Calcutta High Court (Appellete Side)
Bidhan Mondal vs The State Of West Bengal on 19 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. 211 of 2019
Bidhan Mondal
-versus-
The State of West Bengal
For the Appellant : Mr. Pabir Majumder,
Mr. Snehansu Majumder,
Ms. Sangeeta Chakraborty.
For the State : Mr. Debasish Roy, Ld.P.P.,
Mr. Koushik Kundu
Reserved On : 29.08.2024
Judgement On : 19.09.2024
Tirthankar Ghosh, J. :
The present appeal has been preferred against the judgment and order of
conviction and sentence dated 14.02.2019 & 15.02.2019 passed by the
Learned Additional District & Sessions Judge, 5th Court, Krishnagar, Nadia in
Sessions Trial No. IV(III)/18 arising out of Sessions Case No. 24(11)/17,
wherein the Learned Trial Court was pleased to convict the appellant under
Sections 448/325 of the Indian Penal Code and sentenced him as follows:
(i) For the offence under Section 448 of the Indian Penal Code - to
suffer Rigorous Imprisonment for six months.
(ii) For the offence under Section 325 of the Indian Penal Code -
Rigorous Imprisonment for three years and fine of Rs. 20,000/-
in default to suffer Rigorous Imprisonment for one year.
Kotwali P.S. case no. 228/17 dated 09.05.2017 was registered for
investigation under Sections 447/323/325/308/506/34 of the Indian Penal
Code. On the basis of an application under Section 156(3) of the Code of
Criminal Procedure filed by Fulkali Sharma (PW1) before the Learned C.J.M.,
Nadia, it was alleged that the accused persons being Bidhan Mondal, Samar
Mondal, Sachin Mondal, Sharmila Sarkar, Suchitra Sarkar, Subol Sarkar,
Asima Mondal and Kumaresh @ Kumli Sarkar entered in the house of the
complainant armed with lethal weapons like dah, sticks and iron rods and
started abusing the complainant's husband. When the complainant protested
the accused persons broke the iron Gate of her house and with the intention to
kill her, recklessly inflicted blows with dah and iron rod aiming at her head.
Complainant tried to resist the same with her hands as a result of which she
sustained injuries at her left hand and all over the body. When her husband
tried to save the complainant the accused persons assaulted him also with iron
rod. Then the neighbours rushed to the spot on hearing such hue and cry
when the accused persons fled away after threating them. Kotwali police
station was informed over phone and after they reached, the complainant and
her husband was admitted at Saktinagar Hospital. The complainant after being
discharged from Saktinagar Hospital was admitted at Krishnagar Central
Nursing Home under Dr. Jayanta Pathak on 13.03.2017 and had to undergo
operation over her hand. The complainant alleged that although her husband
lodged complaint against the accused persons on 04.03.2017 but no
investigation was initiated. Subsequently, information was sent by her to the
Superintendent of Police but Police authority remained inactive as such she
prayed for direction upon the Police authorities for initiating an investigation.
On the basis of the application under Section 156(3) of the Code of
Criminal Procedure, directions were passed and Kotawali Police Station,
registered case against the accused persons on 09.05.2017. The said case was
endorsed by the Inspector-in-Charge of the Police Station to ASI M. Rahaman.
The investigating officer on conclusion of investigation submitted charge-sheet
on or about 31.05.2017 before the Learned C.J.M. Nadia, under Sections
447/323/325/326/308/506/34 of the Indian Penal Code.
The case was thereafter committed to the Court of Sessions, Nadia and
the Learned Sessions Judge, Nadia was pleased to transfer the proceeding to
the Learned Additional District & Sessions Judge, 5th Court, Krishnagar, Nadia
for disposal. The Learned Trial Court by its order dated 12th March, 2018 was
pleased to frame charges against the accused persons under Section 448/34,
325/34 and Section 308/34 of the Indian Penal Code. The contents of the
charges were read over to the accused persons to which they pleaded not guilty
and claimed to be tried.
The prosecution in order to prove its case relied upon eight (8) witnesses
which included, P.W.1, Fulkali Sharma, the complainant; P.W.2, Dipak
Sharma, husband of the complainant; P.W.3 Purnima Sutradhar mother of the
complainant; P.W.4, Mangal Sharma, father-in-law of the complainant; P.W.5,
Sulata Sarkar, co-villager; P.W.6, Dr. Sankar Kr. Roy, Medical Officer of Nadia
District Hospital, who treated Fulkali Sharma; P.W.7, Sk. Masiruddin
Rahaman, Investigating Officer of the case; P.W.8, Dr. Jayanta Pathak, Medical
Practitioner who treated Fulkali Sharma and operated her facture injury at the
Nursing Home.
