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2020 Supreme(Cal) 186
IN THE HIGH COURT OF CALCUTTA
Joymalya Bagchi, Suvra Ghosh, JJ.
Jamini Barman And Others - Appellants
Versus
State Of West Bengal - Respondent
Criminal Appeal No. 142 of 2016
Decided On : 05-03-2020
Asis Sanyal, Advocate, Rana Mukherjee, Advocate, Sujata Das, Advocate
The main legal point established in the judgment is the reliance on ocular and medical evidence to determine the nature of injuries and the liability of the accused, emphasizing the principle that constructive liability under section 149 IPC is not attracted in a free fight.
Headnote:
Indian Penal Code - Assault - Sections 148/304 Part-I/149 - The judgment discusses the nature of injuries suffered by the victims, the medical evidence, and the liability of the accused under Section 304 Part I IPC read with Section 34 IPC. The court held appellant nos.6 and 7 guilty for culpable homicide not amounting to murder, while acquitting appellant nos.1 to 5.
Fact of the Case:
The appellants were convicted for assaulting the victims with deadly weapons, resulting in injuries and the death of one victim. The prosecution alleged that the appellants, along with other accused persons, attacked the victims while they were cultivating a landed property, leading to injuries and the death of one victim. The defense claimed innocence and false implication.
Finding of the Court:
The court found that the victims suffered injuries as narrated by the witnesses, and the medical evidence corroborated the nature of injuries. The court held appellant nos.6 and 7 guilty for culpable homicide not amounting to murder, while acquitting appellant nos.1 to 5 due to lack of evidence.
Issues: The issues revolved around the nature of injuries, liability of the accused, and the credibility of the witnesses' testimonies.
Ratio Decidendi: The court relied on the ocular and medical evidence to determine the nature of injuries and the liability of the accused. It emphasized that constructive liability under section 149 IPC is not attracted in a free fight.
Final Decision: The court partly allowed the appeal, holding appellant nos.6 and 7 guilty for the offense and acquitting appellant nos.1 to 5. The period of detention undergone by the guilty appellants was set off against the sentence imposed, and the acquitted appellants were ordered to be released from custody.
JUDGMENT
Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 30th January, 2016/1st February, 2016 passed by the learned Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur in Sessions Case No. 10 (August) 2007 [Sessions Trial No. 08(01) 2008] convicting the appellants for commission of offence punishable under Sections 148/304 Part-I/149 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for three years and to pay fine of Rs.5,000/- each, in default, to suffer simple imprisonment for three months more for the offence punishable under Section 148 IPC and to suffer rigorous imprisonment for ten years and to pay fine of Rs.3,000/ each, in default, to suffer simple imprisonment for six months more for the offence punishable under Sections 304 Part-I/149 IPC; both the sentences to run concurrently.
2. The prosecution case as alleged against the appellants is to the effect that the appellants and other accused persons being armed with deadly weapons attacked Khudiram Dhara (PW1) and his brother namely, Badal Chandra Dhara (PW6) while they were cultivating the landed property of Menaka Barman (since deceased). Sushil Ch. Dhara, son of Badal and his wife namely, Radharani Dhara (PW5) were also cultivating the field. Chandan Kumar Barman and Rabindra Nath Barman @ Rabindra Nath Barman namely, appellant nos.6 & 7 respectively assaulted Sushil with a ballam. Badal was assaulted by Khokan Barman and Kanak Kanti Barman namely, appellant nos.4 & 5 respectively with shabal while Krishan Kumar Barman and Tapan Barman namely, appellant nos.2 & 3 respectively assaulted Radharani with a hasua. All the accused persons assaulted them with lathi. As a result of assault, the aforesaid persons suffered injuries. Injured persons were initially treated at Khejurberia BPHC. Therafter, Badal and Sushil were removed to Tamluk S.D. Hospital. Badal was admitted in the said hospital while Sushil was referred to Ekbalpore Nursing Home for treatment. Unfortunately, Sushil succumbed to his injuries on 2nd December, 1998 in the Nursing Home. In the meantime, FIR was lodged by Khudiram at the police station against the appellants and other accused persons. In conclusion of investigation, charge-sheet was filed and charges were framed against the appellants. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. It was specifically contended that PW1 could not be a Bargadar of the land. On the other hand, one of the appellants namely, Tapan Barman (appellant no.3) had suffered injuries in the course of the incident. Defence examined two medical witnesses to prove the injuries on the appellant no.3 namely, Tapan Barman. Upon analysis of the evidence on record, the trial Judge by the impugned judgment and order dated 30th January, 2016/1st February, 2016 convicted and sentenced the appellants, as aforesaid.
3. Pw1, 5 & 6 are the injured witnesses in the present case.
4. Pw1, Khudiram Dhara deposed he was a bargadar in respect of the plot in question. He along with his family members were tilling the land on 8th Agrahayan, 1405 B.S. at 2:00 P.M. At that time, appellants and other accused persons came in a body armed with deadly weapons like ballam, sabal, iron-rod and lathi etc. Chandan Kumar Barman and Rabindra Nath Barman hit on the head of Sushil with a ballam. Khokan Barman and Kanak Kanti Barman hit Badal with a shabal. Tapan Barman and Krishna Kumar Barman hit Radharani with a hasua. All accused persons also hit them with lathi. PW1 and others were treated at Khejurberia hospital. Badal Dhara and Sushil Dhara were referred to Tamluk hospital from Khejurberia BPHC. As the condition of Sushil was precarious, he was referred to Kolkata for better treatment. Eight days later Sushil died in a nursing home at Kolkata. P.W.1 lodged written complaint which was written by Murari Maity, an advo
