Madan Kundu & Ors. Vs State

This appeal is preferred against judgment and order of conviction and sentence dated 16^th December, 2006 passed by the Learned Additional Sessions Judge, Fast Track Court-I, Krishnagar in Sessions Case No. 90(9) of 2005 convicting the appellant nos. 1, 2 and 3 under Sections 324/323/34 of

¶12

the Indian Penal Code and sentenced them to suffer rigorous imprisonment for two years each for the offence punishable under Sections 324/34 of the Indian Penal Code and further sentenced them to suffer rigorous imprisonment for six months each for the offence punishable under Sections 323/34 of the Indian Penal Code and convicting the appellant nos. 4 and 5 under Sections 323/34 of the Indian Penal Code and sentenced them to suffer simple imprisonment for six months for the offence punishable under

¶13

2

¶14

Sections 323/34 of the Indian Penal Code. All the sentences shall run concurrently.

¶15

The prosecution case precisely stated one Tapas Kundu moved to the Court of the Learned Chief Judicial Magistrate, Krishnagar and filed a written complaint narrating on 09.09.2002 at about 3.30 p.m. his elder brother Ashoke Kundu in the course of unloading and alighting wet jute sticks from a cart pulled by oxen, was assaulted by the appellants armed with “lathi”, “hesua” and “ballam” etc. at the spot of occurrence. Appellant Mandan Kundu assaulted Ashoke Kundu by a “dao” on his head with the intention to murder him. Ashoke Kundu being injured ran into the house of one Kesab to save himself. The appellants chased him inside the house of Kesab and assaulted Ashoke Kundu by “hesua”, “dao” on different parts of his body. The mother of Ashoke Kundu namely, Santi @ Shanti Kundu arrived to save her son from the clutches of the appellants, however, the appellants also assaulted her by fists, blows and kicks. On raising alarm, Santi @ Shanti Kundu, other localites including Panchayet Pradhan came to the spot and the appellants fled. The complainant along with his wife, injured elder brother Ashoke Kundu and other localites went to the local police station. The police advised them to take the injured victim/Ashoke Kundu to Bethuadari Hospital for treatment.

¶16

On the basis of the complaint filed in Court, Nakashipara P.S. Case No.145/02 dated 14.09.2002 under Sections 147/148/149/447/323/427/326/307/34 of the Indian Penal Code was initiated.

¶17

3

¶18

On completion of the investigation, the investigating agency submitted charge-sheet against the appellants under Sections 147/ 148/ 149/ 325/ 306/307/447/427 of the Indian Penal Code.

¶19

Charges were framed against the appellants under Sections 148/307/448/325/34 of the Indian Penal Code to which the appellants pleaded not guilty and claimed to be tried.

¶20

The Learned Advocate representing the appellants submitted as follows:-

¶21

i. Law provides that an F.I.R., after its lodgment, to be dispatched before the Learned Jurisdictional Magistrate at the earliest, preferably within 24 hours. Surprisingly in the present case the F.I.R. was dispatched after 6 days i.e. on 20.09.2002, though the complaint was registered in the police station on 14.09.2002. No explanation as such was forthcoming from the side of the prosecution for the inordinate delay.

¶22

ii. Framing of charges in this case was not proper since the Learned Trial Judge did not specify two separate places of occurrence while framing the charge.

¶23

iii. Description of the incident as stated by PWs-1, 2 and 3, if thoroughly scrutinized would reveal slight discrepancies in their respective versions, though mostly repetitive, not supported by any other evidences produced by the prosecution.

¶24

iv. PWs- 1, 2 and 3 stated in their evidence that Madan Kundu had struck a blow on the backside of the head of PW- 3 with the dao/hansua. And other accused persons struck PW-3 with sharp weapon. But PW- 7, the examining doctor had not found any such

¶25

4

¶26

injury on the backside of the head of Ashok and any other parts of his body. He further clearly discarded the chance of use of any sharp weapon in the alleged assault. Moreover in his report the size of injury allegedly sustained by Ashok clearly negates the description of the story made by the prosecution witnesses as with regard to the weapon allegedly used in assault.

