Dipak Kumar Pal vs The State Of West Bengal & Ors
2022 Latest Caselaw 6277 Cal

Sl. Nos. 40 & 41




                IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL APPELLATE JURISDICTION
                            APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
                    And
The Hon'ble Justice Ajay Kumar Gupta


                                C.R.A. 542 of 2018

                                  Dipak Kumar Pal
                                       -Vs-
                          The State of West Bengal & Ors.


                                    W I T H


                                C.R.A. 448 of 2018

                          Rohi @ Rahi @ Gour Konai & Anr.
                                       -Vs-
                           State of West Bengal & Anr.


For the Appellant           :    Md. Sabir Ahmed, Adv.
[in CRA 542/2018]                Mr. Abdur Rakib, Adv.
                                 Mr. Hillol Saha Podder, Adv.

For the Appellants          :    Mr. Manas Kumar Das, Adv.
[in CRA 448/2018]


For the State               :    Mr. Prasun Kumar Datta .. ld. A.P.P.
                                 Mr. Santanu Deb Roy Adv.


Heard on                    :    31.08.2022 & 06.09.2022



Judgment on                 :    06.09.2022
                                     2



Joymalya Bagchi, J. :-

        Convicts as well as the victim are before us assailing the

judgment and order dated 26.06.2018 passed by learned Additional

Sessions Judge, Kandi, Murshidabad, in Sessions Trial No. 12(08) of

2016 arising out of Sessions Sl. No. 196 of 2015 convicting the accused

persons viz. Rohi @ Rahi @ Gour Konai and Paresh Konai for

commission of offence punishable under Section 323 of the Indian Penal

Code and sentencing them to suffer simple imprisonment for one month

with a direction to pay compensation of Rs.20,000/-, in default, to suffer

simple imprisonment for one month more.

        While the convicts have appealed against their conviction in CRA

448 of 2018, the de-facto complainant/victim has appealed before the

court praying that conviction ought to have been recorded for a graver

offence viz. attempt to murder and accordingly sentence imposed upon

them be enhanced.

        Prosecution case as alleged against the appellant/convicts is as

follows :-

        On 30.05.2013 the appellant/convicts were cutting mud from the

land of one Uttam Mondal. Appellant/convicts suspected Dipak Kumar

Pal, de-facto complainant/victim had informed the matter to Uttam. This

enraged them. They violently assaulted Dipak with shabol, rod, sticks

etc. Paresh attempted to assault Dipak on the head with a shabol. He

raised his left hand and resisted the blow. As a result, he suffered
                                      3


fracture on his left hand. Appellant/convicts also took away Rs.10,000/-

from the pocket of Dipak. He was initially shifted to Khargram hospital

and thereafter to Kandi hospital. His wife viz. Hirakana Pal (PW1) lodged

written complaint at police station resulting in registration of Khargram

Police Station Case No.184 of 2013 dated 02.06.2013 under Sections

341/326/308/34

of the Indian Penal Code. Subsequently, the victim

was shifted to Berhampore Medical College and Hospital and discharged.

In conclusion of investigation, charge-sheet was filed against the

accuseds and charges were framed under Sections 341/34, 325/34,

307/34 and 379/34 IPC. The accuseds pleaded not guilty and claimed

to be tried. In course of trial, prosecution examined 9 witnesses and

exhibited a number of documents.

In conclusion of trial, learned trial Judge by the impugned

judgment and order dated 26.06.2018 convicted and sentenced the

convicts-appellants, as aforesaid.

Mr. Manas Kumar Das, learned advocate for the appellant/

convicts in CRA 448 of 2018 submits there is no independent witness

corroborating the evidence of the victim (PW2) and his family members

(PWs.1 & 5). PW4, an independent witness turned hostile and did not

support the prosecution case. PW8, Medical officer at Berhampore

Medical College and Hospital proved the injury report (Ext. 7) wherein it

is noted x-ray shows no bony fracture. Hence, his clients are liable to be

acquitted.

On the other hand, Mr. Sabir Ahmed, learned advocate for the

victim-appellant submits evidence of PWs.1, 2 & 5 is corroborated by the

medical evidence on record. Paresh Konai tried to hit PW2 on the head

with a shabol clearly showing his intention to murder him. PW2 resisted

and suffered a fracture on his left arm. Trial Judge ought to have

convicted the accuseds for commission of offences punishable under

Sections 307/326 IPC. Instead of doing so, he recorded a conviction on a

lesser charge viz. Section 323 IPC. Accordingly, he prays that the

accuseds be convicted of the graver offences and a just sentence be

imposed upon them.

