Sunil Kumar Ghosh and Others vs The State of West Bengal

Indrajit Chatterjee, J—This court is hearing this appeal arising out of a judgment and order of conviction as passed by the learned Additional Sessions Judge, 4th Court, Krishnagar, Nadia in Sessions Trial No. 11 (5) 11 in Sessions Case No. 51 (6) 10 wherein these three appellants along with their father, Ramfal Ghosh (since deceased) were convicted in respect of the charge punishable under Sections 308/34 of the Indian Penal code and all of them were sentenced to suffer rigorous imprisonment for three years each and also to pay fine of Rs. 5,000/- each, in default to suffer further rigorous imprisonment for six months each.

All the four persons who faced the trial including that Ramfal were also found guilty in respect of the charge under 326/34 of the Indian Penal Code and they were further sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 5,000/- each, i.d. to suffer rigorous imprisonment for further six months each. The substantive sentences were ordered to run concurrently. The accused persons were allowed set off under Section 428 of the Code of Criminal Procedure.

The prosecution case as unfold at the time of trial can be stated in brief thus:--

"That one written compliant was filed by one Asish Das, son of the victim with Kaliaganj P.S. dated 13.9.2007 at 17.05 hours giving rise to Kaliaganj P.S. case No. 200 of 2007 (G.R. Case No. 1251 of 2007) of the Chief Judicial Magistrate, Nadia at Krishnagar. It was alleged in the FIR that before one week the deceased Ramfal Ghosh was found to graze his cattle in the land of the victim and he protested the act of that accused. There was quarrel and scuffle but the matter ended then. This incident took place on 10/9/2007 at about 1-30 p.m. when the victim of this case Sufal Das was returning home and reached near the embankment of the river Ganges, then all the four accused persons intercepted him on the way and they assaulted the victim with lathi and sharp-cutting weapons. As a result of this, the victim received in all three cut injuries and also received one blunt injury on the left shoulder and doctor also found the lathi marks on the back of the victim. The victim was treated at Kaliganj PHC on 10.9.2007 at about 4-30 p.m. I have already told that Kaliganj P.S. case was registered on 13-9-2007 at about 17-05 hours."

After the registration of the case, the investigation was taken up by S.I. Uday Chandra De (P.W. 7) and during the course of investigation, he collected the report of the doctor, prepared the sketch map, examined some witnesses and after the completion of investigation submitted charge sheet against all the four accused persons for the offences punishable under Sections 308/34 and 326/34 of the Indian Penal Code.

The case was committed to the court of sessions and one sessions case was registered. The case was transferred to the learned trial court and trial started. Charge was framed accordingly against all the four accused persons for the offence punishable under Sections 308/34 and 326/34 of the Indian Penal Code. All the accused persons pleaded not guilty and claimed to be tried.

During the course of trial, in all eight witnesses were examined by the prosecution and some documents were marked as Exts. - that is the FIR, formal FIR, the injury and the sketch map. The accused persons were examined under Sections 313 of the Code of Criminal Procedure. The accused did not adduce any D.W. or any documentary evidence. After conclusion of trial, all the accused persons were convicted. The result of the trial, I have already told.

At the time of hearing of argument, Mr. Tapash Midya, learned Advocate appearing on behalf of the defence, submitted that there cannot be an order of conviction in respect of the same victim for the offences punishable under Section 308 read with Section 34 of the Code and under Section 326 read with Section 34 of the Code. He submitted that same subject, i.e. the victim cannot be the subject matter of crime both for an attempt of committing culpable homicide as well as voluntary causing grievous hurt by dangerous weapons.

He took me to the evidence of P.Ws to show that P.W. 1 is the injured witness and except the I.O and the doctor respectively, P.W. 7 and P.W. 8 all are relations of the victim. He further submitted that in this case there was no eye witness and the entire case is based on the evidence of the victim (P.W. 1). He took me to the evidence of P.W. 1 to show that the evidence of the victim is in sharp contradiction with the expert evidence of P.W. 8 as regards the places of injuries and also the nature of injuries. P.W. 1 deposed candidly that he received fractured wound but the report of the doctor is not suggestive of this fact. He further submitted that P.W. 1 deposed that he was taken to Kaliganj PHC within the district of Nadia, therefrom he was transferred to the District Hospital, Nadia at Krishnagar and thereafter, he was transferred to Presidency General Hospital, Calcutta. This witness also deposed that he stayed in the last Hospital for about 21 days. It was the submission of Mr. Midya that no document has been produced by the prosecution to convince this Court of the fact that the victim remained in the Hospital for 21 days or that he was at all treated as an indoor patient either at the District Hospital Nadia at Krishnagar or in Presidency General Hospital, Calcutta. He took me to the report of P.W. 8 (Ext. 4) to convince this Court that the doctor, who treated the victim, did not ask for sending the victim to any other Hospital for proper treatment. He further submitted that the report was also silent as to whether the victim was admitted in that Hospital. The prosecution has failed to come up either with oral or documentary evidence as to the fact that the victim remained in Hospital for a considerable period of time to make the injuries grievous on taking advantage of Section 320 of the Code.

