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2019 DIGILAW 14 (CAL)

Nirmalya Thundar v. State Of West Bengal

2019-01-04

RAJASEKHAR MANTHA

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JUDGMENT : RAJASEKHAR MANTHA, J. 1. This appeal is directed against a judgment and order of conviction dated March 29, 2008 passed by the Additional Sessions Judge, Fast Track Court, Kakdwip, South 24-Parganas in Sessions Trial No.1(6) of 2007 arising out of Sessions Case No.5(4) of 2007 where the appellant was convicted under section 323 IPC and sentenced to suffer three months imprisonment and a fine of Rs.500/- in default. 2. The prosecution case in brief is this. The appellant and five other persons on November 7, 2006 at about 6 a.m. attacked one Santosh Kumar Samanta, PW2; his daughter Snigdha Samanta, PW1; and her mother with sticks. The incident occurred when the PW1 was affixing cow dung cakes (used as fuel in cooking fire fuel) on a particular wall that the appellant’s family claimed to be theirs. 3. In connection with ownership of the wall, there was long-standing dispute between the families of the victim and the appellant. On the day of occurrence, the victim is stated to have received a major blow on his head inflicted by the accused persons, particularly the appellant who was found to be bleeding and had become unconscious. He was admitted to a hospital and remained there for about fifteen days. The victim’s daughter, wife and mother were also assaulted and sustained minor injuries. The mother never came to depose before court. 4. An FIR was lodged on the same day under sections 147, 149, 447, 325, 354 and 307 IPC by the Kakdwip police station. Six persons, including the appellant, were named as accused. A Charge-sheet was filed on November 28, 2006. The trial commenced sometime in August 2007. Six witnesses were examined by the prosecution. PW1, Snigdha Samanta; PW2, the victim, Santosh Kumar Samanta; PW3 was the sub-inspector of Kakdwip police station; PW4, Sanjay Bhunia, nephew of the PW1; PW5 was one of the doctors who examined the victim; and PW6, the second doctor who examined the victim subsequently. 5. Pws1, 2 and 4 have in no uncertain terms described the incident and injury. The nature of injury is corroborated by the doctors concerned. 6. The Additional Sessions Judge, Fast Track Court, Kakdwip, after a detailed analysis of the entire evidence on record, found the appellant guilty under section 323 IPC. The other accused were acquitted of all other charges. Pws1, 2 and 4 have in no uncertain terms described the incident and injury. The nature of injury is corroborated by the doctors concerned. 6. The Additional Sessions Judge, Fast Track Court, Kakdwip, after a detailed analysis of the entire evidence on record, found the appellant guilty under section 323 IPC. The other accused were acquitted of all other charges. In fact, none of the other accused was found guilty of any other offence. 7. Learned counsel for the appellant, appointed by court, would argue that there was a long-standing dispute between the families of the victim and the appellant in relation to the ownership of the wall in question. She says that the land on which the incident had occurred was admittedly slippery and wet, and that the victim slipping and falling down sustaining the injury cannot be ruled out. According to her, while in the complaint the PW1 had stated that the accused had come with weapons, but she had not deposed as such in the examination-in-chief. Learned counsel further argues that a large number of persons had come to rescue the victim and his family members and separated the warring parties, but that no such persons was produced as witness. She also contends that PWs1, 2 and 4 are all family members and hence interested witnesses and hence their evidence could not have been the sole basis for convicting the appellant. 8. In respect of the aforesaid argument and in a case under section 323 IPC for which the appellant was found guilty, this court is of the view that independent witnesses may not be required to prove the ingredients of the offence. The charge under section 323 IPC has been proved by reason of cogent evidence on record that has been corroborated by the other evidence that has come on record. One could have understood the requirement of an independent witness in the event of proof graver charges. Hence I cannot accept the aforesaid argument advanced on behalf of the appellant. 9. Counsel for the appellant would next argue that the victim was stated to have become unconscious as a result of the injuries received by him inflicted upon by the appellant, whereas the examining doctors had found after examining the victim that he was conscious. This fact, according to counsel, is contradictory. 10. Admittedly, the victim suffered simple hurt. 9. Counsel for the appellant would next argue that the victim was stated to have become unconscious as a result of the injuries received by him inflicted upon by the appellant, whereas the examining doctors had found after examining the victim that he was conscious. This fact, according to counsel, is contradictory. 10. Admittedly, the victim suffered simple hurt. It is not impossible that a person, who may fall unconscious as a result of a blow inflicted on his head by a stick, may regain the consciousness by the time he reaches the hospital or even after the time that may have elapsed before the doctors examine him. The appellant’s argument in this regard is not sustainable. 11. The last argument on behalf of the appellant is that a formal discharge certificate of the victim was not collected by the investigating officer, nor was any statement under section 164 Cr.P.C. recorded formally after the complaint was registered. It is also argued that the investigating officer’s sketch map was admittedly not complete in all respects, and that he did not visit the place of occurrence after the date of the incident. 12. It is my considered view that lacuna are too minor in nature in the context of the evidence found by the court below and the careful analysis done by the learned Additional Sessions Judge in arriving at his conclusion. The court below was careful enough in restricting and narrowing down the act complained of to the appellant alone. The role of the appellant based on the evidence that has emerged on record, therefore, has been proved, and I cannot find any reason to disagree with the findings of the learned Sessions Judge. 13. In view of the above, the appeal must fail and is hereby dismissed. The impugned order of conviction and sentence passed by the court below is upheld. The appellant shall surrender before the court below and undergo the sentence imposed on him and also pay the fine imposed. 14. Before parting with the case, this court wishes to appreciate the untiring efforts of Ms Suchismita Dutta, counsel for the appellant, on behalf of the appellant. 15. Certified website copy of this order, if applied for, shall be given to the parties.