Mr. Prasun Kumar Datta, learned Additional Public Prosecutor

supports the prosecution case.

I have gone through the evidence on record.

PW1 (Hirakana Pal) is the wife of the victim viz. Dipak Kumar Pal.

She was an eyewitness to the incident. She deposed on 30.05.2013 at

around 11:30 A.M. Dipak had gone out to fetch water from a tube well.

The accused persons were talking in abusive language. The accuseds

suspected Dipak had complained to Uttam that they were extracting

mud. There was an altercation. The accuseds assaulted her husband

with iron rod, lathi & shabol. As a result her husband received injury on

the left hand when he tried to protect his head from the assault by the

accused. He was taken to Khargram BPHC. Therefrom he was

transferred to Kandi S.D. Hospital and finally treated at Berhampore

Medical College & Hospital.

PW2 (Dipak Kumar Pal) is the victim. He deposed on 30.05.2013

at around 11:30 A.M. he was proceeding to fetch water from a tube well.

Accuseds were taking away mud from the land of Nemai Mondal and

Uttam Mondal. Uttam raised objection. Accuseds thought he had

informed Uttam. Out of grudge, they assaulted him. Paresh tried to hit

him on the head with a shabol but he resisted. As a result, he suffered

injury on the left elbow. Rohi assaulted him with a lathi on his back. He

sustained fracture injury on his left hand. He was vomiting blood. He

shouted and his son and wife rushed to the spot. He was shifted to

Khargram BPHC. Then he was shifted to Kandi S.D. Hospital and

thereafter, to Murshidabad Medical College & Hospital for better

treatment.

PW5 (Suman Pal) is the son of the victim. He has corroborated

the evidence of his father (PW2).

PW3 (Dr. Md. Abdus Sabur) is the medical officer who treated the

victim at Khargram Rural Hospital. The patient told him that he was

physically assaulted by bamboo and iron stick on chest, left side of

shoulder and left arm. He found abrasion on the back of his neck,

swelling over his left arm and forearm. He proved the injury report. He

proved his treatment sheet marked as Ext.2.

PW6 (Dr. Hansaraj Chattapadhya) is the medical officer who

treated the victim at Kandi SD Hospital. He found the following injuries:-

(1) Swelling over left elbow joint and shoulder joint. (2) Fracture the tip of olecrenon of his left forearm.

He proved the treatment sheet (Ext.3).

PW8 (Dr. Wasim Bari) is the medical officer who was attached to

Murshidabad Medical College & Hospital. He was one among the team of

doctors who treated the victim. On clinical examination, he noted the

following :-

(1) There remain bruise and mild tenderness around the elbow and lower arm.

(2) CT Scan was within normal limit as I perused it subsequently.

(3) X-ray also shows no bony fracture.

As X-ray showed no bony injury, Dr. Sandip Ghosh suggested discharge

of the patient on the next morning.

PW7 (Ashok Kr. Mondal) and PW9 (SI Srimanta Kr. Dutta) are the

Investigating Officers of the case.

From the evidence of PWs.1, 2 & 5 it appears there was a dispute

between the accuseds on one hand and the victim on the other hand.

Accuseds suspected the victim had complained they were cutting mud

from the land of Uttam Mondal. Over such dispute they had assaulted

him with shabol and lathi.

Mr. Das appearing for the appellant/convicts argued version of

PW2 and his family members is not supported by independent witness.

PW4 was examined as an independent witness but he turned hostile. He

was cross-examined with reference to his previous statement to police. It

is common knowledge whenever a dispute crops up resulting in a

criminal case, local people choose not to take sides. This is evident from

the fact that the sole independent witness resiled from his earlier

statement to police and sought to give evasive answers in course of his

cross-examination.

Evidence of the injured victim (PW2) and his family members viz.

PWs.1 & 5 are clear and consistent with one another. Their presence at

the place of occurrence has not been improbabilised. In view of their

consistent version, volte face by the independent witness during trial

would not cast doubt regarding the truthfulness of the prosecution case.

Moreover, medical evidence on record i.e. PWs.3, 6 & 8 prove

immediately after the incident the injured witness was shifted to

Khargram Rural Hospital and thereafter, treated at Kandi S.D. Hospital

and Murshidabad Medical College & Hospital. Medical reports exhibited

in course of trial show he suffered injuries on his body due to physical

assault. Thus, medical evidence corroborates the ocular version of the

injured witness. Hence, the gist of the prosecution case that PW2

suffered injuries due to assault by the accuseds viz. Rohi @ Rahi @ Gour

Konai and Paresh Konai has been proved beyond doubt.

