Calcutta High Court (Appellete Side)
Sri Tarun Kumar Ghosh vs State Of West Bengal & Anr on 11 March, 2022
Form J(2) IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
C.R.A. 150 of 2019
Sri Tarun Kumar Ghosh
Vs.
State of West Bengal & Anr.
For the Appellant : Mr. Prabir Majumder
Mr. Nanigopal Chakraborty
Mr. Snehansu Majumder
For the State : Mr. Narayan Prasad Agarwal
Ms. Subhasree Patel
Heard on :09.03.2022 & 11.03.2022
Judgment on : 11.03.2022
Bibek Chaudhuri, J.
Mogra P.S. Case No.33 of 2007 dated 22 nd February, 2007
under Sections 341/323/448/147/34 of the Indian Penal Code was
tried by the learned Additional Sessions Judge, Fast Track, 1 st Court,
Hooghly because of the fact that the counter case filed by one of the
accused persons of the instant case was registered under Section 304
of the Indian Penal Code and both the said two cases on the self-
same incident were heard together by the learned Additional Sessions
Judge. The counter case under Section 304 was registered as Mogra
P.S. Case No.33 of 2007. The said case was registered before the
learned Additional Sessions Judge, Fast Track, 1 st Court as Sessions
Trial No. 19 of 2011. The accused in Sessions Trial No.19 of 2011 was
acquitted from the charge under Section 304 of the Indian Penal Code
by the Court below. The State has not preferred any appeal.
In respect of Mogra P.S. Case No.33 of 2007 corresponding to
G.R. Case No.181 of 2007, the Court below convicted the accused
Tarun Ghosh for committing offence under Section 323 of the Indian
Penal Code and passed an order of sentence of simple imprisonment
for three months with fine of Rs.1,000/-, in default, to suffer further
simple imprisonment for another ten days. The said order of
conviction and sentence is under challenge in the instant appeal.
Mogra P.S. Case No.33 of 2007 was registered on the basis of a
written complaint submitted by one Gurupada Ghosh on 22 nd
February, 2007 stating, inter alia, that on the self-same day at about
7.30 A.M. the appellant along with his father Ramendra Narayan
Ghosh, brother Tapan Ghosh, uncles Arup Ghosh, Jayanta Ghosh,
Swapna Ghosh, wife of Ramendra Narayan Ghosh, Kalpana Ghosh,
wife of Tarun Ghosh, Soma Ghosh, wife of Arup Ghosh, Sumita
Ghosh, wife of late Adhir Chandra Ghosh along with some other
unknown miscreants criminally trespassed into the house of the de
facto complainant and assaulted him physically. They also assaulted
his wife and daughter. As a result of assault, the de facto
complainant sustained bleeding injury on his head. The de facto
complainant along with his wife and daughter were medically treated
at Mogra Primary Health Centre.
It is pertinent to note at the outset that during trial Arup Ghosh
and Swapna Ghosh, two F.I.R. named accused persons breathed their
last and the case abated against them. The learned trial Judge after
trial held the accused Tapan Kumar Ghosh guilty for committing
offence under Section 323 of the Indian Penal Code and convicted and
sentenced him accordingly.
It is submitted by Mr. Prabir Majumder, learned advocate on
behalf of the appellant that from the evidence on record it would
transpire that there was a long standing dispute between the de facto
complainant and the accused persons over ancestral properties. The
de facto complainant in his evidence as P.W.1 stated on oath that on
22nd February, 2007 at about 7.30 A.M. the F.I.R. named accused
persons being armed with various weapons trespassed into his house
in order to deprive him from the share of their joint property. They
started to abuse them in filthy language. Accused Tarun Ghosh and
Jayanta Ghosh hit him by fists and blows and he sustained bleeding
injuries on his left eye by a blow inflicted by accused Tarun Ghosh.
Jayanta Ghosh and Tarun Ghosh then caught hold of his hands and
Arup Ghosh assaulted him on his head with the help of "shovel"
causing bleeding injury. The de facto complainant and his family
members raised hue and cry which attracted local people who
assembled near his house and seeing them the accused persons left
the place. They also openly declared that they would dispossess him
from the joint property. P.W.2 Manjusree Ghosh is the wife of the de
facto complainant. P.W.3 Debolina Ghosh is their daughter. The
Medical Officer who examined the de facto complainant on 22 nd
February, 2007 found a cut injury over the scalp at left parital area
measuring 1 and ½ inch long with active bleeding. 2 centimeter long
horizontal cut injury below left eye of the de facto complainant. The
wound on the head of the de facto complainant was stitched. In
respect Manjushree Ghosh the Medical Officer did not find any
external injury except swelling over the left side of her forehead. The
Medical Officer also did not find any external mark of injury on the
person of Debolina Ghosh. The medical examination report prepared
by P.W.4 was marked as exhibit-2. P.W.5 Swarup Kumar Josh is the
Investigating Officer of this case.
