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2022 DIGILAW 947 (CAL)

Shib Nath Koley v. State of West Bengal

2022-07-01

SHAMPA DUTT (PAUL)

body2022
JUDGMENT : 1. This is an appeal against judgment and order dated 19.05.2000 by the Ld. Additional Sessions Judge, 2nd Court, Purba Burdwan, convicting the appellants for commission of offence punishable under Section 148 and under Section 323 read with Section 149 of the Indian Penal Code and sentencing then to suffer simple imprisonment for 6 months under Section 148 of Indian Penal Code and to further suffer simple imprisonment for 6 months for offence punishable under Section 323 read with Section 149 of Indian Penal Code. Both the sentences to run concurrently. The prosecution case against the appellants is as follows:- 2. That on 11.10.1996 at about 14.00 hours, all the accused persons armed with Lathi, Da, Ballom, Tangi, Chain etc. entered into the house of the defacto complainant Anil Mondal and assaulted the complainant and outraged the modesty of the women-folk and also assaulted the witnesses who came to the rescue of the complainant. Some of the persons sustained severe injuries and were admitted at Burdwan Medical College and Hospital. The accused person allegedly also damaged and ransacked the household articles belonging to the complainant and the complainant sustained a loss of Rs. 1500. FIR was lodged being Memari P.S. case no 233 dated 11.10.1996 under Section 147/148/149/448/341/379/326/354/307 I.P.C. On completion of investigation police submitted chargesheet against the accused persons under Section 147/148/341/379/326/354/307 I.P.C. 3. Charge was framed against all the appellants for offence punishable under Sections 148/149/380/307 I.P.C. and all pleaded not guilty and claimed to be tried. 4. In course of trial, prosecution examined in all 14 witnesses and eight documents were marked as exhibits. Defence case was that of innocence, denial and false implication. On conclusion of trial, the Trial Judge by the impugned judgment and order dated 19.05.2000 convicted and sentenced the appellants as aforesaid. 5. Ld. Lawyer for the appellants submits that the Ld. Trial Judge altered the charge at time of pronouncing judgment, which is illegal and has thus caused prejudice and has also caused mis carriage of justice to the appellants. 6. The Trial Judge at the time of pronouncing judgment, found the accused persons guilty under Section 148/323/149 IPC instead of under Section 380/307 IPC, which the Ld. Lawyer for the defence submits is against the provisions in Section 222 of Cr.P.C. 7. 6. The Trial Judge at the time of pronouncing judgment, found the accused persons guilty under Section 148/323/149 IPC instead of under Section 380/307 IPC, which the Ld. Lawyer for the defence submits is against the provisions in Section 222 of Cr.P.C. 7. It is further case of the defence that after alteration of charge, they were not allowed to re-examine the witnesses and as common object to commit an offence was not made out, conviction by aid of section 147/149 IPC is not permissible. Ld. Lawyer for the defence has further argued that the weapons as described being Bows, Lathis and Stones are not deadly weapons and that the findings of the Ld. Trial Court to the extent that “ It is clear from the evidence of PW1 to PW9 with reference to the evidence of the PW12 that the accused voluntarily caused hurt of PW1 to PW9 with common object by way violence” is wrong and illegal. Evidence of PW1 to PW9 could not prove any motive. PW9 has stated that as she had rebuked the accused persons, they assaulted them. The Doctor PW(12) has deposed that the injuries he found on the persons of PW2, 8 and 9 might have been caused by fall on hard, blunt substance or broken tiles. PW1 Anil Mondal has deposed that on the date of incident that is 11.10.1996 at about 2 P.M. the incident took place over the construction of “latrine” by adjoining neighbour Satya Nayek and on being assaulted he became senseless and he regained his sense in the hospital, where he was medically treated and so it was impossible for the complainant to lodge a FIR on 11.10.1996 at 2.25 hours. The writer of the FIR Supriyo Samanta has not being examined to prove the written complaint. No Doctor has been examined to prove the other injury reports. That PW2, 8, and 9 did not state before the Doctor (PW 12) the history of their injury and also did not state the names of the assailants before the Doctor. The writer of the FIR Supriyo Samanta has not being examined to prove the written complaint. No Doctor has been examined to prove the other injury reports. That PW2, 8, and 9 did not state before the Doctor (PW 12) the history of their injury and also did not state the names of the assailants before the Doctor. Further case of the defence is that the investigation is not proper and that the Trial Court totally erred in the findings against the accused persons and convicted the appellants without there being any evidence against them to prove the charge beyond reasonable doubt and wrongly convicted the appellants and as such the appeal is liable to be allowed and the accused should be acquitted and the order under appeal should be set aside. 