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2015 DIGILAW 90 (CAL)

Bijay Lal Chowdhury v. Somnath Dutta

2015-02-04

SUBRATA TALUKDAR

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JUDGMENT SUBRATA TALUKDAR, J. In this appeal the judgment and order of acquittal dated 9th February, 1987 passed by the Ld. 6th Judicial Magistrate, (1st Class) Howrah in Case No. 691C/1984 is under challenge. By the said judgment and order the Ld. Magistrate was pleased to acquit all the accused persons of the charge under Section 323 IPC. The defacto complainant is the appellant before this Court. The State and the accused persons have been arrayed as the respondents in this appeal. Since none appeared for either the appellant-complainant or the respondents-accused, this Court appointed Mrs. Sriparna Das, Ld. Counsel as amicus curiae. The State respondent is represented by Sri Amarta Ghosh, Ld. Junior Government Advocate. The prosecution case is that on the 7th of September, 1984 at about 4.30 p.m. when the complainant was returning to his room adjacent to his garden the accused persons trespassed into his garden to take back their ducks. The complainant protested against such trespass whereupon the accused allegedly assaulted the complainant with fists, blows and lathis. Under such assault the complainant raised hue and cry whereupon his daughter, Namita Chowdhury, came to his rescue but was herself assaulted by the accused with fists, blows and lathis. On hearing the alarm raised by both the victims local people came to the spot and, seeing the local people the accused fled. The complainant thereafter lodged a diary with the local police station and was sent with Namita, his daughter to Howrah General Hospital for medical treatment. The Ld. Magistrate was of the view that the charge brought by the prosecution has not been corroborated by any local person of the locality. No local witness has come forward to depose. The Ld. Magistrate was of the further view that the complainant and his daughter, being PWs 1 and 2 have stated that they did not know the names of the local people who gathered at the spot at the time of the assault. Ld. Magistrate found such lack of knowledge of the local people residing with the complainant and her daughter to be strange. In the further view of the Ld. Magistrate since the ducks of the accused persons entered into the garden of the complainant and both the groups of people, viz. Ld. Magistrate found such lack of knowledge of the local people residing with the complainant and her daughter to be strange. In the further view of the Ld. Magistrate since the ducks of the accused persons entered into the garden of the complainant and both the groups of people, viz. the complainant with his daughter on the one hand and the accused persons on the other - the evidence adduced by the complainant can only be classified as the evidence of an interested witness in the absence of corroboration from local independent witnesses. It was also the view of the Ld. Magistrate that since the PW1-complainant had stated that his ‘dhuti’ and shirt were blood stained such wearing pieces of apparel ought to have been produced before the Court but, such has not been produced. The Ld. Magistrate therefore found anomaly in the case of the prosecution as evidenced by the General Diary report following the incident of assault as well as the report of the treating doctor in the backdrop of non-appearance of independent witnesses and non-production of the blood stained ‘dhuti’ and shirt. The Ld. Magistrate therefore held that the charge did not stand proved beyond reasonable doubt and acquitted the accused. Mrs. Sriparna Das, Ld. Counsel as amicus curiae, submitted that the Ld. Magistrate failed to appreciate the clear stream of evidence with regard to the details of assault which occurred on the particular date involving the complainant, his daughter and the accused persons. It is the submission of the Ld. Counsel that such clear stream of evidence ought not to have been disbelieved by the Ld. Magistrate citing absence of local witnesses. Drawing the attention of this Court to the evidence of PW1-complainant she submits that he has clearly stated the details of the incident arising from the acts of the accused to take away their ducks from his garden. PW1 has stated that when his daughter also became the victim of assault, the local people came to their help whereupon the accused fled. PW1 then deposed that steps were taken for lodging a diary with the local Shibpur P. S. and his medical treatment at Howrah General Hospital. Mrs. Das points out that PW1 has stated that the time of the incident he was wearing ‘dhuti’ and shirt. PW1 then deposed that steps were taken for lodging a diary with the local Shibpur P. S. and his medical treatment at Howrah General Hospital. Mrs. Das points out that PW1 has stated that the time of the incident he was wearing ‘dhuti’ and shirt. He has further stated that since he was bleeding profusely from the his nose the ‘dhuti’ and shirt became blood stained. According to PW1, the assault continued for nearly half an hour up to 4.30 p.m. Taking this Court to the evidence of Namita Chowdhury, PW2, Mrs. Das points out that there is no variance with regard to the details of the incident between PWs 1 and 2. PW 2 has testified as to the date and time of the incident and nature of the same arising out of the act of taking away the ducks of the accused from the garden of the complainant. PW2 has deposed that her father became the victim of a severe assault and one of the accused, Somnath Dutta even had a lathi in his hand. She testified to the bleeding injuries received by the complainant and to the assault upon her by the said Somnath Dutta with the lathi in his hand. She has further deposed that the other accused assaulted her with fists and blows whereupon local people including, one Narayan Adak came