Inconsistent medical evidence and improper investigation can lead to the discharge of an accused from an offence.

1. In connection with a FIR registered at South Port Police Station, the police after completion of investigation submitted charge-sheet under Sections 148/149/427/353/307 of the Indian Penal Code against the petitioners. After commitment of the case to the Court of Sessions, the same was transferred to the Court of the Learned Additional Sessions Judge, 9th Fast Track Court, Alipore, 24-Parganas (South) for trial, when on behalf of the petitioners an application under Section 227 of the Code of Criminal Procedure was moved for discharge as far as the offence punishable under Section 307 of the Indian Penal Code is concerned. However, the Learned Judge rejected the said application. Now, the petitioners’ invoking Section 482 of the Code of Criminal Procedure moved this criminal revision for quashing of the same.

2. Now, having regards to the charge-sheet materials, I find it is the case of the prosecution, that on September 10, 2006 at about 21.50 hours in front of 49/5, Circular Garden Road, Kolkata – 23, a free fighting was ensued between two group of miscreants and having receipt of such information, when Sub-Inspector of Police S.K. Ghosh attached to the South Port Police Station, accompanied by his force arrived there and tried to disperse the mob, the petitioners attacked the police party and started throwing brickbats. At that time, the accused Manoj Gupta, the petitioner no. 1 instigated the mob by saying “Yei hai Ghosh Babu isko Mar Dalo”, when someone from the mob hurled a brickbat towards the said Sub-Inspector of police, which hits on his shoulder causing grievous injury on his person.

3. However, having gone through the materials contained in the Case Diary produced before this Court on May 3, 2010, i.e. on the first date of hearing, this Court found the witness Matalub Khan and Md. Sohrab Alam stated nothing as against the present petitioners. However, the Sub-Inspector Sanat Kumar Ghosh in his statement alleged that while he arrived at the spot with force and tried to disperse the mob, the mob led by Manoj attacked him and Manoj instigated the mob by saying “Yei hai Ghosh Babu isko sala Mar Dalo’. Immediately, the witness was hit with a stone/brickbat on his collar bone and suffered severe injuries and was removed to the Kolkata Police Hospital with fracture on his collar bone. But upon perusal of the injury report of the injured Police Officer, recorded at the Kolkata Police Hospital, on September 11, 2006, which is the part of the first Case Diary, this Court found that the attending doctor Asish Kumar Bhadra referred the injured to the S.S.K.M. Hospital for urgent X-ray for detecting if any fracture has been suffered by him or not. It further appeared from the said injury report that there was a specific note by the self-same doctor to the effect that at S.S.K.M. Hospital X-ray was done which showed fracture on left clavicle region and the patient was admitted at the Officers Ward of the Orthopedic Department of Kolkata Police Hospital. However, it appears from the contents of the said Case Diary the injured police officer on the very next day, i.e., on September 12, 2006 at 8.10 P.M. took admission at a private nursing home, Maple Nursing Home (P) Ltd. and was discharged from there on September 14, 2006 at 8 P.M. It further appears from the aforesaid injury report, the history of assault, according to the statement of the injured police officer, that while he was on duty for controlling a violent mob, at that time someone from a balcony of first floor building threw a brick, which hit on his shoulder. Thus, the statement of the injured police officer to the police and to the attending doctor at Kolkata Police Hospital, as to how he sustained injuries appears to be not same.

4. Since in the said Case Diary there was no medical papers as regards to the treatment meted out to the injured Sub-Inspector Sanat Kumar Ghosh at S.S.K.M. Hospital, which was the purported foundation of injury report issued