Calcutta High Court (Appellete Side)
Sanchoy Roy vs The State Of West Bengal on 2 September, 2024
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Tirthankar Ghosh
C.R.A. 364 of 2019
Sanchoy Roy
Versus
The State of West Bengal
For the Appellant : Mr. Arunava Ganguly
For the State : Mr. Debasish Roy, Ld. P.P.
Mr. Saryati Dutta
Ms. Diksha Ghosh
Reserved on : 19.08.2024
Judgement on : 02.09.2024
Tirthankar Ghosh, J. :
The present appeal has been preferred against the judgment and order of
conviction and sentence dated 27.03.2018 and 18.04.2018 passed by the
learned Additional District & Sessions Judge, Fast Track Court, 1st Court,
Hooghly in Sessions Trial No. 03/2017 arising out of Sessions Case No. 146 of
2016, wherein the learned Trial Court was pleased to hold the appellant guilty,
thereby convicting him under Section(s) 324 and 307 of the Indian Penal Code
and sentencing him as follows:
(i) For the offence under Section 324 of the Indian Penal Code -
Rigorous Imprisonment for 18 months and fine of Rs.1,000/ in
default to suffer Simple Imprisonment for 1 month.
(ii) For the offence under Section 307 of the Indian Penal Code -
Rigorous Imprisonment for 6 years and fine of Rs.3,000/- in
default to suffer Simple Imprisonment for 1 month.
Pandua P.S. case no. 437/2015 dated 11.07.2015 was registered for
investigation on the basis of an information submitted by Sudip
Rai @ Roy (brother of the injured) with the Officer-in-Charge Pandua Police
Station. The allegation made in the letter of complaint were to the effect that
the complainant's brother, namely Sandip Rai @ Roy while returning from
market was gossiping with his friends, Avi Rai @ Roy and Sumanta
Bandopadhyay when a person rushed behind him and inflicted blows with a
katari (sharp edged weapon). The accused was identified as Sanchoy Roy and
as a result of his attack with the sharp edged weapon the injured sustained
serious injury on his head and arm. On being injured Sandip Roy started to
yell when a mob assembled there and they chased Sanchoy, who ran towards
his home and was saved by his mother and wife. Sanchoy had an intention to
kill his brother as there was an enemity prevailing between them.
The complainant's brother i.e. injured Sandip was taken to Pandua
Rural Hospital and from there he was transferred to Chinsurah I.B. Hospital
for better treatment. So the complainant prayed to the police authority to take
action against the accused.
On receipt of the aforesaid complaint the Officer-in-Charge of Pandua
Police Station namely Suman Roy Chowdhury filled up the formal FIR and
thereafter registered the case under Sections 341/324/326/307/120B of the
Indian Penal Code and endorsed the investigation to Sub-Inspector of Police
Uday Mukherjee for investigation. The investigating officer on completion of
investigation submitted charge-sheet before the jurisdictional Court on or
about 29.07.2015 under Sections 341/324/326/307 of the Indian Penal Code.
The Learned C.J.M., Hooghly being the jurisdictional Court after compliance of
the relevant provisions of law committed the case to the Court of sessions and
thereafter the proceedings were transmitted for trial and disposal to the
learned Additional District & Sessions Judge, Fast Track Court, 1st Court,
Hooghly. The learned Trial Court by its order dated 20th March, 2017 was
pleased to frame charge under Section 324 and 307 of the Indian Penal Code
against the present appellant. The contents of the charge were read over to the
accused/appellant to which he pleaded not guilty and claimed to be tried.
The prosecution in order to prove its case relied upon 13 witnesses
which included P.W.1, Sudip Rai @ Roy complainant and brother of the
injured; P.W.2, Avi Rai @ Roy friend of the injured; P.W.3, Sumanta
Bandhopadhyay friend of the injured; P.W.4, Malati Rai @ Roy a co-villager;
P.W.5, Sunil Rai @ Roy neighbour of the complainant; P.W.6, Sandip Rai @
Roy, the injured person; P.W.7, Sk. Yasin Mondal scribe of the FIR; P.W.8, Sk.
