The need for conclusive evidence to prove the charge under Section 326 IPC and granting the benefit of doubt in the absence of substantiated evidence.

JUDGMENT

Shampa Dutt (Paul), J. - The appeal has been preferred against the judgment and order dated 12.08.1996 passed by the Additional Sessions Judge, 6th Court, Midnapore in Sessions Trial Case no. VIII/1992 convicting the appellant for commission of offence punishable under Section 326 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500 in default to suffer rigorous imprisonment for one month more.

2. On 05.10.1989 when Fulmoni Hembram was sleeping with her children in her house and her husband was away for work at village Basantapur, accused Kanai Tudu, on that day at about 1 a.m., along with accused Dhadra Tudu, Kanka Tudu and Hati Hansda entered into the house of Fulmoni and caught hold of her and when she raised alarm, the accused persons tied her mouth with cloth and dragged her to the bank of Gotegeria pukur and assaulted her and left there. Fulmoni again raised alarm. At that time the accused persons again came and accused Kanai Tudu assaulted her on her left leg just below the knee with a small axe, as a result of which she received fracture injury on her leg. Fulmoni also received injury on her left hand, right leg and swelling injury on different parts of her body. One Madan Raut went to attend nature's call and found Fulmoni Hembram in injured condition there.

3. Fulmoni narrated the incident to him and thereafter to her brother (PW 2) (complainant) Bhadra Murmu. Thereafter the villagers assembled and Fulmoni was taken to hospital for treatment and FIR was lodged with Keshpur P.S. Accordingly, Keshpur P.S. case no. 60/89 dated 05.10.1989 was started against the accused persons. The case was investigated and chargesheet was submitted against the accused persons. Charge was framed under Sections 448/34, 354/34, 307/34, 326/34, 341/34, 452/34 and 376/34 of the Indian Penal Code. The content of charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.

4. In course of trial, prosecution examined nine witnesses and exhibited 2 documents marked Exhibit 1 and 2. Duplicate bed head ticket was marked 'X' for identification but not proved.

5. The appellant's defence was of innocence and false implication.

6. On conclusion of trial the Trial Judge by the impugned judgment and order dated 12.08.1996 convicted and sentenced the sole appellant Kanai Tudu under Section 326 IPC. The appellant was found 'not guilty' in respect of charge under Sections 448/34, 354/34, 307/34, 341/34, 452/34 and 376/34 IPC and was acquitted of the said charges.

7. The other three accused persons were found 'not guilty' of all charges and acquitted accordingly.

8. Appellant/defence case Mr. Prabir Kumar Mitra, Ld. Advocate for the appellant submits that the judgment and order of conviction and sentence is bad in law and against the evidence on record and should be set aside. It is submitted that there was a long standing political rivalry between the victim and the appellant and the motive of the victim was to implicate the appellant in a false case. The total conviction of the appellant is based only on the victim's statement and has not been supported by a single witness. Nor was any documents produced in support of the prosecution case. There is absolutely no medical papers to substantiate the charge under Section 326/34 IPC as held by the Ld. Trial Judge, inspite of the fact that PW 7, Dr. K. Bose stated that he is unable to say anything in the case unless the original papers are shown to him.

9. The Trial Court convicted the accused, inspite of there being absolutely no independent oral evidence nor any supporting documentary evidence and as such there has been a severe miscarriage of justice and accordingly the appellant is entitled to acquittal in the present case.

10. State/Prosecution Case Ms. Rita Dutta, Ld. Additional Public Prosecutor, submits that the prosecution case before the Trial Court was that the victim was admitted