8. The Ld. Additional Public Prosecutor has argued against the defence and has submitted that the Trial Court came to the right findings by holding that the charge under Section 380/307 IPC had not been proved against the accused persons. The Ld. Trial Judge also rightly came to the findings that the allegation for offence punishable under Section 148/323/149 IPC has been proved beyond all reasonable doubt against the appellants in view of the evidence of PWs 1 to 12. It has been further submitted that the Ld. Trial Judge was completely right in applying the provision of Section 222 of the Cr.P.C. for altering charge at the time of conviction for proper adjudication of the case. 9. It has been further submitted that Dr. Modan Mohan Roy has been examined as PW12 and this witness had examined the victim Jagabandhu Mondal (PW 2) and found of fracture on the right forearm and has deposed that it might have been caused by a blow of Iron Rod/Bamboo stick. P.W. 12 also stated that he found a fracture on right forearm bone of Arati Das (PW 9) and that the injury might have been caused by any hard substance like Iron Rod and Bamboo. This witness also found some cut mark injury on both upper arm and right leg of Nemai Sarkar (PW 10) (tendered). 10. The prosecution has further stated that the Trial Court rightly considered the evidence of the prosecution witnesses and came to a finding of guilt against the appellants. Hence, the appeal is liable to be dismissed. 11. This witness also found some cut mark injury on both upper arm and right leg of Nemai Sarkar (PW 10) (tendered). 10. The prosecution has further stated that the Trial Court rightly considered the evidence of the prosecution witnesses and came to a finding of guilt against the appellants. Hence, the appeal is liable to be dismissed. 11. Accused no.1 Shibnath Koley died on 22.04.2019 during the pending of this appeal. Appellant no. 5 Rampada Koley died on 05.10.2003. From the record it seen that none of the near relatives of these appellants have prayed for leave to continue the appeal. As such the appeal finally abates in respect of accused/appellants Shibnath and Rampada Koley under Section 394(2) Cr.P.C. 12. On analysis of the evidence on record adduced before the Trial Court, both oral and documentary and on careful scrutiny of materials on record, it is seen that PW 1, Anil Kumar Mondal is the complainant in this case. This witness on oath has admitted that he had bad terms with his adjoining neighbour, Satya Nayek regarding construction of a latrine. On the date of incident that is on 11.10.1996, when the complainant returned from the market, the accused persons (identified on Dock) at about 2.00 P.M. entered the complainant’s house armed with Lathi, Tangi and Chain and began assaulting him mercilessly, as a result he became senseless. This witness has stated that he regained his sense at Memari Hospital where he was treated. This witness has proved his signature in the written compliant (exhibit 1/1) which he stated was written by one Supriyo Samanta. It is seen by this court that the prosecution did not produce the said Supriyo Samanta, as a witness, though it is admitted by the complainant, that there is no endorsement on the written compliant of Supriyo Samanta as its scribe, to prove the contents of the written complaint. On being cross examined, this witness has stated that he suffered bleeding injuries and admitted on being cross examined that he did not mention in his written complaint about his dispute which Satya Nayek regarding construction of the toilet. It is seen from exhibit 8 that it is a general injury report dated 23.12.1996 relating to 11 persons including that of Anil Mondal, the complainant. The injuries as noted in respect of the complainant Anil Mondal in exhibit 8 is noted as simple injury. It is seen from exhibit 8 that it is a general injury report dated 23.12.1996 relating to 11 persons including that of Anil Mondal, the complainant. The injuries as noted in respect of the complainant Anil Mondal in exhibit 8 is noted as simple injury. These specific injuries noted are : (i) Lacerated injury over left thumb. (ii) Abrasion (5cm x 1cm) over left shin. (iii) Swelling (3cm x 2cm) over left calf muscle. 13. On careful perusal of the said injury report in respect of the complainant this court finds that there is no note by the Doctor regarding any bleeding injuries suffered by the complainant, as deposed by the complainant in his examination in chief as PW 1. 