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Ashim Naskar v/s The State of West Bengal

    CRA. No. 182 of 2009

    Decided On, 17 January 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DEBI PROSAD DEY

    For the Petitioner: S.L. Hazra, A. K. Addya, Advocates. For the Respondent: Anusua Sinha, Advocate.



Judgment Text

1. This appeal is directed against the order of conviction and sentence passed by learned 2nd Fast Track Court, Howrah on 21st February, 2009 in connection with sessions trial case no. 353 of 2006 thereby convicting the appellant under Section 325/34 of the Indian Penal Code and sentencing them to suffer Rigorous Imprisonment for 2 years and to pay a fine of Rs. 2,000/- each in default to suffer Rigorous Imprisonment for 6 months each.

2. Being aggrieved by and dissatisfied with such order of conviction and sentence the appellant has preferred this appeal on amongst other grounds that learned trial Judge has failed to consider the enmity between the parties and that learned trial Judge has failed to consider that there was absolutely no evidence in order to come to a definite conclusion about the alleged injury of prosecution witness no. 7 but yet learned trial Judge has convicted all the appellants for the offence under Section 325/34 of the Indian Penal Code. It would not be out of place to mention in brief about the case of the prosecution as well as the evidence adduced on behalf of the prosecution in order to appreciate the case of the appellant. One Bamdeb Naskar lodged a written complaint scribed by one Gunadhar Naskar on 5.5.2000 stating inter-alia that Ashim Naskar, Ranjit Naskar, Ajoy Naskar and Sujoy Naskar had been to their paternal property to erect fencing and at that time the defacto complainant and his father raised objections. The aforesaid

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persons then attacked the defacto complainant and his father and assaulted them with iron rod, Sabol etc. causing injuries on their person. Hearing hue and cry his brother Monoj and mother Lakshmi and sister in law Kakali Naskar rushed to the place of occurrence and they were also assaulted by the aforesaid person. As a result of such occurrence, the mother of defacto complainant received fracture injury on her hand and his elder brother Monoj also received fracture injury on his head. On the basis of that written complaint Bally police station case no. 77 of 2000 under Section 325/307/34 of the Indian Penal Code was started against all the aforesaid persons and ultimately culminated in filing of charge sheet. Charge under Section 307/34 and 325/34 of the Indian Penal Code was framed against all the aforesaid appellants who pleaded 'not guilty' and claimed to be tried.