¶27

v. Thorough reading of evidences of PWs- 2 and 3 raiseed a serious question over the presence of PW- 1 at the alleged time and place of the occurrence because both PWs- 2 and 3 claimed PW-l came at the spot hearing hue and cry. However the claim of PW-1 is contrary. This raises a serious question on whether at all the de-facto complainant had witnessed the alleged occurrence.

¶28

vi. PWs-1, 2 and 3 stated in their evidence that after the alleged assault with hansua/dao on PW-3, blood stood everywhere- on the wearing apparels, on jute bundles, on earth but surprisingly PW-12 did not take any measure to seize those neither PWs- 1,2 and 3 had any urge to handover the wearing apparels to PW-12. This fact raises a serious doubt over the authenticity of the prosecution story as has been described by the witnesses.

¶29

vii. PWs-1,2 and 3 stated in their evidences that PW-3 received sharp-cut injury on his palm while trying to save himself from a blow aimed towards his head. PW-7 clearly stated in his evidence that he never found any such injury on palms or hands of the PW-3.

¶30

5

¶31

viii. PW-6, the only independent witness, who supported the prosecution case to some extent was never examined by police and he deposed such facts for the first time before the Learned Trial Court. PW-6 happened to be a day laborer and was working under PW-3. He reiterated the deposition of PWs-1, 2 and 3, which did not get any validity from the medical evidences.

¶32

ix. The facts that PWs-2 and 3 were hospitalized for 3 days and 21 days respectively was nearly a story, hooked up by the prosecution, only with the intent to strengthen its false case because prosecution has failed to bring on record any document/medical paper to support such contention. The fact of PW-1 shifting PWs- 2 and 3 to hospital is also not proved by the prosecution since the report of the doctor (PW-7) does not contain any name of the person who brought and identified the injured in the hospital.

¶33

x. The doctor being PW-7 had demolished the truthfulness of the entire prosecution story with regard to the manner. PWs- 8 and 10 however did not support the second part of the prosecution story and therefore relying on such evidence while convicting the appellants would be risky.

¶34

xi. PW-12 being the Investigating Officer has miserably failed to properly investigate into the case and bring out the actual facts. He clearly conducted the investigation in complete perfunctory manner and submitted charge sheet.

¶35

6

¶36

xii. The appellants are presently aged about, Madan Kundu- 66 years, Abhimanyu Kundu- 69 years, Naba Kumar Kundu- 51 years, Mira Kundu- 64 years, Maya Kundu- 69 years. Since last 23 years the appellants are suffering from tremendous mental agony, and more over the prosecution has failed to prove its case against the appellants beyond all reasonable doubts.

¶37

The Learned Advocate representing the State submitted the prosecution was able to prove its case based on corroborative evidence of the prosecution witnesses supported by the medical evidence and the appeal shall be dismissed.

¶38

A circumspection of evidence of the prosecution witnesses revealed as follows:-

¶39

i. PW-1 in his deposition stated as follows: “The incident took place on 09.09.2002 at about 3/3.30 p.m. My elder brother Asok Kundu was returning from the field with jute sticks on cart driven by oxen. My elder brother was driving the cart. He came near to our house. When he was alighting the bundle of jute sticks from the cart accused Madan Kundu came there and assaulted my brother on the backside of his head. My elder brother tried to escape to avoid further assault upon him. The other accused persons came running to that place. My elder brother then ran to inside the house of Kesab. Mandan Kundu, Abhimanyu Kundu and Naba Kundu then again went there and assaulted him by hasua. Myself and my mother then went to rescue my elder brother. Then the accused persons fled off. Before going away

¶40

7

¶41

accuseds Maya, Mira and other accuseds assaulted my mother by fist and blows. My elder brother sustained bleeding injuries. Then myself and others removed my elder brother and mother to Nakasipara PS. Police told me to take them to hospital. So we took them to Behuadahari Hospital. They were admitted there and were treated. I then went to the P.S. but police did not register any case and told me to move to the Court. On the next date in came to the Court and filed written complaint against the accused persons. This is the written complaint as per my words and I also signed on it. Lawyer Asit Kumar Ghosh scribed it as per instruction. (The written complaint is marked as Ext. 1). Ashok Kundu was in the hospital for 21 days. My mother stayed in the hospital for 3 days. The accused persons whom I have named are present on dock.”