P.W.1, Fulkali Sharma deposed that she filed a complaint at Krishnagar
Court against Bidhan Mondal, Sachin Mondal, Asima Mondal, Kumeresh @
Kumli Sarkar, Sharmila Sarkar, Suchitra Sarkar and Subal Sarkar. She
identified all the accused persons in Court. According to her the incident
occurred on 04/03/2017 at about 11.00 A.M. inside her house and at the time
of incident she was in her room along with her husband, Dipak Sharma
(P.W.2). She stated that the accused persons entered her house and started
abusing her husband when she raised protest then accused Bidhan entered
her room and inflicted a blow with iron rod aiming at her head which she
resisted by raising her left hand, as a result she sustained fracture injury on
her left hand. When her husband came to rescue her, other accused persons
entered her room and accused Sachin Mondal and Kumeresh @ Kumli Sarkar
assaulted her husband with iron rod. Her husband also sustained bleeding
injury beside his left ear. At the time of incident her mother, Purnima
Sutradhar, was also in the house and when she came to rescue them she was
also assaulted by the accused persons. She thereafter called a vehicle over
phone to go to hospital. However, the accused persons resisted them from
going to hospital, she thereafter informed the incident to the local Police
Station over phone. When Police arrived they took her and her husband to
Saktinagar Hospital where she was admitted. Her husband received primary
treatment at Hospital whereas she was admitted there for three days and was
discharged from the hospital and later she was admitted at Central Nursing
Home, Krishnagar where she had to undergo operation by Dr. Jayanta Pathak.
Her husband lodged complaint with the Police Station regarding the offences
committed by the accused persons. However, the Police did not take any step
so she lodged a complaint with the learned C.J.M, Nadia at Krishnagar. The
said complaint was written as per her instruction and the contents of the same
were read over and explained to her and after understanding the contents she
signed the same. The complaint as such was admitted in evidence. In her
cross-examination she denied the fact of not having stated to the Investigating
Officer that Bidhan at first assaulted her with iron rod aiming at her head
which she resisted with her left hand, she also denied the fact that she did not
state to the Investigating Officer that the accused Sachin and Kumeresh @
Kumli Sarkar assaulted her husband with iron rod when he came forward to
rescue her. The witness also denied in respect of the suggestion that all the
accused persons did not enter her home or that her mother did not receive any
injury when she tried to rescue both of them. On a specific quarry in cross-
examination she denied of Sharmila having sustained any injury on her head,
however she accepted the fact that Sharmila was admitted in the hospital.
P.W.2, Dipak Sharma, is the husband of the complainant, Fulkali Sharma
(P.W.1), who deposed that his wife filed the complaint at Krishnagar Court in
respect of an incident which took place on 04.03.2017 at about 11.00 A.M.
and the said complaint was lodged against Bidhan Mondal, Samar Mondal,
Sachin Mondal, Subal Sarkar, Suchitra Sarkar, Kumeresh @ Kumli Sarkar,
Sharmila Sarkar and Asima Mondal. He identified the accused persons in
Court. He deposed on 04.03.2017 at about 11.00 A.M. when he along with his
wife, his father and other members were at their house, at that time accused
persons armed with lathi, dao, rod, hansua etc. forcibly entered into their
house and abused them. When his wife raised protest against the acts of the
accused persons they all entered into the room and assaulted his wife. He
stated that accused Bidhan Mondal inflicted blow aiming at the head of his
wife which she resisted with her left hand and as such sustained fracture
injury. When he came to rescue his wife accused Kumeresh @ Kumli Sarkar
assaulted him with iron rod, as a result he sustained injury below his ear.
After assaulting them the accused persons left their house. On hearing hue
and cry neighbouring people came to the house and a vehicle was called for
taking his wife to hospital for treatment but the driver of the vehicle left the
house as the accused persons threatened him. Thereafter, he informed the
incident to the Police over telephone and after police reached their house, with
the assistance of the police he took his wife to Saktinagar hospital where his
wife was admitted for two days. He received primary treatment from
Saktinagar hospital but was not admitted by the hospital authority. After his
wife was discharged from Saktinagar Hospital he along with his wife went to
police station to lodge complaint but police refused to take such complaint.