Sowkat Mondal, who signed the injury report; P.W.9, Dildar Hossain, co-
villager; P.W.10, Dr. Aurobindo Bala, Medical Officer attached to Chinsurah
Hospital; P.W.11, Dr. Anindita Mitra, Medical Officer of Pandua Hospital;
P.W.12, Dr. Rahamat A. Alam, Medical Officer of Chinsurah District Hospital;
P.W.13, Uday Mukherjee, investigating officer of the case.
P.W.1, Sudip Rai @ Roy is the brother of the injured and the
complainant of the case. He deposed before the Court that the incident took
place on 11.07.2015 at about 7.30 P.M. in their village at Gadar Par locality. At
the time of incident he was returning home from the market and on his way at
Gadar Par he found the accused Sanchoy Roy assaulted his brother and
injured his forehead and left arm with a katari. Due to such assault, his
brother sustained bleeding injury and he fell down on the road, and again the
accused assaulted him further with the weapon because of his previous grudge
and same was with the intention to murder him. Avi Rai @ Roy, Sumanta
Bandopadhyay and others took his brother to Pandua Rural Hospital. The
injury of his brother was stitched at the Pandua Rural Hospital and he was
thereafter referred to Hooghly Sadar Hospital for further treatment, his brother
was admitted at the Sadar Hospital and he remained there for 7 days. He
further deposed that the incident was informed to Pandua Police Station who
came to Pandua Hospital and one Jan Mondal drafted the petition of complaint
under his instruction. Thereafter, on being satisfied he signed on the
complaint, he identified his signature in the complaint which was admitted in
evidence. He also deposed that at the time of treatment of his brother he was
present there at the Hospital and narrated the incident to the doctor.
Subsequently, over this issue he was interrogated by the Police authority. In
cross-examination he denied the fact that his a brother while returning home
from the agricultural field with farming equipments fell down on the road and
sustained injury. In cross-examination he also deposed that his brother teased
wife of Sanchoy. He further denied in his cross-examination that his brother
was never assaulted by Sanchoy in the manner as described by him on the
relevant date.
P.W.2, Avi Rai @ Roy is friend of the injured Sandip Rai @ Roy, who
deposed before the Court that the incident took place on 11.07.2015 at about
7.30 P.M. near Gadar Par in Panchpara village, when he along with Sumanta
Bandopadhyay and Sandip Rai @ Roy were returning from the market. He
deposed before the Court that at Gadar Par, Sanchoy Roy assaulted Sandip
Rai @ Roy from behind with a Katari, as a result Sandip sustained bleeding
injury on his forehead and right arm. All of them raised alarm when the local
people rushed to the spot and they also took him to hospital. Sandip was
taken to Pandua Hospital and his wounds were stitched, thereafter he was
sent to Chinsurah Hospital. The witness however returned from Pandua
Hospital. Police subsequently came and they visited the place of occurrence
and his name along with others were recorded by the Police Officer. In cross-
examination the witness denied the fact that no such incident as deposed by
him did not happen. The witness also denied in cross-examination that any
illicit relationship existed between Sanchoy's wife and Sandip. He also denied
the factum of Sandip not being injured in the manner on the date, as has been
described by him.
P.W.3, Sumanta Bandopadhyay, is friend of the injured Sandip Rai @
Roy who deposed that the police examined him and during such interrogation
he stated to the Police that on 11.07.2015 at about 07.30 P.M. near Gadar Par
in Panchpara village he along with Avi Rai @ Roy and Sandip Rai @ Roy were
returning from the market and at that time when they reached at Gadar Par,
Sanchoy Roy assaulted Sandip from behind with a katari. As a result, Sandip
sustained bleeding injury on the upper part of his forehead and right arm, all
of them raised alarm and Sanchoy managed to run away in the darkness. The
local people took Sandip to hospital and he also accompanied them. Sandip
was taken to Pandua hospital where his wounds were stitched. Thereafter, he
returned home and the injured was sent to Chinsurah Hospital. Police also
visited the place of occurrence. In cross-examination the witness denied of the
incident not having taken place on the said date and time and also denied
regarding Sandip not being injured with a katari. However, he stated in cross-
examination that Sandip Rai @ Roy was also a farmer but he denied the fact
that Sandip Rai @ Roy sustained injury by falling on the road while returning
home with farming equipment.
