Bablu Ghosh Vs State of West Bengal

This appeal is preferred against judgment and order of conviction dated 30.04.2007 passed by the Learned Additional Sessions Judge, Fast Track Court – I, Krishnagar, Nadia in Sessions Trial No.XII(9)2005 arising out of Sessions Case No.88(4) of 2005 convicting the appellant under Section 325 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for 4 months for the offence punishable under Section 325 of the Indian Penal Code.

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The prosecution case precisely stated one Nisith Biswas son of Shri Narayan Biswas of village Chakbehari under Tehatta P.S. filed a written complaint on

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11.01.2005, before the Officer-in-Charge, Tehatta Police Station, inter alia , stating the appellant assaulted his father PW-2 severely. The complainant also alleged that the appellant pushed his father who was an old man of 65 years causing him to fall on the ground. Thereafter, the appellant assaulted him with back side of a spade. Labours who were working in the field namely PW-3, PW-4, PW-8, PW-9 and PW-10 witnessed the incident. The complainant on receiving the information went to the spot and removed his father on a trolley to Tehatta Sub-Division Hospital and wherefrom he was referred to Shaktinagar District Hospital as his condition was serious.

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The appellant on the previous date of the incident came to the land of the complainant, to collect some leaves of Sugarcane tree of the complainant, who refused to such collection.

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On the date of the incident a buffalo of the complainant entered into the land of the appellant and the father of the complainant brought back the buffalo before it caused any harm to the land of the appellant. The appellant in spite of that assaulted the father of the complainant. The elder brother of the appellant namely Asit Ghosh annoyed with the complainant filed a G.D. being no.601/04 dated 15.12.2004.

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On the basis of the aforesaid complaint, the Tehatta P.S. Case No.26/05 dated 10.02.2005 under Section 326/308 of the Indian Penal Code was initiated against the appellant.

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On completion of investigation, the investigating agency submitted chargesheet against the appellant under Sections 326/308 of the Indian Penal Code.

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Charges were framed against the appellant under Section 308 of the Indian Penal Code to which the appellant pleaded not guilty and claimed to be tried.

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In order to prove its case, the prosecution examined as many as 14 witnesses and exhibited certain documents.

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The Learned Advocate for the appellant further submitted as follows:–

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i. “The prosecution case in a nutshell is that on 11.01.2005 at about 1 pm, while the informant and others were not present in their home, the appellant had beaten the father of the informant with a opposite side of a spade, and pushed him. Due to such assault the informant's father received injuries. PWS 3,4,8,9 and 10 had witnessed the said incident. Upon receipt of the information the informant shifted his father to Tehatta BPHC in a trolly van, wherefrom he was referred and was admitted to Shaktinagar Hospital undergoing better for treatment.

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That with regard to the above noted incident, on 10.02.2005, i.e. after about one month of the alleged date of occurrance facto complainant had filed an information and accordingly Tehatta Police Station Case No. 26/2005 dated 10.02.2005 under sections 325 of the Indian Penal Code was commenced.

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After completion of the investigation the police had submitted charge sheet under section 326/308 of the Indian Penal Code against the appellant. There after the Learned Trial Judge had been pleased to frame charges against the appellant under section 308 of the Indian Penal Code.

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That to bring home charges against the appellants the prosecution had examined a total number of 14 witnesses. Thereafter the appellant was examined under Section 313 of the Code of Criminal Procedure.

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After completion of trial the Learned Trial Judge had been pleased to convict the appellant under Section 325 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years for the offence punishable under section 325 of the Indian Penal Code, and to pay a fine of Rupees 1000/-, in default of payment to suffer a further rigorous imprisonment for four months each for the offence punishable under section 325 of the Indian Penal Code. Hence this criminal appeal.

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SCANNING OF THE WRITTEN COMPLAINT:

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ii. The informant filed the complaint before the officer in charge, Tehatta police station, on 10.02.2005 i.e. after about one month of the alleged incident. Prosecution failed to explain such inordinate delay.

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FRAMING OF CHARGE:

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iii. Framing of charges in this case is not proper. The Learned Trial Judge, while framing of charge had failed to specify the actual place of occurrence, and further he mentioned the alleged date and time of occurrence as 11.01.2005 at 10:00pm, whereas the date and time of the alleged occurrence, as per the FIR is 11.01.2005 at about 1 pm.

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LIST OF WITNESSES:

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PW-1 Nisith Biswas, (son of the injured, and the complainant). PW-2 Narayan Biswas, (the injured). PW-3 Sajamal Sk, (the neighbour).