¶42

ii. PW-1 in his cross-examination deposed as follows: “I work in a jewellery shop in Jaipur, Rajasthan. I have been working there for last two years. On the north of our house there are houses of Subal Dey and Pata Dey. On the south there are houses of Nimai Kundu, Rama Kundu, Sankar Kundu, Bablu Kundu and Haradhan Dutta. On the east there is a field. On the west there are houses of Bablu De, Naru Dey, Sadhan De, Nirapada De, Swapan De etc. Local people assembled there hearing the ‘golmal’. The wearing apparel of my elder brother was strained with blood. The jute bundle was also stained with blood. Blood also spilled on the ground where he was assaulted. Blood also spilled on the ground in the house of Kesab. Kesab and

¶43

8

¶44

Kamal were present in that house at that time. I was not examined by the police during investigation. Police went to the P.O. for investigation. We showed to the police the P.O. and the jute bundle and also the place at the house of Kesab where blood spilled during investigation. My elder brother received chopping mark on his body as well as on both the palms of his hands as he wanted to resist the accused persons. My mother also sustained injury on her person but she did not sustain any bleeding injury. The incident took place for about 10 minutes. On 6.6.2002 we went to raise wall on our land and the accused persons then objected to it. The accuseds did not allow us and there was differences on opinion between us and the accused persons. I know Jhaodanga village in the District of Burdwan. It is half an hour on foot. …. My elder brother had senses after the assault and even in the hospital. I did not make any statement to doctor about the names of the assailants. I informed about the incident to the local Panchayat. I moved to the Court as per the direction of the P.S. and not as per the direction of the local Panchayat. I informed to the Panchayat and also to the P.S. when the accuseds were resisting us in raising wall on our land. Panchayat told us to proceed as per law.”

¶45

iii. PW-2 in her deposition stated as follows: “I reside in the village Udaychandrapur. Tapas Kundu and Ashok Kundu are my sons. The incident took place on 23th Bhadra (Monday), 1409 B.S. at about 3/3.30 p.m. My son was bringing wet jute sticks from the field on a cart and when he was alighting the jute sticks from the cart accused

¶46

9

¶47

Madan Kundu came there and assaulted on the back of his head by Dao. Asok then ran into the house of Kesab. I also went there to save him. Then all the accused persons in a body ran up to that house. Naba Kundu and Madan Kundu again chopping my son. Naba Kundu assaulted on his back by hasua. I raised hue and cry. Kesab, kamala, Sadhan De then came up and rescued myself and my son. Accuseds Maya and Mira and other accuseds also hit me by fist and blows and also by kick. Thereafter the accused persons fled off. My second son and his wife and others then took my and Asok to the P.S. and from there we went to the hospital as per words of the police. Asok was in the hospital for 21 days and I as in the hospital for 3 days. The accused persons whom I have named are present on dock in Court room today.”

¶48

iv. PW-2 in her cross-examination deposed as follows: “We told the police officers at the P.S. about the incident. I do not know whether police wrote down what we stated to the police. Myself and my son were removed to the hospital. Doctor treated us in the hospital. I told the doctor about the incident and about the names of the assailants. I jumped over the body of Asok in the house of Kesab and accuseds still chopped Asok and they also assaulted me by fist and blows. The accused also assaulted me in the same manner as they assaulted Asok. The accuseds also tore off my blouse and I sustained blood stain mark on my blouse. I did not hand over my wearing apparel to the police but I showed the same. … My son Asok was collecting jute at a

