JUDGMENT :

Ajoy Kumar Mukherjee, J. 

1. Petitioners herein are aggrieved with the judgment and order dated 10th September, 2018 passed by learned Additional District and Sessions Judge, City Sessions Court, Calcutta, in Criminal Appeal no. 21 of 2018, by which the Court below has affirmed the judgment and order of Conviction and sentence dated 26^th February, 2018 in GR Case No. 658 of 2010 for committing offence punishable under section 326/34 of the IPC.

2. One Subir Nag lodged a complaint at Amharst Street Police Station on 21.03.2010 at about 22.25 hrs., where it was alleged that the accused persons/petitioners with common intention at first abused him with filthy languages and thereafter assaulted him physically with bamboo stick and iron rode due to having previous grudge. During such occurrence victim’s mother-in-law Kunti, wife Rani came to rescue him but they were also assaulted and they sustained injury. Ultimately his mother-in-law somehow rescued him. As a result of such physical assault victim sustained severe injuries and he was taken to Medical College and Hospital by his relatives for his treatment. On the basis of complain police initiated Amharst Street P.S. case no. 69 dated 21.03.2010 under section 324/34 IPC. After completion of investigation police submitted charge sheet under section 326/34 IPC against all the accused persons/petitioners. Trial Court took cognizance and thereafter the charge was framed against all the accused persons under section 326/34 IPC.

3. Prosecution examined the defacto complainant Subir Nag as PW1 his wife Rani Nag as PW2, his mother in law Kunti Das as PW3 and the Medical Officers were examined as PW4,5 and 6 and the investigating officer was examined as PW7. Accused did not adduce any evidence. But the accused persons were examined under section 313 CR.P.C. and thereafter the trial court by the impugned judgement convicted them under section 326/34 IPC and was sentenced to suffer rigorous imprisonment of one year along with fine of Rs. 5,000/- in default rigorous imprisonment for two months more.

4. Being aggrieved by the said judgment the petitioners preferred aforesaid criminal appeal and the appellate court also affirmed the judgment of conviction passed by the Trial Court and thereby he dismissed the appeal.

5. Being aggrieved by the aforesaid judgment of affirmation learned counsel for the petitioner argued as follows:-

(a) that the investigating officer never identified the place of occurrence and no effort was ever made either to reconstruct the crime scene or to identify the exact place of occurrence of the alleged incident. In fact the victim defacto complaint was never taken to the PO for identification and no sketch map of the PO has been exhibited or marked.

(b) No one from the locality was ever examined or cited as witness even though the alleged incident took place on the street surrounded by shops and stores

(c) The doctors were never examined during investigation as the IO did not say that he had examined the doctor.

(d) No seizure list has been placed to support the seizure of medical report marked exhibit 4 by the investigating officer from the medical college hospital.

(e) The date time and place of seizure is also not available on record

(f) The ingredients of section 320 of IPC are not available in the instant case as there was no grievous injury

(g) No weapon was sized by the investigating officer to substantiate charge under section 326 of IPC.

(h) The contents of the Medical Report were not lawfully proved and the signature of PW4 was never marked as exhibit. PW4/Doctor also did not speak of any ‘fracture’ in his deposition or treatment being provided to the alleged victim which were usually provided in case of fracture. The medical report also does not speak of any fracture as the said term is not found anywhere in the report. No X-Ray report either seized or exhibited to prove the factum of alleged fracture near right elbow of the victim

(i) It is settled law that me