She was thereafter admitted to Central Nursing Home, at Krishnagar for
treatment of her injury under Dr. Jayanta Pathak where she had undergone
operation. In cross-examination he replied that the accused Sharmila Sarkar
was also admitted in Saktinagar Hospital in the female ward where his wife
was admitted. However, he was unable to comment as to whether Samar
Mondal and Bidhan Mondal went to Saktinagar Hospital on the same day for
medical treatment. In further cross-examination the witness denied that he did
not state to Investigating Officer that the accused Bidhan Mondal inflicted blow
aiming at the head of his wife and when she resisted by raising her left hand
she sustained fracture injury. He also denied the suggestion advanced on
behalf of the accused that he did not state to Investigating Officer relating to
the fact that when he went to rescue his wife, accused Kumeresh @ Kumli
Sarkar assaulted him with iron rod and as such he sustained injury below his
ear.
P.W.3 is Purnima Sutradhar who deposed that Fulkali Sharma, (P.W.1), is
her daughter. The incident occurred at her daughter's in-law's house at about
11.30 A.M. and her daughter lodged a complaint over the said issue against
the accused. At the relevant date she was in the house of her daughter and at
the time of the incident she along with her daughter and son-in-law were
inside the room, when the accused entered their house armed with lathi, sabol
and sharp cutting weapons and started abusing her son-in-law. When her
daughter protested, all the accused persons assaulted her daughter and
accused Bidhan Mondal inflicted a blow with sabol aiming at the head of her
daughter to which she resisted with her left hand and as such sustained
fracture injury. When her son-in-law went to rescue her daughter he was also
assaulted by the accused persons which caused bleeding injury below his ear.
She herself was also assaulted by the accused when she went to rescue her
daughter. Finally the accused persons left the house as they raised hue and
cry. Police arrived at their house and her daughter was admitted at Saktinagar
Hospital on the same day and later on, was also admitted at the nursing home.
She identified all the accused persons in the Court. In her cross-examination
she denied of having not stated to the investigating officer that accused Bidhan
Mondal inflicted blow with sabol aiming at the head of her daughter which she
resisted by her left hand and she also denied of not having stated to the Police
when her son-in-law came forward to rescue her daughter, he was also
assaulted at the relevant point of time by the accused persons. In her cross-
examination she further denied of not having stated to the investigating officer
that she was also assaulted by the accused when she went to rescue her
daughter.
P.W.4, Mangal Sharma, deposed that the complainant is his daughter-in-
law who lodged the complaint against Bidhan Mondal, Samar Mondal,
Suchitra Mondal, Subal Sarkar, Kumli Sarkar and three others. He identified
the accused persons in Court. He alleged that the incident occurred one and
half years ago at about 11.00 A.M. at their house when the accused persons
entered their house armed with sabol and lathi. Accused Bidhan assaulted his
daughter-in-law with Sabol on her hand and the other accused persons also
assaulted his daughter-in-law and he himself was also assaulted by the
accused. He further stated that his daughter-in-law was taken to Saktinagar
hospital where he received treatment. However, he was unable to state whether
she was referred from Saktinagar hospital to any other institute for treatment
or how long she was admitted in the hospital. In cross-examination he denied
of not having stated to the police that Bidhan assaulted his daughter-in-law
with sabol on her hand and also denied the fact that he did not state to the
investigating officer relating to the accused assaulting him.
P.W.5, Sulata Sarkar, is a co-villager who deposed that two years ago at
about 11.00 A.M. a quarrel took place between Fulkali Sharma and the
accused persons at that time there was a scuffling between the two and due to
such scuffling Fulkali fell on the ground and sustained injury on her hand.
Sharmila Sarkar also sustained injury on her head, both Fulkali and Sharmila
were treated at the hospital and she heard the same from the local villagers.
She identified all the accused persons in Court. However, she was declared as
hostile. In cross-examination she stated that the house of Fulkali is situated
adjacent to the house of the accused persons and both the accused and
complainant shared the common verandah.
P.W.6, Dr. Sankar Kr. Roy, of Nadia District Hospital deposed that on the
relevant day the patient namely Fulkali Sharma was admitted emergency ward
with history of physical assault. Patient complained to him that she was
physically assaulted by stick over cheek, head and left forearm and was
assaulted by Bidhan Mondal and Kumli Sarkar. On examination he found
small abrasion over right cheek and advised for x-ray on the left forearm. He
prescribed some medicine and plastered over the fractured area. The incident
according to patient, took place on 04.03.2017 at about 11.00 A.M. at her own
house. She was discharged on 05.03.2017. He identified the discharge
certificate of the patient which was prepared and signed by him and the same
was admitted in evidence. He further deposed that it was advised to the patient
to attend OPD for operation of the fracture. He identified the bed head ticket
and treatment sheets of the patient which were admitted in evidence.
