- (1.) This appeal is directed against a judgment dated 28th July 2008 by which all the eight appellants were found guilty of an offence punishable under sections 341, 326 and 307 read with Section 34 I.P.C. by the learned Additional Districts and Sessions Judge, 3rd Fast Track Court, Barrackpore, North 24 Parganas. By an order dated 29th July 2008 all the appellants were sentenced to rigorous imprisonment for 1 ( one ) month each as also to pay fine of Rs. 500/- each, in default to suffer rigorous imprisonment for a period of 10 days for the offence punishable under Sections 341/34 I.P.C. For the offence punishable under Sections 326 / 34 I. P.C each of the appellants was sentenced to rigorous imprisonment for a period of 10 years as also to pay fine of Rs. 5,00/- (five hundred) each, in default to suffer further rigorous imprisonment for a period of one year. Identical punishment was also inflicted for the offence punishable under Section 307 / 34 I.P.C. All the sentences were however directed to run concurrently. All the eight accused persons have come up in appeal.
(2.) The facts and circumstances of the case briefly stated are as follows:- Gour Mohan Biswas, aged about 45 years, for a long time had political rivalry with Jagannath Biswas and there was an animosity between the two at a personal level also. They have been litigating against each other, both of a civil and criminal nature, for a long time. On 22nd June, 2005 the said Gour Mohan Biswas was attacked and assaulted with bomb and gun shot injury at about 9.35 am. He was taken to the local Bhatpara hospital for treatment. Considering the gravity of the injury he was referred to the R.G. Kar Hospital at Kolkata wherein he was admitted and discharged after 48 days. A written complaint appears to have been lodged on 22nd June, 2005 at about 10.45 hrs against all the appellants. They were ultimately charged, tried, convicted and sentenced as indicated above. Although a joint appeal was preferred by all the eight convicts, at the hearing of the appeal the appellant No.2 Chitto Sarkar, appellant No. 4 Rathin Roy and the appellant No. 5 Sripati Majumdar were separately represented by Mr. Milon Mukherjee. Rest of the appellants were represented by Mr. Sekhar Basu.
(3.) Mr. Basu, learned Advocate appearing for the appellant Nos.1,3,6,7 & 8 made the following submissions :- (a) The written complaint and the consequent formal F.I.R were antedated or at any rate ante-timed documents. He contended that in the written complaint there is a clear indication that the victim was in the R.G. Kar Hospital. There is evidence to show that the victim reached at R.G. Kar Hospital at 11.10 hrs. on 22nd June, 2005. Whereas the written complaint purports to have been received at 10.45 hrs.. The distance between the Bhatpara Hospital and the Police Station was 16 km. The incident took place at 9.35 hrs. on 22nd June, 2005. He, therefore, contended that the written complaint could not have been lodged at 10.45 hrs. on 22nd June, 2005 as the same purports to have been done. The local Magistrate initialled the F.I.R. on 24th June, 2005 which again is a pointer to show that the written complaint may not actually have been lodged at 10.45 am on 22nd June, 2005 . The wife of the victim was the complainant who, it is alleged, ascertained the names of the assailants from her husband at the Bhatpara Hospital and lodged the written complaint on the basis of what she had known from her husband. Mr. Basu contended that P.W.1 Sumati, wife of the victim, did not have any personal knowledge. The allegation that she ascertained from her husband as regards the incident including the names of the assailants is also belied by the fact that the names disclosed in the written complaint were not actually disclosed by the victim to the witnesses including the doctors. The scribe Rana was not even cited as a witness. He therefore contended that the very basis of the case has been knocked out. (b) Mr. Basu contended that the victim (PW 2) during his examination-in-chief deposed that : "I had long standing dispute with the accused persons in respect of my landed property and nursery. I filed 10/12 cases against the accused persons which are still pending and accused persons threatened me to withdraw those cases. But I refused to withdraw the cases." Mr. Basu argued that there is nothing to show that any threat was ever meted out to the victim to withdraw the cases allegedly filed by him. (c) As to the person or persons who had actually removed the victim to the Bhatpara hospital there is an absolute uncertainty. The victim himself deposed during his cross examination that :- "I stated to police that two of the persons who were present at the spot took me to Goalghar Hospital by vehicle." But the Police did not support that case of the victim. The I.O. (P.W.22) on the contrary deposed that the victim had told him that " He cannot remember how he came to the hospital." The aforesaid evidence of the victim and the I.O as regards the person who removed the victim to the Bhatpara Hospital becomes funnier when the evidence of the other witnesses is taken into consideration. Sushanto (P.W.4) was declared hostile and crossexamined. He was suggested that he had told the Police that he amongst others took the victim to the hospital which he denied. P.W. 6 Nimai claimed to have taken the victim to the hospital. P.W.8 Niranjan claimed to have taken the victim to the hospital along with Babar Ali and others. Babar Ali ( P.W. 18) claimed to have taken the victim to the hospital along with four others. The evidence of these witnesses, according to Mr. Basu, is not at all believable because the victim himself during his cross- examination also admitted as follows: - "One Ramu and another took me to Bhatpara State General Hospital by vehicle No. 507. It was of red color. Those 2 persons are not the residents of my village." (d) Dr. Lipi Mondal ( P.W.16) admitted the victim to the RG Kar Hospital. She deposed that Shri Nikhil Ch. Biswas and Shri Dulal Krishna Biswas had taken the victim to the R. G. Kar Hospital which also appears to have been recorded in Ext. 6. But neither the said Nikhil Ch. Biswas nor the said Dulal Krishna Biswas was examined by the prosecution, which according to Mr. Basu is a serious lacuna in the case of the prosecution. (e) With regard to the place of occurrence Mr. Basu contended that the victim appears to have disclosed to the P.W.21 Dr. Surajit Chattopadhyay that the incident took place when the patient was riding bicycle on the way whereas the patient ( P.W.2) deposed in court that the incident took place while he was standing and waiting for a bus at Ucchegarh bus stand near Santra Nursery. (f) Lastly as regards the identity of the assailants Mr. Basu contended that as per the evidence of the P.W.21 Dr. Chattopadhyay, the names of the assailants were not disclosed to him whereas the evidence of the P.W.2 the victim is that he " disclosed the name of the assailants to the doctor of Goalgarh hospital." Goalgarh hospital is also known as the Bhatpara hospital. P.W.1 the wife of the victim disclosed names of the 8 appellants in the written complaint, which she allegedly ascertained from the victim immediately after the incident while the victim was still in the Bhatpara Hospital whereas P.W.3 a brother of the victim deposed that the victim had told him that Jagannath and seven others had attacked him but he did not remember the names of the other assailants. Assailing the evidentiary value of the deposition of P.Ws 1 and 3 Mr. Basu contended that both of them deposed that they had at first come to know about the incident from Provas the P.W.5 but the said Provas did not utter a single word about the same. P.W.7 deposed that he had visited the victim at the R.G. Kar hospital when he was told by the victim that Jagannath was the assailant. He in any event was not examined under Section 161 of the Code of Criminal Procedure and, therefore, his evidence according to Mr. Basu is of no consequences. P.W.13 Sukumar deposed to have ascertained from the victim that Jagannath, Tapas, Swapan, Sripati, Rathin and Nitto committed the offence. Mr. Basu contended that the names disclosed by the P.W.13 are not in conformity with the case of the prosecution. ;