Badal Dutta Chowdhury & Ors. v. The State of West Bengal

at Police Station without going to hospital at first. ii. There was a previous dispute and a Title Suit pending before the Learned Civil Court which caused false implication of the appellants. iii. The investigation by the police was improperly conducted and the result of such investigation was doubtful, on the basis of which the appellants could not have been charged and could not have been convicted. iv. Recovery of offending weapons i.e., “Hansua” had not been conducted. At first, it was alleged that assault was by appellant no.1 upon the PW-1 i.e., the victim by a “Bhojali”. Whereas subsequently, 4 it was stated by PW-1 that she was assaulted with “Hansua” and “Hansua” was called as “Bhojali” by PW-1. The Learned Trial Judge had failed to appreciate “Bhojali” and “Hansua” were two different articles and nature of injury inflicted by two different weapons were different in nature as stated by the doctor i.e.

PW-9 in his evidence. v. The recovery of incriminating weapons i.e. “Hansua” had not at all been established as the seizure witness Jogesh Bhowmik had not been examined on dock at the time of trial. vi. The Learned Trial Judge had failed to consider the offending “Hansua” was seized but the same was not sent for chemical examination to finger print experts to prove the prosecution case. vii. The Leaned Trial Judge failed to appreciate the complainant i.e. PW-1 was advised by the doctor i.e. Medical Officer, Patashpur, B.P.H.C to carry on treatment at Contai Sub-Divisional Hospital but the injured complainant was admitted at a private nursing home and the discharge certificate issued by the Private Nursing Home was highly doubtful so far as genuinity and authenticity was concerned and did not support the prosecution case as no rubber stamp or seal of the nursing home authority was affixed on the discharge certificate.

The date written over the discharge certificate was over written and that was admitted by the concerned doctor i.e. PW-9. The discharge certificate also did not disclose the history of wounds and the discharge certificate was not bearing any chronological number. 5 viii. The wearing apparels of injured victims of PW-1 was not seized and was not sent for chemical examination or forensic test. ix. The statements made by the defense witness were totally brushed aside without any reason at the time of delivering the judgment. x. The injury report and existence of injury issued by Dr. Ashish Ranjan Kuar, PW-17 who was a Medical Officer at Patashpur, B.P.H.C. was also doubtful. xi. If a fact in issue or a relevant fact was not supported by the evidence adduced by the parties, it was not open to the Court to hold that fact to have been proved on its own surmise and fanciful reasons. The instant Judgment and order of conviction and sentence was devoid of proper appreciation of the evidence on record was liable to be set aside. xii. The Learned Trial Judge failed to consider the fact that before the alleged occurrence happened, the appellant no.1 was assaulted on

03.06.1997 by certain persons at about 9 O’ clock and due to such assault two legs were fractured and as a result, the appellant no.1 was treated in hospital for near about one month. The Learned Trial Judge failed to appreciate that over such issue another case being Patashpur P.S. Case No.39/97 dated 27.07.1997 under Sections 147/148/149/448/427/325/380 of Indian Penal Code was initiated and Charge-sheet No. 49/97 was filed and the case was pending now. Therefore, in such a condition, it was hardly possible for the appellant no.1 to assault others. 6 xiii. The evidence of PW-16 i.e. the Investigating Officer was not at all reliable in support of the prosecution case and was full of contradictions. xiv. The Complainant went to the Patashpur P.S. on 03.06.1997 and lodged one written complaint addressing the Officer-in-Charge, Patashpur P.S. It was stated in the complaint that after closure of school on 03.06.1997. xv. PW-16 had stated in his evidence that in the case diary it was written that the de facto complainant handed over the medical documents and photocopies of certain medical documents were not seized under proper seizure list and the Investigating Officer did not collect any injury report of the victim from any hospital of Calcutta.

The Learned Advocate for the State submitted that the prosecution was able to prove its case based on corroborative evidence of the prosecution witnesses supported by the medical evidence and the appeal shall be dismissed.