He also attacked the F.I.R. on the ground that even though the incident took place on 10th September, 2007, the F.I.R. was lodged on 13-09-2007 even though the Kaliganj P.S. was 20 k.m. distance. He further submitted that the scribe of the F.I.R. was not examined, that the F.I.R. was forwarded to the Magistrate after a long delay, i.e. on 17-09-2007, and in the F.I.R. there is no whisper as to why the de facto complainant lodged the F.I.R. after two days of the incident.

He further submitted that all the witnesses, as I have already told except P.W. 7 and P.W. 8, are all relations of the victim and naturally their evidence may be brushed aside. He further submitted that P.W. 2, P.W. 5 and P.W. 6 were not examined by the Investigating Officer and, as such, their evidence cannot be relied upon by the court. He took me to the judgment passed by learned Trial Court at internal page No. 7 to show that the evidence of P.W. 6 was not believed by the learned Trial Court. He again took me to the report of the doctor to say that the victim stated to the doctor at the time of his examination that he was assaulted by Amphal (must be Ramfal) Ghosh of village Juranpur son of Balai Ghosh and sons of Amphal (must be Ramfal) Ghosh. By this he tried to suggest that the victim did not say to the doctor that he was also assaulted by Babu Ghosh, who is admittedly the son-in-law of that Ramphal Ghosh (since deceased). He also submitted by taking me to the ingredient of Section 308 of the Code to say that even if the total injuries are considered, then even a case under Section 308 cannot be made out as there was no intention on the part of the assailants to cause culpable homicide. He further submitted that the injuries were not on the vital parts of the body and even if the injured person is believed, there cannot be any conviction under Section 326 of the Code, which is for grievous injuries by sharp-cutting weapon etc.

Regarding the appreciation of evidence of those witnesses, who were not examined by the Investigating Officer, learned Advocate cited a decision of the Apex court as reported in Ram Lakhan Singh and Others Vs. State of Uttar Pradesh, AIR 1977 SC 1936(1) : AIR 1977 SC 1936 : (1977) CriLJ 1566(1) : (1977) 3 SCC 268 : (1978) 1 SCR 125(1) a case under Section 396 of the Code wherein the Apex Court did not believe the version of a witness in such a grave charge whose name did not figure in the charge sheet and naturally this witness was not examined by the Investigating Officer.

The decision of the Apex Court as cited by the defence cannot apply in the present case on the facts and circumstances of this appeal. In that case before the floor of the Apex Court, the said witness was not mentioned in the charge sheet but here all these three witnesses are very much mentioned in the charge sheet.

Mr. Keshari, learned Advocate, appearing on behalf of the prosecution candidly submitted that there cannot be convictions regarding the same injuries in respect of the charge under Sections 308 and 326 of the Code. He submitted that it is true that the Investigating Officer did not seize any medical document and also did not cite any medical personnel to prove that the victim was taken to Nadia District Hospital or Presidency General Hospital. He had to concede that there is no documentary evidence that the victim remained in the hospital for 21 days as claimed by the P.W. 1 but in the same breath, he submitted that the evidence of the injured witness can safely be relied upon by the court. As regards the implication of Babu Ghosh, he submitted that the evidence of P.W. 1 is very much there to tag him in this crime and the failure on the part of P.W. 1 to disclose his name to the doctor cannot mar the prosecution story. He submitted on scrutiny of the injuries as mentioned in Ext. 4 such injuries may be covered under Section 324 of the Code particularly when evidence is lacking as to the confinement of the victim for more than 20 days.