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PW-4 Jahatap Sk, (the neighbour).

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PW-5 Dr. Amit Mukherjee, (Medical Officer, who treated the patient at

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the very first instance)

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PW-6 Sanyashi Mondal, (the neighbor).

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PW-7 Chandi Roy, (Neighbour).

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PW-8 Madhu Sk, (Neighbour).

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PW-9 Farid Sk, (Neighbour).

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PW-10- Akbar Sk, (neighbor).

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PW-11- Dr. S.K. Biswas, (Medical officer, who treated PW-2 at the District Hospital).

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PW-12-S.I. J.C. Chatterjee, (Investigating Officer).

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PW-13, Dr.P.K. Bhattacharjee (Radiologist, who conducted the X-ray upon the injured PW-2)

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PW-14- ASI Nitai pada Chakraborty (Recording Officer)

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SCANNING OF EVIDENCE:

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Scanning of evidence would only reveal the exaggeration of facts, and lack of truthfulness, stated by the witnesses, not backed by other evidences.

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a) PW-1, Nisith Biswas, the son of the injured (PW-2). He initially lodged the FIR after one month of the alleged incident, without fetching any explanation for doing so.

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In the FIR he stated that at the alleged time of occurrence he was not present in the house, and received information upon a phone call, made by the co-workers in the said field. But in the

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examination-in-chief he clearly tried to improve his case by saying that he was also working in another field and therefore saw the alleged occurrence.

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In the evidence in chief he stated that the appellant had assaulted his father in the leg and on his hands with the opposuite side of a spade. But the PW-5 Dr. AMit Mukherjee, who treated the patient at the first instance did not support such contention of PW-1, thereby negating the truthfulness of the prosecution story. PW-5 in his evidence stated that except one injury in the leg, he did not find any other injuries on the patient. He also stated that the injury he mentioned in his report, might occur in course of falling on the ground of on any hard or blunt substance, which is in fact the defense version of the story.

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In the FIR he stated that PWs 3,4,8,9, and 10 were present in the field, whereas in his examination in chief he only mentioned the names of PWs 8 and 9, being present with him on the said land. However PWs 8 and 9 did not support the prosecution case, and declared hostile by the prosecution. This casts a serious doubt upon the prosecution story.

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He stated in his examination in chief that his brother Nikhil Biswas came afterwards in the field. But surprisingly said Nikhil Biswas was never examined by the prosecution. Not only Nikhil Biswas, none other members of the family, except the injured as PW-2, were examined by the prosecution.

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He stated in his examination in chief that he had informed the police station on the very date of the incident, whereas the records say otherwise. This gives birth to a second FIR, which probably never came record. Moreover, after this statement of the PW-1, the in FIR dated 10.02.2005 was marked as exhibit-1. That casts a serious defect on the validity of the FIR being exhibit-l. Prosecution also did not examine the Scribe Sukdeb Biswas.

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b) PW-2, Narayan Biswas, is the injured and the father of PW-1. In his examination in chief, unlike the version of PW-2 about assaulting PW-2, on his hand and leg, he however mentioned about dealing with only one blow by the appellant.

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Thereafter he stated that after such assault and falling on the ground, he fell unconscious, there after he was taken to Tehatta Police Station, and thereafter to Tehatta B.P.H.C., and he regained his sense only at shaktinagar hospital. But PW-5 the Medical Officer who initially treated the patient and referred him Shaktinagar Hospital, mentioned in his evidence that PW-2 was well conscious. This casts doubt on the truthfulness of the prosecution story. The evidence of PW-2 also gives rise to a suspicion of presence of a second FIR, which has not been brought on record, for some unknown reasons.

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c) PW-3, Sajamal SK, is the witness, who was said to have been present in the alleged place of occurrence by the PW-1, in his

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written complaint, did not support the prosecution case and was declared hostile.

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d) PW-4, Jehetap Sk, is the witness, who was said to have been present in the alleged place of occurrence by the PW-1, in his written complaint, did not support the prosecution case, and was declared hostile.

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e) PW-5, Dr. Amit Mukherjee, the Medical Officer, who examined PW-2 at the First instance at Tehatta BPHC. He stated in his examination in chief that the patient was brought by one Nikhil Biswas (Not examined). He found only one fracture injury on the left leg of the patient.

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In his cross examination he stated that the patient was well conscious. That negates the claim of PW-2 to have been unconscious, thereby casting doubt on truthfulness of the prosecution story.

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No name of the assailant was mentioned to the PW-5. Lastly he opined that one might have sustained such injury by falling, which completely nullifies the prosecution case.

