Sagar Ghosh and Others vs State of West Bengal

Ishan Chandra Das, J.—1. Heard the learned Counsel for both the parties.

Assailing the judgement and order of conviction passed by learned Additional District & Sessions Judge, Fast Track Court-I, Krishnagar, Nadia in Sessions Trial No. IV(8) of 2012 arising out of Sessions Case No. 50(4) of 2012, the present appeals have been preferred by the convicts before learned trial court where both the appellants (in C.R.A. 740 of 2014 and C.R.A. 692 of 2014) were found guilty of the offence punishable under Sections 324/34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- each, in default to suffer rigorous imprisonment for a month, subject to set off in terms of Section 428 of the Cr.P.C.

Briefly stated, the case of the prosecution, as it emerges from the written complaint and other allied documents, is that on 23rd day of December, 2009 at about 2-30 p.m. both the appellants came to the house of the de facto complainant-Manju Biswas and demanded a sum of Rs. 500/- from her husband for taking liquor while the husband of the de facto complainant refused to pay the amount, the appellants picked up her husband from their house and beat him mercilessly with bamboo stick, iron rod etc. on the road in front of her house and left him in an unconscious state at the spot. Thereafter, the policemen came to the place of such occurrence and the victim was brought to Saktinagar Hospital for his necessary treatment. The written complaint (Ext.2) was lodged by Manju Biswas, the wife of the victim requesting the Officer-in-Charge of the Dhubulia Police Station, Nadia, for taking necessary legal action against these appellants.

The learned trial court, in course of trial, examined seven witnesses altogether including the de facto complaint (P.W.4) and her husband, i.e. the victim, Goutam Biswas (P.W.5), the retired Sub-Inspector of Police, Joydeb Kr. Saha, the Investigating Officer of the case (P.W.7) and Dr. Joydip Roy, the then Medical Officer of Nadia District Hospital as P.W.1. Initially, the charge, alleging the offence punishable under Section 308/34 of the I.P.C., was framed but on conclusion of trial, learned court below found both the appellants guilty of the offence punishable under Section 324/34 of the Indian Penal Code and convicted both of them accordingly, as noted earlier.

Now, the point left for decision by this Court is whether learned trial court was justified in registering conviction of both the appellants and sentencing them to suffer imprisonment and to pay fine as noted above.

Assailing the judgement and order of conviction, the present appeals have been preferred by the appellants mainly on the following grounds:

(i) that the impugned order of conviction and sentence is not in conformity with the evidence on record and is bad in law and the same is liable to be set aside;

(ii) that the learned trial court illegally refused to consider the defence case in its proper perspective and the same has caused serious prejudice to the appellants resulting total miscarriage of justice;

(iii) that the learned trial court failed to consider the statement of the de facto complainant and the victim that particularly with regard to their contradictory statements with regard to time and place of occurrence;

(iv) the investigating officer of this case held investigation of the instant case in a perfunctory manner, did not seize wearing apparels, blood stained cloth for making the allegation against the appellants more reliable;

(v) learned trial court refused to consider the defence case in its proper perspective rather learned trial court disposed of the case hurriedly without examining the appellants in terms of Section 313 of the Code of Criminal Procedure in proper way.

Both the appellants shall be held guilty of the offence punishable under Section 324/34 of the Indian Penal Code if it is established that the appellants voluntarily caused hurt by dangerous weapons or means i.e., by means of any instrument for shooting, stabbing or cutting or any instrument which, used as a weapon of offence, in furtherance of common intention of both of them and shall be liable to imprisonment of either discretion for a term which may be extended to three years or with fine or with both.

Learned Counsel for the appellants, in course of their respective arguments, categorically submitted that the de facto complainant, being the wife of the victim, stated on solemn affirmation that her husband was beaten up by both the appellants at 2-30 p.m. but that statement with regard to time of occurrence has been altered to 11-00 a.m/12 noon in the statement of the injured (P.W.5).