¶49

10

¶50

place beneath pucca high way. … The accused persons resisted us in raising wall around our house. …”

¶51

v. PW-3 in his deposition stated as follows: “… PW1 Tapas Kundu is my brother. I know the accused persons on dock. The incident took place on 23^rd Bhadra, 1409 B.S. at about 3/3.30 p.m. I was returning with wet jute sticks on a cart from the field. I came near to my house and was unloading the jute. At that time accused Madan came from my back and assaulted on the backside of my head by Dao. I sustained bleeding injury. My wearing apparels were stained with blood. I then to save my life ran to the house of Kesab. Accuseds Madan, Naba, Abhimanyu, Maya and Mira Kundu ran up to me there. Madan and Naba then hit me by Hasua and Dao. Abhimanyu hit me by lathi on my person. Mira and Maya also held me tightly. My mother went to rescue me. The accuseds also assaulted my mother by fist and blows. I started shouting. My brother and other members of my family, Kesab, Madhai De came up to rescue me. Then the accused persons fled off. My mother and me were then removed to P.S. and from there to the hospital as per instruction of the police. I was admitted in Baharampur Hospital and stayed there for 21 days. My mother also remained in the hospital for 3 days. I am still under treatment and still unfit. I tried to resist accuseds and got chopping mark on the palm of my hands. I showed wearing apparels to the police but police did not seize it.”

¶52

vi. PW-3 in his cross-examination deposed as follows: “About four labourers were unmasking the jute sticks. I put on Lungi, Genji and

¶53

11

¶54

underwear. My wearing apparels were stained with blood. I can still show these cloths to Court. I did not hand over the wearing apparels to the police. After the incident I was taken to the hospital by my brother. I stated to the police that the accuseds had assaulted me. Police wrote what I stated to the police but I could not put my L.T.I. as I am sick. I did not state to the doctor about the names of the persons who assaulted me. The male accused persons had assaulted me by Dao and Hasua over the parts of my person. I sustained bleeding cut injuries as such. I did not meet the I.O. after my release from the hospital. I did not state to anybody about the incident after my release from hospital till this date. I stated to the police at the P.S. A few days before the incident we went to raise boundary wall on our land and the accuseds protested to it. …. I cannot say how long it took to go to the P.S. I was taken to the P.S. by van. I cannot say by whose van I was taken to P.S. It takes about 45 minutes to go to P.S. from our house on van. It takes one hour to reach hospital from our house by van.”

¶55

vii. PW-4 deposed as follows: “I am S.I. of police, now posted at Murshidabad PS. On 13.9.2002 I was attached to Nakasipara PS as A.S.I. on the said date I received a written complaint from Ld. C.J.M., Nadia and started Nakasipara PS Case No. 145/2002 dated 14.9.2002 u/ss. 147/148/149/447/325/427//326/307/34 of I.P.C. This is the endorsement at the bottom of the F.I.R. in my handwriting and signed by me (Marked Ext.2). I also duly filled up and signed by me (Marked Ext. 3.”

¶56

12

¶57

viii. PW-4 in cross-examination stated as follows: “I did not make any enquiry that there was any previous complaint or G.D. or any paper over the self same incident prior to starting of the case.”

¶58

ix. PW-5 deposed as follows: “I am A.S.I. of police, now posted at Haringhata PS. On 5.7.2002 I was posted at Nakasipara PS as A.S.I. I made a Prosecution Report on the basis of two G.D. entries bearing no. Nakasipara G.D. 287 dated 9.5.2002 and G.D. 215 dated 5.7.2002 u/ss. 107/116 of Cr.P.C. against accuseds Madan Kundu and Abhimanyu Kundu. This is the xerox copy of the Prosecution Report (Marked x for identification).”