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f) PW-6, Sanyashi Mondal, is a neighbor who took some extent supported the prosecution story as he claimed to have been present at the spot. But he failed to say with which weapon the appellant had allegedly assaulted the PW-2. In his examination in chief he stated that he was watering in his land, but while in cross he stated he was watering the land of Shyam Mondal, as

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there was none in the land of Shyam Mondal. He stated during his evidence that he stated all these facts to the I.O., whereas the I.O., PW-12, did not support his claim.

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g) PW-7, Chandi Roy, is a neighbor who too some extent supported the prosecution story as he claimed to have been present at the spot. In his evidence he stated that he was grazing his buffalo in the land. He stated during his evidence that he stated all these facts to the I.O., whereas the I.O. PW-12 did not support his claim.

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h) PW-8, Madhu Sk, is the neighbour, who was said to have been present in the alleged place of occurrence by the PW-1, in his written complaint as well as in his evidence, did not support the prosecution case, and was declared hostile. The fact of presence of the PW-8, had been confirmed by PW-3 in his cross examination.

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i) PW-9, Farid Sk, is the neighbour, who was said to have been present in the alleged place of occurrence by the PW-1, in his written complaint as well as in his evidence, did not support the prosecution case, and was declared hostile. The fact of presence of the PW-9, had been confirmed by PW-3 in his cross examination.

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j) PW-10, Akbar Sk, is the neighbour, who was said to have been present in the alleged place of occurrence by the PW-1, in his written complaint as well as in his evidence, did not support the

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prosecution case, and was declared hostile. The fact of presence of the PW-10, had been confirmed by PW-3 in his cross examination.

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k) PW-11, Dr. S.K. Biswas, The Medical Officer, who treated the PW2 at the District Hospital. On 20.01.2005 structure casing was done, and patient was discharged from the said hospital. However PW-1 had stated in his evidence that the injured was admitted in the hospital for 18 days. This statement has been proven to be false by PW-11. Therefore it appears that the prosecution story is full of exaggeration and falsehood.

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No name of the assailant was also mentioned before Pw-11, by the patient party.

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From the evidence of PW-11 it appears that another doctor namely Dr. Tapan Banerjee had also treated PW-2. But he was not examined by the prosecution.

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l) PW-12, S.I. J.C. Chatterjee, he is the investigating officer of this case. He did not seize the offending weapon. He did not cite Mrityunjoy Ghosh, Banshi Mondal as witnesses. Though these witnesses and were cited in the Sketch Map to be the adjacent land owners, who could have been the best witness to authenticate the prosecution case.

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m) PW-13, Dr. P.K. Bhattacharjee, is the Radiologist, who held the x- ray examination over the injured, PW-2.

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n) PW-14, A.S.I. Netaipada Chakraborty, is the Recording Officer.

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POINTS OF ARGUMENT:

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iv. Law provides that an F.I.R., should be made at the soonest possible opportunity. But in that case F.I.R., was lodged after one month of the alleged incident. No explanation as such was forthcoming from the side of the prosecution for the inordinate delay.

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v. Framing of charges in that case was not proper. The Learned Trial Judge, while framing of charge had failed to specify the actual place of occurrence, and further he mentioned the alleged date and time of occurrence as 11.01.2005 at 10:00 p.m., whereas the date and time of the alleged occurrence, as per the F.I.R., was 11.01.2005 at about 01:00 p.m.

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vi. Description of the incident as stated by PWs 1 and 2, if thoroughly scrutinized would reveal vital discrepancies in their respective versions, though mostly it was parrot-like, not supported by any other evidences as produced by the prosecution.

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vii. The doctor being PW-5 and PW-11 has demolished the truthfulness of the entire prosecution story with regard to the manner, and therefore relying on such evidence while convicting the appellant would be improper.

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viii. In view of the above evidences of PWs 1, 2, 6 and 7, the credibility of their evidences should be looked into the light of the contradictions and the parrot-like nature of their depositions.

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ix. The evidences of PWs 1,2,6 and 7 should be thoroughly scrutinized as they are full of unclear doubts, defects, exaggerations, and lies, which

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has been demolished in every alternative way by PWs 3, 4, 5, 8, 9, 10, and 11.

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x. PW-12 being the Investigating Officer has miserably failed to properly investigate into the case and bring out the actual facts, since he did not seize the alleged offending weapon. He clearly conducted the investigation in complete perfunctory manner by not citing the proper and credible witnesses for the purpose of unearthing the truth, and submitted charge sheet.

