Calcutta High Court (Appellete Side)
2. Partha Ghosh vs The State Of West Bengal on 18 July, 2019
Author: Asha Arora
Bench: Asha Arora
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Asha Arora
C.R.A. 696 of 2016
1. Subhro Ghosh
2. Partha Ghosh
versus
The State of West Bengal
For the Appellants : Mr. Atis Kumar Biswas, learned advocate,
Mr. Suman Chakraborty, learned advocate.
For the State : Ms. Sukanya Bhattacharya, learned advocate,
Mr. Mirza Firoj Ahmed Begg, learned advocate.
Heard On : 17-07-2019 & 18-07-2019.
Judgement On : 18-07-2019.
Asha Arora, J. :
1. Challenge in this appeal is to the judgement and order of conviction and sentence dated 27th September, 2016 passed by the Additional Sessions Judge, Fast Track 1st Court, Hooghly in Sessions Trial No. 14 of 2010 (old)/Sessions Trial No. 2084 of 2014 (new) whereby the appellants along with a co-accused Narayan Ghosh were convicted for the offences punishable under sections 447/34 and 323/34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five months for the offence punishable under section 323/34 IPC while no separate sentence was awarded for the offence punishable under section 447/34 IPC.
2. Prosecution case, sans unnecessary details is that on 3rd June, 2004 the defacto complainant Sonali Karmakar lodged a written complaint at Balagarh P.S. alleging that on 2nd June, 2004 at about 6 p.m. when she was studying in her house, her neighbours Subhro Ghosh, Partha Ghosh and Narayan Ghosh entered her house armed with sticks, rod and bamboo and started abusing in filthy language. When her aunt Sandhya Nandi protested, Narayan Ghosh assaulted her with bamboo. The other accused namely, Partha and Subhro also assaulted her. It is further alleged that all the accused persons assaulted the defacto complainant, her mother Rekha Karmakar and her sister Rupali Karmakar in consequence of which they sustained serious injuries. After assaulting them, the accused persons took away Rs.2500/- from their house and damaged some utensils as well as household articles and fled away. On the basis of the aforesaid written complaint, the case being Balagarh P.S. Case No. 55 of 2004 dated 3rd June, 2004 under sections 447/341/325/307/379/427/506/354/34 IPC was initiated against the three accused persons. Investigation culminated in the submission of the charge-sheet under sections 147/148/149/447/341/325/307/ 379/427/506/354/34 of the Indian Penal Code against eight accused persons.
3. The trial court framed charges for the offences punishable under sections 447/34, 307/34, 323/34, 427/34 and 354/34 of the Indian Penal Code against all the eight accused persons including the two appellants to which each of them pleaded not guilty in consequence of which trial commenced.
4. In course of trial prosecution examined twelve witnesses namely, PW-1 Kartick Karmakar the brother of the defacto complainant who scribed the FIR. PW-2 Sonali Karmakar is the defacto complainant and one of the injured. PW-3 Rabi Karmakar is the uncle of the defacto complainant who has no personal knowledge about the incident but on being informed, he rushed to the place of occurrence that is, the house of the defacto complainant and found it to be in ransacked condition. PW-4 Rekha Karmakar is the mother of the defacto complainant and an injured victim. PW-5 Rupali Karmakar is the sister of the defacto complainant who was also injured in the incident. PW-6 Narayan Karmakar is the brother of the defacto complainant who was at the relevant time playing in the field of their village and rushed to his house on hearing hue and cry. When he came to his house he found his elder sister Sonali Karmakar, another sister Rupali Karmakar, his mother and aunt Sandhya Karmarkar being assaulted by Narayan Ghosh, Partha Ghosh and Subhro Ghosh. This witness testified in his evidence that the accused persons also tried to assault him but somehow he fled away. PW-7 Baidyanath Karmakar is the father of the defacto complainant who has no personal knowledge regarding the incident. On the date of the incident he returned home in the evening and heard about the occurrence from his brothers. PW-8 Sandhya Nandi is another injured victim. PW-9 Swarup Dutta is a co-villager who has no personal knowledge regarding the incident. PW- 10 Debarshi Sinha is the police officer who drew up the formal FIR, held investigation in this case and submitted the charge-sheet. PW-11 Dr. Swapan Kumar Karan is the medical officer who was at the relevant time posted at Chinsurah Imambara Hospital. This medical officer examined the injured victims as outdoor patients on 3rd June, 2004 and PW-12 Dr. Shibotosh Sen is the Medical Officer of Ahmedpur B.P.H.C. Balagarh who examined the injured victims on the date of the incident at 8.45 p.m. Besides the witnesses referred, prosecution relied upon some documents which were tendered in evidence.
