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2011 DIGILAW 1360 (CAL)

Mostab Ali Malitha v. STATE OF WEST BENGAL

2011-09-28

G.C.GUPTA, RAGHUNATH BHATTACHARYA

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JUDGMENT GIRISH CHANDRA GUPTA 1. THIS appeal and CRR No.610 of 2008 are both directed against the judgment dated 28th January 2008 by which the learned Additional Sessions Judge, 1st Court, Krishnanagar, Nadia held all the twelve accused persons guilty of the offence punishable under Section 304 Part II of the Indian Penal code read with Section 34 thereof as also under Section 324 read with Section 34 IPC in Sessions Case No.7(2) of 2004 corresponding to Sessions Trial No.III (September) 2004. By an order dated 29th January 2008 all the twelve convicts were sentenced to rigorous imprisonment for 10 years as also to pay fine of Rs.5000/-, in default to suffer further rigorous imprisonment for a period of six months each for the offence punishable under Section 304 Part II of the Indian Penal Code read with Section 34 thereof. All the twelve convicts were also sentenced to rigorous imprisonment for two years as also to pay fine of Rs.3000/- each, in default to suffer further rigorous imprisonment for a period of two months each for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code. 2. ALL the sentences were however directed to run concurrently. The Sessions Case No.7(2) of 2004 originated out of Tehatta PS Case No.165 of 2003 dated 2nd November 2003 under Sections 326/304 read with Section 34 of the Indian Penal Code and Sections 25/27 of the Arms Act respectively against the twelve appellants. The case of the prosecution in the Sessions Case No.7(2) of 2004 is that on 2nd November 2003 at about 6 A.M. in the morning during the period of Ramzan an altercation was going on between the appellant no.1 on the one hand and Mustabari Sk. and his son Patal Sk. (PW 7) on the other in connection with recovery of price of the jute sold and delivered by the latter. The appellant no.1 also known as Mustab appears to be an agent or a broker dealing in jute. During such altercation the appellant no.1 Mustab sought to assault the father and the son. Murtez since deceased, PWs.1 to 7 and one Jafar Ali Molla intervened and sought to prevent the parties from fighting. Enraged by such intervention the appellant no.1 and his followers being the rest of the appellants armed with deadly weapons pounced upon them. During such altercation the appellant no.1 Mustab sought to assault the father and the son. Murtez since deceased, PWs.1 to 7 and one Jafar Ali Molla intervened and sought to prevent the parties from fighting. Enraged by such intervention the appellant no.1 and his followers being the rest of the appellants armed with deadly weapons pounced upon them. The PWs.2 to 7 and the said Jafar Ali Molla were severely beaten. So was Murtez. The injured persons were taken to Palashipara Hospital where they were given medical aid. Considering the critical condition of Murtez he was referred to Baharampur Hospital where he was declared dead. A written complaint was lodged at 14.45 hrs. on 2nd November 2003. All the twelve appellants were charged under Section 302 read with Section 34 of the Indian Penal Code for having intentionally caused the death of Murtez Ali Mondal. They were also charged under Section 326 read with Section 34 of the Indian Penal Code for having caused grievous hurt by deadly weapons to Zakir Hossain, Taher Ali Mondal, Jafar Ali Mondal, Arman Mondal, Safiqul Mondal and Patal Sk. The learned Trial Judge ultimately held the appellants guilty of the offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code instead of the offence punishable under Section 302 IPC. The learned Trial Judge further held the appellants guilty of the offence punishable under Section 324 read with Section 34 thereof instead of Section 326 IPC charged originally. The de facto complainant Samsul Haque preferred CRR No.610 of 2008 contending that the appellants should have been convicted as originally charged. 3. WITH respect to the selfsame incident dated 2nd November 2003 a counter case was lodged with the Tehatta PS on 29th November 2003 against seventeen accused persons including Taher Ali Mondal (PW 2) who is the accused no.1, Samsul Haque Mondal (PW 1) who is the accused the no.2, Sarmen Ali Mondal (PW 3) who is the accused no.3 and Patal Sk. (PW 7) who is the accused no.14 in the aforesaid Tehatta PS case dated 29th November 2003 which ultimately was registered as GR Case No.2724 of 2003 and tried vide Trial Case No.II of August 2004 which ended in a judgment and order of acquittal. (PW 7) who is the accused no.14 in the aforesaid Tehatta PS case dated 29th November 2003 which ultimately was registered as GR Case No.2724 of 2003 and tried vide Trial Case No.II of August 2004 which ended in a judgment and order of acquittal. The learned trial Court in recording the order of acquittal opined as follows:- Though it is proved that PW 1 (Abdul Jabbar Malita) sustained injury in the same incident in which alleged accused Mortez