal Mondal in respect of whom the injuries have also been noted by PW

12 in exhibit 8.

The appeal in this case is against the judgment dated 19.05.2000

passed by the Ld. Additional Sessions Judge, 2nd Court, Burdwan convicting 11

accused persons/appellants under Section 148 and under Section 323 read

with Section 149 of Indian Penal Code and sentencing each of the accused

persons to suffer S.I. for six months for offence punishable under Section 148

of the Indian Penal Code and to suffer S.I. for six months for offence

punishable under Section 323 read with Section 149 of IPC and both

sentences to run concurrently. The charge against the accused persons was

framed for offence punishable under Section 148/149/380/307 IPC. The Ld.

Court was pleased to alter the charge at the time of judgment and convicted

the accused persons for offence punishable under Section 148/323/149 IPC

instead of under Section 380/307 IPC and altered the said charge as per

provision of Section 222 of Cr.P.C.

Charge framed for offence punishable under Section 148 of the IPC.

The essential ingredients required to constitute an offence under Section

148 IPC are as follows:

      (i)     Assembly of five or more persons:

      (ii)    The assembly is unlawful;

      (iii)   Use of force or violence;

      (iv)    Accused was a member of such unlawful assembly;

      (v)     In prosecution of the common object such unlawful assembly used

              force.

It is seen that in the present case 11 persons were charged with the

offence being punishable under Section 148 of the IPC. PW 1 in his evidence

has stated that he was assaulted by all the accused persons, who had entered

his house armed with Lathi, Tangi, Chain. The prosecution has proved exhibit

2 series and exhibit 7 which are the seizure list in the present case wherein it

is seen that exhibit 7 relates to seizure of medical papers and X-ray plates and

exhibit 2 relates to seizure of wearing apparels. No articles/weapons were

seized in the present case from any of the accused persons. As such, though

the prosecution has adduced evidence that there was an assembly of more

than 5 or more persons, the prosecution could not prove their case as stated by

the complainant that the accused persons were armed with deadly weapons.

The Trial Court believed the evidence of PW 1 that the accused persons were

armed with deadly weapons, when no weapons, Rod, Bamboo etc. was seized

from any of the accused persons. The Trial Court also erroneously believed the

evidence of PW 1 to PW 9 to the extent that all the accused persons were armed

with deadly weapons. The situation in this case being that no arms/articles as

stated, that is Lathi, Rod etc. having been seized from any of the accused

persons, the case of the prosecution that the accused persons were armed with

deadly weapons could not be proved beyond reasonable doubt before the Trial

Court. The prosecution also could not prove from the evidence on record

that there was an assembly and that it was unlawful or that they had any

common object.

All the appellants were further convicted for offence punishable under

Section 323/149 IPC.

The essential ingredients required to constitute an offence under Section

149 IPC are as follows:

      (i)     There was an unlawful assembly;

      (ii)    The accused was a member of the said assembly;

      (iii)   Accused joined intentionally or      continued in the assembly

              knowingly;

      (iv)    Accused had the knowledge of the common object;

      (v)     The offence was committed by one of the members of the assembly;

      (vi)    Commission of offence was in pursuance of the common object;

              and

(vii) Accused knew, as a member of the unlawful assembly, that such

offence is likely to be committee.

The essential ingredients required to constitute an offence under

Section 323 IPC are as follows:

(i) Accused voluntarily caused bodily pain or infirmity to the victim.

(ii) The accused did so with intention of causing hurt or with the

knowledge that he would thereby cause hurt to the victim.

It is now the case of the appellants before this court that the Trial Court

erroneously altered charge at the time of passing judgment and that the

appellants were not given an opportunity to counter the said charge as altered.

From the judgment under appeal it is seen that the Ld. Trial Judge invoked the

provision under Section 222 of the Cr.P.C.

Section 222 Cr.P.C.

(i) When a person is charged with an offence consisting of several

particulars, a combination of some only of which constitutes a

complete minor offence, and such combination is proved, but the

remaining particulars are not proved, he may be convicted of the

minor offence, though he was not charged with it.

(ii) When a person is charged with an offence and facts are proved

which reduced it to a minor offence, he may be convicted of the

minor offence, although he is not charged with it.

(iii) When a person is charged with an offence, he may be convicted of

an attempt to commit such offence although the attempt is not

separately charged.

(iv) Nothing in this section shall be deemed to authorise a conviction of

any minor offence where the conditions requisite for the initiation

of proceedings in respect of that minor offence have not been

satisfied.