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xi. The presence of jumbled-up questions in the examination of accused under Section 313 of the Code of Criminal Procedure was next the same not proper in the eye of law.

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xii. By answering question nos.5 in the examination of accused under Section 313 of the Code of Criminal Procedure, the appellant had duly explained his side of the story, which the Learned Trial Judge had failed to consider.

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xiii. Moreover the Learned Trial Judge while convicting the petitioner did not deal with the mandatory provision of Sections 360 and 361 of the Code of Criminal Procedure read with Section 4 of the Probation of Offenders Act, which makes the order of conviction and sentence defective.

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xiv. The appellant was presently aged about 51 years. And since last 18 years, the appellant was suffered from the tremendous mental agony and more over the prosecution had failed to prove its case against the appellant beyond all reasonable doubts.

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In view of sets above the of facts and circumstances, since the prosecution has failed to prove its case against the appellant beyond all reasonable doubt, and moreover when the case is full of unclear doubts, defects, exaggerations, and lies, which had been demolished in every alternative way by PWs 3, 4, 5, 8, 9, 10, and 11. Therefore, the appellant pray for the order of conviction and sentence to be set aside. The appellant was liable to be acquitted from all charges labeled against him.”

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The Learned Advocate for the State submitted as follows:–

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i. “It was trite law that the conviction given under Section 325 of the Indian Penal Code must satisfy the essentials of a voluntary act coupled with the intent to cause bodily harm to the victim leading to specific severe injuries. Thereby to prove that the same had been correctly given by the Learned Trial Judge, the evidence of the prosecution witnesses and medical evidence was reiterated herein:-

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a) Past Antecedent:- The F.I.R., clearly mentioned a past antecedent of the appellant's family whereby a complaint was lodged by their local Field Committee against the appellants before the concerned P.S. (bearing G.D. No.601/2004) dated 15.12.2004. That suggested that the appellant had a bitter relation with the Complainant which might have instigated him to commit the present act with a malicious motive.

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b) Previous Disagreement:- The de facto complainant divulged a fact on the earliest occasion in the written complaint that on the day

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before the incident appellant came to their land to collect the sugarcane tops (S.C.T.) for feeding his cattle, but the complainant refused to give him the same. This inherently infuriated the appellant. Subsequently when the Defacto's buffalo entered the land of the appellant by mistake, though no harm was caused by it; appellant took up that opportunity wherein he came running to the victim and beat him with the back of a spade knowing that would culminate in serious bleeding injuries. The same was supported by the appellant himself in his examination under Section 313 Cr.P.C., (Question 4) wherein he stated that there had been an altercation on the said day owing to the previous Disagreement.

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c) Intention to cause Bodily harm:- The appellant was well aware of the fact that the victim was a sixty five year old man. When he deliberately pushed the victim and beat him with the back of the spade it was obvious that the act would inherently result in bleeding injuries causing serious harm to the old man. Thus the appellant performed the said act with the knowledge coupled with the ultimate intention to bodily harm the victim with a malicious intent.

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d) Corroborative accounts of the eye witnesses:- PW-2, being the injured victim himself stated that the appellant assaulted him by the backside of the spade on the upper portion of his left leg. PW-

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1 corroborated the said incident and rescued the victim from the

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field at the earliest opportunity with his brother. PW-6 who was working in the nearby field corroborated the same and witnessed that PW-2’s buffalo entered appellant's land, following which the appellant came to PW-2 and assaulted him. He beat and pushed PW-2 and fled off. PW-7 also witnessed that appellant was running to PW-2 whereby he pushed him and assaulted him with a spade in his hand.

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e) Though PW-3 had been declared hostile by the prosecution he clearly deposed that being agitated by the prior incident of buffaloes appellant came and pushed the victim whereby he fell into the drain. This indicates that the appellant being an aged man suffered seriously which was witnessed by the independent eye witnesses including PW-6, PW-7 and others. The corroboration here garners ground and supports the allegations of the factum of bodily assault on the victim.

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f) Veracity of Injuries:- PW-11, the medical officer who examined the victim on 11.01.2005 found surgical assault and trauma on left hip joint. The X-ray revealed sub trochanteric fracture on femur on left side. PW-2 also complained of chest pain. He was discharged from the hospital on 20.01.2005 after about ten days. Bed Head ticket, treatment sheets are collectively marked as Exbt.-3. PW-13, the radiologist corroborated the injuries in his report (marked as Exbt.-7). Though the victim (PW-2) himself and the de facto complainant (PW-1) mentioned that he could not

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recover properly after being discharged from the Nadia District hospital so he was again admitted to Dumdum Hospital for treatment for about 20 days. The prolonged period of admission in the hospital indicates the veracity of the injuries sustained by the victim being a senior citizen.

