Goutam Roy vs The State of West Bengal

Tapash Mookherjee, J—The present appeal is directed against the judgement of conviction and order of sentence passed on 18-09-2013 and 19-09-2013 by the learned Additional Sessions Judge, FTC - 5, Barasat, North 24-Parganas, in Sessions Trial No. 6(1) 2008 (Sessions Case No. 17(11) 2006). By the said judgement and order, the trial court found the appellant, Goutam Roy @ Tam, guilty of the offence punishable under Sections 326/307 of I.P.C. and sentenced the appellant to suffer simple imprisonment for six years with fine of Rs. 10,000/- for the offence under Section 307 of I.P.C. and to suffer simple imprisonment for five years with fine of Rs. 5000/- for the offence under Section 326 of I.P.C.

The facts leading to the appeal, in short, are as follows:-

On 7th August, 2006 in the morning while one Samit Pramanick was standing at Tentultala Bus Stand at Jossore Road under P.S. Lake Town, the appellant suddenly appeared there and struck on the head of the said Samit Pramanick with a bottle. The bottle broke due to such hit after which the appellant struck Samit in the back side of the chest with the said broken bottle. Samit sustained bleeding injuries due to such assaults and he was immediately shifted at R.G. Kar Medical College & Hospital for treatment. Subsequently, the brother of Samit namely, Paresh Pramanick, came to know the aforesaid facts of assault and he, therefore, submitted a written F.I.R narrating the aforesaid incidents of assault on the basis of which Lake Town P.S. Case No. 135 dated 7th August, 2006 under Section 326 of I.P.C. was started against the appellant and after completion of investigation, charge-sheet under Sections 326/307 of I.P.C. was submitted against the appellant.

After submission of the charge-sheet, the case was committed to the Court of learned Sessions Judge, North 24-Parganas, from where the case was transferred to different courts for trial and ultimately, the case was tried and decided by the learned Additional Sessions Judge, FTC-5, Barasat.

Considering the materials collected during investigation, charges under Sections 326/307 of I.P.C. were framed against the appellant. The appellant denied the charges and pleaded his innocence all along. Persecution examined 7 witnesses in total and proved some documents as well. Defence tendered no evidence whatsoever. Considering the evidence, thus, produced on record, the Trial Court found the appellant guilty of the charges under Sections 326/307 of I.P.C., convicted the appellant accordingly and passed sentence against the appellant as mentioned earlier and hence, the appeal.

Mr. De, leaned Advocate appearing for the appellant, has submitted that the victim is the only witness in the case and there are contradictions between the statement of the victim and the medical evidence and there being other contradictions also the prosecution case has not been established beyond all doubts. On the contrary, according to Mr. Keshari, learned Advocate appearing for the State, the testimony of the victim himself is sufficient to prove the prosecution case especially when the facts stated by the victim during his examination in chief has not been denied by the defence during cross examination.

One Paresh Pramanick (P.W.1) submitted the F.I.R. in the case. He stated in is evidence that on the day of the incident, he heard that in the morning, his brother Samit Pramanick sustained injuries because of assault on him by the appellant with a broken glass-bottle. He stated further that immediately after the incident his brother was removed to the R.G. Kar hospital and that he submitted the F.I.R. after knowing the incident from his brother. He proved the F.I.R. thus submitted by him, which was marked Ext.1. However, he was not an eye witness as clearly admitted by him.

One Gopal Shaw (P.W.2) did not also claim to have witnessed the incident and he was declared ''hostile'' for the prosecution. Jhantu Nandy (P.W.3) stated that there was an incident between Samit Pramanick and the appellant in a morning and he could not say any detail of the incident.

Samit Pramanick (P.W.4) is the victim of the alleged incident of assault. He stated that in the morning of the incident while he was standing at Tentultala More for going to his place of work, he was suddenly attacked by the appellant. He stated further that at first he was struck on his head by an acid bottle and thereafter he was struck on his left chest by that broken bottle. He stated further that he sustained bleeding injuries due to the assault and hence, he was taken to R.G. Kar hospital for treatment immediately after the incident.

A.S.I. Ganomoy Manna (P.W.5) prepared the formal F.I.R. of the case and registered the case at Lake Town P.S. S.I. Debanjoy Sen (P.W.6) investigated and submitted charge sheet in the case.

Doctor Shankar Majumder (P.W.7) treated the victim at R.G. Kar hospital in the morning of 07-08-2006 and he described the injuries he found on the body of the victim.

As discussed earlier P.W.1, P.W.2 or P.W.3 was not an eye witness of the incident in question. Similarly, P.W. 5, P.W.6, and P.W.7 had not also any direct knowledge about the facts in issue. So, P.W.4, i.e., the victim himself is the only direct witness for the prosecution. P.W. 4 stated that in the morning of the incident, the appellant struck him with an acid bottle at first on his head and thereafter on his left chest with that broken bottle. He further stated that he sustained serious bleeding injuries due to such assault and immediately after the incident he was taken to R.G. Kar hospital. No contradiction is found between his statement during examination-in-chief and those during his cross-examination. It should be noted here that the facts stated by him during examination-in-chief to the effect that he was assaulted by the appellant with a bottle had not been denied by the defence. Some contradictions between the statement of P.W.4 during his examination-in-chief and the statement made by him before the I.O. during investigation had been only suggested to P.W.5. However, attention of the I.O. was not drawn on the point during the examination of the I.O.

