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2010 DIGILAW 773 (GAU)

Pradip Das v. Bidal Sarkar

2010-09-29

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. I have heard Mrs. N. Guha, learned Counsel for the Petitioners and also heard Mr. P. Bhattacherjee, learned Addl. P.P. appearing on behalf of the State of Tripura/Respondent No. 2. None appears for the Complainant/Respondent No. 1. 2. This criminal revision petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 for setting aside the judgment and order dated 17.6.2003 passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Appeal No. 50(3)/2001 confirming the conviction ordered by the learned Judicial Magistrate, 1st Class, West Tripura, Agartala in judgment dated 26.7.2001 rendered in Case No. CR 2019/1997 modifying the sentence to the effect that the convict Petitioners shall suffer R.I. for 6 months and to pay a fine of Rs. 500 each in default of making payment of fine to suffer further R.I. for 10 days for commission of offence under Section 325, IPC and also to make payment of fine of Rs. 100 in default of making payment of fine to suffer S.I. for 5 days for commission of offence under Section 341, IPC and directing the convict Petitioners to surrender before the learned trial court on 19.7.2003 to suffer the sentence. 3. The facts in brief, as narrated in the complaint petition filed by the Respondent No. 1, are that on 29.8.1997 at about 11.00 p.m. he was going to sleep in his shop at Champamura Bazar after taking his dinner in the house of Lal Mohan Sarkar, his maternal uncle along with Sanjit Laskar (PW2). While they reached near the Champamura High School, at that time the convict Petitioners namely Pradip Das, Priyalal Dey and Sajal Mitra stopped him on the road and the convict Petitioner No. 1 Pradip Das asked him to return the fine money which was imposed in the Panchayat meeting in connection with theft of jackfruit. At that time, complainant replied that his father took the fine money and he did not receive any money and so the question of returning the fine money by the complainant to the convict Petitioner No. 1 does not arise. Then, the convict Petitioner, Pradip Das gave a lathi blow on his face. Consequent of that lathi blow three teeth of upper jaw of the complainant were broken which resulted into profuse bleeding. He fell down on the ground and cried. Then, the convict Petitioner, Pradip Das gave a lathi blow on his face. Consequent of that lathi blow three teeth of upper jaw of the complainant were broken which resulted into profuse bleeding. He fell down on the ground and cried. The convict Petitioners Pradip and Priyalal Dey assaulted him by lathi blows and the convict Petitioner, Sajal Mitra stabbed him by a 'kirich'. As a result, he sustained injuries on his right elbow and on the upper portion of left eye. At that time, Sanjit Laskar (PW2) tried to rescue the complainant but he was threatened by the convict Petitioners. Both the complainant and his companion Sanjit Laskar raised hue and cry in response to which near by people came at the spot. The complainant lodged the complaint on 6.9.1997 before the learned Chief Judicial Magistrate, West Tripura, Agartala. 4. The learned trial court after taking cognizance of the case, framed charges against the convict Petitioners under Sections 341/325, IPC. The convict Petitioners contested the case. The complainant-Respondent No. 1 examined two witnesses including himself as PW1 while the Petitioners examined none. 5. Mrs. Guha, learned Counsel appearing for the Petitioners submits that although it has been alleged that he was assaulted and injured seriously and hospitalized for few days for treatment, except the discharge certificate from the hospital concerned, no medical officer/doctor, who examined and treated him, was produced as witness to testify the truthfulness of the allegations. Nor was any medical report produced to testify that the Respondent-complainant received grievous injuries or any injury to his person for which he had to remain in the hospital for treatment. She also submits that the evidence of PW2 on the basis of which, the learned trial court passed the conviction and sentence, carries no evidentiary value inasmuch as the said witness is related to him being the cousin brother. PW2 admitted the same in his cross-examination. According to her, there is no conclusive evidence to the effect that the convict Petitioners assaulted the Respondent-complainant causing grievous injury/injuries to him and the prosecution failed to prove the case against the present Petitioners-beyond all reasonable doubts. The learned courts below misdirected themselves in appreciating the evidence on records and convicting the Petitioners, which are liable to be set aside. 