Pointing out the statement of the injured (P.W.5), he pointed out that at the time of so-called incident, one local villager named kalu who came to rescue the victim at the place of occurrence did not come forward to examine himself in support of the case of the prosecution. They brought to my notice the injury report (exhibit-1) where the medical officer in his report referred the date of examination of the victim at 2-30 p.m. of 23rd December, 2010 though in fact the incident took place on 23rd December, 2009. It was pointed out that the medical officer who examined the victim at the hospital found following injuries on his person:

i) multiple abrasion, bruises over the back and extremity;

ii) laceration on porters vertex area 1" x 1/2" x 1/2";

iii) tenderness over anterior chest wall.

The Medical Officer (P.W.-1) stated that when patient while admitted to the hospital was found conscious.

The learned Counsel for the appellants to further their respective arguments submitted that the Medical Officer in his report noted ''accident'' and there was no allegation by the victim that extortion of money was the reason behind of such offence. They also pointed out that delay in lodging the FIR (i.e. on the next date of incident) was not properly explained and that became fatal to the case of prosecution. Relying on a decision of the Hon''ble Apex Court in Iswar Singh vs. State of Uttar Pradesh, reported in , AIR 1976 S.C. 2423, they pointed out that "extra-ordinary delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the prosecution may get opportunity to introduce, improvements and embellishments and setting up a distorted version of the occurrence". Pointing out the relevant portion of the written complaint, learned Counsel for the appellants submitted that in the instant case delay in lodging the F.I.R. not been sufficiently explained, the trial court should have considered this aspect before coming to the conclusion that the appellants are guilty of the offence as complained of. Placing reliance on another decision of the Hon''ble Apex Court in Kaliram vs. State of Himachal Pradesh, reported in 1973 S.C.C. (Cri.) 1048, they also urged that law shall presume an accused to be innocent until contrary is proved. It was also submitted with reference to a decision of the Hon''ble Apex Court in Sri Niwas vs. Ram Bharosa Das , [1994 Cr.L.J. 1385 (S.C.)] that the medical evidence at variance with the statement of the victim should be looked into with proper perspective and the accused should be given the benefit of doubt.

In fine, they pointed out the contradictions with regard to the place and time of occurrence and confidently urged that learned trial court was not justified in holding the appellants guilty of the offence punishable under Section 324/34 of the I.P.C. and relying on a decision of the Hon''ble Supreme Court in Alauddin Mia & Ors., Sarif Mia & Anr. Vs. State of Bihar, reported in , (1989) 3 SCC 5, they pointed out that the trial court did not afford proper opportunity of hearing to the convicts before him as contemplated under Section 235(2) of the Code of Criminal Procedure.

Mr. Anjan Dutta, learned Counsel appearing for the State while supporting the findings of the learned trial court submitted that minor contradictions with regard to time or place of occurrence should be overlooked while deciding the merit of a meritorious case and in this context he relied on a decision of the Hon''ble Apex Court in Rammi vs. State of Madhya Pradesh, reported in , (1999) 8 SCC 649. Further relying on a decision of the Hon''ble Apex Court in Pandappa Hanumappa Hanamar vs. State of Karnataka, reported in , (1997) 10 SCC 197 he urged that minor contradictions between evidence before the Court and statement recorded by the I.O. in terms of Section 161 of the Cr.P.C. cannot be sufficient to discard the incriminating statements. He also urged that minor contradictions as to time of occurrence should not be sufficient to discard the evidence of the witnesses particularly when the witnesses are the rustic village people. He further urged with reference to a decision of Hon''ble Apex Court in Saran Singh vs. State of Punjab, reported in (1976) 4 SCC 349 and pointed out that delay in despatch of FIR is not a substance which can throw out a prosecution case in its entirety.

The impugned judgement reflects that the alleged incident took place on 23.12.2009 at about 2-30 p.m. when both the appellants, namely, Uttam Ghosh and Sagar Ghosh claimed Rs. 500/- from the husband (Goutam Biswas) of the de facto complainant for taking liquor and on being refused they began to assault him (Goutam Biswas) and the victim sustained injuries in presence of said de facto complainant and the said victim was referred to Saktinagar Hospital with the history of vomiting and unconsciousness. The materials on record revealed that on the next date of incident Manju Biswas, the wife of the victim, lodged the written complaint before Dhubulia Police Station at about 9-15 a.m. and accordingly Dhubulia Police Station Case No. 462 of 2009 dated 24.12.2009 under Sections 325/308/34 of the I.P.C. was registered and consequently the charge-sheet was submitted against the appellants alleging that they made an attempt to commit culpable homicide not amounting to murder, in furtherance of their common intention.