¶59

x. PW-5 during cross-examination stated as follows: “There was ‘golmal’ over the raising of boundary wall in between the parties. …”

¶60

xi. PW-6 deposed as follows: “I reside in the village Udaychndrapur under PS Nakasipara. I know Asok Kundu. I also know the accused persons on dock. The incident took place on 23^rd Bhadra (Monday) about 3 years back at about 3/3.30 p.m. I was on the road. I found accused Madan to assault Asok on the back side of his head by Dao. Asok was fleeing away to the house of Kesab. Naba and Madan chased him and also assaulted him by Hasua. Asok fell down in the house of Kesab. His mother came to rescue him and fell upon Asok. The accused persons also assaulted mother of Asok by lathi and fist and blows. Then the accused persons fled off. Asok and his mother were then taken to hospital.”

¶61

13

¶62

xii. PW-6 in cross-examination stated as follows: “Patulighat road runs from Bethuadahari to Patulighat. A village road has diverted inside our village Udaychandrapur from the said road. There are many houses on both sides of the said village road. My house is after one house from the house of Asok. The house of Kesab intercepts between the two houses. There are also houses on all sides of the house of Asok. It is a densely populated area. The house of Asok is after 5/7 houses from the pucca road. I saw Madan to chop Asok by Dao. Naba was chopping him by Hasua. Asok raised shouting. Local persons also assembled hearing his shouting. I was not examined by the police. I am making first disclosure before this Court about the incident. The incident took place for less than 10 minutes. …”

¶63

xiii. PW- 7 deposed as follows: “I am medical officer (E.N.T. Department) in the National Medical College & Hospital. On 9.9.2002 I was attached to Bethuadahari Hospital, Nakasipara. On the said date I examined one Asok Kundu, son of Nitai Kundu of Udaychandrapur. I attended the patient at 5 p.m. On examination I found the following injuries:-

¶64

One injury over vertex of head – measuring 1” x 1/4" x ¼” approx. lacerated blunt.

¶65

Injury over right eye-brow-measuring 1/2" x 1/4" x 1/4" approx. lacerated and blunt.

¶66

Injury over back – measurement 1/2" x 1/4" lacerated blunt.

¶67

14

¶68

I found multiple abrasion all over his body. On the same date I examined Shanti Kundu, wife of Nitai Kundu of Udaychandrapur. I found the following injury – Multiple abrasion and echymosis all over her body. This is the injury report prepared and signed by me (Marked Ext. 3).”

¶69

xiv. PW-7 in cross-examination stated as follows: “… Dao and Hasua are both sharp cutting instruments. Cut or incised is caused if someone is chopped with any sharp cutting instrument like Dao or Hasua. I did not find any sharp cutting injuries in case of Asok or Shanti. The top of head is vertex. I found no injury on the palms on the hands of Asok. The injuries were caused by blunt weapon.”

¶70

xv. PW-8 was declared hostile by the prosecution.

¶71

xvi. PW-9 deposed as follows: “I am A.S.I. of Police, presently attached to Nakashipara P.S. I have brought three (3) G.D.s as called for by the Ld. Court. This is the G.D. entry no. 215 dtd. 5.7.2002 of our P.S. Ext. 4. This is other G.D. being no. 232 dtd. 6.6.2002, Ext. 5. This is another G.D. being no. 287 dtd. 7.6.2002. These G.D. books are maintained in our P.S. as per official course of business and are also prepared in regular course of official procedure (Exbts. 4, 5, 6).”

¶72

xvii. PW-9 in cross-examination stated as follows: “I personally did not

¶73

make entry of the said G.D.s. I cannot say whether any enquiry or investigation is made with regard to the contents in the above mentioned G.D.s I have tendered those G.D.s as per order of the Ld. Court. Apart from it, I have no personal knowledge about the said

¶74

15

¶75

G.D.s We usally make entry after enquiry in the G.D. I joined in

¶76

Nakashipara P.S. in August, 2005.”

¶77

xviii. PW-10 and PW-1 were declared hostile by the prosecution.

