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2019 DIGILAW 708 (CAL)

Mono @ Manohar Ghosh v. State of West Bengal

2019-07-11

MADHUMATI MITRA

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JUDGMENT : 1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the petitioners challenging one judgment and order dated 24.08.1999, passed by the Learned Sessions Judge, Burdwan in Criminal Appeal No.11 of 1998, thereby affirming the judgment and order dated 08.05.1998 passed by the Learned Judicial Magistrate, Kalna in G.R. Case No.275/87 corresponding to T.R.No.60(A)/89. 2. Petitioners faced trial for commission of alleged offences punishable under Sections 448/326/34 of the Indian Penal Code. 3. The facts which are necessary for disposal of the present application are as follows: One Gopeswar Ghosh lodged a written complaint with Purbasthali Police Station on 22.08.1987, alleging that on 21.08.1987 at about 10:00 p.m. his elder brother Swarna Ghosh along with his wife was sleeping in the varandah of his dwelling house, suddenly two persons assaulted on his neck by a 'dah'. Hearing the cry of injured Swarna his wife woke up and identified the miscreants as Nera @ Naru Ghosh and Manu Ghosh. Complainant rushed to the place of occurrence and found Nera and Manu were fleeing away. Swarna was treated at Nabadwip Pratapnagar Hospital for his injuries. 4. On the basis of the said written complaint, a specific case was started against the FIR named accused persons. 5. After completion of investigation charge-sheet was submitted against the FIR named accused persons for commission of alleged offences under Section 448/326/34 of the Indian Penal Code. Charge was framed against the petitioners for commission of the offences under Section 448/326/34 of the Indian Penal Code. Both the accused pleaded not guilty and claimed to be tried. 6. During trial prosecution examined ten witnesses. After conclusion of trial, the Learned Magistrate sentenced both the petitioners to suffer simple imprisonment for one year and also to pay fine of Rs.800/- each i.d. simple imprisonment for two months for commission of offence under Section 324/34 of the Indian Penal Code and Rs.800/- each i.d. simple imprisonment for two months for commission of offence under Section 448/34 of the Indian Penal Code. 7. Petitioners/convicts preferred an appeal being criminal appeal no.11 of 1998 before the Learned Sessions Judge, Burdwan. Learned Sessions Judge affirmed the judgment and order of conviction and sentences passed by the Learned Magistrate on 24.08.1999 in criminal appeal no.11 of 1998. 7. Petitioners/convicts preferred an appeal being criminal appeal no.11 of 1998 before the Learned Sessions Judge, Burdwan. Learned Sessions Judge affirmed the judgment and order of conviction and sentences passed by the Learned Magistrate on 24.08.1999 in criminal appeal no.11 of 1998. Thereafter, the petitioners preferred the present application challenging the judgment and order passed by the Learned Sessions Judge in criminal appeal no.11 of 1998. 8. On 14.10.1999, the petitioners were released on bail of Rs.3,000/- with one surety of like amount to the satisfaction of the Learned Sub- Divisional Judicial Magistrate, Kalna and the sentences imposed upon the petitioners remained suspended. 9. During the pendency of the revisional application one of the petitioners viz Naru @ Nera Ghosh expired. Thereafter, on 05.05.2016 the C.R.R.2382 of 1999 was dismissed for default. On 12.12.2018 the petitioner Mono @ Manohar Ghosh was arrested to serve out the sentence and since then he is in judicial custody. On the prayer of the present petitioner, the revisional application was restored. 10. During the course of hearing the Learned Public Prosecutor has contended that the victim was assaulted with sharp cutting weapon i.e. 'dah' and sustained injuries on his neck and evidence of doctor corroborated the prosecution case that the victim sustained bleeding injuries and the injuries were inflicted with sharp cutting weapon. He has further contended that though as per evidence of prosecution witnesses, the victim Swarna Ghosh i.e. P.W.No.7 was assaulted by Naru Ghosh @ Nera but said Naru Ghosh was accompanied by convict Mono Ghosh. According to the Learned Public Prosecutor, the Learned Magistrate rightly convicted both the accused for the commission of the offences under Section 448/324/34 of the Indian Penal Code and thereafter the Learned Sessions Judge also rightly affirmed the said judgment of conviction and order sentences imposed by the Learned Magistrate. 11. On the other hand, the Learned Counsel appearing for the convict Mono Ghosh has contended that so far as accused Mono Ghosh was concerned, there was no iota of evidence to show that the P.W.No.7 Swarna Ghosh was assaulted by Mono Ghosh. The evidence on record clearly shows that P.W.No.7 was assaulted only by accused Naru @ Nera Ghosh. Moreover, neither the injured nor his family member made any statement before the doctor regarding the incident and involvement of the accused persons in the commission of said offence. 12. The evidence on record clearly shows that P.W.No.7 was assaulted only by accused Naru @ Nera Ghosh. Moreover, neither the injured nor his family member made any statement before the doctor regarding the incident and involvement of the accused persons in the commission of said offence. 12. According to the contention of the petitioner non-mention of the names of the accused before the doctor who treated the victim just after the alleged incident raises doubt regarding commission of alleged offence. It is also the contention of the petitioner that there was about 12 hours delay in lodging the first information report and the said delay in lodging the F.I.R. has not been properly explained by the prosecution either in the first information report or in evidence. 13. After carefully examining the submissions and counter submissions advanced by the Learned Public Prosecutor and the Learned Counsel for the petitioner both on the legal and factual aspects and scrupulously scanning the evidence recorded during trial I would like to deal with those contentions one after another. 