In the judgement impugned learned trial court, taking into consideration the gravity of the allegations as well as the materials produced before him by the prosecution through evidence, both oral and documentary on record, held that the appellants were not guilty of committing the offence of an attempt to commit culpable homicide not amounting to murder but he held them guilty of the offence for voluntarily causing hurt to the husband of the complainant by means of any sharp weapon in furtherance of their common intention and convicted them accordingly. The medical report (exhibit-1 series) clearly revealed that the victim sustained injuries and he had to undergo treatment for a couple of days at the concerned hospital (District Hospital, Nadia). The injuries as noted in the injury report (exhibit-1) clearly revealed that the victim was assaulted at about 2-30 p.m. on the date of alleged accident but there was an accidental slip of pen with regard to the date of incident in the said report. The written complaint (exhibit-2) also revealed that the victim was attacked by these appellants who attacked him demanding a sum of Rs. 500/- and hit him with some hard substance like bamboo stick, iron rod etc. and caused simple injuries on his person. In the background it can safely be said that the victim suffered simple injuries due to the hurt voluntarily caused to him by the appellants in the broad daylight in presence of his wife (P.W-4). The prosecution in course of trial produced witnesses and documents, as noted above, to establish that the victim suffered injury on his person and upon appreciation of evidence on record, learned trial court came to the conclusion that none but these appellants were responsible for the same. True it is, there was some minor contradictions with regard to place, time of occurrence and to some extent delay in lodging the FIR but such a lapse cannot be said to be fatal to the prosecution''s case so that its credibility can be doubted.

The learned trial court in the impugned judgement held that the appellants were not guilty of the offence of culpable homicide not amounting to murder but the gravity of the injury and the manner in which those injuries were caused were the result of voluntarily causing hurt by hard substance and not by any sharp weapon.

That being so, the offence committed against the victim cannot be more grievous rather it can be termed as ''voluntarily causing hurt'' within the meaning of Section 321 of the Indian Penal Code. It is already discussed concurring with the view of the learned trial court that none but these appellants were responsible for committing the offence of voluntarily causing hurt in furtherance of their common intention for extortion of money, they shall be held guilty of the offence punishable under Section 323/34 and not by Section 324/34 of the Code, as held by the learned trial court and the maximum punishment prescribed for such offence is either to suffer imprisonment for one year or to pay fine of Rs. 1,000/- or with both.

The learned Counsel for the appellants, in course of their respective arguments, pointed out that in course of investigation or trial, the appellants had been detained in judicial custody for a considerable period and considering the gravity of the offence, the manner in which it was committed in a public place (road) and the reason for such offence, I consider it not to be a fit case for giving the benefit in terms of Section 4(1) of the Probation of Offenders Act read with Section 360 of the Code of Criminal Procedure.

Regard being had to the facts of the case, I am of further considered opinion that if such offenders are given such a legal protection & benefit, a wrong message will reach the society that no punishment is prescribed for causing hurt for extortion of money by the unruly offenders who are in the habit of terrorising the public at large.

Accordingly, I hold the appellants guilty of the offence punishable under Section 323/34 of the Indian Penal Code and taking into account the fact that they were detained in Judicial custody for a considerable period, during investigation & trial, then instead of sentencing them to suffer further imprisonment, I direct both the appellants to pay a fine of Rs. 1,000/- each, in default to suffer rigorous imprisonment for two months. The fine shall be paid by both the appellants within two months from the date of this order.

This appeal is thus allowed in part and the judgement and order of conviction passed by learned trial court in Sessions case No. 50(4) 2012 (S.T. IV (8) 2012) thus stands modified to the extent as indicated above. Bail bonds filed on behalf of the appellants, if any, stand cancelled and they are directed to surrender before learned trial court for compliance of the term of conviction (i.e. to pay the fine i.d. to suffer imprisonment) within two months from the date of this order.

Let a copy of this judgement along with the lower court records be sent down to the learned trial court at once for necessary compliance.

Photostat certified copy of this judgement, if applied for, be given to the learned Counsel for the parties upon compliance of all necessary formalities.