*ATTEMPT TO MURDER

In the Court of Special Judge E.C.-cum-Additional District and Sessions Judge,

District: Hooghly, Chinsura

Present:- Harjinder Singh, Additional District and Sessions Judge,

Dated, Chinsura the 27th day of April, 2009.

Sessions Case No.118/02 (ST No.26 of 2002), [GR Case No.214/2001,]

Arising out of Pandua P.S. case No.92/01 dated 03-03-2001.

( u/Secs.147/148/149/326/307/427/506 IPC)

State v. 1).Dilip Pal and 13 others.

J U D G E M E N T

The Complainant Lal Mohan Das s/o Jatin Chandra Das of village Mahadevpur, P.S. Pandua, District: Hooghly on 03-03-2001 lodged an F.I.R. with the Pandua P.S. at 13.15 hours against 1. Dilip Paul, 2.Ashoke Paul, 3.Kishore Paul, 4. Suresh Paul, 5. Manick Paul, 6) Raja Paul, 7) Dulal Paul, 8.Keshab Paul, 9. Prodip Paul, 10. Mantu Paul, 11. Netai Adhikary, 12. Rajua Roy, 13 Sunil Adhikary and 14. Raju Mondal in respect of an incident that took place on 03-03-2001 in between 10.00 hours to 11.00 hours at Mahadevpur village at Sarai Timna G.P. The complainant in his F.I.R. alleged that in the village there is a Barowari field. On the eastern side of this field, there is a Club room and on the northern side thereof, there is a Mandap and one Anganbadi. The accused Dilip Paul s/o Ramesh Paul who is a resident and a co-villager and his brothers have different kind of defective characters are engaged in different types of anti-social activities has been trying to take possession of the fields with the help of some anti-social people. This matter was earlier brought to the notice of the Police earlier as well. When they tried to take possession of the field, the village people expressed their strong opposition. Today, on 03-03-2001(Saturday) in between 10 to 11 a.m. the suddenly the accused persons armed with Axe (Tangi), Spear (Ballam), Sword (Talowar), Nepala and many other dangerous weapons they attacked the houses one after the other and threatened that they would convert the village into the one like the village Garbeta of District Mednipore. In the said attack, they did not even spare even old people, women folk and children etc. and they tried to kill many a persons of the Para. As a result of the assault, 14 persons received injuries and two of the injured persons are battling with death at Chinsura Hospital. Therefore, keeping in view the serious nature of the crime the complainant prayed for registering the FIR and to start investigation into the matter. In the FIR the names of the 14 injured persons is mentioned as follows:- 1) Shri Lal Mohan Paul, 2) Shri Swapan Das, 3) Shri Dipak Ghosh, 4) Shri Jagannath Ghosh, 5) Shri Lal Mohan Das, 6) Shri Biswanath Biswas, 7) Rana Mukherjea, 8) Satyavati Biswas, 9) Arun Paul, 10) Abhijit Das, 11) Uma Rani, 12) Purnima Biswas. 13) Krishna Mukherjea and 14) Madhavi Ghosh. On the basis of the aforesaid FIR, the Police started Pandua P.S. case No.42/2001 u/Secs.147/148/149/326/307/427/506 IPC against the 14 FIR named accused persons. The o/c endorsed the case to S.I. Guiram Mal to investigate. After investigation the I.O. submitted a Charge-sheet No.145 dated 8.9.2001 147/148/149/323/324/307/379/427/506 IPC against the aforesaid 14 accused persons.

After commitment and transfer of this case to this Court, this Court on 16th of December, 2003 framed a charge u/Secs.148/149/324/427/307IPC against the accused persons who pleaded not guilty to the charge and claimed to be tried. The accused persons neither filed any W.S. in this case as envisaged u/Sec.233(2) of the Cr.P.C. nor adduced any oral evidence. However, they got one certificate Exhibited which is marked Ext.A in their favour.

POINTS FOR DETERMINATION

DECISION WITH REASONS

Points Nos.1 to 5:- All these points are taken up together for adjudication for the sake of convenience, continuity and brevity for adjudication. The prosecution in this examined 27 witnesses and proved several documents marked Exhibits 1 to 9 as per list and also produced and got identified a few seized weapons of offence(Mat Ext.I) and some blood stained clothes (Mat Ext.II) in support of their case. In this case, their are 14 assailants and there are 14 victims of assault as per the F.I.R. Therefore, it can not be expected that all the victims would know in details in what manner which particular victim was assaulted and by which particular accused.

Hon'ble SC in Bhoginbhai v. State of Gujarat, AIR 1988 SC 753 = 1983 Cri.L.J. 1096 observed, “Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious—

Discrepancies which do not go to the root of the matter and shake the basic version of the witness, therefore, cannot be annexed with undue importance. More so when the all important “probabilities-factor” echoes in favour of the witness.” Therefore, the best approach in my opinion would be to consider the evidence of injured witnesses one by one and to nail down the accused who assaulted such witness, as a witness may not remember all the details regarding who and in what manner assaulted the other 13 victims, but would surely remember, which particular accused assaulted him or her.

PW 1 (Lal Mohan Das) is the complainant of this case as well as an injured witness, who in his evidence deposed, “The incident was taken place on 3.3.01 at about 10/11 a.m.