14. PW 2 is Jagabandhu Mondal on being examined on oath has stated that on the date and time of incident when he was sitting in his room, accused Shibnath, Rampada, Sasthi, Gour, and Satyanarayan entered his house and began to assault him with Lathi/Rod. They also assaulted his wife Sucharita and son Arun. Jagabandhu Mondal is the brother of the complainant Anil Mondal. This witness has identified all the accused persons on dock. On being cross examined this witness has stated that he was assaulted with Lathi and Rod by the five accused persons. This witness has also admitted that accused Satyanarayan has filed a false case against him. This witness has further stated that at about 2.30 P.M. he had heard a commotion from the house of the complainant but he did not go there, as before that he had suffered injury. On perusal of the documents relating to the case on record, this court finds that Jagabandhu Mondal PW 2 was treated as an indoor patient at Memari Rural Hospital, Burdwan on 11.10.1996 and was discharged on 15.10.1996. On perusal of the said medical papers exhibit 3 and 8 this court finds that the injuries suffered by Jagabandhu Mondal is as follows: (i) That there was swelling in both the forearms. (ii) Abrasion on left shin. On prescription dated 11.10.96 the Doctor noted abrasion over left shoulder (4cm x 1cm). Swelling and abrasion over right forearm. (iii) Fracture of both bone in right forearm. 15. (ii) Abrasion on left shin. On prescription dated 11.10.96 the Doctor noted abrasion over left shoulder (4cm x 1cm). Swelling and abrasion over right forearm. (iii) Fracture of both bone in right forearm. 15. Surprisingly, none of the medical papers (exhibit 3 and 8) relating to the injuries sustained by Jagabandhu Mondal allegedly during the incident in this case, showing the nature of injuries, have been corroborated by PW 2 Jagabandhu Mondal in his evidence on oath. There is no statement as PW 2 that he suffered fracture in his hand. 16. On deposing as PW 2 this witness did not state that he had suffered a fracture. He has only stated that he has assaulted by some of the accused persons with Lathi and Rod. 17. PW 3 is Anjali Chakrobarty. This witness has stated in her examination in Chief that she had found that accused Bhola and Madhai (both identified) assaulted Hari with Bamboo. She has further stated that when she was going to the Tank, she found all the accused persons returning after assaulting. On being cross examined, this witness has admitted that she has not stated this fact to anybody including the police and was stating the said fact for the first time in court on the date of her evidence. 18. PW 4 is Arun Mondal. This witness identified all accused persons on dock. On the date and time of incident this witness saw accused Sasthi Koley give two blows on the abdomen of his mother who then became senseless. Bhola and Satyanarayan began to pull the hands of the father (Jagabandhu Mondal, PW 2) of this witness and accused Rampada Koley and Shibnath Koley being armed with Bamboo and Iron Rod assaulted his father on the leg and accused Shibnath Koley assaulted on the right hand of his father and his father suffered a fracture. This witness has admitted on being cross examined that he is an accused in a case relating to disturbance caused in the house of Satya Nayek. 19. PW 5 is Ramchandra Das. This witness has deposed that accused Sasthi Koley and Bholanath Koley assaulted his wife inside his house and as he protested, he was also assaulted by all the accused persons. 19. PW 5 is Ramchandra Das. This witness has deposed that accused Sasthi Koley and Bholanath Koley assaulted his wife inside his house and as he protested, he was also assaulted by all the accused persons. As a result of such assault, the wife (Arati Das, PW 9) of this witness suffered a fracture on her hand and Jagabandhu also fractured his hand, though this court finds that neither Arati nor Jagabandhu say that they had suffered a fracture at the time of deposing before the court. On being cross examined this witness has admitted that he did not tell the investigating officer that the accused persons had assaulted his wife. 20. PW 6 Kajal Mondal, has stated that all the accused persons armed with Bamboo, Iron Rod, Chain and Tangi, assaulted her and her husband. They were medically treated. It is seen by this court that this witness has not specified as to the nature of injuries sustained by her. Kajal Mondal is the wife of Anil Kumar Mondal, the complainant in this case. From exhibit 8 a general injury report prepared by the Doctor in respect of 11 injured persons, also includes the note of injuries as sustained by Kajal Mondal. The injury sustained by her are as follows: (i) Abrasion over (3cm x 1.5 cm) over left shoulder. (ii) Abrasion over (2cm x 1.5 cm) over right shoulder. (iii) Lacerated (mild) injury of right ring finger. 