Calcutta High Court (Appellete Side)
Harisadhan Mandal & Ors vs The State Of West Bengal on 8 May, 2015
Author: Tapash Mookherjee
Bench: Tapash Mookherjee
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present : The Hon'ble Justice Tapash Mookherjee
C.R.A. 331 of 2011
Harisadhan Mandal & ors.
Versus
The State of West Bengal.
For the appellants : Mr. Tapan Dutta Gupta
Ms. Nagina Begum
Mr. Partha Sarathi Ghose
Mr. Pavez Anam
For the respondent : Mr. Manjit Singh, ld. P.P.
Mr. Anjan Dutta Heard on : 08.05.2015.
Judgement on : 08.05.2015.
The present appeal is directed against the judgement of conviction and order of sentence dated 11th May, 2011 and 12th May, 2011 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Kandi, Murshidabad in Sessions Trial No.23 (1) 2009 (Sessions Serial No. 196 of 2008). By the aforesaid judgement and order, learned trial court convicted all the appellants for the offences under Sections 324/147 of the Indian Penal Code and sentenced the appellants to suffer rigorous imprisonment for one and a half year for the offence under Section 324 of the Indian Penal Code and rigorous imprisonment for one year for the offence under Section147 of the Indian Penal Code.
The facts leading to the appeal in short are as follows :-
On 30th September, 2004 one Sanatan Mondal submitted a written complaint at Khargram Police Station alleging therein that in the morning of that day, while he along with his son, Bishnu Charan Mondal were clearing weeds from their own land at Gopinathpur village, all the appellants armed with Lathi, Shabal etc. appeared there and assaulted him and his son, Bishnu Charan Mondal with Lathi, Shabal etc. and both of them sustained injuries due to such assault and were at first taken to Khargram hospital, from where they were referred to Kandi hospital and lastly, to Berhampore District Hospital for treatment. On the basis of the aforesaid written complaint, Khargram Police Station Case No. 131 of 2004 dated 30th September, 2004 was registered against all the appellants and after completion of investigation, charge sheet under Sections 147/341/325/326/308/34 of the Indian Penal Code was submitted against all the appellants.
After submission of charge sheet, the case had been committed to the court of sessions and lastly, the case was transferred to the court of learned Additional Sessions Judge, 2nd Fast Track Court, Kandi for trial. Considering the materials collected during investigation, charges under Sections 147/341/34 and under Sections 308/34 of the Indian Penal Code had been framed by the learned trial court against all the appellants. The appellants denied the charges and pleaded their innocence all along.
Prosecution examined six witnesses in total and also proved some documents in support of their case. Defence had not tendered any evidence whatsoever. Considering the evidence thus produced on record, learned trial court found the appellants not guilty of the charge under Section 308 of the Indian Penal Code and acquitted them of the said charge but the learned trial court found the appellants guilty of the charges under Sections 147/324 of the Indian Penal Code, convicted the appellants accordingly and passed the order of sentence as mentioned earlier.
Being aggrieved by and dissatisfied with such judgement of conviction and order of sentence, the accused persons in this case filed the present appeal.
The alleged victims, Santan Mondal and Bishnu Charan Mondal, were examined as P.W.1 and P.W.5 respectively. Both of them stated that in the morning of the day of the occurrence while they were clearing weeds from their land situated at Gopinathpur village, they were attacked and assaulted by the appellants. P.W.1 further stated that while he was assaulted with a Shabal by the appellant, Hari Sadhan Mondal and with bamboo sticks by other appellants, his son was assaulted by all the appellants. P.W.5 stated that his father, i.e. P.W.1 was assaulted by the appellants, Hari Sadhan Mondal and Motilal Mondal with Shabal. He further stated that the said appellants assaulted him with Lathi. Both of them further stated that after the incident they were taken at first to Khargram Hospital and thereafter referred to Kandi Hospital and subsequently to Berhampore District Hospital for treatment.
One Mantu Mondal (P.W.2) was examined as an independent witness to have witnessed the incident of assault but he stated that having reached the place of occurrence, he found P.W.1 and P.W.5 lying with bleeding injuries. However, he was declared hostile by the prosecution.
Kanu Mondal (P.W.3) was only tendered for crosss-examination. One Rabindranath Ghosh (P.W.4) stated that he scribed the complaint as per the dictation of Sanatan who had put his L.T.I. on it (the complaint has been marked as Ext. 1.).
S.I. Kalidas Roy Chowdhury (P.W.6) investigated and submitted the charge sheet in the case.
Mr. Dutta Gupta, learned Advocate appearing for the appellants, argued that the Ext. 1 claimed by the prosecution to be the F.I.R. of the case is not the real F.I.R. of the case and the real F.I.R. has been deliberately suppressed and the prosecution case, does fail on such score alone.
The complainant, Sanatan (P.W.1) stated in his evidence that the complaint he submitted had been written as per his dictation by a police officer in the police station and he had put his signature on it but surprisingly P.W.4 stated that he had scribed the complaint as per the dictation of one Sanatan on which Sanatan put his L.T.I. and the said complaint proved by him has been marked Ext. 1. The document bears the L.T.I. of one Sanatan. P.W. 4 further stated that after scribing the complaint he had handed it over to the daughter of Sanatan but P.W. 6, S.I. Kalidas Roy Chowdhury, stated that he received the complaint from one Sanatan.
In view of the aforesaid discrepancies and anomalies, there is scope to doubt whether the Ext. 1 is the real first information to the police, or not. The contention of Mr. Dutta Gupta that the F.I.R. scribed at the police station as per the dictation of P.W.1 was suppressed and replaced by Ext. 1, cannot be ruled out. The aforesaid fact escaped the attention of the learned trial court.
Two medical reports have been admitted in evidence on consent of the parties and marked Exts. 1 and 1/1 on which the prosecution has banked heavily as corroboration to the oral testimony of P.W.1 and P.W.5 but on perusal of the reports, it cannot be said that Dr. N.D. Biswas who prepared the reports had himself examined P.W.1 or P.W.5. From a reading of those reports, it appears that the reports was prepared on the basis of some other documents in the Hospital. Doctors who examined P.W.1 or P.W.5 at Kandi Hospital or subsequently at Berhampore Hospital have not been examined in the case. In the circumstances, Ext. 5 or Ext. 5/1 has no value at all and if those two reports are kept out of consideration, then the evidence of P.W.1 and P.W.2 remain totally uncorroborated by any independent source.
P.W.1 himself admitted in his cross-examination that the appellant, Hari Sadhan, is his brother and Buddhadeb is his nephew and disputes were going on between him and his brother in connection with the land on which he was working on the day of the incident. In such circumstances, it is unsafe to attach all credibilities to the oral testimony of P.W.1 and P.W.5, especially when there is no valid medical evidence in support of their testimonies. The witnesses examined as independent person have not claimed to be the direct witnesses of the occurrence. The genuineness of the F.I.R. produced in the case is questionable as discussed earlier.
Mr. Singh, learned Public Prosecutor, failed to explain the situations.
So, from what has been discussed above, it is clear that the prosecution's case has not been firmly established beyond all doubts. Learned trial court has, therefore, wrongly convicted the appellants. The appeal is, therefore, allowed. The judgement of conviction and order of sentence passed in the case are set aside. All the appellants are found not guilty of the offences under Sections 147/324 of the Indian Penal Code and they are acquitted accordingly.
The bail bonds furnished by the appellants stand discharged. Photostat certified copy of this judgement, if applied for, be supplied to the parties expeditiously.
Let the L. C. Rs. along with a copy of this judgement be sent back to the Trial Court.
(Tapash Mookherjee, J.)