Further question which remains for consideration is whether the

conviction of the accuseds was rightly recorded under Section 323 IPC

or they ought to have been convicted on a graver charge.

Mr. Sabir Ahmed emphatically argued evidence on record shows

they intended to murder the victim. Even otherwise, victim suffered

fracture and conviction atleast should have been recorded under Section

326 IPC.

On the other hand, Mr. Manas Kumar Das submitted appellants-

convicts dealt single blows in course of the scuffle. They did not intend

to murder the victim. Whether the victim suffered fracture is doubtful in

view of the opinion of the medical board as appearing from the evidence

of PW8.

Analysing the evidence on record in the light of the aforesaid

submissions, I note though PWs.1, 2 & 5 deposed Paresh Konai had

aimed at the head of the victim which was resisted by the latter with his

arm, there is nothing on record to show that the accuseds had again

struck at the victim after he had fallen down. This gives an impression

though the accuseds had intended to strike the victim with weapons of

offence to cause physical injury but in all probability they did not intend

to murder him.

Hence, I am not inclined to alter the conviction of the convicts-

appellants from Section 323 IPC to Section 307 IPC.

It is also unclear whether the victim (PW2) suffered fracture

wound. Though doctor (PW3) who treated the victim at Kandi SD

Hospital noted fracture in the olecranon process, PW8, a member of the

medical board constituted at Murshidabad Medical College & Hospital

opined X-ray shows no bony injury. Hence, it is doubtful whether victim

had suffered fracture due to physical assault which would amount to

grievous hurt under section 320 IPC. However, evidence on record leaves

no doubt in my mind appellants-convicts had used dangerous weapon

viz. shabol to cause physical injury on the hand and body of the victim.

In view of such fact, their conviction ought to have been recorded

under Sections 324/34 IPC instead of Sections 323/34 IPC.

In the light of the aforesaid discussion, I alter the conviction of

the convicts-appellants from Sections 323/34 IPC to Sections 324/34

IPC.

With regard to the issue of sentence, I find that facts and

circumstances of the case particularly the aggressive behaviour of the

convicts do not justify a lenient treatment under Section 360 of the Code

of Criminal Procedure or the provisions of the Probation of Offenders

Act, 1958.

I note the graver injury on the arm was caused by Paresh Konai

with a shabol. Rohi @ Rahi @ Gour Konai had assaulted the victim with

a lathi. When conviction is recorded against multiple accuseds with the

help of Section 34 IPC for sharing common intention, an individualised

sentencing approach requires to be adverted to by referring to the

specific overt act of each accused committed in pursuance to the

common intention shared by them.

In that backdrop, in view of the graver injury caused by Paresh

Konai, I am of the opinion a higher sentence requires to be imposed

upon him that what has been awarded by the trial court. Under such

circumstances, I enhance the sentence imposed upon Paresh Konai and

direct that he shall suffer rigorous imprisonment for one year and pay a

compensation of Rs.20,000/-, in default, to suffer rigorous

imprisonment for six months more.

Sentence imposed upon Rohi @ Rahi @ Gour Konai by the trial

court however, shall remain unaltered. Compensation amount, if

realised, shall be handed over to the victim (PW2).

We are informed Rohi @ Rahi @ Gour Konai has already

suffered the substantive sentence imposed upon him. He is directed to

deposit the compensation amount within one month from date failing

which the default sentence shall be executed against him in accordance

with law.

Bail bond of Paresh Konai is cancelled. He is directed to surrender

forthwith before the court below and serve out the enhanced sentence

imposed upon him, failing which the court below shall issue appropriate

process for his apprehension and execution of the sentence in

accordance with law.

Period of detention suffered by the appellant/convicts during

investigation, enquiry and trial shall be set off against the substantive

sentence imposed upon them in terms of Section 428 of the Code of

Criminal Procedure.

Accordingly, CRA 542 of 2018 is allowed in part. CRA 448 of 2018

is dismissed.

Lower court records along with a copy of this judgment be sent

down at once to the learned trial Court for necessary action.

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

parties on priority basis on compliance of all formalities.

I agree.

         (Ajay Kumar Gupta, J.)                            (Joymalya Bagchi, J.)




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