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g) Contradictory versions of the Hostile Witnesses:- A greater number of the eye witnesses who were named at the very inception of the present case turned hostile during their examination. PWs 3, 4, 8, 9 and 10 apparently supported the defence version wherein the victim slipped and fell into a drain sustaining injuries. On the contrary the Investigating Officer acknowledged in his cross examination that each of the hostile witnesses supported the prosecution story at the earliest opportunity when he examined them wherein they mentioned that the appellant assaulted the victim with the back of the spade causing bleeding injuries and subsequently fled away from the spot.

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The present case has been a willful voluntary act of violence wherein the appellant has knowingly harmed the aged victim leaving bleeding injuries. The same has been corroborated by various prosecution witnesses, ocular and medical evidence. The prolonged period of medical attention reveals the veracity of injuries sustained by the victim which prepares a strong foundation for the conviction given under Section 325 of the Indian Penal Code. Thereby the Trial Court

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has rightly relied on the said facts as no legal deformities had cropped up. At this stage acquittal would be bad in law. Thus, the conviction given under Section 325 of the Indian Penal Code should be inherently upheld to meet the ends of law and to avoid gross miscarriage of justice.”

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The prosecution’s narrative unfolds through a tapestry of testimonies, beginning with Nisith Biswas (PW-1), who vividly recounts the events of that fateful noon. His father, the venerable victim Narayan Biswas (PW-2), had gone to tend their fields at the break of dawn, around 08:00 a.m. While engaging in his own agricultural labors in an adjacent plot between 12:00 and 01:00 p.m., PW-1 witnessed their buffalo momentarily stray into the land of the appellant. Despite his father’s immediate, reverent gestures of apology with folded hands, the appellant, entirely unyielding, picked a quarrel, rejected the supplication, and violently pushed the elderly man to the ground. In a display of aggression, the appellant struck his prostrate father with the reverse, blunt side of a spade, targeting his leg and hand. The onslaught left the victim severely incapacitated, unable to stand, and bearing significant bodily injuries. While the appellant fled the scene alongside accomplices Madhu Sheikh and Farid Sheikh, the victim’s other son, Nikhil Biswas, rushed to the spot. The injured person was immediately transported to Tehatta Hospital, and subsequently transferred to Shaktinagar Hospital, where he remained institutionalized for approximately eighteen days. When full recovery remained elusive, he was shifted to Dum Dum Nursing Home. The formal apparatus of the law was set in motion on

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the very day of the occurrence through a First Information Report (F.I.R. Exbt.-1) scribed by Shukdeb Biswas under the explicit directions of PW-1. During cross-examination, PW-1 defended this sequence, clarifying the layout of the adjacent sugarcane fields and the positioning of a shallow water machine situated some fifty cubits away.

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This deposition is robustly corroborated by the victim himself (PW-2), who detailed his submissive apology, the appellant's ruthless indifference, the subsequent physical assault with the backside of the spade on his left upper leg, and his immediate lapse into unconsciousness. His medical journey spanned several therapeutic institutions, moving via a trolley to Tehatta Police Station and its adjacent hospital, onwards to Shaktinagar Hospital, and eventually gaining lucidity at Krishnagar Hospital during an extended confinement of ten to twelve days, followed by further care at Dum Dum Nursing Home. Under cross-examination, PW-2 elucidated the agrarian context of their long-standing sugarcane cultivation, which required seasonal irrigation by the shallow machine, and noted that the appellant’s land was then sowed with musuri crop. He further acknowledged the prior tension regarding the collection of sugarcane leaves. Though a cluster of witnesses—namely PW-3, PW-4, PW-8, PW-9, and PW-10 deviated from their initial statements and were declared hostile by the prosecution, the core testimonial edifice remained resilient through independent ocular support. PW-6 and PW-7, both neighboring cultivators familiar with the parties, affirmed the chaotic confrontation. They testified to witnessing the appellant aggressively approach, shove, and assault PW-2 with a spade

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before fleeing, after which they assisted in carrying the injured victim away from the fields.

