IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Prasenjit Biswas C.R.A. 222 of 1988 Gour Chandra Bera & Ors -Versus-

The State of West Bengal For the Appellants : Ms. Madhusree Banerjee, Amicus Curiae For the State : Mr. Avishek Sinha.

Hearing concluded on : 17.06.2025 Judgment On : 23.07.2025 Prasenjit Biswas, J:-

1. The impugned judgment and order of conviction dated 28.05.1988 passed by the learned Additional Sessions Judge, 1st Court, Midnapore in connection with Sessions Trial No. X of January, 1988 is assailed in this appeal.

2. Being aggrieved and dissatisfied with the said impugned judgment and order the present appeal is preferred at the behest of the appellants-

convicts.

3. By passing the impugned judgment, these accused persons were found guilty for commission of offence punishable under Section 307/34 of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for four years each.

4. The case of the prosecution in nutshell is as follows:

“The instant case was started on the basis of a complaint lodged by the de-facto complainant by stating interalia that the relationship between the victim and his brothers was not cordial and a civil case was pending in the Court between them over the land issues. On the date of incident over the issue of share produced, there was exchange of hot words between the brothers and the accused Jagai Bera assaulted the victim, Netai with an iron rod in furtherance of the common intention shared by all accused persons. The victim was removed to the Primary Health Centre for treatment. Over the complaint a case was started by the concerned police station being Kotwali P.S. Case No. 26 dated 25.10.1986 under Section 325/327 Indian Penal Code. After completion of investigation police submitted charge-sheet against the accused persons.”

5. Charge was framed by the Trial Court against the accused persons under Section 307/34 of Indian Penal Code which was read over an explained to them and in reply the accused persons pleaded not guilty and claimed to be tried.

6. In this case, 10 (ten) witnesses were examined by the side of the prosecution and documents were marked as exhibits on its behalf. Neither any oral, nor any documentary evidences were adduced by the side of the defence.

7. During pendency of this appeal two appellants namely, Gour Bera and Jagai Bera died and the instant appeal was stood abated against them.

8. Ms. Madhusree Banerjee, learned Amicus Curiae, for the appellant said that there are apparent contradictions and omissions in the statements of the witnesses, cited on behalf of the prosecution. It is said that there is discrepancy as to the alleged time of occurrence which according to the FIR is on or about 12 Hrs, but according to the medical report of PW3, she was assaulted by the victim at 1 P.M. on the very date. It is further said by the learned Advocate that the evidence of the doctor disclosed that the injuries as found by him were possible if the victim falls on any hard and blunt substance and there is nothing in the record to say whether the fall of the victim was on any hard and blunt substance and as per his submission the said fact can be explained in two ways one by assault or fall as the doctor stated in his evidence. The learned Advocate further said that the eye witnesses i.e. PW(s) 2, 3, 7 did not disclose the incident to anybody before they were examined by the Investigating Officer long after the alleged incident. Moreover, none of the neighbors have been examined by the prosecution as a witness to the incident and no reasonable explanation has been given by the side of the prosecution to that extent. The attention of this Court is drawn to the deposition of PW3, the mother of the victim and her medical examination report clearly shows that the victim sustained injury due to fall down consequent on scuffle with accused/appellant no. 2. PW3 came to the spot to rescue his mother. It is ass