also sustained injury and subsequently died, yet has not been proved that Mortez and others were the aggressors. It could not be proved by prosecution in the instant case that PW 1 exercised his right of private defence against the accused persons. Many of whom sustained injuries and one died. The accused persons in this case are entitled to get the benefit of doubt. The de facto complainant in that case was one Raqibat Malita. He has challenged the order of acquittal in CRR No.1500 of 2008. It is however clarified that none of the revisional applications was pressed at the time of hearing of the appeal. Therefore subject-matter of consideration is only the appeal. Mr. Basu, the learned Advocate appearing in support of the appeal assailed in the first place the credibility of the eyewitnesses being the PWs.1 to 7. The second submission of Mr. Basu was that the prosecution did not examine the persons who had removed the victims to the hospital nor were signatories to the inquest report examined. The third submission of Mr. Basu was that the Autopsy Surgeon (P.W. 10) did not opine that the injuries sustained by the deceased Mortez were sufficient to cause death in the ordinary course of nature. 4. The fourth submission of Mr. Basu was that according to the PW 7 only the appellant no.2 assaulted the victim Mortej. Relying on the judgment in the case of Gajjan Singh vs. State of Punjab reported in AIR 1976 SC 2069 he contended that the rest of the appellants should be acquitted. The fifth and last submission of Mr. Basu was that there is no dependable evidence as regards the place of occurrence. Relying on the judgment in the case of Gajjan Singh vs. State of Punjab reported in AIR 1976 SC 2069 he contended that the rest of the appellants should be acquitted. The fifth and last submission of Mr. Basu was that there is no dependable evidence as regards the place of occurrence. According to him the witnesses did not disclose before the Investigating Officer the place of occurrence which according to him has shaken the case of the prosecution in the root and has also probabilised the case of the defence that the PW 7 and other accused persons including the deceased Mortez had attacked the accused persons at Srinathpur whereupon the local people intervened and a free fight took place which resulted in the casualty which according to him is further probabilised by the fact that no bloodstained earth was seized by the police from the so-called place of occurrence. Mr. Sanyal, learned Additional Public Prosecutor, appearing for the State disputed the submission of Mr. Basu. According to him the case has been proved to the hilt and no interference is called for. Mr. Safiullah, learned Advocate appearing for the de facto complainant also supported the judgment. With respect to the first submission indicated above Mr. Basu submitted that the PW 1 who is the de facto complainant in this case is not a dependable witness because he did not know who had removed his brother Mortez since deceased to the hospital. This, in our view, is not a very serious matter. He is the only person who remained unhurt. That goes to show that he maintained a safe distance. He also deposed on seeing the said incident I fled away from the place of incident. The fact that he was present when the incident took place is more than proved by the fact that he was accused no.2 in GR Case No.2724 of 2003. Mr. Basu added that he did not disclose anything to anyone nor did he disclose the matter to anybody. When his elder brother had died what was left to be disclosed? The information was known to everyone. The mental condition of the family members who lost a young member of the family for no better reason than that he had tried to prevent others from fighting has not obviously been taken into consideration by him. With respect to the credibility of the PWs. The information was known to everyone. The mental condition of the family members who lost a young member of the family for no better reason than that he had tried to prevent others from fighting has not obviously been taken into consideration by him. With respect to the credibility of the PWs. 2 to 7 Mr. Basu contended that although each of the aforesaid witnesses suffered injury during the incident but the names of the assailants were not disclosed to the doctor by anyone of them. That in our view is not a matter of much significance. Reference in this regard may be made to the judgment in the case of Bhargavan Vs. State of Kerala reported in AIR 2004 SC 1058 , wherein their Lordships expressed the following views : So far as non-disclosure of names to the doctor, same is really of no consequence. As rightly noted by the Courts below, his primary duty is to treat the patient and not to find out by whom the injury was caused. The plea in this regard is clearly unacceptable. The question was examined by this Court in Pattipati Venkatah V. State of Andhra Pradesh ( AIR 1985 SC 1715 ) and similar view was taken. 