P.W.4, Malati Rai @ Roy is a co-villager who deposed that about two
years ago at about 7.30 P.M. at Gadar Par when Sandip Rai @ Roy was
returning from the market Sanchoy assaulted Sandip with a katari from
behind. As a result, Sandip sustained bleeding injury on his head and arm.
The injured Sandip raised alarm, when the local people came out from their
respective houses and thereafter, his father, elder brother and others took him
to Pandua Hospital. From Pandua Hospital Sandip was transferred to
Chinsurah Sadar Hospital. In cross-examination she deposed that when
Sandip was taken to Hospital, Jotsna Roy, Pampa Roy, Sankar Roy, Malin Roy,
Chobi Roy, Biswajit Roy, Sudip Roy and others gathered at the spot. She
denied that there was any illicit relation between Sandip and the wife of
Sanchoy Roy.
P.W.5, Sunil Rai @ Roy, is a neighbour of the injured who deposed
before the Court that about two years ago at about 7.00/7.30 P.M. at Gadar
Par when he was sitting on the other side of the pond and Sandip Rai @ Roy
was returning from the market, Sanchoy Roy was lurking on the spot and
assaulted Sandip with a katari from behind. As a result, Sandip sustained
bleeding injury on his head and arm, when he raised alarm. On hearing such
alarm he along with others reached the spot when Sandip was lying in injured
condition. Thereafter, the villagers took him to Pandua Hospital where his
wounds were stitched, and from Pandua Hospital he was transferred to
Chinsurah Sadar Hospital. He identified the accused in Court. In cross-
examination, he denied the incident of not having taken place and also that
the injury of Sandip was not because he fell down along with farming
equipments while he was returning back home from the agricultural field on
uneven road.
P.W.6, Sandip Rai @ Roy is the injured who identified the accused in
Court and deposed that the incident took place about two years ago in the
evening at 7.30 P.M. at Gadar Par village, Panchapara. He narrated that he
along with two of his friends namely Avi Rai @ Roy and Sumanta
Bandopadhyay were returning from the market and on the way the accused
person rushed towards him and inflicted blows on his head and on the upper
part of left arm with a katari. Due to such assault he sustained bleeding injury
and fell down on the spot (the witness before the Court also showed the cut
mark on left portion of his head and the upper part of left arm). As a result, he
raised alarm and his companions Avi Rai @ Roy and Sumanta Bandopadhyay
were afraid on seeing blood and they rushed away. On hearing his alarm of
screaming Dildar Hossain, Yasin Mondal, Sumanta Bandopadhyay, Avi Rai @
Roy and Sudip Rai @ Roy came to the spot and thereafter took him to Pandua
Hospital. At Pandua Hospital his wounds were stitched and he was thereafter
referred to Chinsurah Sadar Hospital. In the Hospital once police came to meet
him thereafter he was discharged from the Hospital and taken to his residence
where police interrogated him. On both the occasions, he narrated the incident
to the police authority. In cross-examination he denied of having been to the
Court with Yasin Mondal and accepted the fact that he was working under him
in his agricultural field. He further in his cross-examination denied of the
incident having not taken place and also denied regarding the factum of falling
down on the ground along with the farming equipments on an uneven village
road, thereby sustaining injury. He also denied the fact of having any illicit
relationship with the wife of Sanchoy Roy or any incident for which there has
been any long pending dispute with him and the accused and as such he has
falsely implicated the accused.
P.W.7, Sk. Yasin Mondal, is the scribe who wrote the complaint as
instructed by Sudip Rai @ Roy. He was shown the written complaint as also
his signature as a scribe. He identified the same in the FIR which was
admitted in evidence.
P.W.8, Sk. Sowkat Mondal, is a co-villager who went to Pandua Hospital
where Sandip Rai @ Roy was treated and his wounds were stitched. He heard
from Sandip that Sanchoy assaulted him, he also signed on the injury report.