5. Defence version in brief is innocence, denial of the prosecution case and false implication due to dispute between the parties.
6. It appears that in course of trial, out of eight accused persons two of them died and the case against them stood abated. Trial proceeded against six accused persons including the appellants herein.
7. On the basis of the evidence on record the trial court convicted the appellants herein along with one co-accused named Narayan Ghosh for the offences punishable under sections 447/34 and 323/34 of the Indian Penal Code and sentenced them as aforesaid. The remaining three co-accused were found not guilty of the offences charged and were accordingly acquitted of the charges levelled against them.
8. Learned counsel for the appellants assailed the judgement and order of the trial court mainly on the following grounds :
1. The weapons of assault namely, iron rod, lathi, bamboo sticks were not seized.
2. Excepting PW-9, all the witnesses examined by the prosecution are related to the alleged victims and as such, being interested witnesses their evidence cannot be relied upon.
3. No specific role has been attributed to the appellants herein. Simply put, learned counsel sought to impress that there is nothing in the evidence of the witnesses to indicate which of the accused assaulted whom.
4. The incident was the outcome of long standing dispute between the parties as has emerged from the evidence of the witnesses. According to the learned counsel, in view of such animosity there is possibility of false implication.
5. PW-4 was not interrogated by the Investigating Officer so the evidence of this witness is not admissible.
9. Repudiating the above submissions, learned advocate for the State argued that the conviction of the appellants is justified in view of the evidence of the injured victims corroborated by the medical evidence.
10. Prosecution case hinges mainly on the evidence of the four injured victims namely, PW-2, PW-4, PW-5 and PW-8. Before proceeding to analyse the submissions advanced on behalf of the appellants, it may be beneficial to refer to the evidence of the four injured victims. PW-2 narrated the incident in the following manner :
"On 02.06.2004 at the evening, one incident took place in my house. On the date and time of incident while I was studying for my examination accompanied with my sister Rupali Karmakar, my mother Rekha Karmakar and my two paternal aunties Sandhya Karmakar and Gouri Karmakar, then three villagers of my village namely Subhra Ghosh, Partha Ghosh and Narayan Ghosh entered into our house and started to damage all household articles in our house and also started to assault myself, my two paternal aunties, my said sister and my mother by means of bamboo sticks and iron rods. Then we all sustained some pain injuries and almost got semi- conscious and not in a position to talk. Many villagers assembled there at the time of incident and one of the villagers informed my brother, Kartick Karmakar who was working in the field. Thereafter, my said brother along with my paternal uncle Rabi Karmakar came to the spot. They brought us to the Jirat B.P.H.C. wherein we were medically treated and provided some medicines. Thereafter, we all went to the Balagarh P.S. and lodged written complaint."
11. The relevant portion of the evidence of PW-4 reads as follows :
"Sonali Karmakar (PW 2) is my elder daughter. In the year of 2004 at about 6 P.M. one day accused Subhra Ghosh, Partha Ghosh and Narayan Ghosh by entering into our house assaulted us. On that day they were teasing PW 2. Then I informed the matter of such teasing to my sister in law Sandhya Nandi who asked Subhra, Partha & Narayan why they were teasing PW 2 then above three accused persons by entering into our house assaulted my two daughters, my two sisters in law and myself. Villagers informed my two son those who were working in field and on being informed they came and brought us to the hospital."
12. PW-5 testified regarding the incident in the following manner :
"Sonali Karmakar is my elder sister. In the year of 2004, at about 6 p.m. one day, accused Subhro Ghosh, Partho Ghosh and Narayan Ghosh used to tease and taunt us. My mother, brother and pishi informed the matter about such teasing to the mother of accused Partha Ghosh and Subhro Ghosh, but their mother totally denied. On being informed, my paternal aunties asked the accused persons why they were teasing. Then three (3) accused persons started to assault my those pishis and by entering into our house also assaulted myself, my mother and my elder sister. Thereafter they took away cash of Rs.2,500 and they also took away one gold necklace of my boro pishi. They also broken up utensils and damaged a cycle. My younger brother Narayan Karmakar somehow got such information and informed the matter to my uncle and also my elder brother got information who was working in the field. All of them came to our house and they brought us to the hospital for treatment where we were medically treated as outdoor patients. Thereafter, we came back to the police station and informed the matter to police."