¶78

xix. PW-12 deposed as follows: “I am S.I. of Police now attached to G.R.O Sadar Court. On 14.9.2002, I was posted at Nakashipara P.S. as S.I. of Police. On the said date I was endorsed for investigation of Nakashipara P.S. Case no. 145/02 dtd. 14.9.2002 u/s 14/148/149/325/326/307/447/427 of I.P.C. During investigation, I visited the P.O. which was identified to me by the complainant. I also drew rough sketch map with index drawn and signed by me, (Ext.7). I examined the complainant but did not record his statement as he corroborated the contents of F.I.R. I examined other witnesses, Kesab, Madan De, Jaidev and recorded their statement u/s 161 of Cr.P.C. I conducted raid to effect arrest of the accued person, but to no good. On 15.9.02 and also on 16.9.02 I held further raid to effect the arrest of the accused persons, but to no good. I examined Ashok Kundu on 17.12.02 and recorded his statement. On 21.12.2002, I obtained injury report of Ashok Kundu. On 22.2.2002, I examined Shanti Kundu and recorded his statement and thereafter on 28.2.2002, I submitted charge sheet against Madan Kundu + 4 u/s 14/148/149/325/326/307/447/427 of I.P.C. P.W.10- Kamal De stated to me that on 9.3.2002 at about 3 p.m. Ashok was alighting jute paddy from the Cart near to his house and the accused persons appeared there at that time and Madan Kundu assaulted Ashok on his

¶79

16

¶80

head by ‘Dao’ in his hand and Ashok fled towards the house of Karan De and accused chased him there and caught him again assaulted him with the intention to murder him and Madan Kundu with the ‘Dao’ in his hand and Abhimanyu and Naba came with ‘ballam’ in their hands assaulted Ashok on the head. P.W. 11- Jaidev De stated to me that accused person came over Ashok and assaulted him and Madan Kundu assaulted him by ‘Dao’ in his hand and Naba Kumar with ‘ballam’ and Abhimanyu with Hesua assaulted him and the mother of Ashok was also assaulted by the family of the accuseds. He also stated to me that there was quarrel in between Ashok and the accused persons about the boundary area.”

¶81

xx. PW-12 in his cross-examination stated as follows: “I did not cite Nimai Kundu as a witness in my sketch may. I did not cite Naren De, Amaresh Kundu in the sketch map nor I made Santosh Kundu as a witness in the sketch map. I did not collect the names of the labourer who were alighting the jute paddy. I did not seize the wearing apparels of Ashok and his mother. I also did not seize the jute…..”

¶82

The prosecution case, as unfurled through the oral testimonies of P.Ws. 1, 2, 3 and 6 and the medical evidence adduced through P.W.7, revealed the narrative of a village altercation rooted in simmering discord concerning the raising of a boundary wall upon adjoining land. The occurrence, according to the prosecution witnesses, took place on 09.09.2002 at about 3/3.30 p.m. when Ashok Kundu, while returning from the field with wet jute sticks carried on an ox-cart, was allegedly assaulted near his dwelling house.

¶83

17

¶84

P.W.1, the brother of the injured Ashok Kundu, stated that while Ashok was

¶85

unloading bundles of jute sticks from the cart, accused Madan Kundu struck him behind his head. It further emerged from his testimony that Ashok attempted to flee and entered the house of Kesab, where the remaining accused persons allegedly followed and assaulted him by means of “hasua”. P.W.1 also narrated that when he and his mother attempted intervention, the female accused persons assaulted his mother by fists and blows. His evidence carries a vivid description of the movement of the injured from the place of occurrence to Nakashipara Police Station and thereafter to Bethuadahari Hospital upon police advice. The witness stated that despite approaching the police station, no formal case was instituted and consequently a written complaint was lodged before the Court on the following day.

¶86

In cross-examination, P.W.1 disclosed several features bearing upon the texture of the prosecution case. He admitted the existence of earlier discord between the parties over construction of a boundary wall. He stated that local residents assembled upon hearing commotion, yet none among the numerous neighbouring residents were examined as independent eyewitnesses. He further admitted that blood-stained wearing apparel and jute bundles were not seized by the police though allegedly shown during investigation. Significantly, he conceded that he was not examined by the investigating agency during investigation. Such omission assumes importance because P.W.1 projected himself as an eyewitness to the entire sequence of assault.