P.W.7 is Sk. Masiruddin Rahaman, investigating officer of the case, who
deposed that on 09.05.2017 he was endorsed with the investigation of Kotwali
Police Station case no. 228/17, dated 09.05.2017. On being assigned with the
case he visited the place of occurrence, prepared rough sketch map with index,
examined the complainant and other witnesses Dipak Sharma, Mongal
Sharma, Sulata Sharma and Purnima Sutradhar and recorded their statement
under Section 161 of the Cr.P.C. He collected the injury report of the victim
from Saktinagar Hospital and the medical papers from the complainant and on
completion of investigation he submitted charge-sheet against the accused
persons. In cross-examination the investigating officer specifically replied the
following:
"P.W 1 Fulkali Sharma has not stated to me that Bidhan at first
assaulted her by iron rod aiming her head which she resisted by her
left hand. She has also not stated to me that accused Sachin and
Kumeresh assaulted her husband by iron rod when he came forward
to rescue her. P.W. 1 has also not stated to me that she called a vehicle
to go to the hospital but accused persons did not allow her to go to the
hospital by that vehicle.
P.W. 2 Dipak Sharma has not stated to me that accused Bidhan
Mondal gave a blow aiming on the head of his wife which she resisted
by raising her left hand and sustained fracture injury. PW 2 has also
stated to me that when he came forward to rescue his wife accused
Kumeresh Sarkar assaulted him by iron rod and he sustained injury
just below the ear. PW. 2 has also not stated to me that he called a
vehicle to take his wife to the hospital for treatment but driver of the
vehicle left from the house due to threat of the accused.
P.W. 3 Purnima Sutradhar has not stated to me that at the time of
incident she had been inside the room along with her daughter and
son-in-law. P.W 3 has not stated to me that she was present in the
house when the accused entered into her son-in-law's house armed
with lathi, iron rod etc. P.W. 3 has also not stated to me that Bidhan
Mondal gave a blow of soval aiming on the head but her daughter
resisted the said blow by raising her left hand. She also not stated to
me that when her son-in-law came forward to rescue her said
daughter she was assaulted by the accused
PW. 4 Mangal Sharma has not specifically stated to me that Bidhan
Mondal assaulted Fulkali by soval on her hand. P.W. 4 has also not
stated to me that accused persons also assaulted him."
P.W.8, Dr. Jayanta Pathak, is a private Medical Practitioner, who on
11.03.2017 examined Fulkali Sharma and on examination he advised her to
undergo an operation in Central Nursing Home. He identified his prescription
relating to the treatment of Fulkali Sharma. He further deposed that the
patient was admitted in Central Nursing Home, Krishnagar, Nadia under his
treatment and he operated her facture injury at the nursing home. He
identified discharge certificate along with the X-ray plate which were admitted
in evidence and further stated that after operation the patient followed up the
treatment and came to him on four occasions. He opined that the injury found
on the patient was grievous in nature.
Mr. Pabir Majumder, learned advocate appearing on behalf of the
appellant submitted that the complainant has improved her version at every
stage, in the application under Section 156(3) of the Code of Criminal
Procedure which was treated as the First Information Report of the instant
case she did not name any specific person who actually assaulted her. It was
further contented that the de facto complainant in the FIR/written complaint
claimed that after the incident she called the police of Kotwali police station
over phone and they rescued her and others and they were shifted to the
hospital. Such contention of the de facto complainant was denied by the
investigating officer of the case. Additionally it was submitted that so far as the
claim of the de facto complainant in the FIR that she had earlier lodged
complaint on 07.03.2017, 30.03.2017 and 03.04.2017 with the Inspector-in-
charge, Kotwali police station, Krishnanagar and the Superintendent of police,
Nadia, the same was denied by the investigating officer and no documentary
evidence were produced before the Court in support of the earlier complaints
being lodged. Learned advocate submitted that PW1/de facto complainant,
improved her version and in her deposition before the Court for the first time,
narrated specifically the name of the persons who assaulted her. In fact, in her
narration of facts she claimed that PW2, her husband was injured but the
learned trial Judge disbelieved such evidence, including the persons who
allegedly inflicted injuries upon PW2 and as such acquitted two of the accused
persons, namely Sachin Mondal and Kumaresh Sarkar. It was further
submitted that PW1 had the habit of improving her version and always
exaggerated the facts, the same would be evident from the evidence of the
doctor (PW6) who stated that PW1 was admitted and discharged on the next
day of the incident, while she in her deposition stated that she was admitted
for 3 days. Learned advocate drew the attention of the Court to the evidence of
PW2 and submitted that one of the ladies who has been named as an accused,
namely Sharmila Sarkar, was also admitted at the same time at Saktinagar
Hospital in the female ward when PW1 Fulkali Sharma was admitted. However,
the investigating agency did not investigate the case properly, as such, the said
accused had to face the ordeal of whole of the trial and finally was acquitted of
the charges. Learned advocate thereafter drew the attention of the Court to the
replies in cross-examination of PW1 wherein although she denied of having
any knowledge whether Sharmila sustained injury on her head or not, but it
was accepted by the witness that Sharmila was also admitted at the hospital.
