- (1.) This appeal is directed against the judgement and order dated 21.4.2010 passed by the learned Additional Sessions Judge, Fast Track Court no. IV, Krishnagore, Nadia in Sessions Trial case no. V(II) 2008 arising out of S.C. 25(9) 2008, thereby convicting the appellants Sourav Ghosh and Ranjit Ghosh for committing offences under Sections 324/34 and Sections 427/34 of the Indian Penal code and sentencing them to suffer rigorous imprisonment for 2 years and1 year, respectively, with fine.
(2.) This judgement has been challenged on the following grounds: a) that the learned Court failed to appreciate the evidence on record in his true and proper perspective; b) that the learned Court failed to take into note that no injury on the chest of the injured Pritish Chandra was detected by the Doctor on medical examination; c) that the learned Court was oblivious of the fact that the incident was reported by the patient Pritish Chandra to the Doctor as road accident case; d) that the learned Court failed to take note of the fact that the seizure of the motor cycle and dragger was done on 20.9.2007 as 16.14 hours, i.e., long after the incident, according to the seizure list (Ex. 2) but in view of the statement of the P.W. 4, the seized motor bike was handed over to the P.W. 4 by the police officer on 19.9.2007 at mid night; e) that the learned Court did not put any importance on the fact that dragger which was allegedly seized from the open road side was a rusted dragger having no blood stain on it; f) that the learned Court believe the testimony of injured Pritish Chandra sacroscant as to the identity of the assailant which was not safe and sufficient enough for recording conviction of the appellants; g) that the learned Court failed to consider the evidence of P.W. 7 Midul Saha who stated in Court that there was a road accident wherein Pritish Chandra (P.W. 1) sustained injuries; h) that the learned court failed to take into consideration that the P.W. 9, P.W. 7 and P.W. 5 were declared hostile while P.W. 11 and P.W. 7 described the incident as road accident and the P.W. 3 could say the name of the assailant; i) that the learned Court did not take into consideration about the delay in lodging the F.I.R. and the discrepancies in the date and time of the lodging the F.I.R. and delay in sending the F.I.R. in the Court; and j) that the judgement being otherwise bad in law, is not sustainable.
(3.) Succinctly, the case before the learned Trial Court is stated below. Rabindra Nath Chanda, P.W. 2 lodged one F.I.R. with Kotiwali police station Krishnanagore, Nadia on 20.9.2007 at 7.20 hours alleging therein that on 19.9.2007 at about 10 P.M. while his son Pritish Chandra (P.W. 1) was coming by riding on a motor bike, was attacked by few persons riding on another bi cycle with ram da, dragger, tangi etc. from behind when he crossed Garia petrol pump. Pritish Chanda fell from his motor bike. The assailants caused injury on his head and on various parts on his body by sharp cutting weapon with a motive to kill him. His son could recognize the assailants as Sourav Ghosh and Ranjit Ghosh (Appellant herein). When the local people arrived on the spot they fled away. Before they leave the place, they set the motor bike of Pritish on fire and as a result, the motor bike was completely damaged. The local people admitted injured Pritish Chandra in Saktinagar Hospital in bleeding and serious condition. When Pritish felt little bit better in hospital he told Rabindra Nath Chandra (father) that Sourav Ghosh hit him on his head with ram da and Ranjit Ghosh hit on his hand with dragger. On the basis of said F.I.R. Kotiwali police station case no. 378 of 2007 dated 20.9.2007 was started against these two appellants under Section 326/307/427/34 and 435 of IPC. The appellants were arrayed to face charges under Sections 326, 307 and 427/34 of IPC to which they pleaded not guilty and, as a result, the trial commenced. In course of trial, prosecution examined as many as 12 witnesses. The seizure list, signature thereon, the F.I.R., bed head ticket of hospital, rough sketch map of Place of occurrence were admitted into evidence and marked exhibit on behalf of the prosecution. The motor cycle and the knife were also marked material exhibit 1 and 2 on behalf of the prosecution. No witness was examined on behalf of the appellant in course of trial. Upon consideration of the evidence on record, the learned Trial Court came to a conclusion that the prosecution brought home the charges under Section 324 and 427/34 of IPC and accordingly, recorded their conviction and sentence which is impugned in this appeal on the grounds already stated.;