Mr. De, learned Advocate appearing for the appellant, has drawn the attention of the court to some contradictions between the statements of P.W.1 and P.W.4 on the point of injuries. However, P.W.1 was not an eye witness of the incident and as such, those contradictions are of no serious importance. Similarly, P.W.1 stated that he came to know about the incident from his brother in the hospital on the basis of which he prepared the F.I.R. but his brother P.W.4 stated that P.W.1 did not meet him in the hospital. This fact is not also of any serious importance as the incident of assault stated by P.W.4 finds support in substance from the fact stated in the F.I.R.

P.W.4 stated that he sustained injuries on his head as well on his left chest. P.W.7 who treated P.W.4 within an hour after the incident stated that he found two wounds - one lacerated wound on the scalp and another a cut-would on the back of the chest. So, the statements of P.W.4 on the point of injuries do match with the wounds described by the doctor, i.e., P.W.7.

P.W.7 stated that the person who had brought P.W.4 to the hospital stated that the appellant had thrown an acid bulb on the head of P.W.4, although P.W.4 had not mentioned about the throwing of any acid bottle on him by the appellant. However, according to P.W.7, there was no smell of acid in any of the wounds in the body of P.W.4 and it is not found from the evidence on record that the person who made such statement before P.W.7 was on the spot at the time of the incident. So, his statement before the doctor has no value in the case.

According to Mr. De, there were several persons present on the spot during the incident as stated by P.W.4 himself and none of those persons having seen the incident has been examined in the case and this is a big flaw in the prosecution''s case.

P.W.2 stated before the I.O. that he witnessed the incident. However, during evidence he turned ''hostile''. P.W.3 was also examined as an eye witness of the case, although P.W.3 denied to have witnessed the incident of assault directly. Be that as it may, absence of any supporting witness is not fatal in the present case as the oral testimony of P.W.4 finds all supports from the medical evidence. That apart, P.W.4 had never any enmity with the appellant. Any such enmity between P.W.4 and the appellant has not been suggested even by the defence. On the contrary, P.W.4 in the concluding part of his cross-examination stated that the appellant is his neighbour and as such he has good relationship with the appellant. The most important point in the case is that what has been stated by P.W.4 during his examination-in-chief has not been denied by the defence during his cross-examination. So, the statement of assault by P.W.4 during his examination-in-chief may be considered as admitted by the defence.

The doctor, i.e., P.W.7 during his cross-examination denied the suggestion of the defence that the injuries found in the body of P.W.4 may be caused due to fall on any broken pieces of glass. So, the question of victim sustaining the injuries by accidental fall does not arise at all in the case.

So, from what has been discussed above, it is clear that it has been proved beyond all doubts in the case that on the day of the incident, the appellant assaulted P.W.4 with a glass-bottle.

Now comes the question which section of the penal code is attracted in the present case. The trial court has found the appellant guilty of the offences under Sections 307/326 of the I.P.C. for the aforesaid assaults. As discussed earlier, the appellant assaulted P.W.4 suddenly with a bottle only. The injuries sustained by P.W.4 due to such assault were not serious and P.W.4 was released from the hospital on the very day of the incident. Moreover, there is no such evidence on record to suggest that the appellant had any serious previous grudge against P.W.4 and any planning as well, to kill P.W.4. Since a bottle was used only in the assault, it cannot be said that the appellant had the knowledge that the injuries caused by him by assault might have been fatal. So, it cannot be said that the appellant had the intention to kill P.W.4. Having regards to the facts and circumstances of the case, I have no hesitation to hold that the ingredients of offence under Section 307 I.P.C. are totally wanting in this case. Similarly, the hurt caused does not fall within the definition of grievous hurt punishable under Section 326 I.P.C. Mr. Keshari is also of the same view. So, finding the appellant guilty of the charge under Section 326 I.P.C. is also found to be wrong in law.

There are two types of assaults in the case. The first assault was by an empty bottle which is a blunt substance. But the wound found in the back of the chest of the victim was described as a cut-wound by the doctor, i.e., P.W.7, which was caused by assault with the sharp edges of the broken bottle.

Mr. De has submitted that in view of the substance used for assault and nature of injury resulted in the case falls under Section 324 I.P.C. only. Mr. Keshari has not disputed the view.

As discussed in detail above, the appellant had no intention to kill P.W.4 or to cause any fatal injury in the body of P.W.4. The weapon used was only a glass-bottle and the injuries sustained by P.W.4 due to assaults were not serious. P.W.4 was released from the hospital on the very day of the incident as mentioned. In view of such facts and circumstances of the case, I have no hesitation to hold that the offence committed by the appellant is the offence under Section 324 I.P.C. only. Trial court has, therefore, wrongly found the appellant guilty of the offences under Sections 307/326 I.P.C. So, the conviction of the appellant under Sections 307/326 I.P.C. is set aside and the conviction is converted to the conviction under Section 324 I.P.C. only. Considering all the facts and circumstances and the nature of the injuries sustained by P.W.4 in particular, I am of the view that the two years simple imprisonment along with fine of Rs. 1000/- is adequate and sufficient sentence in the case. Accordingly, the appellant is found guilty of the offence under Section 324 I.P.C. and he is sentenced to suffer simple imprisonment for two years and to pay fine of Rs. 10,000/- i.d., to suffer simple imprisonment for one month more. The period of imprisonment already undergone be set off according to law. The orders of conviction and sentence passed by trial court are modified accordingly and the appeal is thus allowed.

The L.C.R. be sent back to the trial court along with a copy of this judgement at once.

Photostat certified copy of this order, if applied for, be given to the parties on priority basis.