Calcutta High Court (Appellete Side)
Madan Ray & Ors vs The State Of West Bengal on 19 April, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 3230 of 2019
Madan Ray & Ors.
Vs
The State of West Bengal.
With
CRR 388 of 2021
(Assigned)
with
CRAN 1 of 2021
Joschna Roy
Vs.
The State of West Bengal.
For the Petitioners : Ms. Devi Priya Mitra.
For the State : Mr. Madhusudan Sur,
Mr. Manoranjan Mahato.
Heard on : 28.02.2023
Judgment on : 19.04.2023
2
Shampa Dutt (Paul), J.:
1.
The present revision has been preferred against the judgment and order
dated 12th June, 2019 passed by the Special Court cum Additional
Sessions Judge, First Court, Raiganj, Uttar Dinajpur, convicting the
petitioners under Sections 448/326/34 of the Indian Penal Code and
Sentencing them to suffer imprisonment for two years each and to pay a
fine of Rs. 2000/- for the offence under Section 326/34 of Indian Penal
Code and simple imprisonment for three months each for the offence
under Section 448/34 of Indian Penal Code. Both the sentences were
directed to run concurrently in Criminal Appeal No. 13 of 2016. The
order dated 31.03.2016 passed by the Learned Judicial Magistrate, 1st
Court, Raiganj in G.R. Case No. 283 of 2007 convicting petitioners under
Sections 448/326/34 of Indian Penal Code was affirmed.
2. The prosecution case as per the petition of complaint is that in the
evening of 17.04.2007, the petitioner no. 1 had allegedly come to the
house of the complainant Mohan Mondal during the function of
"Baishnab Seba" in an intoxicated condition. Basudeb Mondal the elder
brother of the complainant allegedly persuaded the petitioner no. 1 to
leave the house.
3. The petitioner no. 1 then allegedly left and returned at 10 pm with the
other petitioners and assaulted Basudev Mondal who sustained injuries.
Seeing that, Bindeswar Mondal father of Basudev Mondal, went to save
him but also sustained injuries for which he was medically treated at
Raiganj District Hospital.
4. On the basis of the written complaint filed on 23.04.2007 by Mohan
Mondal (P.W. 5), Raiganj Police Station Case No. 132 of 2007 dated
23.04.2007 was started against the petitioners for the offences
punishable under Sections 341/326/34 of Indian Penal code.
5. On completion of the investigation of the case, the police submitted
Charge Sheet on 31.05.2017 for the offences punishable under Sections
341/326/34 of Indian Penal Code against the petitioners and others.
6. Charge under Sections 326/34 of Indian Penal Code and adding Section
448/34 of Indian Penal Code were framed against the petitioners.
7. Defence of the petitioners was of innocence and false implication.
8. The trial commenced and the Learned Judicial Magistrate, Rajganj, Uttar
Dinajpur found the petitioners guilty and by his order dated 31.03.2016
Learned Judicial Magistrate, 1st Court, Rajganj in connection to G.R.
Case No. 283 of 2007 convicted the petitioners under Sections
448/326/34 of Indian Penal Code accordingly.
9. The petitioners preferred an appeal vide No. 13 of 2016 before the
Learned Special Court cum Additional Sessions Judge, First Court,
Raiganj, Uttar Dinajpur and it is submitted that without scanning the
evidence properly, the learned Judge mechanically by his order dated
12.06.2019 upheld the order dated 31.03.2016 of the Trial Judge.
10. Ms. Devi Priya Mitra, learned counsel for the petitioners has
submitted that the judgment of the Learned Sessions Judge as well as
the Magistrate is based on conjectures and surmises not warranted by
the evidence on records.
11. That the ingredients of the offence charged not having been established,
the conviction of the appellant is not sustainable-in-law.
12. That both the Learned Sessions Judge and the Learned Magistrate did
not look into the fact that P.W. 3 came to know about the alleged
incident, only on the next morning and was not an eye witness to the
alleged incident.