He identified his signature in the injury report of Pandua Hospital and his
signature was admitted in evidence.
P.W.9, Dildar Hossain, is a co-villager who knew Sudip Rai @ Roy and
Sandip Rai @ Roy. The witness also stated that he knew Sanchoy Roy. He
narrated that the incident took place on 11.07.2015 in between 7.00 to 7.30
P.M. at Goda Par. When he while returning from the market found Sandip Rai
@ Roy was lying injured with bleeding on his head and right arm. He heard
from Sandip that Sanjoy Rai @ Roy caused the injury with blows of katari. He
along with others took the injured to Pandua Hospital, where the injured was
medically treated and thereafter referred to Chinsurah Hospital. In cross-
examination the witness denied of not having seen Sandip lying on the road at
Godar Par with injuries and also denied the fact that he did not take the
injured to hospital for medical treatment.
P.W. 10, Dr. Aurobindo Bala, is Medical Officer who was attached to
Chinsurah Sadar Hospital on 11.07.2015. He attended one Sandip Rai @ Roy
who came with head injury. The patient according to him was admitted under
Dr. R. A. Alam, Medical Officer attached to Chinsurah Hospital. He identified
the patient which was marked Exhibit-3.
P.W.11, Dr. Anindita Mitra, is Medical Officer who was attached to
Pandua Rural Hospital who deposed that on 11.07.2015, Sandip Rai @ Roy
was medically examined and on examination it was found that he had deep cut
injury extending from left side of forehead to scalp about 4 inches of length.
Another horizontal deep cut injury was found on top of scalp measuring 2
inches approximately, and cut injury on the upper left arm, outer side.
According, to the witness the patient was conscious but dazed. As far noting in
the injury report, the witness stated that the injury was caused by Sanchoy
Roy with katari and according to the opinion, of the witness, such injury can
be inflicted by a katari. The condition of the patient was found to be serious
and he was advised C.T. Scan and was also referred to Immambara Sadar
Hospital, Department of Surgery. The injury report was prepared by the
witness. He identified his signature in the injury report and it was admitted in
evidence, the referral card issued for the patient was also identified by the
witness and was marked as Mat Exhibit. In cross-examination the witness
stated that age of the injury was not recorded in the report as patient was in a
serious condition, however, it was admitted by the witness that the history of
assault which was recorded may be either by the patient or by the patient
party and the witness could not recall whether the patient narrated the history
of assault himself. On a suggestion being advanced in cross-examination the
witness replied that it is less possible to sustain such an injury by a person
unless he falls on some very hard as well as sharp surface.
P.W.12, Dr. Rahamat A. Alam, is Medical Officer attached to Chinsurah
District Hospital. He deposed that on 11.07.2015 a patient Sandip Rai @ Roy
was admitted under him at about 22.33 hrs with history of assault and head
injury. The patient remained under his treatment till 15.07.2015 during the
period of treatment the patient underwent clinical investigation including C.T.
Scan. He referred to the report bearing his handwriting and signature which
was marked as exhibit. He also deposed that the patient was struck with hard
and sharp substance and such nature of injury can be caused with a katari.
He also deposed that the patient could have died due to such injury, if he was
not medically taken care of timely. In cross-examination he replied that the
patient was conscious and further deposed in his cross-examination on some
rough surface with sharp pebbles on it, similar type of injury is possible.
P.W.13, Uday Mukerjee is Sub-Inspector of Police who investigated the
case on the same being endorsed by the Officer-in-Charge of the Pandua Police
Station, he identified the signature of the Officer-in-Charge which was
admitted in the evidence and further deposed that after perusal of the written
FIR, he interrogated the complainant. He visited the place of occurrence having
prepared rough sketch map with index, examined the available witnesses and
recorded their statement under Section 161 Cr.P.C. Then along with the
complaint he went to the residence of the accused to serve notice but he was
not found there. He also went to Pandua Rural Hospital and to meet the
injured Sandip Rai @ Roy. He interrogated the injured and collected report of
Pandua Rural Hospital as well as Chinsurah Sadar Hospital and on conclusion
of investigation he submitted charge-sheet against the FIR named accused
under Section 341/324/307 of Indian Penal Code. In cross-examination he
deposed that he examined the witnesses as was named by the de-facto
complainant and recorded their statements. He also accepted the factum that
the village had morum road which were of uneven and rough surface. However,
in cross-examination he replied that he did not examine the local Panchayat
member or any other respectable person of the locality and also accepted the
fact that in the index of rough sketch map he did not mention the name of the
accused person.