to the spot. Thereafter the complainant and his daughter went to the local Shibpur Police Station and also were sent for treatment by the police to Howrah General Hospital. She has testified to the injuries on her body and shoulders as well as pain on her left hand. The deposition of PW2 could not be shaken in cross-examination and, although she has stated that she did not inform the doctor of the names of the accused-assailants, it is not a fact that such incident did not take place. Mrs. Das submits that in any view of the matter there was no strict requirement for PW2 to inform the doctor of the names of the accused persons. Taking this Court to the evidence of PW3, Narayan Chandra Adak, the neighbour, Mrs. Das points out that the neighbour, being an independent witness has also testified to the details of the incident which took place on Friday 7th September, 1984. Taking this Court to the evidence of PW3, Narayan Chandra Adak, the neighbour, Mrs. Das points out that the neighbour, being an independent witness has also testified to the details of the incident which took place on Friday 7th September, 1984. PW3 has deposed that the complainant suffered bleeding injuries to his nose and blood was oozing from the nose. PW3 has deposed that he along with others including Sukumar Chowdhury, a neighbour separated the parties. The complainant and PW2 were sent to the hospital. PW3 is both a neighbour and also a relative of the complainant and his daughter. PW3 has also not been shaken from the factual details testified by him of the incident. Further taking this Court to the evidence of PW5, the medical officer attached at the relevant point of time to Howrah General Hospital, Ld. Amicus curiae points out that PW5 has corroborated from the injury report of the hospital that on 7th September, 1984 the complainant was examined and on examination symptoms of hurt were found. The names of the assailants was also given by PW5. The time of examination of the complainant-PW1 at Howrah General Hospital is given as 6.30 p.m. on the date of the incident, that is 7th September, 1984. The medical officer-PW5 also testifies to examining the daughter of the complainant on the same date with fresh injuries of abrasion arising from the assault. The injury reports were marked Exhibits 1 and 1(a). In the light of the above evidence Mrs. Das submits that the Ld. Magistrate failed to appreciate the clear stream of facts establishing the incident of assault on the fateful date, i.e. 7th of September, 1984. Mrs. Das submits that the complainant and his daughter were examined at 6.30 p.m. on 07.09.1984 as testified by PW5-medical doctor. Such medical examination immediately following the incident of assault at 4.30 p.m. on the same date is a fact worthy of credence. According to Ld. amicus curiae, the clear, corroborative and unshaken evidence of PWs 1, 2, 3 and 5 ought to have been taken note of by the Ld. Magistrate for appreciating that the evidence pointing to the assault and injury was consistent in nature. The Ld. Magistrate ought to have appreciated that the absence of the local witnesses in the above circumstances could not be considered to be fatal to the prosecution case. The Ld. Magistrate for appreciating that the evidence pointing to the assault and injury was consistent in nature. The Ld. Magistrate ought to have appreciated that the absence of the local witnesses in the above circumstances could not be considered to be fatal to the prosecution case. The Ld. Magistrate ought to have also appreciated that the non-production of the ‘dhuti’ and shirt also ought not to have been considered to be fatal to the prosecution case since all the PWs and, particularly PW5-the medical doctor, have described the injuries to be of a bleeding nature. The haematoma and the abrasion arising out of assault have been testified to by PW5 and, in the light of such testimony the Ld. Magistrate erroneously placed over reliance on the absence the bloodstained ‘dhuti and shirt. According to Ld. amicus curiae only if the evidence of the victims of the assault failed to stand the test of clarity and accuracy, it would have become necessary to examine the effect of the lack of evidence coming forth from the local people. However, in view of the overwhelming nature of the facts testifying to the assault which emerge from the evidence of PWs 1, 2, and 3, it cannot be said that in the absence of local witnesses the prosecution case is liable to fail. Ld. Counsel further argues that the story of the altercation and assault has not been challenged by the defence. The prosecution has proved the incident of the assault by cogent evidence and the defence instead of denying the source of injuries, viz. the assault, has concentrated only to the outcome of the same, viz. the blood stains on the clothes worn by the complainant. However, the absence of the blood stained clothes from the scrutiny of the Ld. Magistrate is not fatal in the backdrop of the nature of the injuries adduced by PW5-medical doctor. Ld. amicus curiae submits that the charge is under Section 323 IPC which provides for punishment for voluntarily causing hurt. However, the absence of the blood stained clothes from the scrutiny of the Ld. Magistrate is not fatal in the backdrop of the nature of the injuries adduced by PW5-medical doctor. Ld. amicus curiae submits that the charge is under Section 323 IPC which provides for punishment for voluntarily causing hurt. The definition of ‘hurt’ appears at Section 319 IPC which reads as follows:- “Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt” Therefore, having regard to the definition of hurt and the punishment for voluntarily causing hurt, the ingredients of both Section 319 IPC and Section 323 IPC of voluntarily causing hurt stood satisfied when the incident of assault stood established from the evidence of PWs 1, 2, 3 and 5 even in the absence of