A circumspection of prosecution witnesses reveals as follows:- i) PW-1 deposed when she was returning home from school and was proceeding towards her purchased plot, she saw that her brother namely Sumit Kumar Paul and nephew Chinmoy Paul were fencing the plot. At that time, appellant no.1 and his three sons being armed with sharp cutting weapons attacked PW-1’s nephew and brother Chinmoy Paul and Sumit Kumar Paul respectively. The appellant no.1 grabbed the hair of her brother namely Sumit Kumar Paul and 7 kicked his abdomen and was also assaulted with blow of fists on his face by appellant no.4. The appellant no.2 assaulted PW-1’s nephew namely Chinmoy Paul on his right shoulder at the neck, or on his right upper arm by “Bhojali” or “Hansua”. Thereafter, PW-1 cried aloud seeking for help. The appellant no.1 rushed to PW-1, gripping the “Bhojali” in his hand, uttering words that expressed his intention to kill her and assaulted PW-1’s right shoulder by a “Bhojali” causing bleeding injury.

1995. Originally the entire land was in the name of Ananda, Sunil and Gita Dutta Chowdhury. Gita was the wife of appellant no.1. Vendors of PW-1 purchased the land from Ananda and Sunil. Out of total 102 decimals of land Gita Dutta Chowdhury was owner of only 10 34 decimals of land and rest 68 decimals of land was owned by Ananda and Sunil. So, Ananda and Sunil did not sell in excess of their share to Badal Jana and Narayan Jana, who again sold 12 decimals of land to the complainant. It further revealed that neither the appellant no.1 nor the appellants no.2, 3 and 4 were co-owners of the plot no.105/690. So their criminality could not be guarded under cover of the terms of nature of civil dispute. The witness PW-6 also could not be shaken by the defence during cross-examination. The cross-examination of PW-1 and PW-4, the cross-examination of PW-6 also proved the incident really occurred. ix) PW-9 deposed he was an Orthopedic Surgeon.

He proved the prescription which was marked as Exbt.-4. On 02.09.97, he treated the complainant as an indoor patient in South Kolkata clinic and nursing home with a history of discharging of sinus from old wound over her right shoulder. x) PW-11 deposed the plot no.105/690 originally belonged to his father who gifted the said land, to his mother. His mother, thereafter disposed of the plot by way of Nirupanpatra to him, Anadbandu and Gitarani Dutta Chowdhury each having 34 decimals of land. Thereafter, each of them started to possess their respective portion of 34 decimals of land. Anadbandu and PW-11 sold their portion to Narayan and Badal Jana. Narayan and Badal Jana then sold 12 decimals of land out of 68 decimals of land to the complainant. From the oral evidence in record, they find that the complainant was 11 possessing her 12 decimals of land by raising fencing all around. Therefore, in no way it could be said that by purchasing 12 decimals of land and by raising or repairing fencing the complainant provoked the appellants to create such an incident. xi) PW-15 deposed he was the S.I. of police.

He proved his endorsement on the complaint which had been marked as Exbt.-1/1. The formal F.I.R. had been proved by him and marked as Exbt.-1/2. xii) PW-16 deposed he was the Investigation Officer of that case. He proved the seizure list which was marked as Exbt.-3/2. He identified the material Exbt. or the ‘hansua’ which was used to assault the victims. The ‘hansua’ was not sent for chemical examination to compare the blood of the victim with the blood stained in weapon nor it was sent to the finger print expert. There was sufficient direct evidence of the eye witnesses as well as substantive oral evidence of the victims that the appellant no.1 assaulted the complainant by dint of a sharp-cutting weapon. Even if “Hansua” was not exhibited it would not be fatal for the prosecution since the incident of assault had already been proved by sufficient substantive evidence. The Investigating Officer collected the injury reports which had been exhibited and proved by the doctors. xiii) PW-17 deposed on 03.06.1997 he was posted at Pataspur B.P.H.C., as a Medical Officer and he examined the complainant at Patashpur B.P.H.C. On examination he found 5” x 1½” incised wound over right shoulder of the complainant with exposure of joint.

He 12 further deposed the age of injury was recent within 6 hours of his examination. The injury report was marked as Exbt.-6. On the same day, he also examined one Chinmoy Paul and found 1½” x 2”/3” incised injury over the right neck with bleeding. He also found lacerated wound measuring 1” x ½” over his right leg and another incised injury measuring 2” x ⅙” over his right arm. Age of injury was recent within 6 hours of his examination. According to PW-17 all the injuries of Chinmoy Paul were simple in nature. He prepared the injury report which was marked as Exbt.-7. xiv) DW-1 deposed on 03.06.97 he was attached to Patashpur B.P.H.C., at a medical officer. On that date, he examined one Puspendu Dutta Chowdhury i.e. the appellant no.3 with the history of assault by one Saraswati Pal with an axe. On examination he noticed 5” linear incised injury over left arm and scapular region. He also found swelling on left hand with fracture 5th metacarpal bone.