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The medical jurisprudence embedded in the case file solidifies the oral testimonies with scientific certainty. Dr. PW-5, the initial medical officer at Tehatta B.P.H.C. who examined the victim on January 11, 2005, noted localized tenderness over the left greater trochanter of the left femur, which subsequent radiological examination revealed to be a distinct fracture of both the left greater trochanter and the femoral shaft (Exbt.-2 and Exbt.-3). While the defence elicited during cross-examination that the victim was conscious upon arrival and that such trauma could theoretically result from a severe fall, the gravity of the injury was magnified by the deposition of PW11, an Orthopedic Surgeon at Nadia District Hospital. Reviewing the history of surgical assault, he detailed a sub-trochanteric fracture of the neck of the left femur, which necessitated structural casing before the patient's discharge on January 20, 2005. This finding was further refined by the Radiologist (PW-13) from Ranaghat Sub-Divisional Hospital, who formally marked the X-ray plates and reports as Mat. Exbt.-1/1 and Exbt.-7, identifying a pertrochanteric fracture of the neck of the femur accompanied by an avulsion of the trochanters – an injury he conceded during crossexamination could be sustained by falling heavily upon a hard, blunt substance.

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The investigative trajectory managed by the police infrastructure confirms the rigorous adherence to statutory procedure. S.I. Nitai Pada Chakraborty (PW-14) took up the mantle of investigation for Tehatta P.S. Case No.

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26/2005, initially registered under Section 325 of the Indian Penal Code. He visited the place of occurrence, drafted a meticulous rough sketch map (Exbt.-3), recorded the statements of available witnesses, and apprehended

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the appellant on February 10, 2005. His documentation included statements from Sajamol Sk., Madhu Sk., and Akbar Sk., all of whom consistently pointed to the appellant arriving armed with a spade, questioning the victim about the straying buffalo, and delivering blunt-force blows. Upon collecting the requisite medical records and consulting with superior officers, PW-12 submitted a formal chargesheet under Sections 326 and 308 of the Indian Penal Code. The procedural initiation was further supported by A.S.I. PW-14, who recorded the initial written complaint and formal F.I.R. (Exbt.-5/1), thereby completing a coherent legal ledger where oral testimonies, objective medical trauma, and investigative documentation align seamlessly to delineate the criminal act.

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The Learned Counsel appearing for the appellant has vigorously assailed the judgment of conviction, mounting a multi-pronged challenge rooted in the structural fragility, profound contradictions, and procedural infirmities that riddle the prosecution's case. It is contend at the very threshold that the evidentiary scanning unmasks a narrative heavily distorted by systemic exaggeration, an acute deficit of truthfulness, and a conspicuous lack of independent corroboration. The foundational document of the criminal action, the First Information Report, is severely compromised by an inordinate and unexplained delay of an entire month. The informant, Nisith Biswas (PW-1), initially asserted that he was away from the theater of

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occurrence, learning of the incident through an auditory telephonic communication from co-workers, yet he subsequently pivoted during his examination-in-chief to falsely position himself as an eyewitness to the assault – a transparent attempt to embellish and improve upon his dynamic position. Furthermore, his testimonial claim that the appellant delivered multiple blows with the reverse side of a spade to both the upper and lower extremities of his father stands entirely demolished by the primary medical officer, Dr. Amit Mukherjee (PW-5), who detected only a single injury on the leg, completely falsifying the version of a sustained physical onslaught.

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The structural edifice of the prosecution is further destabilized by the extensive hostility of its crucial independent witnesses. While the informant originally named a cluster of neighboring cultivators—specifically PWs 3, 4, 8, 9, and 10 – as being present during the agrarian confrontation, these individuals resolutely refused to align with the state's thesis, culminating in their formal declaration as hostile witnesses. This mass defection of the independent populace severely erodes the credibility of the judicial accusations. Additionally, the non-examination of vital characters, notably the victim's other son, Nikhil Biswas—who was purportedly the first to arrive and manage the initial medical transport—and the scribe of the F.I.R., Shukdev Biswas, leaves inexplicable chasms in the narrative. The defence emphasizes that the scientific evidence meticulously deconstructs the assertion of a deliberate, violent assault. Both the initial examining physician (PW-5) and the subsequent orthopedic surgeon (PW-11) conceded under the fire of cross-examination that the solitary femoral fracture

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discovered could naturally and predictably follow a severe, accidental fall onto a hard, blunt surface, thereby validating the defence's perspective of the event. PW-5 further nullified the victim's claim of immediate posttraumatic unconsciousness by affirming that the patient was fully conscious upon admission, while noting a total absence of any identified assailant's name in the earliest medical records.