3. Prosecution witness no. 1 has stated that accused Ranjit Naskar is the elder brother of his father and Ashim Naskar is the younger brother of his father. He further stated that Ajoy Naskar and Sujoy Naskar are sons of Ranjit Naskar. According to prosecution witness no.1, the occurrence took place on 5.5.2000 at about 8 a.m. and they had long standing dispute over their paternal property with the appellants. He also stated that the accused persons assaulted his father and elder brother as well as his mother and they all sustained injuries on their person. Accordingly, the injured were taken to the hospital. Thereafter, he lodged a written complaint at the police station. It is apparent from the cross examination of prosecution witness no.1 that there are houses of Chintamani and other 10/12 persons near the place of occurrence and about 10/12 persons assembled at the place of occurrence. This witness did not state as to who assaulted him. A general statement has been given by prosecution witness no.1 to the effect that all the accused persons assaulted his father, mother and elder brother. Secondly, it is also apparent from the evidence of prosecution witness no.1 that there is long standing dispute between the parties over the paternal property. This witness has admitted in his examination in chief about such dispute between the parties and about the fact that all the appellants are closely related to this witness. Learned trial Judge while discussing the evidence of prosecution witness no.1 did not discuss the aforesaid aspects and has simply convicted all the appellants for the offence under Section 325/34 of the Indian Penal Code. Prosecution witness no.2 is the sister's husband of prosecution witness no.1. He has also admitted in his examination in chief that there was a long standing civil suit over the paternal property between the parties to this case. Prosecution witness no.2 is a close relation of prosecution witness no.1 and the injured. In his cross examination prosecution witness no. 2 has admitted that he reached the spot after the alleged incident was over. That goes to show that prosecution witness no. 2 did not see the occurrence and he was not deposing correctly in his examination in chief. Dr. Manas Kumar Hazra has been examined as prosecution witness no.3 and he found fracture injury on the right hand of Lakshmi Naskar. In his cross examination prosecution witness no.3 has admitted that he had no knowledge as to how treatment to Lakshmi Naskar was given and he did not ever treat Lakshmi Naskar. This witness also did not see any paper relating to the injury of Lakshmi Naskar and has also admitted that such fracture may be caused due to fall on rough surface. In absence of authentic document/X-Ray reports it was not possible on the part of prosecution witness no.3 to say that Lakshmi Naskar sustained fracture injury. Moreover, this witness never treated Lakshmi Naskar and accordingly it was not possible on his part to say that Lakshmi Naskar sustained fracture injury on her person. Prosecution witness no. 4 Monoj Naskar is the brother of prosecution witness no.1 and he rushed to the spot and found that prosecution witness no. 1 and his father sustained injury on his person. Prosecution witness no.4 was also injured in that occurrence. This witness has admitted in his cross examination that the paternal property is joint property and title suit no. 151 of 1996 was still pending on the date of his examination. According to prosecution witness no.4 the disputed land was being used for keeping of vehicles required to be repaired. He has also admitted that 10/12 persons assembled at the time of such occurrence. Prosecution witness no. 5 Gunodhar Naskar simply accompanied prosecution witness no.1 to the police station and scribed First Information Report. According to prosecution witness no. 5, 20/25 people assembled there and he had knowledge that there was long standing dispute between the parties over the property under reference. Mihir Kr. Naskar prosecution witness no. 6 is the father of prosecution witness no.1 and he sustained injury on his person. This injured witness also did not state as to who assaulted him. On the contrary, he has simply stated that all the accused persons assaulted him with iron rod etc. causing injury on his head. There is nothing in the evidence of prosecution witness no. 6 to show as to who is the author of such injuries on his person. Prosecution witness no. 7 is the wife of prosecution witness no. 6 and according to her when she had been to the place of occurrence and tried to intervene in the dispute between the parties she was assaulted with a Sabol and thus she sustained fracture injury on her hand. The enmity between the parties has also been accepted by this witness and she has also admitted that 10/12 people assembled at the place of occurrence at the time of such occurrence. However, she could not say as to who assaulted her. Prosecution witness no. 8 was posted as sub inspector of police at Bally police station on the fateful date and he had simply endorsed the written complaint and filled up the formal F.I.R vide exhibit 1/1 and exhibit 3. Prosecution witness no. 8 is a formal witness. Prosecution witness no. 9 inspector Khirode Chandra Mahato simply submitted the charge sheet on the basis of investigation conducted by the previous Investigating Officer. Prosecution witness no. 11 sub inspector Tapan Agnan actually conducted the investigation prior to the investigation of prosecution witness no.9. It is apparent from his cross examination that he never seized any X-ray plate or X-ray report in order to sustain that the injury sustained by Lakshmi Naskar was grievous in nature. Prosecution witness no. 10 Dr. Anushri Poddar examined all the 3 injured and she proved the injury reports vide exhibit 4, 6 and 8. This doctor has admitted in her cross examination that the injury sustained by Manoj Naskar, Mihir Naskar and Mihir Naskar are simple in nature but Lakshmi Naskar sustained grievous injury on her person. She could not see any X-ray report in order to ascertain that Lakshmi Naskar had sustained grievous injury on her person. Therefore, it cannot be said that Lakshmi Naskar sustained grievous injury on her person in absence of any X-ray report or any specific document duly examined by the doctor that such injuries sustained by Lakshmi Naskar were grievous in nature. Prosecution witness no. 3 did not administer any sort of treatment to Lakshmi Naskar and prosecution witness no. 10 though stated that the injury of Lakshmi Naskar as grievous but did not see any X-ray report and did not justify the reasons of depicting such injuries grievous during her examination before the Court. It is, therefore, not only difficult but also absurd to accept that Lakshmi Naskar sustained fracture injury on her person without having any corroborative medical evidence to that effect. However on the basis of report submitted by the doctor it may be stated that Lakshmi Naskar sustained some injuries on her person.