¶87

18

¶88

P.W.2, the mother of the injured Ashok Kundu, substantially echoed the version of P.W.1. She deposed that accused Madan Kundu first assaulted Ashok on the back of his head by a “dao”, whereafter Ashok ran into the house of Kesab and the accused persons followed him there. She alleged further assault by Madan and Naba Kundu and stated that the female accused persons assaulted her by fists, blows and kicks. She also referred to the prolonged hospitalization of Ashok for twenty-one days and her own hospitalization for three days.

¶89

Yet, her cross-examination exposed certain departures of evidentiary significance. P.W.2 stated that she informed the doctor about the names of the assailants. However, the medical evidence contains no such contemporaneous disclosure. She further alleged that the accused assaulted Ashok in the same manner as they assaulted her and even tore off her blouse, though neither the blouse nor any corresponding material exhibit was seized. The prosecution did not produce any independent corroboration regarding such allegation. Her evidence also brought forth the admitted existence of resistance by the accused persons regarding the raising of a wall around the homestead land.

¶90

P.W.3, the injured witness Ashok Kundu himself, furnished the central account of the prosecution. He stated that while unloading wet jute sticks near his house, accused Madan assaulted him from behind on the backside of his head by “dao”. According to him, he ran towards the house of Kesab in an effort to save himself, but the accused persons chased him there and assaulted him further by “hasua”, “dao” and lathi. He also stated that the

¶91

19

¶92

female accused restrained him while others assaulted him and that his mother was assaulted when she attempted rescue. He described hospitalization for twenty-one days and stated that he remained under treatment even thereafter.

¶93

The evidence of an injured witness ordinarily commands substantial evidentiary value, for the injury upon his person furnishes a built-in assurance regarding his presence at the scene. Yet, the evidentiary worth of such testimony is tested not by status alone but by consistency with surrounding circumstances and medical evidence. In cross-examination, P.W.3 admitted that though he alleged assault by sharp-cutting weapons such as dao and hasua, he did not disclose the names of the assailants to the doctor. He also admitted that his blood-stained apparel was not handed over to police though available. More importantly, he claimed chopping marks on the palms of his hands while resisting assault.

¶94

The medical evidence of P.W.7 assumes considerable significance in this context. P.W.7, the Medical Officer, found injuries upon Ashok Kundu comprising lacerated blunt injuries over the vertex of the head, right eyebrow and back, accompanied by multiple abrasions over the body. In respect of Shanti Kundu, he found multiple abrasions and ecchymosis. However, in cross-examination P.W.7 categorically stated that dao and hasua are sharpcutting instruments and that no sharp-cutting injury was found either on Ashok or on Shanti. He specifically stated that the injuries were caused by blunt weapon and further stated that no injury was found on the palms of Ashok’s hands. This medical evidence does not lend support to the

¶95

20 prosecution allegation of assault by sharp-cutting weapons in the manner described by P.Ws.1, 2 and 3.

¶96

P.W.6 projected himself as an independent witness. He stated that he saw Madan assault Ashok on the backside of his head by dao and thereafter Naba assault him by hasua while chasing him into the house of Kesab. Yet in cross-examination he admitted that he had not been examined by the police during investigation and that his present narration before Court constituted his first disclosure regarding the incident. Such omission considerably attenuates the reliability of his testimony as an independent corroborative witness.

¶97

The investigating officer, examined as P.W.12, stated that though he examined several witnesses and prepared sketch map and charge-sheet, he did not record the statement of the complainant because the complainant merely corroborated the contents of the F.I.R. The evidence further reveals notable investigative deficiencies. No weapon of offence was seized. No bloodstained earth was collected. The allegedly blood-stained wearing apparels and jute bundles were not seized. Though the place of occurrence was described as a densely populated locality with numerous residents assembling upon hearing cries, no disinterested independent witness supported the prosecution version. P.W.8 was declared hostile. P.Ws.10 and 11, referred to in the evidence of the Investigating Officer, were also declared hostile by the prosecution.