Learned advocate appearing for the appellant submitted that the
prosecution witnesses cannot be relied upon as their version has been
inconsistent to such an extent, that no person of ordinary prudence would
accept the manner in which the incident has been described by them. It was
further contended on behalf of the appellant that the defence specifically
confronted all the witnesses in cross-examination relating to the facts which
included amongst others the scope of the appellant being falsely implicated in
connection with the instant case as the appellant had an illicit relationship
with the wife of Sanchoy Roy, it was also specific case of defence that the
injured in fact was on his way in the village morum road which was uneven
and broken (with sharp edges) and he injured himself having fallen down with
farming equipment on such uneven road.
It was further argued by the learned advocate that the witnesses cited
by the prosecution were shown by the de-facto complainant who happens to be
the brother of the injured and the investigating officer having failed to conduct
the investigation in a proper manner by examining the independent
respectable witnesses of the locality have in fact narrated a scripted story of
the complainant in the form of a charge sheet. It was also pointed out that the
inconsistency in the version of the witnesses who claim to be eye-witnesses are
also palpable, as some of the witnesses have deposed that the injured
sustained injury on his right arm while the injured himself has stated that he
has sustained injury on his left arm. Lastly it was stated that to rely upon
such evidence and arrive at a conclusion of guilt would cause irreparable loss
and injury to the life and liberty of the appellant and the learned trial court
having held the appellant to be guilty and thereby convicting him requires
interference by this Court and as such the judgment and order of conviction
and sentence so passed by the learned trial court is required to be set aside.
On the other hand learned advocate appearing for the prosecution
stated that there were two eye-witnesses in the incident namely Avi Rai @ Roy
and Sumanta Bandopadhyay who were examined by the prosecution in
connection with the instant case apart from Sandip Rai @ Roy. The version of
both the eye-witnesses categorically referred to the accused having inflicted
injuries with the aid of a katari upon the injured. The same is corroborated not
only by the injured himself but also by way of medical evidence. In fact the
doctor also deposed in cross-examination in response to a specific question
when asked on behalf of the appellant, that had the patient or the injured not
been brought in time for the treatment and the treatment had not commenced
immediately it would have been a threat to the life of the injured. The State
further contended that the appellant having committed the offence is presently
relying upon minor inconsistencies which cannot substitute the ring of truth
attached to the version of the prosecution witnesses regarding the assault
being inflicted with the katari (sharp edged weapon) and the nature of injury
which were fatal to his life. It was reiterated that having considered the
prosecution case as a whole which is consistent in its version, supported with
corroborating evidence both oral and documentary there is no scope for the
accused to be acquitted from the charges. No interference according to the
State should be made in respect of the judgment delivered by the learned trial
Court and the same should be affirmed.
This court has taken into account the evidence of the prosecution
witnesses which included two eye-witnesses and the injured. The version of
the appellant/accused at the stage of Section 313 has also been taken into
account which is as follows:
"Q.21. Do you have anything to state about the allegation
brought against you?
Ans: There was a quarrel between my wife and Sandip. On the
next day, Sandip was moving through Gadarpar with
instruments for cultivation. The pathway on Gadarapar is
rough and uneven. He fell down on it. He sustained due to
falling on the road and with the instruments of cultivation and,
thereafter, due to the grudge relating to incident of quarrel with
my wife, I have been falsely implicated and made accused in
this case."
One of the important aspects of a criminal trial is that although the
accused in cross-examination is entitled to ask questions for defending
himself, but the nature of defence cannot be discrete to prevail over the
standard of proof required to overthrow the test of 'preponderance of
probability'.