Mr. Majumder draws my attention to the cross-examination of
P.W.5. It is found from the cross-examination of the Investigating
Officer (P.W.5) of this case that on 22 nd July, 2007 Swapna Ghosh
died at Chinsurah District Hospital after being injured by the
complainant of this case and others. According to Mr. Majumder from
the existence of the counter case it reveals that there was a free
fighting by and between the parties. The wife of the accused No.1
was seriously injured and subsequently she succumbed to her injuries
at Chinsurah District Hospital on the date of occurrence itself. It is
also pointed out by him that from the evidence of P.W.1 who is the
injured of G.R. Case No.181 of 2007, it is revealed that accused
Jayanta and Tarun assaulted him by fists and blows. Then accused
Arup Ghosh, since deceased, assaulted him on his head with the help
of a 'shovel'. The witness did not even take the name of the appellant
Tapan Kumar Ghosh in course of his deposition. Therefore, the
learned trial Judge committed a gross error in convicting the appellant
under Section 323 of the Indian Penal Code.
It is also urged by Mr. Majumder that the prosecution case as
narrated in the written complaint is that the accused persons
criminally trespassed into the house of the de facto complainant and
assaulted them. However, on conclusion of trial the learned trial
Judge recorded an order of acquittal in respect of the charge under
Section 448 of the Indian Penal Code against all the accused persons.
The State /respondent has not filed any appeal against the said
judgment of acquittal against the accused persons. Therefore, the
order of acquittal of the accused persons from the charge under
Section 448 of the Indian Penal Code stands. When the accused
persons were acquitted from the charge under Section 448 of the
Indian Penal Code, how the Court of trial could convict the appellant
under the charge of Section 323 of the Indian Penal Code. In support
of his argument Mr. Majumder refers to a decision of this Court in the
case of Gour Chandra Pandit versus State of West Bengal
reported in 1984 CRI. L. J. 203. The Division Bench of this Court in
the above mentioned decision observed as hereunder:-
"There is yet another aspect of the matter, viz., that the
accused-petitioner though specifically charged under S.447
I.P.C. was acquitted of that charge. If that be so it necessarily
follows that the allegation that he had trespassed into the
house of the complainant with intent to commit an offence or
to intimidate, insult or annoy any person in possession of such
property is disbelieved. And if that be so, then again the
conviction of the petitioner under S.325 of the I.P.C. on the
allegations made in the petition of complaint becomes
somewhat inconsistent and conflicting. The matter would have
been different had not the accused been specifically charged
under S.447. But when he was so charged and acquitted of
the same, the finding of guilt under S.325 on the same facts
cannot be sustained. Therefore, in our view, the order of
conviction cannot be supported."
Learned P.P.-in-charge has supported the impugned judgment
submitting, inter alia, that the learned trial Judge passed by the order
of conviction on proper appreciation of evidence and there is no
ground to interfere with the judgment passed by the Court below.
Having heard the learned advocates and on careful perusal of
the materials on record, this Court finds that indisputably there was a
long standing dispute between the parties over their joint property. It
is also on record that over the self-same incident one of the accused
namely Swapna Ghosh died and a case under Section 304 of the
Indian Penal Code was registered against the de facto complainant
and others. However, there is no evidence on record to ascertain as
to who was the aggressor. If the incident is accepted to be true, it
might so happen that the de facto complainant suffered injury on his
head and left eye when the accused persons tried to prevent the de
facto complainant from committing culpable homicide not amounting
to murder. From the evidence on record it is also asserted that the de
facto complainant made specific allegation against Jayanta Ghosh,
Tarun Ghosh and Arup Ghosh as his assailants. When Jayanta Ghosh
was acquitted, there is no reason subscribed by the learned Court
below as to why Tarun Ghosh was convicted for committing offence
under Section 323 of the Indian Penal Code. Last but not the least,
this Court is in agreement with the observation made by the Division
Bench of this Court in the case of Gour Chandra Pandit (supra). The
allegation of the de facto complainant is that the accused persons
criminally trespassed into his house and assaulted him, his wife and
daughter. Thus, the place of occurrence is inside the house of the de
facto complainant. When the accused persons were acquitted from
the charge under Section 448 of the Indian Penal Code, the appellant
cannot be held guilty for committing offence under Section 323 of the
Indian Penal Code.
As a result the instant appeal is allowed on contest. The
judgment and order of conviction and sentence is set aside.
The appellant is acquitted from the charge and discharged from
his bail bond.
Let a copy of this judgment be sent down to the Court below
along with lower Court record.
(Bibek Chaudhuri, J.)