the blood stained ‘dhuti’ and shirt and the absence of local witnesses. Sri Amarta Ghosh, Ld. Counsel appearing for the State explains the reasons for non-adducing of evidence by the neighbours on the ground that the Ld. Magistrate did not take into account a common human trait to wit the neighbours normally do not wish to depose against each other. Sri Ghosh points out that the medical reports marked Exhibits 1 and 1(a) have proved the injuries and non-production of the blood stained ‘dhuti’ and shirt, being in the nature of a corroborative evidence, shall not be fatal to the prosecution case. Having heard the Ld. amicus curiae and Sri Ghosh on behalf of the State and upon consideration of the materials on record this Court finds sufficient substance in the argument of Ld. Counsel that there was a clear stream of evidence disclosing the particulars of the assault by the accused persons on the fateful date. This Court observes, in the light of the facts discussed above, that the PWs 1, 2, 3 and 5 have consistently deposed with regard to the basis and sequence of the assault as well as the nature of injuries. This Court further notices that the prosecution has not been able to indicate an alternative scenario which would qualify to give the accused persons the benefit of reasonable doubt. This Court also notices that the purported absence of the evidence of neighbours is not of a nature which can be said to be fatal to the evidence of PWs 1, 2, 3 and 5 as discussed above. This Court also notices that the purported absence of the evidence of neighbours is not of a nature which can be said to be fatal to the evidence of PWs 1, 2, 3 and 5 as discussed above. In the light of the medical reports and the evidence of PW5 this Court finds sufficient substance in the charge that the complainant and his daughter were voluntarily assaulted by the accused persons on the fateful date. In State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 the Hon’ble Apex Court held as follows:- “3. This Court has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal.” In Raj Narain Singh vs. State of Uttar Pradesh and Others, (2009) 10 SCC 362 the Hon’ble Apex Court held as follows:- “31. The learned counsel appearing for the accused has strenuously argued and drawn our attention to the fact that the prosecution has not examined the other witnesses available on the spot. However, we are unable to accept the said contention as it is not necessary that all those persons who were present at the spot must be examined by the prosecution in order to prove the guilt of the accused. Section 134 of the Evidence Act, 1872 provides that no particular number of witnesses is required for proof of any fact. It is trite law that it is not the number of witnesses but it is the quality of evidence (emphasis supplied) which is required to be taken note of by the courts for ascertaining the truth of the allegations made against the accused.” In State of U.P. vs. Dr. It is trite law that it is not the number of witnesses but it is the quality of evidence (emphasis supplied) which is required to be taken note of by the courts for ascertaining the truth of the allegations made against the accused.” In State of U.P. vs. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300 the Hon’ble Apex Court was pleased to consider the issue of the need to interfere in an appeal qua the delay in disposal of the appeal as follows:- “42. Moreover, when a judgment appealed against suffers from illegality or manifest error or perversity, warranting an interference at the hands of an appellate court in the interest of justice on substantial and compelling reasons, the mere delay in the disposal of the said appeal will never serve as a ground for non-interference and on the other hand, the appellate court if duty bound to set at naught the miscarriage of justice.” The Hon’ble Apex Court in Mohd. Jamiludin Nasir vs. State of West Bengal, (2014) 3 SCC (Cri.) 230 was pleased to elucidate on the task of sentencing which may fall upon a court. It was, inter alia, held that the court should consider social interest, consciousness of the society, seriousness of the crime, criminal history of the accessed, harm to the public and to the confidence in the efficacy of law arising out of undue sympathy to impose inadequate sentence. The Hon’ble Apex Court further opined that sentencing is a delicate task requiring an interdisciplinary approach and must be an amalgam of many factors. Therefore, the light of the above discussion and reasoning the impugned judgment and order of acquittal dated 9th February, 1987 is set aside. The accused stand convicted of the charge under Section 323 IPC, and in view of the long lapse of time, this Court directs that the accused Nos. 1, 2 and 3 shall undergo simple imprisonment of one month each and to pay a fine of Rs. 1,000 each, in default to undergo further simple imprisonment of 15 days each. Since the accd. No. 4 claimed to be a juvenile school going boy at the material point of time, the ends of justice shall be now served by sentencing him to pay a fine of Rs. 1000, in default to undergo simple imprisonment of 15 days. 1,000 each, in default to undergo further simple imprisonment of 15 days each. Since the accd. No. 4 claimed to be a juvenile school going boy at the material point of time, the ends of justice shall be now served by sentencing him to pay a fine of Rs. 1000, in default to undergo simple imprisonment of 15 days. The accused are directed to surrender within one month from the date of receiving notice from the court of the Ld. Magistrate to suffer their respective sentences. The Registry is directed to send a copy of this order to the Ld. Magistrate for executing the sentence. CRA 167 of 1988 stands allowed. There will be, however, no order as to costs. Ld. Public Prosecutor is directed to regularise the appointment of the Ld. Amicus Curiae.