21. It was noted that the injury were simple in nature. PW 7 Loton Hazra knows all the accused persons and has stated that he received injury on his hand by a blow of “Bankari” near the house of Satyanarayan. This witness has stated that though there was a free fight, he did not see as to who assaulted whom and as to how he sustained injury on his hand. 22. PW 8 Netai Sarkar, knows all the accused persons and he on the date and time of incident saw the accused persons assaulting the complainant Anil with Bamboo. This witness has stated that even he was assaulted by Bhola and Rampada by fists and blows and says that he was treated at Memari Hospital. Exhibit 5 relates to the medical papers and X-Ray plate of this witness. This witness has stated that even he was assaulted by Bhola and Rampada by fists and blows and says that he was treated at Memari Hospital. Exhibit 5 relates to the medical papers and X-Ray plate of this witness. On careful perusal of the injury report, this court finds that the injury as noted by the Doctor shows that this witness suffered swelling over both shoulders and cut injury over right shin. The Doctor examining him found extreme restlessness and blunt injury was found over both his upper arm. It is seen that this witness did not name any of the accused persons before the Doctor. The general (exhibit 8) injury report in respect of 11 injured persons shows, that this witness Netai Sarkar sustained the following injuries: (i) Abrasion (3cm x 2cm) over right knee. (ii) Multiple (small) abrasion over chest. 23. This witness has admitted that he was not examined by the I.O. he has stated that he did not make any attempt to separate the parties and went to see as a spectator and has admitted in his cross examination that he had grudge against the accused persons and they also had grudge against him. 24. PW 9 Arati Das is the wife of the Ramchandra Das. This witness has categorically stated that all the accused persons assaulted her with a rod on her left hand and leg. It is seen that this witness has stated that she had abused the accused persons for putting fire in her hay stack of straw and as such the accused persons assaulted her. This witness is the wife of Ramchandra Das (PW 5). It appears from exhibit 8, general injury report that Arati Das sustained the following injury: (i) Left humorous (upper end) it was referred to BMC & H. Final report to be given by BMC & H. 25. It is seen by this court that though a fracture has been noted by the Doctor in the general injury report, the witness Arati Das did not state anything about suffering a fracture, though she has admitted that on being assaulted with a Rod on her left hand and leg, she fell down. 26. PW 10, Nemai Sarkar has been tendered by the prosecution. 27. 26. PW 10, Nemai Sarkar has been tendered by the prosecution. 27. PW 11 Purna Chandra Mullick is a police constable, who was a seizure witness, when S.I. B. Roy seized some blood stained clothes (MAT exhibit I). This witness has proved his signature on the seizure list (marked exhibit 2). 28. PW 12 is Doctor Modan Mohan Roy. This witness on 11.10.1996 was posted at Burdwan College and Hospital and he examined Netai Sarkar (PW 8), Arati Das (PW 9), Jagabandhu Mondal (PW 2) and 8 other injured persons (exhibit 8). This witness has stated that Jagabandhu Mondal had a fracture on his right forearm, which could have been caused by a blow of Iron Rod or Bamboo Stick. From the X-ray and the bed head tickets this witness saw that Jagabandhu Mondal had suffered fracture in two bones in the right forearm. From exhibit 4, this witness found that Arati Das had also sustained fracture on right forearm, which he deposed, could have been caused by Iron Rod, Bamboo. This witness found some cut mark injury on both upper arms and right leg of Nemai Sarkar (PW 10) tendered by the prosecution. On being cross examined he has stated that such injuries can be caused by falling on hard and blunt substance. 29. PW 13 is S.I. A. K. Mullick. This witness received the written complaint from the complainant, registered formal F.I.R. and endorsed the case for investigation. 30. PW 14 is the investigating officer in this case, S.I. Bichitra Bikas Roy. This witness on oath has proved the documents marked as exhibit in this case including the injury reports and had submitted the chargesheet. On being cross examined he has admitted that the blood stained shirt seized were not sent for chemical examination. On completion of evidence, all the accused persons were examined under Section 313 of Cr.P.C. and their defence is of total innocence and being falsely implicated. Scribe of the written complaint not examined. 31. It is seen by this court that though the complainant PW 1 has stated on oath that the written complaint was written by scribe Supriyo Samanta as per his instruction and dictation and though this witness has identified the handwriting of Supriyo Samanta and signature, admittedly this alleged scribe Supriyo Samanta was not examined as a witness in this case to prove the contents of the written complaint. On careful perusal of the written complaint this court finds that the written complaint marked exhibit 1 series does not contain any endorsement to the effect that Supriyo Samanta has written the said written complaint as per instructions of the complainant. As such the contents of the written complaint has not been proved. Medical report of Arati Das (PW 9). 