25.08.2025 Court No.655 DL/Item No.–4 [Milan/

Samarpita]

CRA 263 of 1999 In the matter of: Sk. Lal Mahammad Ms. Manisha Ghosh (Amicus Curiae)

….for the Appellant Mr. Avishek Sinha, Mr. Parvej Anam ….for the State (Dictated in Court

1. The impugned judgment and order of conviction dated

27.07.1999 passed by the learned Additional Sessions Judge, 2nd Court Burdwan in connection with Sessions Trial No. 6 of 1999 arising out of Sessions Case No. 203 of 1995 is assailed in this appeal.

2. By passing the impugned judgment, this appellant was found guilty for commission of offence punishable under Section 323 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for six months.

3. Being aggrieved and dissatisfied with the said impugned judgment and order of conviction, the present appeal is preferred at the behest of the appellant.

4. In short campus the story of the prosecution is as follows-

“The instant case was started on the basis of a complaint lodged by one Sitala Bag before the Bhatar Police Station, stating interalia, that on 15.10.94 at 7 P.M. (evening) she went to fetch water from Bolgore Pond and at that time she saw the victim Sukumar Roy was being assaulted by this appellant along with other accused person. It is said in the written complaint that the accused persons assaulted the victim on his head and the victim was found groaning in agony and pain and told his wife not to assault him and wanted water for her. But the wife of the victim instigated the accused persons i.e. Sheikh Lal and Soleman to assault Sukumar and those accused persons began to assault the victim by pressing his neck. It is further stated in the written complaint that at the time of incident Rupa Bag, Purnima Majhi, Sunita Majhi and many others rushed to the spot but the accused persons began to abuse the defacto complainant and the persons present there. This defacto complainant and other persons who were present at the spot at that point of time were threatened by the accused persons and as such, all of them left the place of occurrence. It is stated in the written complainant that due to the assault made upon the victim Sukumar by the accused Soleman and Sk. Lal he died and they were instigated by the wife of the victim namely, Rina Roy (other accused). Over the complaint made before the police station, a case being Bhatar P.S. Case No. 73/94 dated 16.10.94 under Section 302/109/34 of Indian Penal Code was started against the accused persons.”

5. After completion of investigation, police submitted charge-

sheet against the accused persons under Sections

302/109/34 of Indian Penal Code.

6. Charge was framed by the Trial Court under Section 302/34 of Indian Penal Code.

7. In this case, 10 (ten) witnesses were cited by the side of the prosecution and documents were marked as exhibits. Neither any oral, nor any documentary evidence was adduced by the side of the prosecution.

8. Ms. Manisha Ghosh, learned Amicus Curiae for the appellant has said that the charge framed against the appellant is defective and as such, no conviction can be sustained on the basis of such defective charge. It is said by the learned Advocate that there are material discrepancies in the evidences of the prosecution witnesses and as such, their testimonies cannot be relied upon. It is further said that if the evidences adduced by PW1 and PW3 are taken together, then it do not constitute and establish any offence under Section 323 of the Indian Penal Code. The attention of this Court is drawn to the evidence of the PW10, autopsy surgeon which as per her submission does not support the prosecution case warranting conviction under Section 323 of the Indian Penal Code.

9. Ms. Ghosh further contended that the learned Trial Judge failed to evaluate the evidences of PWs 1, 3 and 4 and committed a mistake in arriving at the conclusion in the impugned judgment. It is said by the learned Advocate that the order of conviction is based on surmises and conjectures and it is liable