5. ASSAILING the credibility of the P.W.2 Mr. Basu further submitted that the P.W.1 had deposed that the shop of the P.W.2 was looted by the accused persons but the P.W.2 himself was silent on that aspect of the matter. His silence on this aspect of the matter is easily explained by the fact that no such question was put him by the learned Public Prosecutor therefore he had no occasion to introduce the fact. Had the question been put to him and had he given a contradicting answer the credibility of the PW 1 could have been commented upon. Mr. Basu challenging the credibility of the P.W.2 further submitted that according to the P.W.1, the P.W.2 was gossiping in front of the shop of Arman (P.W.4). But the P.w.2 in his deposition did not depose that the P.W.1 was also their gossiping in front of the shop of the said Arman. We have not been impressed by this submission of Mr. But the P.w.2 in his deposition did not depose that the P.W.1 was also their gossiping in front of the shop of the said Arman. We have not been impressed by this submission of Mr. Basu for the simple reason that the presence of the P.W.2 at the place of occurrence is more than proved by fact that he is the accused No.1 in G/R Case No. 2724 of 2003. He is also an injured witness. The evidence of an injured witness cannot lightly be brushed aside. Reference in this regard may be made to the unreported judgment of the Apex Court in the case of Vishnu and others Vs. State of Rajasthan and Another in CRL No. 891 of 2006 wherein their Lordship took the following view of the matter : When a person receives injuries in the course of occurrence, there can be hardly any doubt regarding his presence at the spot. Further, injured witnesses would not spare the real assailants and falsely involve innocent persons. 6. REFERENCE in this regard also be made to the judgment in the Case of Ramaswami Vs. State of Tamil Nadu reported in AIR 1976 S.C. 2027 . We are, therefore, left with the evidence of P.W.1 alone. Since he was injured in the same occurrence undoubtedly, his ocular version of the incident is of great value to the prosecution. Assailing the credibility of the evidence of the P.W.3 Mr. Basu submitted that the accused persons did not show any hostility to the party of the complainant. It was a quarrel between the appellant No.1 on one hand and the father and the son (PW 7) on the other. The fact that the P.W.7 was also there has not even been indicated in the written complaint. Suddenly the target was shifted to the members of the party of the complainant. His story, he contended, it is difficult to believe. The fact remains this is precisely what had happened. REFERENCE in this regard may be made to the evidence of P.W.5 Safiqul who has given graphic detail. At first a dispute cropped up over the price of jute between Mastabari and his son Patal. Patal on one hand and Mastab Malitha on the other. At that time I was present in our sweet-meat ship. Thereafter the relatives of Mastab viz. At first a dispute cropped up over the price of jute between Mastabari and his son Patal. Patal on one hand and Mastab Malitha on the other. At that time I was present in our sweet-meat ship. Thereafter the relatives of Mastab viz. Fazar Ali, Anowar, Sagar, Nazir,Sherful, Ajer ali , Badu, Morjen Dafadar in total 12/13 persons armed with bakhari, lathi, pipe-gun etc. attacked patal and his father. We, who were present in the sweet meat shop went there to restrain them. The above stated persons also assaulted us including Mortej, myself, my father, Arman, Taher Mondal and Jakir, The above stated person after assaulting us fled away therefrom. Thereafter the local people shifted us to Palashipara hospital wherefrom myself, Mortej and Jakir Hossain and Patal were referred to Berhampore Hospital. Mortej Mondal subsequently died at Berhampore Hospital, Myself and other injured persons were not subsequently admitted into the said hospital, as Mortej died in that hospital." Reference may also be made to the evidence of P.W.6 jakir Hussain who deposed as follows :- The incident took place at about 6/6.30 a.m. at the relevant time, I was sitting inside the shop of Arman Mondal (P.W.4). while I was sitting in the said shop I found a disturbance was going on in between Mastabari and his son Patal on one hand and Mastab Ali on the other. Thereafter I found Fajal, Anowar, Nazer, Sagar, Ajer Ali, Badu and many other persons rushed towards the said place and they began to assault Patal Sheikh and Mastabari. Thereafter myself, Mortej, Taher Mondal, Safikul Mondal went there to rescue them by the above stated persons assaulted upon us. The said persons assaulted me with a wooden bar. The other assembled persons also assaulted the persons who were trying to resist them. In the said incident myself along with Mortej Mondal, Taher, Safikul,Arman and Forman Mondal sustained injuries. Thereafter we, the injured persons were taken to Palashipara Hospital Out of the injured persons who were seriously injured, were sent to Berhampore Hospital. I along with Mortej, Patal, and Safikul were shifted to Berhampore Hospital. After reaching Berhampore Hospital, within 10 minutes we heard that Mortej Mondal died. So we