32. From the medical papers of Arati Das this court finds that it has been noted that a fracture was sustained by the injured (exhibit 4 collectively) as proved by the Doctor examined as PW 12. PW 12, Dr. Modan Mohan Roy on being cross examined has stated that the fractures sustained by the injured may be caused falling upon hard and blunt substance or falling upon a stack of tiles. The injured Arati Das (PW 9) has stated on oath that the accused persons had assaulted her with a Rod on her left hand and leg and as a result she fell down. PW 12 (Doctor) has stated in his evidence in chief that he found from medical papers and X-ray report that Arati Das had suffered fracture of right forearm bone humorous. As such it is seen that Arati Das (PW 9) says that the accused assaulted her on her left hand and the Doctor (PW 12) found the fracture on the right hand. Arati Das has stated on oath that she had fallen down because of the assault and as such it can be presumed that the fracture on the right forearm could have been caused by falling on the ground. (PW 12), Doctor also has stated on being cross examined that such fracture can take place by falling down on hard and blunt substance. Medical Report of Netai Sarkar (PW 8). 33. PW 12 the doctor also examined Netai Sarkar (PW 8). No details of any injuries in respect of Netai Sarkar has been stated by PW 12. From exhibit 8 it is seen that Netai Sarkar suffered simple injuries being abrasions and in his evidence, he has stated that he was assaulted with fists and blows by accused Bhola and Rampada. Medical Report of Nemai Sarkar (PW 10) (tendered). 34. PW 12 (Doctor) has proved exhibit 5, the injury report and X-ray plate of Nemai Sarkar. The Doctor found cut injuries on both upper arms and right leg of Nemai Sarkar. Medical Report of Nemai Sarkar (PW 10) (tendered). 34. PW 12 (Doctor) has proved exhibit 5, the injury report and X-ray plate of Nemai Sarkar. The Doctor found cut injuries on both upper arms and right leg of Nemai Sarkar. Exhibit 8, (general injury report in respect of 11 injured) corroborates the said statement showing that Nemai Sarkar suffered cut injury, swelling and mild laceration. But PW 10 Nemai Sarkar was (tendered) by the prosecution and cross examination was declined. As such the evidence of the alleged victim, witness PW 10 Nemai Sarkar is not before the court. 35. Medical Report of Jagabandhu Mondal (PW 2). PW 12 (Doctor) has stated that Jagabandhu Mondal was examined by him and that Jagabandhu had suffered fracture on the right forearm in both bones and the reports of Jagabandhu Mondal marked exhibit 3 was proved by PW 12. 36. Jagabandhu Mondal as PW 2, has stated on oath that he was assaulted by the accused persons in his room with Lathi and Rod along with his wife and son. This witness on oath while being examined in chief has not stated anything specifically about injury sustained by him. This witness has also not stated that he suffered fracture on his right forearm. From the evidence of this witness, and other materials on record, it is seen that admittedly there is a case and counter case between the parties. It is also seen from the evidence that PW 2 was aged 42 years old at the time of deposing before this court. This witness though has stated about being assaulted, has not stated anything specifically about his injuries nor has stated anything about any fracture sustained by him. But PW 12 the doctor has stated about the fracture. PW 12, Dr. Tarun Kr. Ghosh is the medical officer who has proved exhibit 8 which is a general injury report relating to 11 injured persons in this case. Exhibit 8-General injury report. 37. On careful perusal and scrutiny of exhibit 8, this court finds that the Dr. Tarun Kr. But PW 12 the doctor has stated about the fracture. PW 12, Dr. Tarun Kr. Ghosh is the medical officer who has proved exhibit 8 which is a general injury report relating to 11 injured persons in this case. Exhibit 8-General injury report. 37. On careful perusal and scrutiny of exhibit 8, this court finds that the Dr. Tarun Kr. Ghosh while deposing as PW 12 has only proved the injury reports of Arati Das (PW 9), Netai Sarkar (PW 8), Nemai Sarkar (PW 10) and Jagabandhu Mondal (PW 2) PW 12 has not stated anything about the injuries sustained by Ramchandra Das, Anil Mondal, Rajkumar Dubey, Santanu Hazra, Loton Hazra and Kajal Mondal in respect of whom the injuries have also been noted by PW 12 in exhibit 8. 38. The appeal in this case is against the judgment dated 19.05.2000 passed by the Ld. Additional Sessions Judge, 2nd Court, Burdwan convicting 11 accused persons/appellants under Section 148 and under Section 323 read with Section 149 of Indian Penal Code and sentencing each of the accused persons to suffer S.I. for six months for offence punishable under Section 148 of the Indian Penal Code and to suffer S.I. for six months for offence punishable under Section 323 read with Section 149 of IPC and both sentences to run concurrently. The charge against the accused persons was framed for offence punishable under Section 148/149/380/307 IPC. The Ld. Court was pleased to alter the charge at the time of judgment and convicted the accused persons for offence punishable under Section 148/323/149 IPC instead of under Section 380/307 IPC and altered the said charge as per provision of Section 222 of Cr.P.C. 39. Charge framed for offence punishable under Section 148 of the IPC. 40. The essential ingredients required to constitute an offence under Section 148 IPC are as follows: (i) Assembly of five or more persons: (ii) The assembly is unlawful; (iii) Use of force or violence; (iv) Accused was a member of such unlawful assembly; (v) In prosecution of the common object such unlawful assembly used force. 