4. Learned Advocate for the appellant contended that all the witnesses are closely related with each other and they have had long standing enmity against the appellants. Learned trial Judge did examine the veracity of the statements of witnesses having regard to such enmity between the parties. It is further submitted that all the injuries are simple in nature and there is no corroborative evidence to show that any of the injured had ever sustained grievous injury on her/his person. No X-ray report has been produced and no X-ray report has been seized during the course of investigation. Learned Advocate for the appellant drew the attention of the Court that all the witnesses have admitted that the property under reference was a joint property and title suit no. 151 of 1996 was pending between the parties on the date of such occurrence. Learned Advocate appearing on behalf of the State however submitted that the prosecution has been able to bring home the charge under Section 323/34 of the Indian Penal Code against all the appellants and all the injured have categorically stated that the appellant had assaulted them with iron rod etc. In that view of this case the enmity between the parties may be a reason to assault the appellants in order to maintain their possession over the property. It is further submitted on behalf of the appellant that appellant Ranjit Naskar a retired senior teacher and he is a septuagenarian and appellant Ashim Naskar is also a septuagenarian.

5. Learned trial Court did find any evidence for the offence under Section 307/34 of the Indian Penal Code. Admittedly, title suit no. 151 of 1996 is pending between the parties and there was long standing enmity between the parties. Therefore chance of failure prosecution cannot be ruled out. Admittedly, all the witnesses examined on behalf of the prosecution are closely related with each other and in view of their admitted enmity, chance of false prosecution also cannot be ruled out. Secondly, the witnesses never stated in minute particular as to who assaulted whom. There is absolutely no evidence to the effect that Ranjit Naskar or Ashim Naskar (2 septuagenarian appellant) ever assaulted any of the injured. A general statement has been given by all the witnesses to the effect that all the accused /appellants assaulted them with the iron rod etc. Lakshmi Naskar admitted in her examination in chief that she had been to the place of occurrence hearing hue and cry and tried to intervene in the dispute between the parties and thereby she sustained injury on her person.

6. The neigbours who assembled at the spot and who have had no interest in the cause of the prosecution, have been examined by the prosecution in order to unearth the actual state of affairs between the parties. The dispute cropped up between the parties over the possession of their own paternal property. The case of the prosecution is that the appellants had been to the place of occurrence in order to erect fencing. During investigation the investigating officer did seize any material of fencing or any offending weapon to show that the appellant's actually had been to the place of occurrence in order to erect fencing or that they actually had assaulted the injured with iron rod, Lathi etc. The prosecution has also failed to prove that Lakshmi Naskar had sustained grievous injury on her person for want of necessary medical papers. On the contrary on the basis of such enmity the appellants might have assaulted the injured and thereby the injured had sustained such injuries on their person. However, it is apparent from such evidence on record as to who assaulted whom and as to what weapon was used at the time of such assault. The doctor found sharp cutting injury on the person of Monoj Naskar. Admittedly only iron rod was used as weapon of assault and there was no chance of sustaining such sharp cutting injury with the assault of iron rod.

7. In my considered view the appellant ought to have been convicted at best for the offence under Section 323 of the Indian Penal Code instead of Section 325/34 of the Indian Penal Code. Having regard to the facts and circumstances of this and after meticulous examination of the evidence on record I do find sufficient justification to hold that all the appellants should have been convicted for the offence under Section 323/34 of the Indian Penal Code.

8. Admittedly, appellant no. 1 and 2 are septuagenarian and in that view of this case I find no reason to award any substantial punishment upon them. However, having regard to the nature of offence and the long pendency of this case as well as the dispute between the relatives I find it convenient to impose sentence of fine only in respect of appellant no.3 and 4. Accordingly, all the appellants are found guilty of the offence under Section 323/34 of the Indian Penal Code. Appellant no.1 Ashim Naskar and Appellant no.2 Ranjit Naskar are admonished and discharged from this case. Appellant no. 3 and 4 are sentenced to pay a fine of Rs. 2,000/- each i.d. to suffer simple imprisonment for 1 month each. With this observation the appeal stands partly allowed.

9. Let a copy of this judgment along with the lower Court record be sent down to the Court below for information and necessary action.

10. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
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