did not get ourselves admitted in the said Hospital. Subsequently I was treated by the private doctors. Mr. Basu added that there was political rivalry between the P.W.3 and the appellant No.2. I along with Mortej, Patal, and Safikul were shifted to Berhampore Hospital. After reaching Berhampore Hospital, within 10 minutes we heard that Mortej Mondal died. So we did not get ourselves admitted in the said Hospital. Subsequently I was treated by the private doctors. Mr. Basu added that there was political rivalry between the P.W.3 and the appellant No.2. That may or may not be true but the fact remains that the P.W.3 was injured in that incident and he was also an accused in G.R. Case No. 2724 of 2003. Therefore, his evidence cannot be wished away. 7. ASSAILING the credibility of the P.W.4 Mr. Basu submitted that he did not disclose the incident to any one after he returned from the hospital nor did he disclose to the I.O./ as regards the quarrel between the appellant No.1 on one hand and the father and the son and the other. This point of Mr. Basu is equally without any substance. P.W.4 admittedly is an injured witness. He is the shop keeper in front of whose shop all the injured witnesses including the deceased were gossiping. With respect to the credibility of the P.W.5, 6 and 7 Mr. Basu made identical submissions which we are of the opinion are not of any significance in the face of the fact that each one of them was injured in the incident. P.W.7 is also an accused (No.14) in G.R. Case No. 2724 of 2003. Therefore his presence at the place of occurrence cannot be ruled out. On the top of that each one of the witnesses deposed that the assailants were armed with deadly weapons. The injury report in this case is exbt. 3 which establishes the fact that the witnesses were assaulted by blunt weapons. Most of the witnesses suffered injury on their head and also on other parts of the body. Some of the injuries appearing from ext.3 have been contacted while trying to defend themselves. We are for the reason discussed above unable to find any fault with regard to credibility of the evidence adduced by the eyewitnesses. 8. The second submission of Mr. Basu that the persons who had removed the injured to the hospital and the persons who had signed the inquest report were not examined did not impress us because nothing was shown to us to indicate that they were eyewitnesses. 8. The second submission of Mr. Basu that the persons who had removed the injured to the hospital and the persons who had signed the inquest report were not examined did not impress us because nothing was shown to us to indicate that they were eyewitnesses. Therefore the omission to examine them does not acquire any importance. It appears that the inquest was conducted by P.W.12. He was duly examined. The inquest was conducted at Baharampore State General Hospital. The dead body was lying in the morgue of the said hospital. The signatories to the inquest were 3 in number. Our attention was not drawn to any fact which might suggest that by withholding these persons from the box the prosecution tried to take any undue advantage. We are such enable to lay any importance to this submission of Mr. Basu. The third submission of Mr. Basu was that the Autopsy Surgeon (PW 10) did not opine that the injuries sustained by the deceased Mortez were sufficient to cause death in the ordinary course of nature. The Post Mortem report marked Exbt. 4 was duly proved by the P.W.10. He opined that the death was due to head injury which was ante mortem and homicidal in nature. According to the PW 10 the injury was homicidal. If it were not sufficient to cause death it could not have been homicidal. The injuries found by him and his evidence are as follows:- 1. 3 lacerated wound over right parietal region of scalp measuring 2XX , 4XX , 1XX which were closed by stitches at that time. 2. Fracture of parietal bone of scalp and brain tissue lacerated. 3. One haematoma over the right eye. 4. One abrasion on the right elbow measuring XXskin deep. 5. One abrasion on the right side of chest measuring 3XX skin deep. In my opinion the cause of death was due to head injury resulting above mentioned injury which was ante mortem and homicidal in nature. 9. MR. Basu in support of his submission relied on a judgment in the case of Chilamakur and Others Vs. State of Andhra Pradesh reported in AIR 1977 SC 1998 . In my opinion the cause of death was due to head injury resulting above mentioned injury which was ante mortem and homicidal in nature. 