13. It is further submitted that the Learned Sessions Judge and the Learned
Magistrate failed to take into consideration that P.W. 4 though stated
that he was admitted in Raiganj Hospital for 13 days in an unconscious
state, but P.W. 7 stated that P.W. 4 was admitted in a conscious state
and P.W. 8 stated that the bed head ticket does not bear any disclosure
about the conscious or unconscious state of P.W. 4 at the time of
admission.
14. That the investigating officer conducted the investigation in a casual
away and neither did he seize any blood stained wearing apparel nor did
he seize any 'Hansua' or 'Lathi' alleged to have been used in the alleged
assault.
15. It is submitted that the sentence is too severe.
16. Mr. Madhusudan Sur, learned counsel for the State has submitted
that the judgment and order under revision is in accordance with law
and needs no interference. The revision is thus liable to be dismissed.
17. Heard both sides in full. Perused the materials on record including the
documents and oral evidence on record. Considered.
18. Exhibit 2 is the Emergency Slip (shows only fracture).
19. Exhibit 3 is the injury report (shows only fracture).
20. Exhibit 4 is the treatment sheet (shows fracture and punctured wound).
21. As seen from the medical papers, injury found is elbow fracture
(punctured wound) as per Exhibit 4 and not mentioned in Exhibit 2 and
3.
22. As stated by the patient, he was assaulted by the petitioners with a
'Hansua', a sharp cutting weapon.
23. P.W. 7, is the doctor who admitted the injured. The patient was
conscious.
24. 'Hansua' is a weapon known as 'Sickle' in English. It is used for cutting
grass etc by farmers. It is pointed sharp cutting weapon, when used can
cause bleeding injury.
25. Though the witnesses have stated that the injured was assaulted with a
'Hansua', there is neither any seizure list showing any seizure of any
weapon(s).
26. The petitioners have been convicted for offence punishable under Section
448/326/34 of Indian Penal Code and sentenced accordingly.
27. Both the doctors have stated in cross examination that such an
injury can be caused by a fall.
28. The assault by 'Hansua' has not been proved as discussed above.
29. So the use of dangerous weapon has also not been proved.
30. Admittedly the alleged incident took place when "Baishnab Puja" was
going on in the complainant's house and about 70-80 persons were
present.
31. Allegedly accused Madan Roy had gone to the house of the complainant
in an intoxicated condition and was assaulted. Later allegedly the
petitioners including Madan Roy went and attacked them (the
complainant's side).
32. P.W. 2 is the son of the injured. He has stated that a quarrel took
place between his father and the petitioners on the date of incident
and nothing else happened. He was declared hostile by the
prosecution.
33. P.W. 4 is the injured. He has stated that he was injured with a hansua
and suffered bleeding injury. He has stated that he became unconscious
and fell and regained his sense at Raiganj Hospital.
34. Doctors have stated he was conscious.
35. P.W. 7 has stated that the injured (PW 4) allegedly suffered injury on
17.04.2007 at 7 pm. He was taken to the hospital on 18.04.2007 at 2.30
pm. The medical papers at Raiganj Medical Hospital (Exhibit 4) show
elbow fracture (punctured wound).
36. A punctured wound is usually caused by a sharp pointed object such as
nail, animal teeth, wood spinsters, pins, glass etc. Here the injury is
allegedly by a 'Hansua' and there is a fracture and a punctured wound
(no bleeding was found). The injury report does not support the
statement of the injured that he was assaulted with a "Hansua". Even his
own son (PW 2) has not supported his statement. Admittedly there was a
quarrel between the parties, but nothing else happened (as stated by PW
2, the son of the injured, though he was declared hostile by the
prosecution).
37. The relevant findings and reasoning of the learned Trial Court are
reproduced here:-
"............obviously, some minor variations and some
omissions are found when the testimony of PW 5 is
juxtaposed with the content of the FIR. But having regard to
the span of time between the incident and the deposition and
also to the limitation of human memory, the same may be
overlooked."