The third injury which he found was abrasions over neck. The nature of injury was grievous but was to be confirmed after radiological investigation. Prognosis was favourable. He mentioned the identity mark of the patient in the injury report which was marked as Exbt.- A. He opined the injury might be caused if someone was assaulted by a sharp cut weapon and the fracture injury might be caused if assaulted by any hard and blunt weapon. The third injury might be caused if the victim was throttled. 13 On 07.06.1997, he examined one Badal Dutta Chowdhury i.e. the appellant no.1 with the history of physical assault by one Sumit Pal by boulder. On examination, he found fracture on right leg with gross swelling of the leg with lacerations. The injury no.2 was 1½” laceration on right elbow dorsal aspect. The injury no.3 was abrasion on back. The patient was advised admission and X-ray of the injured places, age of injury was 4/5 days.

Cause of injury might be assaulted by blunt weapon. Nature of injury was grievous. Prognosis was favourable. He had noted the identification mark of the patient in the report which was marked as Exbt.-B. The injury no.1 was grievous injury. Gross swelling meant inflammation of the entire effected portion. Patient with fracture of leg injury could not even walk. xv) DW-1 in his cross-examination stated the linear incised injury on Puspendu Dutta Chowdhury i.e. appellant no.3 was a superficial one and for that reason he did not mention its depth. If an axe was used for assaulting a person for the purpose of assault, then some deeper incised injury was expected. However it depended upon the manner of use. Such type of linear incised injury might be caused by a blade. Such incised linear injury on the scapular region could not be self- inflicted but the other linear injury might be self-inflicted. He did not mention the measurement of the swelling of left hand of appellant no.3.

He did not mention the dimension of the abrasion on neck. Such abrasion on neck might be self-inflicted. He was not sure 14 about the fracture on metacarpal region and for that reason he advised X-ray of the injured portion. From Exbt.-A and Exbt.-B, it was not possible for him whether he informed the police station or not of injuries caused or when he sent such information. Since there was no X-ray machine at Patashpur B.P.H.C., patients were referred to Sub-Divisional Hospital. In the reports, it was not mentioned whether he referred the patient to Contai S.D. Hospital or not. The patient/appellant no.1 stated to him that the incident of assault on him took place at 12:00 p.m. on 03.06.1997. It was not mentioned in the Exbt.-B as to whether before coming to him for treatment, the patient was treated by any other doctor on that date or on previous dates after receiving injury.

The Hon’ble Supreme Court, in the case of STATE OF MAHARASHTRA vs. BALRAM BAMA PATIL AND OTHERS1, has made following observations:- “9. Shri Rana appearing for the State strenuously contended that the High Court has committed a grave error in holding that the offence under Section 307 IPC was not made out merely because the injuries inflicted on the witnesses were in the nature of a simple hurt and in these circumstances it is not possible to hold any of the accused persons guilty in respect of that offence. We find considerable force in this contention. A bare perusal of Section 307 IPC would show that the reasons given by the High Court for acquitting the accused of the offence under Section 307 were not tenable. Section 307 IPC reads:

Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be 1(1983) 2 SCC 28 15 guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted.

The High Court, in our opinion, was not correct in acquitting the accused of the charge under Section 307 IPC merely because the injuries inflicted on the victims were in the nature of a simple hurt. Therefore, that part of the judgment of the High Court acquitting Accused 1, 2 and 11 of the offence under Section 307 IPC cannot be sustained and must be set aside. ” 16

10. The Hon’ble Supreme Court, in the case of HARI SINGH vs. SUKHBIR SINGH AND OTHERS2, has made the following observations: - “7. …Under Section 307 IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention…”

The Hon’ble Supreme Court, in the case of STATE OF MAHARASHTRA vs. KASHIRAO AND OTHERS3, has made the following observations: - “20. So far as the assaults on PW 1 are concerned, the nature of the assaults and the injuries found clearly bring in application of Section 307 IPC. The trial court was therefore justified in convicting accused- Respondent 1 under Section 307 IPC. The essential ingredients required to be proved in the case of an offence under Section 307 are: (i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as : (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so