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The critique extends sharply to the perfunctory and careless methodology adopted by the investigative agency. The Investigating Officer, S.I. J.C. Chatterjee (PW-12), miserably failed to secure or seize the alleged weapon of offense, the spade, and inexplicably omitted to cite adjacent land owners, such as Mrityunjoy Ghosh and Banshi Mondal, who were best situated to offer a transparent, neutral perspective of the territorial dispute. This superficial investigation was compounded by glaring flaws committed during the framing of charges by the learned Trial Judge, who misstated the place of occurrence and introduced an irreconcilable discrepancy regarding the temporal coordinates, listing the incident at 10:00 p.m. on January 11, 2005, in stark contrast to the F.I.R.'s notation of 01:00 p.m.

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The appellate submission highlights that the depositions of the remaining witnesses, PW-1, PW-2, PW-6, and PW-7, suffer from a artificial, parrot-like uniformity that cracks under scrutiny, revealing critical contradictions regarding the actual weapon used, the specific lands being irrigated, and the historical context of the dispute. Finally, it is argued that the trial court committed a fatal statutory omission by failing to consider the mandatory, reformative provisions governing probation under Sections 360 and 361 of

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the Code of Criminal Procedure, alongside Section 4 of the Probation of Offenders Act. Given that the appellant has endured the agonizing crucible of criminal prosecution for over eighteen years and is now advanced in age, and since the state has failed to bridge the distance between mere suspicion and proof beyond a reasonable doubt, the learned counsel prays that the defective conviction be set aside and the appellant be restored to his liberty through an absolute acquittal.

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The Learned Counsel representing the State champions the integrity of the impugned judgment, asserting with authoritative emphasis that the trial court’s findings are structurally unassailable and thoroughly anchored in the evidence. It is strenuously argued that the testimonial matrix presented by the prosecution possesses an organic coherence that easily transcends minor, immaterial variations. The narrative of the egregious agrarian assault finds its foundational strength in the unflinching ocular accounts of the informant (PW-1) and the venerable victim (PW-2). Their depositions seamlessly intertwine, charting the genesis of the conflict from a transient boundary transgression by livestock to a ruthless, disproportionate eruption of violence by the appellant. The state refutes any insinuation of falsity by highlighting that the core accusation—the delivery of a severe, disabling blow with the blunt reverse side of an agricultural spade – remains entirely unswerving and logically aligns with the horrific skeletal trauma subsequently quantified by medical science.

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Addressing the structural critique leveled against the prosecution's witnesses, the learned counsel for the State submits that the hostile

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defection of certain neighboring rustic cultivators, specifically PWs-3, 4, 8, 9, and 10, does not operate as a fatal blow to the judicial fabric. It is a wellsettled jurisprudential tenet that the grain of truth can be successfully sifted from the chaff of reluctant testimonies. The survival of independent corroboration in the robust, ambient evidence of PW-6 and PW-7, who arrived at the scene in the immediate aftermath of the violence to witness a chaotic theater and assist the incapacitated victim, effectively salvages the prosecution's truth from the shadows of intimidation or local apathy. Furthermore, the State dismisses the alleged medical discrepancies as mere hyper-technical interpretations of clinical jargon. The diagnostic documentations of Dr. Amit Mukherjee (PW-5) and the specialized assessments of the Orthopedic Surgeon (PW-11) converge perfectly onto a singular, objective reality: the presence of a devastating, sub-trochanteric fracture of the left femur. The argument that such an injury could be a byproduct of an accidental fall is critiqued as an imaginative defence construct, completely detached from the violent reality of the assault detailed by the victim.

¶144

The State forcefully neutralizes the arguments regarding procedural deficits

¶145

and investigative lethargy. The non-seizure of the offending spade or the absence of signatures from alternative local landholders in the investigative maps are characterized as minor imperfections attributable to rustic investigative environments, which do not compromise the integrity of the prosecution's case. The temporary confusion surrounding the temporal coordinates within the formal charges is revealed to be a clerical oversight

¶146

25

¶147

that caused no prejudice to the defence during the trial. Finally, responding to the plea for leniency and the invocation of the Probation of Offenders Act, the State demands an uncompromising application of punitive justice, arguing that a brutal physical assault executed upon a defenceless, elderly citizen over a trivial agrarian dispute constitutes an offense against the public conscience that defies the spirit of reformative leniency. The State concludes that the distance between mere accusation and absolute certainty has been completely bridged, rendering the conviction sustainable in law and equity.