41. It is seen that in the present case 11 persons were charged with the offence being punishable under Section 148 of the IPC. PW 1 in his evidence has stated that he was assaulted by all the accused persons, who had entered his house armed with Lathi, Tangi, Chain. 41. It is seen that in the present case 11 persons were charged with the offence being punishable under Section 148 of the IPC. PW 1 in his evidence has stated that he was assaulted by all the accused persons, who had entered his house armed with Lathi, Tangi, Chain. The prosecution has proved exhibit 2 series and exhibit 7 which are the seizure list in the present case wherein it is seen that exhibit 7 relates to seizure of medical papers and X-ray plates and exhibit 2 relates to seizure of wearing apparels. No articles/weapons were seized in the present case from any of the accused persons. As such, though the prosecution has adduced evidence that there was an assembly of more than 5 or more persons, the prosecution could not prove their case as stated by the complainant that the accused persons were armed with deadly weapons. The Trial Court believed the evidence of PW 1 that the accused persons were armed with deadly weapons, when no weapons, Rod, Bamboo etc. was seized from any of the accused persons. The Trial Court also erroneously believed the evidence of PW 1 to PW 9 to the extent that all the accused persons were armed with deadly weapons. The situation in this case being that no arms/articles as stated, that is Lathi, Rod etc. having been seized from any of the accused persons, the case of the prosecution that the accused persons were armed with deadly weapons could not be proved beyond reasonable doubt before the Trial Court. The prosecution also could not prove from the evidence on record that there was an assembly and that it was unlawful or that they had any common object. 42. All the appellants were further convicted for offence punishable under Section 323/149 IPC. 43. The essential ingredients required to constitute an offence under Section 149 IPC are as follows: (i) There was an unlawful assembly; (ii) The accused was a member of the said assembly; (iii) Accused joined intentionally or continued in the assembly knowingly; (iv) Accused had the knowledge of the common object; (v) The offence was committed by one of the members of the assembly; (vi) Commission of offence was in pursuance of the common object; and (vii) Accused knew, as a member of the unlawful assembly, that such offence is likely to be committee. 44. 44. The essential ingredients required to constitute an offence under Section 323 IPC are as follows: (i) Accused voluntarily caused bodily pain or infirmity to the victim. (ii) The accused did so with intention of causing hurt or with the knowledge that he would thereby cause hurt to the victim. 45. It is now the case of the appellants before this court that the Trial Court erroneously altered charge at the time of passing judgment and that the appellants were not given an opportunity to counter the said charge as altered. From the judgment under appeal it is seen that the Ld. Trial Judge invoked the provision under Section 222 of the Cr.P.C. Section 222 Cr.P.C. (i) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (ii) When a person is charged with an offence and facts are proved which reduced it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (iii) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (iv) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. 46. Although the expression “minor offence” is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. 47. The Trial Court considering the evidence before it, both oral and documentary came to the findings that the prosecution had proved the charge against all the 11 appellants for offence punishable under Section 148/323/149 IPC. 47. The Trial Court considering the evidence before it, both oral and documentary came to the findings that the prosecution had proved the charge against all the 11 appellants for offence punishable under Section 148/323/149 IPC. It is seen that the trial court rightly applied the provisions under Section 222 Cr.P.C. in this case, considering the nature of offence in the contents of change as framed. Motive of Crime 48. From the evidence before the Trial court, this court finds: (i) That there is evidence as admitted by the prosecution witnesses that there is a case and counter case between the parties in this case. (ii) Admittedly there is also a dispute between the complainant Anil Mondal and accused Satya Nayek regarding construction of a