6. Mr. Bhattacherjee, learned Addl. The learned courts below misdirected themselves in appreciating the evidence on records and convicting the Petitioners, which are liable to be set aside. 6. Mr. Bhattacherjee, learned Addl. Public Prosecutor appearing for the Respondent No. 2 submits that although, some material witnesses were not examined, there are sufficient materials on record including the evidence of PW1 and PW2, to record conviction against the present Petitioners. The non-examination of medical officer alone cannot in any way or manner stand on the way of accepting the evidence of PW1 and PW2 and convicting the Petitioners. According to him, the discharge certificate (Exh. P/2) amply proves that the complainant-Respondent was under treatment from 30.8.1997 to 4.9.1997, i.e., at least 5 days and he was under treatment. The discharge certificate, according to Mr. Bhattacherjee, was issued by the G.B. hospital authority, which is a government hospital, and such certificate can be accepted as a valid documentary evidence and as such the submission of the learned Counsel for the Petitioners cannot be accepted for interference with the impugned judgment and orders. 7. I have given my anxious consideration on the submissions made by the learned Counsel for the parties. I have also gone through the relevant records and the evidence made available at the time of hearing. It is an admitted position that no medical officer from the hospital concerned who rendered medical treatment has been examined. It is also an admitted position that the medical report in respect of complainant-Respondent was not called for or produced before the learned trial court. What is produced before the learned trial courts was only the discharge certificate from the G.B. hospital which has been exhibited as material Exhibit-P/2. From this certificate, it is found that complainant-Respondent was in the hospital from 30.8.1997 to 4.9.1997 and he was discharged after 4.9.1997. The discharge certificate, as is expected, does not contain the injury report. The injury report is to be prepared by the doctor who examined/treated the patient. Whether a particular injury is grievous or simple, it can be ascertained from the injury report only. What is grievous injury has been defined under Section 320 of the IPC. 8. I have verified from the complaint petition (Exh.P/1) that the complainant furnished a list of witnesses comprising of as many as seven persons including Smt. Khela Rani Chakraborty and Sri Ranjit Chakraborty, who were present at the place of occurrence. What is grievous injury has been defined under Section 320 of the IPC. 8. I have verified from the complaint petition (Exh.P/1) that the complainant furnished a list of witnesses comprising of as many as seven persons including Smt. Khela Rani Chakraborty and Sri Ranjit Chakraborty, who were present at the place of occurrence. These two witnesses are material for the purpose of proving the case but they were not produced and examined by the complainant. It is clear that the complainant-Respondent has chosen only PW2, who is found to be an interested and related witness. There is no explanation as to why the material witnesses above mentioned have been withheld by the complainant. Withholding of such material witnesses cannot be taken so easily. The purpose of such withholding may be that the complainant had an apprehension that if they were produced and examined they would speak the truth which would go against him. The complainant and for that matter the prosecution, has not been able to prove the case beyond reasonable doubt as required under the law of criminal trial. From the aforesaid evidence and materials on record, I am of the considered view that the fact of assault and receiving grievous or simple injury by the complainant-Respondent has not been proved by adducing sufficient materials and evidence. As already stated earlier, the above material witnesses including the medical officer and the material document like the medical report having not been produced and proved before the learned trial court, the prosecution cannot claim that the case against the present convict Petitioners have been proved beyond all reasonable doubts. 9. Taking into consideration the entire facts and circumstances of the case and also the materials and evidence on record, I am not inclined to accept the impugned judgment upholding conviction and sentence as recorded by the learned courts below. The convict Petitioners are entitled to get the benefit of doubt and acquittal on that ground. Accordingly, this revision petition stands allowed. The conviction and sentence as recorded by the leaned courts below stand set aside. The bail bonds stand discharged. 10. Send down the LCR to the court below forthwith. Petition allowed