Appellant further contended that he has been convicted only on the basis of
the deposition of Fulkali Sharma before the Court and even if the statement of
the doctor is taken into consideration she named two persons which included
the present appellant and Kumli Sarkar. However, the said Kumli Sarkar was
acquitted of the charges. In support of his contention learned Advocate for the
appellant relied upon Ram Singh -Vs. - State of U.P., (2024) 4 SCC 208 and
Javed Shaukat Ali Qureshi -Vs. - State of Gujarat (2023) 9 SCC 164. Lastly, it
was contended that the prosecution witnesses have exaggerated and
embellished their version to such an extent that it would not be prudent to rely
upon such evidence to arrive at a finding of guilt and convict the present
appellant. Thus he may be acquitted of the charges.
Learned Advocate appearing for the State submits that there is consistent
version of the witnesses regarding the injuries which were inflicted upon PW1
and PW2. The medical evidence corroborates the version of the injured and the
name of the present appellant appears in the injury report. It was emphasized
that the evidence of an injured witness, if it is found to be cogent, can be the
sole basis of conviction and in the present case the injuries which were
sustained were severe in nature as there were fractures. In spite of the same,
the learned trial Court convicted the accused only under Sections 448 and 325
of the Indian Penal Code. Additionally, it was submitted on behalf of the State
that if in spite of evidence being available one of the accused has been
acquitted, the same do not operate as a precedent for acquittal of the other
accused. As such, it was prayed that the judgment and order of conviction and
sentence so passed by the learned trial Court should be affirmed.
I have considered the evidence of the witnesses relied upon by the
prosecution and I find that the de facto complainant (PW1) neither in the FIR
or in her application under Section 156(3) of the Code of Criminal Procedure
specifically named Bidhan as the person who inflicted the vital blow upon her,
resulting in her injury and the same was in respect to all the accused persons.
PW1 before the Investigating Officer also did not state the name of the
appellant Bidhan Mondal which will be evident from the specific reply of the
Investigating Officer in his cross-examination. It is also evident that both PW1
and PW2 admitted that one of the accused namely, Sharmila Sarkar was
injured and she was admitted at the hospital at the same time when PW1 was
also admitted. The judgment of the learned trial Court reflects that the learned
trial Court acquitted all the accused being Samar Mondal, Sachin Mondal,
Sharmila Sarkar, Suchitra Sarkar, Subal Ch. Sarkar, Asima Mondal and
Kumaresh @ Kumli Mondal but convicted the present appellant. What weighed
with the learned Trial Court while convicting the present appellant is the
deposition of PW1 in Court. Needless to state that PW1 deposed in Court on
July, 2018 and it was for the first time she narrated such incident in a manner
where as if it was Bidhan Mondal who inflicted the vital blow, resulting in the
injury so sustained by her. Prior to the same neither in the FIR nor before the
police authorities there was any statement made regarding Bidhan/appellant
having inflicted any injuries by using iron rod. This fact assumes importance
as the Court is faced with the question that the appellant was not named in
the FIR, his name was not pronounced before the investigating officer, but his
name appears along with that of Kumaresh alias Kumli in the injury report
and before the Court when PW 1 was examined-in-chief.
Having taken this into account, I am of the view that the principles in
respect of similar circumstances/parity where two of the accused persons have
been named before the Court and one of them has been acquitted by the
learned trial Court is required to be taken into consideration.