latrine. (iii) As stated by Arati Das (PW 9) that she had rebuked the accused persons in respect of setting fire to her stack of straw, the accused persons told that as she had abused them, the accused persons had assaulted her. Defective investigation vis-a-vis fair trial 49. The appellants have prayed for benefit of doubt due to the faulty investigation in the present case. It is seen that the investigation in the present case, as it appears from the records is prima facie in accordance with law. Question of not seizing any deadly weapons as stated by the prosecution being Rod, Lathi, Tangi etc. cannot be held to be defective in view of the fact that the investigation herein deserves the benefit of doubt that there may not have been any such weapons/articles found, to be seized. Fair investigation is the foundation of a fair trial. This is undisputed proposition of law. 50. On perusal of the judgment under appeal, it is seen by this court that the Trial Judge considered the evidence of all the prosecution witnesses as a whole along with the documents together (exhibits) and came to the findings of guilt against all the convicts/appellants in general. 51. This court finds that there is no evidence on record to support/substantiate the charge as held to be proved by the trial court. The reasons being: (1) No evidence to prove that the accused persons had a common object. (2) No evidence to indicate that there was an assembly of the accused persons or that it was unlawful. 51. This court finds that there is no evidence on record to support/substantiate the charge as held to be proved by the trial court. The reasons being: (1) No evidence to prove that the accused persons had a common object. (2) No evidence to indicate that there was an assembly of the accused persons or that it was unlawful. (3) Some of the witnesses have stated that two persons assaulted them and some have named all the accused persons. (4) Admittedly there was a dispute between the complainant and accused Satya Nayek (personal dispute) regarding construction of a toilet. (5) Admittedly there is case, counter case between the parties. (6) Evidence before trial court is that all on sudden the accused person came and assaulted, without any specific reasons. (7) No articles/deadly weapons as alleged, was seized in this case. (8) PW 12 (Doctor) has deposed regarding the alleged assault on PW 2, 8, 9 and 10 (tendered) though there were 11 injured persons as seen from the general injury report (Exhibit 8). (9) PW 7 has deposed that there was a free fight between the parties. (10) The complainant deposed that scribe Supriyo Samanta has written the complaint as per his instructions. But neither is there such endorsement on the witness complaint nor has any such person been adduced as a witness for the prosecution. (11) Complainant (PW 1) states he suffered bleeding injuries but injury report does not support such statement. (12) PW 2 & 9 have not deposed that they have suffered fracture, but PW 12 (Doctor) & Exhibit 8 states and shows the same. PW 9 says she was hit on her left arm, but fracture is found on right hand (she admits she had fallen down) Doctor (PW 12) says such fracture can be sustained by a fall. 52. As such on such findings from the evidence as recorded, it is seen that there was a free fight (PW 7) between the parties, the reasons for which is vague and not specific. The injuries including fracture may have been sustained during the alleged free fight and fall (PW 9) during the alleged incident. The witnesses who allegedly suffered fractures did not state the same in their evidence. As such this court is of the view that in such circumstances the accused/appellants were clearly entitled to get the benefit of doubt. The injuries including fracture may have been sustained during the alleged free fight and fall (PW 9) during the alleged incident. The witnesses who allegedly suffered fractures did not state the same in their evidence. As such this court is of the view that in such circumstances the accused/appellants were clearly entitled to get the benefit of doubt. No common object has been proved. 53. Thus, in view of the said findings of this court the general (as a whole) findings of the trial court in respect of all the accused persons is not supported by the materials on record, being the evidence, both oral and documentary, which this court finds is full of discrepancies. 54. Accordingly it is seen that the prosecution has not been able to prove any of the charge as framed against the accused/appellants beyond all reasonable doubt and thus the prosecution case fails. 55. The appeal is, accordingly, allowed. Connected application if any also stands disposed of. 56. None of the complainants/appellants are in custody. Accordingly, they are discharged from their respective bail bonds. 57. Lower court records along with copies of this judgment be sent down at once to the learned trial court as well as the Superintendent of Correctional Home for necessary compliance. 58. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.