Let me now check up the evidence on record. P.W. 1 is the victim of this case and naturally he has supported the prosecution story. He deposed that on the date of the incident when he was returning back from the Launch Ghat, then he was assaulted by the all the four accused persons who faced the trial. It is also clear from his evidence that at that point of time, he was alone. This being so, there was no eye witness to the incident. As per the evidence of this witness, Ramfal (since deceased) assaulted him with a Hasua on his forehead, Babu Ghosh assaulted him with a Hasua on the left shoulder, Sunil Ghosh and Anil Ghosh started assaulting him with ''lathi'' and after receiving several bleeding injuries, he fell down on the ground. He deposed that he also sustained fractured injury due to such assault by ''lathi''. It is also apparent from his evidence that he raised hue and cry which attracted Madhab Das (P.W. 3), Sanat Das (not examined) and Ananta Das (P.W. 5) and they took him to Kaliganj P.S. This court is not unmindful of the fact that this witness claimed on oath that he was referred to Nadia District Hospital and from there, he was referred to Presidency General Hospital, Kolkata. Unfortunately, not a single public witness deposed on behalf of the prosecution, came to buy this story. There is no iota of evidence that he remained in the hospital even for a single day. This witness duly identified all the accused persons.

P.W. 2 naturally did see the incident and but this witness took the victim to Kaliganj P.S. and from there to Kaliganj hospital. The evidence of P.W. 3 is totally hearsay in nature. P.W. 4 is the FIR maker and also the son of the victim. He also did not see the incident. He candidly deposed that he lodged the FIR before the Officer-in-Charge, Kaliganj P.S. on the very date of the incident. Unfortunately, for him the case was registered only on 13.9.2007. I have kept my searching eyes on the FIR itself. The signature of this witness was taken in such a portion which can safely raise suspicion in the mind of this court as to when it was taken. It is anybody''s guess that the scribe of the FIR was not brought before the court. Another striking feature of the FIR is that he did not mention anything regarding the delay in lodging of the FIR. It is generally the conduct of the de facto complainant to come up with the story of delay, if there is any delay at all. This apparently shows that the FIR was actually not filed on 13.9.2007. This court is not going to disbelieve this rustic village man. He handed over the FIR to the P.S. on the very date of the incident. It was the ingenuity of the police administration of that P.S. to keep the matter pending for two days and not only that, the FIR was forwarded to the nearest Magistrate only on 17.9.2007, i.e. after four days of the receipt of the FIR. All these speak about the dubious role of the investigating agency and the fact that the investigation was not only defective but material documents were not collected and FIR was not registered in time.

It is apparent from the FIR that the victim was at first taken to Kaliganj PHC and from there he was shifted to the District Hospital. It is true that the story of admission of the victim at the Presidency General Hospital did not figure in the FIR but the fact remains that the victim had to be taken to Nadia District Hospital. The Investigating Officer did not take any pain to collect any medical paper from that District Hospital to support further the prosecution case. Unfortunately, this type of investigation is being undertaken by the Investigating Officer unless the victim party is financially rich or bears a good political background. We are to assess the case as it is.

P.W. 5 also did not see the incident and he also took the victim to Kaliganj PHC. I have gone through the evidence of P.W. 6. This court is at one with the findings of the learned trial court that the evidence of P.W. 6 cannot be believed. P.W. 7 is the Investigating Officer, less said is better for him. The role of the Public Prosecutor who conducted the prosecution case before the learned trial court is also not above board. Before P.W. 7 came to depose, at least three witnesses deposed that there was no examination by the Investigating Officer. The Investigating Officer was not asked by the Prosecutor to confront that portion of the evidence of those witnesses that we are not at all examined by him.

P.W. 8 is the doctor to whom the victim was taken via P.S. It is the consistent evidence of the P.Ws. that the victim was taken to PHC via P.S. I have already stated that Kaliganj P.S. is at a distance of 20 k.m. from the place of occurrence. This victim was attended by the doctor on 10.9.2000 at 4-00 p.m. at Kaliganj PHC. But this doctor did not note in the injury report that the patient was referred from the P.S. The doctor found three cut injuries:

"1. 2" X 1/2 cut injury above the left eyebrow,

1/2" X 1/2 cut mark beside left angle of eye and

1/2 X 1/2 cut injury on the right elbow."

The doctor also noticed blunt injuries on the left shoulder. She also noted ''cannot move''. The doctor even did not suggest x-ray of that portion of the body. The doctor also noticed bruise mark on the back of the victim.