13. The relevant portion of the evidence of PW-8 is quoted hereinbelow:
"Kala, Partha and Subhra of our village used to tease my said Bhaijhi Sonali Karmakar for about five months and my said Bhaijhi time to time informed us. On that day at about 6 p.m., all three again outraged the modesty of Sonali Karmakar. I also saw with my own eyes about such outraging incident. Then I protested about such behaviour. Then all three threatened to assault me and then and there they inflicted bamboo stick upon me. Thereafter, I laid down on the earth. I sustained swelling injury on my head and I noticed that my gold necklace was missing and I informed my Baraboudi Rekha to come to rescue me. Then Rekha boudi informed my husband and my husband came and brought me to the Jirat Hospital for my treatment. Thereafter, I was medically treated there as outdoor patient and the staff of hospital advised me to go to the P.S. with some injury report given to me."
14. The evidence of these four witnesses has been corroborated by PW-6 who is the brother of the defacto complainant. He has testified in his evidence that at the relevant time he was playing in the field of their village when he heard some commotion from the locality. He came to know from the passersby that there was some disturbance inside his house and he rushed to his house where he found many people assembled. He noticed that his elder sister Sonali Karmakar and another sister Rupali Karmakar, his mother and Pishi were being assaulted by Narayan Ghosh, Partha Ghosh and Subhro Ghosh. He further stated that the accused persons tried to assault him but he fled away. It has surfaced in the cross-examination of this witness that the accused persons are their neighbours and the distance between his house and the playground is about one kilometre. It was suggested to the witnesses in cross-examination that there was long standing dispute between the parties. Though the other witnesses denied this suggestion, PW-4 admitted that there was dispute between them and accused Subhro and Partha (appellants herein). Nothing could be elicited in the cross- examination of these witnesses to render their evidence untrustworthy. The evidence of these witnesses has been corroborated by the medical evidence of PW-11 and PW-12. At this juncture it may be useful to quote the evidence of the Medical Officer (PW-12) which reads as follows :
"On 02.06.2004 I was posted at Ahmedpur B.P.H.C. Balagarh as Medical Officer. On that day I examined one Sandha Nandi, 35 yrs. at about 8.45 P.M. History of assault at 6 P.M. today. On examination I found tender swelling over right parietal (sic) region of scalp. No other external injury. I referred to Surgeon to Chinsurah Imambara Hospital to rule out internal injury. This is O.P.D. ticket prepared & signed by me marked Ext 7, on that day I also examined one Sonali Karmakar, History of assault at 6 P.M. on that day. On examination I found lacerated injury on lateral aspect of right upper Arm. As per patient human bite pain in right thigh. Tenderness present. Vomiting I prescribed some medicine & referred to orthopedic OPD of Imambara Hospital to rule out internal injury. This is OPD ticket report is also prepared and signed by me marked Ext-7/1. On same day and almost same time I examined one Rupali Karmakar. History of assault. Patient made complaint on pain back of right thigh, tenderness plus. No other external injury. This is OPD ticket written & signed by me Ext -7/2. On same day I examined one Rekha Karmakar with History of assault on same day at 6 P.M. I found lacerated injury on right fore arm lateral aspect, swelling fore head, History of unconsciousness. No history of vomiting. Head injury. I medically treated her and referred to surgery to Chinsurah Sadar Hospital to rule out any internal injury."
A futile suggestion was given to PW-12 in cross-examination that if any person hits his/her own head with a hard substance swelling injury on scalp may be caused. It was also suggested to PW-12 in cross-examination that lacerated injury may be caused if a person falls on hard substance. Curiously enough, no such suggestion was given to any of the injured victims in cross-examination. It is also significant to mention that the victims were taken for medical treatment to Balagarh B.P.H.C. on the very date of incident and as per the history of assault as stated by the patients to the medical officer, they were assaulted by Subhro Ghosh, Narayan Ghosh and others "due to some old familial reason". It is evident that the injuries found on the person of the four victims by the medical officer have not been disputed. The evidence of the injured victims is in conformity with the medical evidence hereinabove discussed. The four injured victims deposed consistently and narrated the incident in the same voice. No material contradiction could be pointed out in the evidence of these witnesses inter se or with reference to their statement under section 161 CrPC. Their evidence remained unscathed in the cross-examination.