14. In the instant case prosecution examined as many as ten witnesses. P.W.No.1, is the de facto complainant, P.W.Nos.7 and 4 are the injured and his wife respectively. These three witnesses deposed in support of the prosecution case. The deposed in the same line regarding the commission of the alleged offence. There is consistency in the evidence of P.W.Nos. 1,4 and 7 regarding the occurrence of the incident at night of 21.08.1987, at the residence of the injured and the accused were identified by the light of haricane hanging from the ceiling by P.W.No.4, the wife of the injured i.e.P.W.No.7. From the evidence on record, it transpires that at the relevant point of time P.W.No.4 was with P.W.No.7. After the incident P.W.No.4 raised hue and cry and P.W.No.1 came to the place of occurrence and he found the accused were fleeing away. Prosecution case is that the accused sustained bleeding injuries by sharp cutting weapon and the prosecution case got support in this regard from medical evidence i.e. evidence of P.W.No.10 and injury report. From the materials on record it appears that both the accused in furtherance of their common intention trespassed in to the dwelling house of P.W.No.7 i.e. injured and accused Naru @ Nera Ghosh in furtherance of common intention assaulted him with 'dah' causing bleeding injuries. From the materials on record it appears that both the accused in furtherance of their common intention trespassed in to the dwelling house of P.W.No.7 i.e. injured and accused Naru @ Nera Ghosh in furtherance of common intention assaulted him with 'dah' causing bleeding injuries. The contention of the Learned Advocate for the petitioner that the petitioner did not assault the injured and his conviction is liable to be set aside cannot be accepted. 15. Another contention of the petitioner is that there was delay in lodging the F.I.R. It appears the incident occurred at night on 21.08.1987 and the victim sustained bleeding injuries on his neck. He was taken to the hospital for his treatment. Naturally, his family members were busy regarding the treatment of the injured. On the next date i.e. on 22.08.1987, the incident was reported to the police station. In the instant case the delay in lodging the F.I.R. is not at all fatal considering the facts and circumstances of the case. It is true that neither the injured nor the person who accompanied the injured to the Doctor for treatment mentioned the names of the persons who caused injuries. Non-mentioning of the names of the accused before the Doctor cannot be sole ground to disbelieve the entire prosecution case and when evidence adduced by the prosecution is otherwise trustworthy and reliable. 16. Having regard to the materials on record, I do not find any reason to interfere with the concurrent findings of the Learned Courts below. Moreover, the High Court in revision cannot in absence of error on a point of law reappraise evidence and reverse a finding of fact. Concurrent finding of fact supported by evidence that the accused Naru @ Nera Ghosh assaulted the victim with dah and accused Mono Ghosh was present with accused Naru at the time of occurrence cannot be reversed in exercise of inherent power by the High Court. 17. I do not find any reason to interfere with the judgments of conviction passed by the Learned Courts below. 18. Regarding quantum of sentence, I would like to add that in the instant case, it cannot be overlooked that the present application is pending since 1999. During the pendency of the application one of the convicts expired. 17. I do not find any reason to interfere with the judgments of conviction passed by the Learned Courts below. 18. Regarding quantum of sentence, I would like to add that in the instant case, it cannot be overlooked that the present application is pending since 1999. During the pendency of the application one of the convicts expired. The incident occurred in the year 1987, the petitioner was convicted by the Learned Magistrate for commission of the offences punishable under Section 448/324/34 of the Indian Penal Code in the year 1998 by the Learned Magistrate and said judgment of conviction and order of sentences were affirmed in appeal in the year 1999. 19. Petitioner was sentenced to pay fine of Rs. 800/- in default to suffer simple imprisonment for two months for the commission of the offence under Section 448/34 of the Indian Penal Code. The petitioner was also sentenced to suffer simple imprisonment for one year and to pay fine of Rs.800/- failing which to suffer simple imprisonment to further two months for commission of offence under Section 324/34 of the Indian Penal Code. 20. While making his submission regarding the quantum of sentence, Learned Public Prosecutor appearing for the State has submitted that the substantive sentence as imposed by the Learned Magistrate for commission of offence under Section 324 of the Indian Penal Code may be reduced considering the fact that revisional application is pending since long. 21. I find that the present convict/petitioner himself did not assault the injured. He was convicted and he was fastened with the liability on the strength of Section 34 of the Indian Penal Code. Though, he did not do an overt act but he was convicted as he was presumed to share the common intention in mind of the co-accused. Having regard to the entire facts and circumstances of the case, I think justice will be sub-served if the substantive sentence of one year simple imprisonment for commission of the offence under Section 324 of the Indian Penal Code be reduced to 7 months instead of 1 year. 22. Having regard to the entire facts and circumstances of the case, I think justice will be sub-served if the substantive sentence of one year simple imprisonment for commission of the offence under Section 324 of the Indian Penal Code be reduced to 7 months instead of 1 year. 22. The order of sentences as passed by the Learned Magistrate which was affirmed in criminal appeal is hereby modified to the effect that the petitioner is sentenced to suffer simple imprisonment for commission of the offence under Section 324/34 of the Indian Penal Code for a period of 7 months instead of one year and to pay a fine of Rs.800/- in default to suffer simple imprisonment for another two months. The remaining portion of the sentences as passed by the Learned Magistrate remains unaltered. 23. Thus, criminal revisional application being no.2382 of 1999 is disposed of. 24. In view of the order passed in C.R.R.no.2382 of 1999 the C.R.A.N. applications being no.2821 of 2018 and 3749 of 2018 become infructuous and stand dismissed. 25. Let a copy of this judgment along with lower Court record be sent down immediately. 26. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, upon compliance with all necessary formalities.