In this case the application under Section 156(3) of the Code of Criminal
Procedure was filed by PW1 Fulkali Sharma against 8 accused persons and
accordingly the FIR was registered against 8 accused persons, charge-sheet
was submitted against all the 8 accused persons, charge was framed against
all the 8 accused persons and all the 8 accused persons faced trial but 7 of the
accused persons acquitted of the charges and it is only the appellant Bidhan
Mondal who has been convicted under Section 448/325 of the Indian Penal
Code. As such an assessment is required regarding the complicity of the
present accused with respect to other accused persons in the evidence which
has surfaced in course of the trial. To assess the same, the following factors
are to be taken into consideration.
i. Name of Bidhan Mondal/appellant is not appearing in the
application under Section 156(3) of Cr.P.C. to have inflicted the blow
with iron rod upon PW1.
ii. Such statement or information relating to the accused Bidhan
Mondal having inflicted blow with the iron rod was never informed to
the investigating officer of the case as is reflected in the cross-
examination of PW7.
iii. However, before the doctor PW1 on 04.03.2017 stated that she was
injured by Bidhan Mondal and Kumli Sarkar (as is reflected from
Ext.3).
Thus, in this case the factual circumstances which further require
consideration are:
(a) Doctor examined/treated PW1 on 04.03.2017 which was much prior
to the registration of the FIR.
(b) Before the doctor PW1 stated the name of the appellant Bidhan
Mondal and another accused Kumli Sarkar.
(c) It has been consistently answered by the prosecution witnesses in
cross-examination that another accused, namely Sharmila Sarkar,
was also admitted in the female ward of Saktinagar Hospital.
Needless to state, Sharmila Sarkar as an accused faced the trial and
was thereafter acquitted of the charges.
Taking into account the chronology of facts appearing in the present
case, the testimony of PW1 i.e., the injured witness or for that matter the other
eye-witnesses who deposed in Court and portrayed a picture that the accused
persons were the aggressors who indiscriminately assaulted PW1 and PW2
without any resistance or any counter aggression was exerted by PW1 and her
relations is difficult to be believed in view of Sharmila Sarkar admittedly being
present at the spot and she having been admitted at Saktinagar Hospital.
Next aspect which requires consideration is the issue relating to the
parity which was canvassed by the learned advocate appearing for the
appellant. In Javed Shaukat Ali Qureshi -Vs. - State of Gujarat (2023) 9 SCC
164 the Hon'ble Supreme Court was pleased to hold in paragraph 15 which is
as follows:
"15. When there is similar or identical evidence of eyewitnesses
against two accused by ascribing them the same or similar role, the
court cannot convict one accused and acquit the other. In such a case,
the cases of both the accused will be governed by the principle of
parity. This principle means that the criminal court should decide like
cases alike, and in such cases, the court cannot make a distinction
between the two accused, which will amount to discrimination."
Relying upon the aforesaid judgement it was further reiterated by the
Hon'ble Supreme Court in Ram Singh -Vs.- State of UP, (2024) 4 SCC 208,
that if there is any lingering doubt about the involvement of an accused in a
crime which he is accused of committing, the same must weigh in the mind of
the Court and in such a situation a benefit of doubt must be extended to the
accused and the same should be more so in a case where a co-accused has
been acquitted by the trial Court on the same set of evidence.
Thus, in view of the investigation being restricted only to the allegations
made by PW1 and no investigation being done on the issue relating to
Sharmila Sarkar being admitted at Saktinagar Hospital on the same date and
period when PW1 was admitted and also having considered the settled
proposition of law in respect of parity, I am of the view that as rest of the
accused persons including Kumaresh Sarkar have been acquitted, the
judgement and order of conviction and sentence so passed by the learned Trial
Court calls for interference as the benefit of doubt must be extended to the
present appellant also.
Thus, the judgement and order of conviction and sentence dated
14.02.2019 and 15.02.2019 passed by the Learned Additional District &
Sessions Judge, 5th Court, Krishnagar, Nadia in Sessions Trial No. IV(III)/18
arising out of Sessions Case No. 24(11)/17 corresponding to Kotwali P.S. case
no. 228/17 dated 09.05.2017 is hereby set aside.
The appellant is acquitted of the charges.
The appellant is on bail and as such he is discharged from the bail
bonds.
Thus, CRA 211 of 2019 is allowed.
Pending connected application(s), if any, are also disposed of.
Department is directed to send back the TCR 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.)
