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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Shampa Dutt (Paul), J.
Shib Nath Koley & Others - Appellant
Versus
The State of West Bengal - Respondent
CRA. No. 191 of 2000
Decided On : 01-07-2022
Indian Penal Code - Assault and Outrage of Modesty - Section 148, Section 323 read with Section 149 - Summary
Fact of the Case:
The appellants were convicted for assaulting the complainant and others, damaging household articles, and causing a loss. The defense claimed innocence and false implication.
Finding of the Court:
The Trial Judge altered the charge at the time of judgment, which was found to be illegal and prejudicial. The defense argued that the common object to commit an offense was not made out, and the weapons used were not deadly. The prosecution argued that the findings of guilt were right and the Trial Judge was correct in altering the charge.
Issues: The issues included the alteration of charge, common object, nature of weapons used, and the validity of the findings of guilt.
Ratio Decidendi: The court found that the prosecution failed to prove the charge beyond reasonable doubt, as there was no evidence of a common object, no evidence of an unlawful assembly, and discrepancies in the evidence.
Final Decision: The appeal was allowed, and the accused/appellants were discharged from their respective bail bonds.
JUDGMENT :
1. This is an appeal against judgment and order dated 19.05.2000 by the Ld. Additional Sessions Judge, 2nd Court, Purba Burdwan, convicting the appellants for commission of offence punishable under Section 148 and under Section 323 read with Section 149 of the Indian Penal Code and sentencing then to suffer simple imprisonment for 6 months under Section 148 of Indian Penal Code and to further suffer simple imprisonment for 6 months for offence punishable under Section 323 read with Section 149 of Indian Penal Code. Both the sentences to run concurrently. The prosecution case against the appellants is as follows:-
2. That on 11.10.1996 at about 14.00 hours, all the accused persons armed with Lathi, Da, Ballom, Tangi, Chain etc. entered into the house of the defacto complainant Anil Mondal and assaulted the complainant and outraged the modesty of the women-folk and also assaulted the witnesses who came to the rescue of the complainant. Some of the persons sustained severe injuries and were admitted at Burdwan Medical College and Hospital. The accused person allegedly also damaged and ransacked the household articles belonging to the complainant and the complainant sustained a loss of Rs. 1500. FIR was lodged being Memari P.S. case no 233 dated 11.10.1996 under Section 147/148/149/448/341/379/326/354/307 I.P.C. On completion of investigation police submitted chargesheet against the accused persons under Section 147/148/341/379/326/354/307 I.P.C.
3. Charge was framed against all the appellants for offence punishable under Sections 148/149/380/307 I.P.C. and all pleaded not guilty and claimed to be tried.
4. In course of trial, prosecution examined in all 14 witnesses and eight documents were marked as exhibits. Defence case was that of innocence, denial and false implication. On conclusion of trial, the Trial Judge by the impugned judgment and order dated 19.05.2000 convicted and sentenced the appellants as aforesaid.
5. Ld. Lawyer for the appellants submits that the Ld. Trial Judge altered the charge at time of pronouncing judgment, which is illegal and has thus caused prejudice and has also caused mis carriage of justice to the appellants.
6. The Trial Judge at the time of pronouncing judgment, found the accused persons guilty under Section 148/323/149 IPC instead of under Section 380/307 IPC, which the Ld. Lawyer for the defence submits is against the provisions in Section 222 of Cr.P.C.
7. It is further case of the defence that after alteration of charge, they were not allowed to re-examine the witnesses and as common object to commit an offence was not made out, conviction by aid of section 147/149 IPC is not permissible. Ld. Lawyer for the defence has further argued that the weapons as described being Bows, Lathis and Stones are not deadly weapons and that the findings of the Ld. Trial Court to the extent that “ It is clear from the evidence of PW1 to PW9 with reference to the evidence of the PW12 that the accused voluntarily caused hurt of PW1 to PW9 with common object by way violence” is wrong and illegal. Evidence of PW1 to PW9 could not prove any motive. PW9 has stated that as she had rebuked the accused persons, they assaulted them. The Doctor PW(12) has deposed that the injuries he found on the persons of PW2, 8 and 9 might have been caused by fall on hard, blunt substance or broken tiles. PW1 Anil Mondal has deposed that on the date of incident that is 11.10.1996 at about 2 P.M. the incident took place over the construction of “latrine” by adjoining neighbour Satya Nayek and on being assaulted he became senseless and he regained his sense in the hospital, where he was medically treated and so it was impossible for the complainant to lodge a FIR on 11.10.1996 at 2.25 hours. The writer of the FIR Supriyo Samanta has not being examined to prove the written complaint. No Doctor has been examined to prove the other injury reports. That PW2, 8, and 9 did not state before the Doctor (PW 12) the history of their injury an
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