It is true that there are discrepancies regarding the places of injuries which the victim suffered vis-�-vis the expert evidence but such contradiction cannot take away the entire air from the sail of the prosecution boat.

This court is snot unmindful of the fact that the victim told the doctor that he was assaulted by Amphal (Ramfal) Ghosh and his son. The name of Babu Ghosh is conspicuously absent in the medical report which this court can treat as the earliest communication given to one independent public servant. The benefit of this must go in favour of the defence.

I have taken into consideration the nature of injuries. I am of the firm opinion that these injuries cannot attract Section 326 of the Code as the long confinement as claimed by P.W. 1 was not established. The injuries which the victim sustained can safely be covered under Section 326 of the Code. It is true that all the public witnesses are coming from the same family and naturally they are related witnesses.

Much was argued by the defence that the injured witness cannot believed. This court is not at one with him. In a criminal trial one injured witness is the best possible witness if his witness is otherwise unimpeachable. Admittedly, they are relative witnesses but the portion of their evidence cannot be disbelieved simply because they are relations of the victim. This court can cite here the decision of the Apex Court as reported in Mano Dutt and Another Vs. State of U.P., (2012) 2 RCR(Criminal) 798 : (2012) 3 SCALE 219 : (2012) 4 SCC 79 wherein it was held by the Apex Court that there is no bar in law on examining family members as witnesses who came to rescue the injured and the court cannot reject such evidence merely on the ground that the witness was family member or interested witness. This court can also rely upon the decision of the Apex Court reported in State of U.P. Vs. Kishanpal and Others, (2008) CLT 1163 : (2008) 8 JT 650 : (2008) 11 SCALE 233 wherein the Apex Court held that the relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would no conceal actual culprit and make allegations against an innocent person. This court can again rely upon on the decision of the Apex Court as delivered in Mano Dutt (Supra) wherein the Apex Court held that ordinarily an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence or to involve anybody falsely and in bargain protect real culprit.

I have gone through the cross-examination of the PW 1. There is nothing to discredit this witness except the fact he did not take the name of Babu Ghosh (son in law of Ramfal) as the assailant about which I have already decided. This being so. This court is satisfied that the victim was assaulted by three persons, namely, Ramfal Ghosh, Sunil Ghosh and Anil Ghosh. I reiterate that Ramfal Ghosh is dead. The role attributed to Sunil Ghosh and Anil Ghosh as per evidence of PW 1 is that they assaulted the victim by ''lathis'' only. It is true that Section 34 of the Code clamped against all the accused persons at the time of trial and that was rightly done.

Thus, considering the role played by these two accused persons, this court is satisfied that the period of imprisonment for three years and payment of fine to the tune of Rs. 5,000/- was too much. Before I proceed further I like to say that there cannot be convictions both the charges under Section 326/34 and under Section 308/34 of the Code regarding the same set of injuries. This Court is satisfied considering the ingredient of Section 308 of the Code that no offence was at all made out before the learned trial court under that section. All the three convicts'' appellants are fit to be acquitted in respect of the charge punishable under that Section and I do that.

In view of my earlier discussion, the accused convict Babu Ghosh, be acquitted and I do that. This court is also satisfied that the act committed by two other assailants can at best be covered under Section 324 read with 34 of the Code, particularly, when it is apparent from the injury report that the victim sustained three cut injuries. The order of conviction imposed on these two appellants in respect of charge under Section 326/34 of the Code is reduced to Section 324 read with Section 34 of the Code and they are sentenced to suffer rigorous imprisonment for two months and to pay fine of Rs. 1,000/- each i.d. to suffer further rigorous imprisonment for 15 days. Both these appellants convicts must surrender before the learned trial court to serve out the remaining portion of sentence. They are entitled to get set off under Section 428 of the Code of Criminal Procedure.

The order was dictated in open court. I shall request Mr. Middya to communicate this order to his clients, so that they may surrender before the learned trial court within one month from this day. IF they fail to surrender within that period, then learned court will issue warrant of arrest against these appellant convicts to see that they serve out the remaining portion of sentence.

Criminal Section of this court is directed to transmit the lower court records along with a copy of this judgment to the learned trial court at once.

Thus, this appeal is succeed in part. It may be mentioned again that the appeal has abated against Ramfal Ghosh since deceased.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.