In this case, what has been asked by the defence with regard to the wife
of Sanchoy Roy that the injured used to tease the wife of Sanchoy Roy, the
injured had an illicit relationship with the wife of Sanchoy Roy, while the
accused in his examination under Section 313 of the Criminal Procedure Code,
deposed that the injured had a quarrel with his wife. On the other hand, in the
letter of complaint which has been addressed to the Officer-in-Charge, which
has been marked as a documentary evidence, it was stated that it was the wife
and mother of Sanchoy Roy who save him, when the villagers chased him at
his home. The foundation created by the defence in such circumstances
should be of such nature that it would be able to overcome the evidentiary
value attached to the statement or deposition of the injured witness and or the
eye-witnesses. Needless to state that there was a corroboration in this case so
far as the injury being inflicted with the aid of a katari upon the injured
Sandip Rai @ Roy is concerned.
Further, the injured in his version before the doctor at the first instance
stated that he was assaulted with katari by the said Sanchoy Roy. So far as
the evidentiary value of an injured is concerned, it was dealt with by the
Hon'ble Supreme Court in the case of Abdul Sayeed -versus- State of Madhya
Pradesh reported in (2010) 10 SCC 259, paragraph 30 of the said judgment is
quoted below:
"30. The law on the point can be summarised to the effect that the
testimony of the injured witness is accorded a special status in law.
This is as a consequence of the fact that the injury to the witness is
an inbuilt guarantee of his presence at the scene of the crime and
because the witness will not want to let his actual assailant go
unpunished merely to falsely implicate a third party for the
commission of the offence. Thus, the deposition of the injured
witness should be relied upon unless there are strong grounds for
rejection of his evidence on the basis of major contradictions and
discrepancies therein".
So far as the issue relating to the discrepancy of the injured having
suffered injury in the right hand or left arm is concerned, the same is
redundant in view of the fact that the injured himself, as P.W.6, has deposed
before the court and showed the court also the injury having been sustained in
the left arm and the same is corroborated by P.W.11, the medical Officer
namely Anindita Mitra who treated him. Thus not only the oral deposition of
witness but the same is also substantiated by documentary evidence by an
independent Medical Officer which goes to show that in the present case, if
there was any inconsistency regarding the right arm or the left arm, the Court
is to accept it as the left arm because of the statement of the injured and that
of the Medical Officer, which is substantiated in the injury report.
In view of the aforesaid findings, this Court is of the opinion that there
is no scope for interference in the conclusion arrived at by the learned Trial
Court holding the appellant guilty and convicting him for the offence under
Section 324 and 307 of the Indian Penal Code. As such, the judgment and
order of conviction passed by the learned Additional Sessions Judge, 1st Fast
Track Court, Hooghly in Sessions Trial No. 03 /2017 in connection with
Pandua P.S. Case No. 437/15 dated 11.07.2015 is hereby affirmed.
However, having regard to the fact that the incident is nine and a half
years old and the present appellant is a young person without any criminal
antecedents having been referred to by the prosecution, I am of the view that
the sentence so imposed under Section 307 of the Indian Penal Code be
reduced to rigorous imprisonment for five years. So far as the sentence under
Section 324 of the Indian Penal Code and the fine amount in respect of both
the sentences are concerned, the same remains unaltered. Both the sentences
would run concurrently and the period of detention, if any, undergone by the
appellant, the same should be set-off under Section 428 of the Code of
Criminal Procedure.
The appellant is on bail and as such his bail bonds stand cancelled. He
is directed to surrender before the learned Trial Court immediately.
Accordingly, Criminal Appeal No. 364 of 2019 is partly allowed.
Pending connected application(s), if any, are also disposed of.
Department is directed to send back the LCR immediately. A copy of the
judgment be forwarded to the ld. Trial court immediately for compliance
regarding the directions given above.
All parties shall act on the server copy of this judgment duly
downloaded from the official website of this Court.
Urgent photostat certified copy of this judgment, if applied for, be
supplied to the parties upon compliance of all requisite formalities.
(Tirthankar Ghosh, J.)