Although the expression "minor offence" is not defined in the Code it

can be discerned from the context that the test of minor offence is not merely

that the prescribed punishment is less than the major offence. Only if the two

offences are cognate offences, wherein the main ingredients are common, the

one punishable among them with a lesser sentence can be regarded as minor

offence vis-a-vis the other offence.

The Trial Court considering the evidence before it, both oral and

documentary came to the findings that the prosecution had proved the charge

against all the 11 appellants for offence punishable under Section

148/323/149 IPC. It is seen that the trial court rightly applied the

provisions under Section 222 Cr.P.C. in this case, considering the nature

of offence in the contents of change as framed.

Motive of Crime

From the evidence before the Trial court, this court finds:

(i) That there is evidence as admitted by the prosecution witnesses that

there is a case and counter case between the parties in this case.

(ii) Admittedly there is also a dispute between the complainant Anil

Mondal and accused Satya Nayek regarding construction of a

latrine.

(iii) As stated by Arati Das (PW 9) that she had rebuked the accused

persons in respect of setting fire to her stack of straw, the accused

persons told that as she had abused them, the accused persons had

assaulted her.

Defective investigation vis-vis fair trial

The appellants have prayed for benefit of doubt due to the faulty investigation

in the present case. It is seen that the investigation in the present case, as it

appears from the records is prima facie in accordance with law. Question of not

seizing any deadly weapons as stated by the prosecution being Rod, Lathi,

Tangi etc. cannot be held to be defective in view of the fact that the

investigation herein deserves the benefit of doubt that there may not have been

any such weapons/articles found, to be seized.

Fair investigation is the foundation of a fair trial. This is undisputed

proposition of law.

On perusal of the judgment under appeal, it is seen by this court that

the Trial Judge considered the evidence of all the prosecution witnesses as a

whole along with the documents together (exhibits) and came to the findings of

guilt against all the convicts/appellants in general.

This court finds that there is no evidence on record to

support/substantiate the charge as held to be proved by the trial court.

The reasons being:

(1) No evidence to prove that the accused persons had a common object.

(2) No evidence to indicate that there was an assembly of the accused

persons or that it was unlawful.

(3) Some of the witnesses have stated that two persons assaulted them and

some have named all the accused persons.

(4) Admittedly there was a dispute between the complainant and accused

Satya Nayek (personal dispute) regarding construction of a toilet.

(5) Admittedly there is case, counter case between the parties.

(6) Evidence before trial court is that all on sudden the accused person came

and assaulted, without any specific reasons.

(7) No articles/deadly weapons as alleged, was seized in this case.

(8) PW 12 (Doctor) has deposed regarding the alleged assault on PW 2, 8, 9 and

10 (tendered) though there were 11 injured persons as seen from the

general injury report (Exhibit 8).

(9) PW 7 has deposed that there was a free fight between the parties.

(10) The complainant deposed that scribe Supriyo Samanta has written the

complaint as per his instructions. But neither is there such endorsement

on the witness complaint nor has any such person been adduced as a

witness for the prosecution.

(11) Complainant (PW 1) states he suffered bleeding injuries but injury report

does not support such statement.

(12) PW 2 & 9 have not deposed that they have suffered fracture, but PW 12

(Doctor) & Exhibit 8 states and shows the same. PW 9 says she was hit on

her left arm, but fracture is found on right hand (she admits she had

fallen down) Doctor (PW 12) says such fracture can be sustained by a fall.

As such on such findings from the evidence as recorded, it is seen that

there was a free fight (PW 7) between the parties, the reasons for which is

vague and not specific. The injuries including fracture may have been

sustained during the alleged free fight and fall (PW 9) during the alleged

incident. The witnesses who allegedly suffered fractures did not state the same

in their evidence. As such this court is of the view that in such circumstances

the accused/appellants were clearly entitled to get the benefit of doubt. No

common object has been proved.

Thus, in view of the said findings of this court the general (as a whole)

findings of the trial court in respect of all the accused persons is not

supported by the materials on record, being the evidence, both oral and

documentary, which this court finds is full of discrepancies.

Accordingly it is seen that the prosecution has not been able to prove any

of the charge as framed against the accused/appellants beyond all reasonable

doubt and thus the prosecution case fails.

The appeal is, accordingly, allowed. Connected application if any also

stands disposed of.

None of the complainants/appellants are in custody. Accordingly, they

are discharged from their respective bail bonds.

Lower court records along with copies of this judgment be sent down at

once to the learned trial court as well as the Superintendent of Correctional

Home for necessary compliance.

Photostat certified copy of this order, if applied for, be given to the

parties on priority basis on compliance of all formalities.

(Shampa Dutt (Paul), J.)