9. MR. Basu in support of his submission relied on a judgment in the case of Chilamakur and Others Vs. State of Andhra Pradesh reported in AIR 1977 SC 1998 . What had happened in that case was as follows : On the Doctors evidence, therefore, the injuries caused by accused number 1 with a spear and accused number 9 with a bana-stick were such that each of them was sufficient in the ordinary course of nature to cause death. The conviction of accused numbers 1 and 9, therefore, under Section 302 of the Penal Code simpliciter was justified. But in regard to accused number 6 the position was different. The Doctor did not say that the injury caused by this accused on the person of the deceased by itself was fatal or sufficient in the ordinary course of nature to cause his death. Counsel for the State endeavored to persuade us to hold that it was so on appreciating the nature of the injury ourselves. In absence of the specific and definite opinion of the Doctor in that regard, we did not consider it safe to form our own opinion as it was difficult to say that the external or the internal injuries caused by accused number 6 with a spear were such that one could say with certainty that they were also fatal by themselves. In that view of the matter we do not think that the conviction of accused No.6 under Section 302 is sustainable. This judgment does not lend any assistance to the appellant for the simple reason that in the present case, unlike the case before the Apex Court, there is clearest opinion of the doctor that the injury inflicted upon the deceased was homicidal in nature. More over looking into the nature of injury noticed above Court can itself form an opinion. Reference in this regard may be made to the judgment in the case of State of West Bengal Vs. More over looking into the nature of injury noticed above Court can itself form an opinion. Reference in this regard may be made to the judgment in the case of State of West Bengal Vs. Mir Mohammad Omar and others reported in AIR 2000 (8) SCC 382 wherein the following views were expressed:- The trial Court made a fallacious conclusion regard the death of the deceased on the premise that the Public Prosecutor did not elicit from the doctor as to whether the injuries were sufficient in the ordinary course of nature to cause death. The Sessions Judge concluded thus on the said issue : There being no evidence on record to show that the injuries were sufficient in the ordinary course of nature to cause death, it cannot be said that the injuries noticed by the autopsy surgeon (P.W. 30) were responsible for causing the death of the deceased Mahesh. No doubt it would have been of advantage to the court if the Public Prosecutor had put the said question to the doctor when he was examined. But mere omission to put that question is not enough for the court to reach wrong conclusion. Though not an expert as P.W.30, the Sessions Judge himself would have been an experienced judicial officer. Looking at the injuries he himself could have deduced whether those injuries were sufficient in the ordinary course of nature to cause death. No sensible man with some idea regarding the features of homicidal cases would come to a different conclusion from the injuries indicated above, the details of which have been stated by the doctor (P.W.30) in his evidence. 10. The fourth submission of Mr. Basu is factually incorrect. He has kept the evidence of the P.Ws 1 to 6 aside because according to him evidence of those witnesses was not believable. We already have indicated our reasons while dealing with his first submission why are we unable to discard evidence of the eye-witnesses most of whom are also injured witnesses. They have deposed about the participation by the appellants in the assault. All the assailants were personally known to the witnesses and they were also identified. Their names were also disclosed in the written complaint. They have deposed about the participation by the appellants in the assault. All the assailants were personally known to the witnesses and they were also identified. Their names were also disclosed in the written complaint. What lends assurance to the court as regards the common intention of the appellants is the fact that neither the deceased nor any of the injured witnesses was the targeted the victim. The dispute was between the appellant No.1 on the one hand and the father and son (PW 7) on the other. They were quarreling. Besides the appellant No.1 the other 11 appellants all on a sudden could not have appeared at the scene with deadly weapons unless they had a pre determined plan to do some mischief. They might have intended to target the father and the son or either of them. It was a fortuitous circumstance that the injured witnesses and the deceased tried to resist them from fighting which enraged them and they pounced upon these well meaning persons. Therefore, the common intention of all the appellants is more than clear. Their presence and participation is also proved by the evidence on the record. In such a case the law laid down by the Apex Court in the case of Ramaswami Vs. State of Tamil Nadu reported in AIR 1976 SC 2027 may fruitfully be applied. Section 34 is to be read along with the preceding Section 33 which makes it clear that act spoken of in Section 34 included a series of acts as a single act. It follows that the words when a criminal act is done by several persons in Section 34, may be constructed to mean when criminal acts are done by several persons. The acts committed by different confederates in the criminal action may be different but all must in one way of the criminal enterprise. For instance, one may only stand guard to prevent any victim or to otherwise facilitate the execution of the common design. Such a person also commits an act as much as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however. For instance, one may only stand guard to prevent any victim or to otherwise facilitate the execution of the common design. Such a person also commits an act as much as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however. It is essential for the application of Sec.34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way of the other facilitate the execution of the common design, is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. 