15. The argument that these witnesses being related to each other, their evidence cannot be relied upon is devoid of merit. Relationship is not a factor to affect the credibility of a witness. Moreover, it is well settled that an injured victim is the best witness in the sense that such a witness is least likely to shield the real assailant and implicate an innocent person. There is no legal impediment to base a conviction on the uncorroborated testimony of an injured victim if the evidence of such a witness is found to be credible and convincing. In the case in hand, the evidence of the four injured victims corroborated by the evidence of PW-6 and the medical evidence convincingly proves the factum of assault upon the victims by the appellants. The evidence of the injured victims inspires confidence and is beyond reproach.
16. On the face of credible and convincing evidence of the injured victims corroborated by the medical evidence, non-seizure of the weapon of assault in the present case does not affect the prosecution case. Such evidence cannot be disbelieved and discarded on the ground of non-seizure of the weapon of assault. The fact that the accused/appellants inflicted injury on the person of the victims has been proved beyond any shadow of doubt so the prosecution case cannot be doubted on the ground that the weapon of assault has not been seized.
17. There is also no merit in the argument that for want of specific overt act attributed to the appellants, their conviction is not justified. For applying section 34 of the Indian Penal Code it is not necessary to show some overt act on the part of the accused. It is clear from the evidence on record that the accused persons/appellants participated in the assault upon the victims. So this plea is of no avail to the appellants.
18. The plea of false implication is also not tenable for the simple reason that animosity is a double edged sword. It cuts both ways. Just as it could be a ground for false implication, it could also be a ground for assault.
19. I am also not impressed with the argument that there was delay in lodging the FIR which makes the prosecution case doubtful. The incident occurred on 2nd June, 2004 at about 18.00 hours and the FIR was lodged on 3rd June, 2004 at 12.25 hours. From the evidence of the four injured victims it transpires that they were taken to the hospital for treatment on the same day and were medically treated. Their evidence in this regard has been corroborated by the medical evidence of PW-12 who testified that on 2nd June, 2004 he examined medically the four injured victims at about 8.45 p.m. The FIR was lodged on the following day. It is highly unreasonable to expect that the injured victim would be rushed to the police station to lodge a complaint of an incident of assault instead of taking such a victim for medical treatment.
20. The argument that the evidence of PW-4 cannot be relied upon since she was not interrogated by the Investigating Officer is also of no help to the appellants for the simple reason that the name of this witness is clearly spelt out in the FIR which was lodged on the following day. The other injured victims have also mentioned the name of this witness as one of the injured who was assaulted by the appellants. There is therefore no reason to disbelieve the prosecution case and the evidence of trustworthy witnesses merely on the ground that one of the injured victims was not interrogated by the Investigating Officer.
21. For the reasons discussed, I am of the firm view that the conviction of the appellants for the offences punishable under sections 447/34 and 323/34 of the Indian Penal Code is justified and no interference is warranted with the same.
22. Learned counsel for the appellants submits that the sentence may be reduced considering the fact that more than 14 years have elapsed since the date of incident and the appellants are the neighbours of the injured victims.
23. Keeping in mind the fact that more than one decade has elapsed since the date of incident and the totality of the facts and circumstances of the case, the conviction of the appellants is upheld, but their sentence is modified and reduced to the extent that each of the appellants shall suffer rigorous imprisonment for two months instead of rigorous imprisonment for five months (each) for the offence punishable under section 323/34 of the Indian Penal Code.
24. The appeal is thus disposed of.
25. The appellants shall surrender before the trial court within one month from this date to serve out the sentence in default of which the trial court shall take appropriate steps against the appellants for execution of the sentence in accordance with law.
26. Let a copy of this judgement along with the lower court records be sent to the trial court forthwith.
27. Urgent photostat certified copy of this judgement, if applied for, be given to the applicant upon compliance of requisite formalities.
( ASHA ARORA, J. ) dc.