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

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

CRA 934 OF 2013 RAJMAN THAPA VS.

THE STATE OF WEST BENGAL For the Appellant: Mr. Ramashis Mukherjee, Adv.

Ms. Debanjana Sen, Adv.

For the state : Mr. Debasish Roy, Ld. P.P Mr. Iqbal Kabir, Adv.

Last Heard On: 24.04.2025 Judgement On: 20.05.2025 CHAITALI CHATTERJEE DAS, J:-

1. This criminal appeal is directed by the appellant against the judgement and order of conviction passed by the learned Court of Session Judge Darjeeling in Session case number 37 of 2007 where by the present appellant is found guilty of the offence punishable under Section 326 of the Indian Penal Code.

Brief fact of the case.

2. One complaint was lodged before the officer in charge, Ghoom Jore bungalow police station, Darjeeling by the De-facto complainant alleging an attack upon her father, Pradeep Alley by Ramjan Thapa on 4^th February 2007 at about 8:30 PM with a sharp weapon causing severe bleeding injuries on his hands, legs and head. He was admitted at Eden Hospital where primary medical treatment was given and as per advice of the doctor, took him to Siliguri North Bengal medical Hospital immediately, as his condition was very critical.

3. On the basis of such complaint, Ghoom Jore Bunglow P.S case No. 72 dated

3/4/2007 started and after completion of the investigation, the charge sheet was submitted against the accused person under Section 341/326/307 of the Indian penal code. The case being exclusively triable by the sessions court, the same was committed before the learned Court of Session Judge, Darjeeling and formal charge under Section 326/307I.P.C was framed which was read over and explained to the accused person to which he pleaded not guilty and claimed to be tried. Hence, the trial commenced. The prosecution cited eight witnesses and the learned session court, after considering the evidences, both oral and document passed the order of conviction against the person under Section 326 I.P.C.

Submissions

4. The learned Council for the Appellant at the outset submits, though the charge was framed under Section 326/307 I.P.C, the court passed the order of conviction only under Section 326 I.P.C as the prosecution failed to establish the said charge under Section 307I.P.C. It is submitted before this court that, this judgement and order of conviction is devoid of any merit and without application of mind as the learned Judge failed to consider that no motive could have been established by the prosecution. Furthermore despite having glaring inconsistencies, absence of forensic report, absence of seal of the hospital in the medical paper, the learned court heavily relied upon the evidences adduced by the prosecution and therefore the judgement is not tenable in the eye of law.

5. It is further contended that in all probabilities the victim himself sustained injuries on account of the sudden fall as would appear from the evidence of D.W. 1 & 2. According to him, the I.O. has not sent the seized offending weapon, and the wearing apparels of the accused person to FSL for chemical analysis and the injury report do not contain any seal of the hospital and also silent about the nature of injury sustained. It is further argued that the PW1 did not see the actual incident but heard about the incident from the complainant. P.W.2 came to learn that the accused caused injuries to Pradeep Allay. He put his signature on the same seizure list as witness, but in cross examination made a departure as said, the content of the Seizure list was not read over and explained to him by the police. The I.O. in the sketch map did not show the houses of those persons whose names were taken by the witnesses nor examined them as witness. It is further argued that from the evidence of the P.W. 3, as well as other witnesses, the time of incident was in the late evening at 8.30 pm when it was dark and there was no electricity in their village. The identification by