Tamal Bhalla & Ors vs State Of West Bengal & Anr

Tirthankar Ghosh, J

The revisional application has been preferred against the judgment and order dated 17th March, 2006 passed by the Ld. Additional Sessions Judge, 3rd Court, Birbhum in Criminal Appeal No. 6 of 2001, wherein the Ld. Appellate Court was pleased to affirm the judgment and order of conviction dated 28th March, 2001 passed by the Ld. Judicial Magistrate, 1st Court, Bolpur, Birbhum in GR Case No. 122 of 1991 (TR Case No. 174 of 1996) arising out of Bolpur P.S. Case No. 54 dated 15th April, 1991 and sentenced the petitioners to pay a fine of Rs. 1,000/- each, in default to suffer simple imprisonment for 4 months, for the offences under Sections 147, 148 and 323/34 of the Indian Penal Code (IPC).

The prosecution case in short is that Sib Sankar Dutta a resident of Bolpur, Ward No. 14, Holding No. 83/84/1 purchased a land adjacent to the Northern side of his house and the accused Tamal Bhalla forcibly tried to occupy the same. In respect of the said dispute civil suit was pending between the parties. On 15th April, 1991 at about 10:30 am the accused Tamal Bhalla attempted to take electricity connection with the aid of the staff of W.B.S.E.D over the land of the defacto complainant which was resisted by him and as a result the accused Tamal Bhalla along with his associates who were armed with lathi, tangi, rod etc. attacked the defacto complainant; Subhas Dutta (elder brother of the defacto complainant) and Sukumar Dutta (younger brother of the defacto complainant). As a result of which they sustained severe injuries and the local people after rescuing them admitted them in a hospital.

On the basis of a written complaint addressed to the Officer-in-Charge, Bolpur Police Station on 15th April, 1991 a case was registered being Bolpur P.S. Case No. 54 dated 15th April, 1991 under Sections 147/148/149/323/324/506 of the IPC. The said case was endorsed to SI of Police, Swapan Chatterjee for investigation. On completion of investigation IO submitted chargesheet under the aforesaid sections against the accused persons.

The Ld. Magistrate after compliance with the provisions of law was pleased to frame charge under Sections 147, 148, 323/34 and 324/34 of the IPC and the contents of the charges were thereafter read over to the accused persons who pleaded not guilty and claimed to be tried.

The prosecution in order to prove its case relied upon 11 witnesses being PW1, Subhas Dutta- elder brother of the defacto complainant; PW2, Sib Sankar Dutta - defacto complainant; PW3, Sukumar Dutta - younger brother of the defacto complainant; PW4, Uttam Kumar Kar; PW5, Kali Prasad Dutta - brother of the victim; PW6, Bhabani Prasad Dutta - victim; PW7, Uttam Dutta; PW8,; PW9, Dr. J.K. Sar; PW10, Manab Mukherjee - Recording Officer; PW11, Swapan Kumar Chatterjee - Investigation Officer. The prosecution also relied upon number of documents being written complaint (Ext.1), admission register of Bolpur hospital (Ext.4), injury reports (Exts. 5 & 6), certified copy of injury reports (Exts. 7, 8, & 9), formal FIR (Ext.11) seizure list (Ext.12) and chargesheet (Ext.13).

On conclusion of prosecution evidence the Ld. Court fixed date for examination of accused persons under Section 313 of the CrPC. After examination of the accused persons under Section 313 of the CrPC the Ld. Magistrate fixed date for defence to examine its witnesses, however, the defence examined none and as such the Ld. Magistrate was pleased to fix date for hearing of final arguments of the case. After hearing both the parties the Ld. Magistrate by its judgment and order dated 28th March, 2001 was pleased to arrive at a finding of guilt in respect of the present petitioners for commission of offence punishable under Sections 147, 148, 323/34 of the IPC and sentenced them as aforesaid.

I have perused the judgments delivered by the Ld. Trial Court as also the Ld. Appellate Court. It is reflected from the evidence of PW9, Dr. J.K. Sar, Medical Officer of Bolpur PHC that he attended the patients namely, Subhas Chandra Dutta, Sukumar Dutta and Bhabani Prasad Dutta. It has been observed by the Ld. Trial Court that the said witnesses deposed that it has been recorded that the patients gave history of assault of being hit by Tamal Bhalla of Bolpur with iron rod on 15th April, 1991. The patient so referred is victim Subhas dutta. PW9 also from the injury report of victim Sukumar dutta pointed out that the history narrated by the patient refers to assault by some people belonging to Tamal Bhalla of Bolpur, who hit him with iron rod on 15th April, 1991. The injuries of Sukumar Dutta included scalp injury, the same remarks relating to the history of assault is seen in respect of the victim Bhabani Dutta.

The Ld. Appellate Court scrutinized the aforesaid part of the evidence and arrived at a conclusion that the oral evidence of the victim along with the medical evidence supports the prosecution case, so far as the injuries which have been inflicted upon the victim.

The Ld. Lawyer appearing for the petitioners tried to impress upon this Court that it was Tamal Bhalla who has inflicted the vital blow and the present petitioners are in no way connected with the offence. Taking into account the factual foundation of the case and its appreciation by the Ld. Trial Court and its re-appreciation by the Ld. Appellate Court, I do not think that the petitioners have been able to make out a case which would require further scrutiny of the evidence.

In a case where charge has been framed under Sections 147 and 148 of the IPC, it is not necessary that the prosecution has to prove the overt act of each of the accused persons. Although in the instant case the victim as also the witnesses have narrated the role played by the petitioner Nos. 2, 3, 4, 5 & 6. Going by the aggression with which the petitioners participated in the offence, their presence at the spot can under no circumstances be ruled out.

As such the order of conviction passed by the Ld. Trial Court and affirmed by the Ld. Appellate Court does not call for any interference.

However, taking into account the fact that the incident is of 1991 i.e. more than 28 years ago, I do not think any useful purpose would be served by sentencing the accused persons.

Relying upon AIR 1982 SC 783 I am inclined to invoke the provisions of Section 360 of CrPC and allow the revisional application on the question of sentence of imposition of fine. As such the fine so imposed upon the petitioners be set aside on condition that the petitioners would be released on furnishing bond of Rs. 1,000/- each with two sureties of like amount, one of whom must be a local and they would appear before the Ld. ACJM, Bolpur once in a fortnight for a period of six months.

The bond so directed should be furnished with the Ld. ACJM, Bolpur within four weeks from the date. The petitioners are also directed to maintain peace and good behavior in the locality where they are residing for a period of one year.

CRR 1480 of 2006 is accordingly partly allowed.

Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.