¶98

The substratum of the occurrence, however, does not disappear merely because embellishments or exaggerations are detected in the prosecution

¶99

21

¶100

account. The evidence consistently establishes that an altercation had indeed occurred between the parties against the backdrop of boundary dispute. The medical evidence corroborates the existence of bodily injuries sustained by Ashok Kundu and Shanti Kundu on the date of occurrence. The injuries, however, were simple in nature and blunt in character.

¶101

Section 323 of the Indian Penal Code is attracted where voluntary hurt is caused. “Hurt”, as defined under Section 319 IPC, signifies bodily pain, disease or infirmity caused to any person. The evidence of P.W.7 unmistakably demonstrates bodily pain and injuries suffered by Ashok and Shanti. The ocular testimony, despite certain embellishments, consistently attributes participation of the accused persons in the assault. The commonality of conduct, simultaneous presence and collective participation establish the applicability of Section 34 IPC, embodying criminal acts done in furtherance of common intention.

¶102

The position, however, stands materially different in respect of Section 324 IPC. The essential ingredient of Section 324 IPC is voluntary causing of hurt by means of any instrument for shooting, stabbing or cutting, or any instrument likely to cause death when used as a weapon of offence. The prosecution repeatedly asserted assault by dao and hasua, both admittedly sharp-cutting instruments. Yet the medical officer unequivocally found no incised, cut or sharp-cutting injury. Every injury was described as lacerated blunt injury or abrasion. The absence of any injury corresponding to assault by sharp-edged weapons creates a substantial incongruity between ocular narration and medical evidence. The prosecution also failed to produce or

¶103

22

¶104

seize the alleged weapons. In such circumstances, the ingredient indispensable to Section 324 IPC remains unsubstantiated.

¶105

The evidence therefore supports the conclusion that the accused persons voluntarily caused simple hurt in furtherance of common intention, but the prosecution failed to establish beyond reasonable doubt that such hurt was caused by dangerous weapons or sharp-cutting instruments within the meaning of Section 324 IPC.

¶106

Accordingly, the conviction under Section 324/34 IPC cannot be sustained and stands set aside. The conviction under Section 323/34 IPC, however, stands affirmed.

¶107

The conviction and sentence imposed upon the appellants under Section 324 read with Section 34 of the Indian Penal Code are set aside.

¶108

The conviction of the appellants under Section 323 read with Section 34 of the Indian Penal Code is affirmed, as the evidence on record satisfactorily establishes that the injured persons sustained simple hurt at the hands of the appellants in the course of the occurrence arising out of the land dispute between the parties.

¶109

Considering the nature of injuries, the background of village discord from which the occurrence emerged, the lapse of considerable time since the incident and the simple character of the injuries found by the Medical Officer.

¶110

The sentence imposed upon the appellants under Section 323/34 of the Indian Penal Code is modified to the extent of payment of fine of Rs.20,000/each. No further imprisonment is directed.

¶111

23

¶112

The criminal appeal being CRA 179 of 2007 stands disposed of accordingly.

¶113

Trial Court records along with a copy of this judgment be sent down at once

¶114

to the Learned Trial Court for necessary action.

¶115

Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.

¶116

(Ananya Bandyopadhyay, J.)

Madan Kundu & Ors. v. State

Case brief

What is this about?

What did the court decide?

Madan Kundu & Ors. v. State

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

American Home Assurance Co. & Anr. Vs Board of Trustees for Port of Kolkata

Authentic Team Leather Pvt. Ltd. Vs Board of Trustees for the Port of Cal

Berhampore Bank Ltd. (in Liqn.) Vs Ram Ranjan Chowdhury

Sainur Khan & Ors. Vs State of West Bengal

Arun Kumar Mondal Vs Hagru Gorain & Ors.

Sudhir Shaw Vs State of West Bengal