11. ON the top of that an additional factor is that the cross-examination of the P.W.10 the autopsy surgeon was declined on behalf of the defence. The judgment in the case of Gajjan Singh Vs. State of Punjab reported in AIR 1976 SC 2069 relied upon by Mr. Basu has no manner of application to the facts and circumstances of this case. What had happened in that case was that the deceased was shot dead by one fire shot by Birkha Singh. The appellant Gajjan Singh did not fire at the victim. He was convicted for murder with the aid of Section 149 I.P.C because he was present. Their Lordships found no shot was fired by Gajjan Singh on him. He had no grudge against him. In the case before us all the appellants had participated in the assault. Besides multiple injury suffered by the deceased there are six injured witnesses. Therefore, the submission of Mr. Basu is altogether without any substance. The fifth and last submission of Mr. Basu is with respect to the place of occurrence. We have unimpeachable evidence before us to show that the incident occurred in front of the shop of Arman (P.W.4). The oral evidence of witnesses has been corroborated by the sketch map prepared by the Investigating Officer marked Exbt. 5. The fifth and last submission of Mr. Basu is with respect to the place of occurrence. We have unimpeachable evidence before us to show that the incident occurred in front of the shop of Arman (P.W.4). The oral evidence of witnesses has been corroborated by the sketch map prepared by the Investigating Officer marked Exbt. 5. Omission on the part of the police to collect bloodstained earth was at best a lapse in the investigation for which the case of the prosecution cannot be thrown over board. The inherent improbability of the case of the defence would also appear from the following suggestion given to the PW 5 :- Not a fact that the gondogol was held in between Patal and his father on one side and Mastab on the other on the previous day in the afternoon previous to the relevant date regarding price of jute and in the said incident deceased Mortej assaulted Mastab and to take revenge of the same on the relevant date at morning I along with other persons went to Srinathpur and attacked Mostab Ali Malitha and others being armed with deadly weapons and when they were returning after performing holy roja and came in front of the house of Chand Ali and in this incident Jabbar and many other persons sustained injuries and on seeing the said incident the local people restrained us and one altercation and scuffle took place in between the village people Srinathpur and that of ours and we sustained injuries thereby. 12. IF Mortej had in fact assaulted the appellant No.1 Mostab on the day previous to the day of incident as suggested on behalf of the defence to the P.W.5, there was or could be no occasion for Mortej to take any revenge. Therefore this case of the defence is altogether improbable. IF this case of the defence is true that on the day previous to the day of the incident Mortej had assaulted the appellant No.1 then the case of prosecution is also established that on the date of incident the appellant No.1 came prepared with an army of 12 persons and after pretended dispute with the father and the son pounced upon the victims. The defence however does not appear to be sure of its own case. The defence however does not appear to be sure of its own case. The case suggested to the P.W.5 noticed above was jettisoned and a new case was suggested to the P.W.7 which reads as follows:- Not a fact that on the previous day of the alleged incident in the afternoon Mostab Ali assaulted my father when myself and my father demanded money for the price of Jute. We therefore do not find any substance in the fifth and last submission of Mr. Basu. All the points urged by Mr. Basu have thus been disposed of. We are of the opinion that the Trial Court took a reasonable view of the matter and there is no scope for any interference. In the result the appeal fails and is dismissed. The CRR No.610 of 2008 and CRR No.1500 of 2008 stand dismissed as not pressed. The learned trial Court shall issue a jail warrant and shall take all coercive measures to secure the presence of the appellants. The appellants are directed to surrender forthwith to serve out the sentence as modified above Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith. Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.