¶148

The prosecution’s narrative, reconstructed through the crystalline optics of ocular and scientific evidence, establishes the culpability of the appellant beyond the threshold of reasonable doubt, satisfying the statutory ingredients of Section 325 of the Indian Penal Code. The foundational bedrock of the criminal occurrence rests upon the unimpeached testimonies of the informant, Nisith Biswas (PW-1), and the injured victim, Narayan Biswas (PW-2). Their depositions present an organic, contextual consistency regarding the genesis of the conflict on that fateful noon, where a transient straying of livestock into the adjacent plot of the appellant provoked a disproportionate, violent retribution. The appellant’s aggressive rejection of the elderly victim’s submissive, folded-handed apology, followed by a violent push and a blunt-force strike with the reverse side of an agricultural spade, stands structurally validated. While the learned counsel for the appellant has sought to dismantle this edifice by highlighting the hostile defection of independent rustic witnesses—namely PWs 3, 4, 8, 9, and 10—it remains a

¶149

26

¶150

fundamental canon of criminal jurisprudence that the grain of truth can be successfully sifted from the chaff of defensive or uncooperative testimonies. The ambient corroboration offered by PW-6 and PW-7, neighboring cultivators who arrived at the theater of occurrence in the immediate aftermath to witness the chaotic scene and assist the incapacitated victim, effectively salvages the prosecution’s core thesis from the shadows of local apathy or intimidation.

¶151

The defensive paradigm attempting to characterize the structural injury as an accidental casualty of a fall onto an undulating agrarian terrain is thoroughly dismantled by the objective determinations of medical science. The primary examination by Dr. Amit Mukherjee (PW-5) immediately identified profound localized tenderness over the left greater trochanter of the femur, an injury subsequently diagnosed through the radiological expertises of PW-11 and PW-13 as a devastating pertrochanteric fracture of the neck of the left femur accompanied by an avulsion of the trochanters. This profound orthopedic trauma perfectly mirrors the mechanical application of force described by the ocular witnesses—specifically, a heavy blow delivered by the blunt, reverse side of a spade onto a prostrate body. The technical admissions elicited during cross-examination that such fractures could theoretically manifest from an accidental fall represent mere clinical abstractions, which fail to displace the coherent, lived reality of the assault narrated by the victim. Furthermore, the procedural discrepancies emphasized by the defence—including an initial clerical error in the temporal coordinates of the formal charge sheet and the non-seizure of the

¶152

27

¶153

offending tool—constitute routine blemishes born out of rustic investigative environments, which do not puncture the core truth of the physical assault.

¶154

To satisfy the legality of the conviction under Section 325 of the Indian Penal Code, the evidence must unequivocally demonstrate the voluntary causing of grievous hurt as defined under Section 320 of the Code. The radiological confirmation of a pertrochanteric fracture of the neck of the femur constitutes a clear fracture or dislocation of a bone under clause 'Seventhly' of Section 320, resulting in an extended institutional confinement spanning multiple therapeutic facilities, including Tehatta B.P.H.C., Nadia District Hospital, and Dum Dum Nursing Home. The appellant’s act of striking an elderly, non-resisting person with an agricultural implement carries the requisite judicial imputation of knowledge, if not direct intent, that such blunt force applied to the pelvic region would result in grievous injury. The trial court's structural analysis of the evidence and its subsequent finding of guilt under Section 325 IPC are, therefore, legally sound, untainted by perversity, and fully sustainable on facts and law.

¶155

Consequently, the appeal against the conviction is missing in merit and must be dismissed. However, balancing the scales of punitive justice with the mitigating realities of human existence requires a measured modification of the penal consequence. The criminal transaction dates back to the year 2005, and the appellant has endured the psychological and social crucible of a protracted criminal prosecution for over two decades. He has advanced significantly in age, possesses no prior criminal antecedents,

¶156

28

¶157

and the conflict itself arose from a spontaneous, localized agrarian dispute rather than any premeditated malice or professional criminality. While the brutal nature of an assault on an elderly citizen precludes the complete extension of reformative clemency under the Probation of Offenders Act, the ends of justice would be appropriately met by modifying the substantive sentence of imprisonment to the period already undergone by the appellant during the investigation and trial, while maintaining the financial penalty imposed by the learned court below to alleviate the victim's suffering. The conviction under Section 325 of the Indian Penal Code is hereby sustained, the appeal stands dismissed with the aforementioned modification of sentence, and the appellant is discharged from his bail bonds subject to the realization of fine.

¶158

Accordingly, the instant criminal appeal being CRA 285 of 2007 is dismissed. Since a considerable time has elapsed from the date of occurrence of the offence and the sentence is reduced to the period of incarceration undergone by the appellant.

¶159

There is no order as to costs.

¶160

Trial Court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action.

¶161

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

¶162

(Ananya Bandyopadhyay, J.)

Bablu Ghosh v. State of West Bengal

Case brief

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Bablu Ghosh v. State of West Bengal

Case brief

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