KANCHAN CHAKRABORTY,J - (1.) THE challenge in this appeal is to the judgment and order dated 29th March, 2012 passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Jalpaiguri in Sessions Case No. 266 of 2008 thereby convicting the appellant Subal Roy for the offence punishable under Section 324 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay fine of Rs.5,000/- with default clause.
(2.) MR. Mukhopadhyay, learned advocate appearing on behalf of the appellant made, in fact, two-fold argument. Firstly, according to him, there is a major discrepancy as to the date of incident. According to the First Information Report, MR. Mukhopadhyay contended, the alleged incident had taken place on 03.03.2008 at 9.30 a.m. But, according to the statement of witnesses, the alleged incident had taken place on 02.03.2008 at 9.00 a.m. and, secondly, the P.W. 6, the only eyewitness, was not believed by the learned Trial Court, but conviction was recorded on the basis of the testimony of other witnesses who were not ocular witnesses and had not seen the incident. One Gajen Basak lodged one First Information Report with the Dhupguri Police Station on 03.03.2008 at 17.25 hours alleging therein that on 03.03.2008 at about 9.00 a.m. when his son Bablu Basak (P.W. 2) had gone out of his house for the purpose of hawking, the appellant hit him on his head with a sharp chopper. Bablu fell down on the ground in bleeding condition. The appellant Subal would have killed Bablu if was not resisted by the neighbourers. Bablu was taken to Dhupguri Hospital firstly and therefrom referred to Jalpaiguri Sadar Hospital. On the basis of the said First Information Report, Dhupguri Police Station Case No. 67 of 2008 dated 03.03.2008 was started against Subal Roy under Sections 326/307 of the Indian Penal Code. The case was investigated into and ended in a charge sheet under Sections 324/307 of the Indian Penal Code. The appellant arrayed to face charges under Sections 324/307 of the Indian Penal Code. He pleaded not guilty to the charges and, accordingly, the trial commenced. In course of trial, twelve witnesses were examined on behalf of the prosecution. Rough Sketch Map of the place of occurrence, Injury Report, etc. were admitted into evidence and marked exhibits on behalf of the prosecution. No witness was examined on behalf of the appellant in course of trial. In course of examination under Section 313 of the Code of Criminal Procedure, the appellant simply stated that he was innocent. In course of investigation one blood stained vest and one iron chopper were seized by the Investigating Officer. In this case, the best witness would be the person injured, i.e., Bablu Basak. Bablu Basak was examined as P.W. 2. He had stated that on 02.03.2008 at about 9.00 a.m. while he was going to hawk goods by riding his bicycle, in front of the house of one Anjuma Begam (P.W. 8), the appellant Subal Roy attacked him with a daw and, as a result, he sustained injury in the back portion of his neck extended to his jaws. He fell down on the ground.
(3.) THE appellant attacked him again on his head with the daw resulting in blood injuries on his head. THE appellant again tried to attack the P.W. 2, when Apu Roy alias Bhabesh Roy interfered and saved him. He became senseless and regained sense at Jalpaiguri Sadar Hospital. He narrated the incident to his father on the next date in detail. He also stated that due to assault, his wearing apparels were stained with blood. He had to undergo medical treatment in the Sadar Hospital at Jalpaiguri for 16 days. In his cross-examination, his statement to the Investigating Officer of the case was controverted and nothing more. THE statement he made in his examination-in-chief remained practically unchallenged. In the instant case, the star witness would be the P.W. 6, Bhabesh Ray. According to the P.W. 2, Bhabesh Ray interfered and saved him at the time of incident. The P.W. 6 stated that the said incident had taken place on 02.03.2008 at 9.00 a.m. Hearing a sound of falling of bicycle, he turned and found appellant Subal to chase Bablu with a sharp cutting daw. He found Bablu fell down and Subal, the appellant, started hitting Bablu with the said daw. He rushed to the place of occurrence and resisted Subal when he was trying to hit Bablu again for the third time. He snatched the daw from Subal and separated them. Due to assault, Bablu sustained bleeding injuries on his head, neck and become senseless. He was taken to the hospital for treatment. In his cross-examination he denied the suggestion put to him that he did not witness the incident and no such incident had taken place but he stated that he was not examined by the Investigating Officer of the case.;