"The defence has further suggested that PW 5 did not
mention the fact that his father had sustained injury
on his hand owing to a blow of hansua and the witness
has replied that he cannot recollect the same at
present. In fact, the witness has come to depose almost six
and a half years after the incident and he is not expected to
recollect the content of the FIR in details. However, as I have
already mentioned, by putting this suggestion the defence
has virtually admitted the fact of execution of the FIR by PW
5..............."
38. PW 5 not recollecting the fact that his father had sustained injury on his
hand owing to a blow of "Hansua" is a very relevant piece of evidence.
It is the evidence on which the total case is based. Such fact of
assault/attack cannot be forgotten easily and it is not believable that one
can forget such an incident in Six and a half years.
39. There was admittedly a criminal case filed by the accuseds against the
complainant.
40. PW 5 (complainant) has also not seen accused Madan allegedly strike
the blow of Hansua. The finding of the Trial Court that in a crowd it is
not possible to see everything clearly goes in favour of the defence.
41. Though the fact of being hospitalized and treated is proved, Exhibit 2
and 3, (Injury Reports) show that the alleged injury is a fracture of the
elbow and an (abrasion?) on the forehead. There is no note of any
bleeding injury nor punctured wound (as in Exhibit 4). Such injury of
fracture on elbow and abrasion on forehead, prima facie indicates a fall,
as there is no bleeding injury, considering the nature of assault (PW 7).
42. The Trial Court also believed the assault by 'Hansua' though no such
weapon was either seized or produced. If such assault had taken place,
then along with the injuries there would be active bleeding.
43. Thus from the above appreciation of evidence it is evident that there was
a quarrel between the parties and P.W. 4 (injured) fell down and could
have sustained the elbow fracture (PW 7).
44. The alleged incident is dated 17.04.2007 at night. FIR was lodged on
23.04.2007 (delay of Six days). The Trial Court has explained the delay
holding that it was due to the treatment of the injury (fracture). Though
'Fracture' falls within the category of grievous hurt, this kind/nature of
injury does not justify the delay of six days. There remains a doubt that
it was an afterthought, the benefit of which is to be given to the
accused/defence, taking into consideration the nature of other
evidence/materials on record.
45. In spite of "Baisnab Seva" program going on where 70-80 persons were
present, there are no independent witnesses. The observations/findings
of the Trial Court that independent witnesses do not want to come to the
witness box, is not believable as there were 70-80 persons present and
also considering the nature of the present case.
46. The Appellate Courts findings is based on the findings of the Trial Court
with no significant independent findings or appreciation of evidence.
47. The findings of the Appellate Court that at the time of alleged incident all
70-80 pilgrims had left (no evidence on record) is also not correct as such
'Seva' of 'Puja' program are conducted throughout the night.
48. It is also observed that the Appellate Court has referred to the 'trial'
Court as 'lower' Court, which is not the proper term or word and such
word/term is to be avoided.
49. Thus the findings/observations of both the trial and the Appellate Court
are not in accordance with law, as the prosecution has not been able to
prove the case beyond reasonable doubt. Thus to prevent an abuse of the
process of Court/law, the judgment and order under revision is liable to
be set aside.
50. CRR 3230 of 2019 along with CRR 388 of 2021 with CRAN 1 of 2021
are allowed.
51. The judgment and order dated 12th June, 2019 passed by the Special
Court cum Additional Sessions Judge, First Court, Raiganj, Uttar
Dinajpur, affirming the judgment and order dated 31.03.2016 passed by
the Learned Judicial Magistrate, 1st Court, Raiganj in G.R. Case No. 283
of 2007 convicting the petitioners under Sections 448/326/34 of Indian
Penal Code is hereby set aside.
52. Accuseds /petitioners are acquitted of offence punishable under Sections
448/326/34 of Indian Penal Code and discharged from this case and
released from their respective bail bonds.
53. There will be no order as to costs.
54. All connected Applications stand disposed of.
55. Interim order if any stands vacated.
56. Copy of this judgment be sent to the Court of the learned Special Court
cum Additional Sessions Judge, First Court, Raiganj, Uttar Dinajpur and
learned Judicial Magistrate, 1st Court Raiganj, Uttar Dinajpur for
necessary compliance.
57. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