There is a Barowari field in the village at village Mahadebpur. On the day of incident accused Dilip Pal, Asok Pal, Kishore Pal, Mantu Pal, Prodip Pal, Raju Roy, Raju Mondal, Netai Adhikary, Dulal Pal, Raju Pal, Manik Pal came in the said Barowari field with lathi, tangi, Ballam, Chappar in their hands in the Barowari field for taking possession of the said field forcibly and then Lalmohan Pal, Swapan Pal, Kalyan Mukherjee, Bikash Biswas, Biswanath Biswas and others includingmyself resisted the accused persons and then the accused persons assaulted us. I received the bleeding injuries on the lower part of the right arm. Lalmohan Roy who also received severe injuries in his person. Swapan Pal was also assaulted by the accused persons and he received injuries in the left hand. Biswanath Biswas received injuries on his head, Dipak Ghose ws also injured. Krishna Mukherjee was also assaulted by the accused persons and some other persons were also assaulted by the accused persons. The accused persons thereafter ransacked the residence of the persons including myself, Lalmohan Pal, Krishna Mukherjee, Swapan Mukherjee, Swapan Das, Niranjan Deb.

The injured Lalmohan Pal and Swapan Das were sent to Chinsura hospital for their treatment. Other accused(should be injured) persons were got treatment at Pandua hospital.

With reference to the incident a written complaint was lodged at P.S. it was written by Kalyan Mukherjee. It was written as per my instruction. Thereafter I signed in the written complaint. This written complaint is marked X for identification and the signature marked Ext.1/1. All the accused persons are present on dock (id).” Though he did not name in his examination-in-chief the name of the person who assaulted him, he in his cross-examination stated, “I did tell to doctor that I received injury on the person by the instrument used by Dilip Pal.” Therefore, we get the name of the first confirmed participant in the incident of assault and rioting.

PW 14 ( Dr, Ujjal Bandopadhyay ) then posted at Pandua Hospital, examined many victims and amongst them he also examined PW1 ( Lal Mohan Das ). He in his evidence, regarding this witness deposed, “ On that date I also examined one Lalmohan Das, male 30 years. On examination, I did find one cut injury over the right wrist about 1 ½ inches in length. No active bleeding was seen. This is the injury report prepared by me. It is marked as Ext.4(a).” From the injury report Ext.4(a) we find that the doctor opined that the same was caused by a sharp cutting weapon and described the injury Simple. This victim being relevantly young and having received simple injuries, was therefore, fit to sign the FIR. Thus the medical evidence fully corroborates the oral version of the Complainant regarding the nature and the part of body where he sustained injury. Hon'ble Allahabad H.C. In Hari Har Bhagwan Din and others v. The State, 1971 Cri.L.J. 1579 observed that the evidence of an injured witness must ordinarily be ranked high and should receive credence. A similar view was expressed by Hon'ble SC in Appabhai and others v. State of Gujarat, AIR 1988 SC 696=1988 Cri.L.J. 848 in the following words, “It is true that there are many contradictions in the evidence of the victim of assault. He has not attributed overt acts to individual accused in his statement before the police, whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately, he has survived. He must, therefore be considered the best eye witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shape the basic version of the prosecution case may be disccarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. ......”

As per the FIR, two of the victims were hospitalized at Chinsura Hospital and were battling with life. Therefore, let us find who are these two seriously injured victims. From Ext.4(m) I find that Lal Mohan Paul aged about 63 years was referred from Imambara Sadar Hospital to N.R.S. Medical College and Hospital with multiple injuries and his prognosis was described unpridictable. From Ext. 8 I find that he was hospitalised from 4-03-2001 to 14-03-2001in the NRS Medical College and Hospital and was suffering from “Multiple injury ( ? Tendon injury). This victim deposed as PW11 ( Lal Mohan Pal ) and he in his evidence stated, “The incident was taken place on 03-03-2001 at 10/11 a.m. The accused persons assaulted me and ors. I received injuries on different parts of my body including left hand, head, chesst, back and right hand also. The accused persons also assaulted Swapan Das, Lal Mohan Das and Dipak Ghose. The injured persons were brought to Pandua hospital. Myself and Swapan Das were transferred to NRS Hospital, Calcutta. I am still in treatment. Police told that my treatment will be collected from the hospital . The accused persons are present on dock (id).” This witness thus implicates all the accused persons. Ext 5 series are the Record of this in-Patient and below the Prescription dated 03-03-2001 at 4 PM it is recorded, “Multiple Injuries repaired in OT by Dr. D.P. Baannerjee, Orthopaedic Surgeon. PW16 (Dr. Taoab Kumar Mondal) in his evidence stated, “On 3.3.01 I was posted as Surgeon of District Hospital, Hooghly. On that date at about 1.35 p.m. one Lalmohan Pal aged about 65 years was admitted in my hospital under my care. The patient undergone operation by Dr. Debi Prasad Banerjee, Orthopadc /surgeon then posted in the hospital. After operation was done, I did examine the patient. I advised the patient for transfusion of blood. The patient was ultimately transferred to any of the Teaching Hospital, Calcutta....” Dr. Collin Roy (PW 18) of NRS Hospital corroborated this fact and he in his evidence stated, “On 5th July, 01 one Lalmohan Pal attended my department as out door patient. I did examine him. On examination I found that his ulnar nerve was cut and advised his investigation for admission.” His aforesaid evidence was not even challenged.

The next seriously injured persons as per PW11(Lal Mohan Paul) is Swapan Das (PW8). He in his evidence, deposed, “On 3.3.2001 at about 10/11 A.M. the accused persons appeared in the Borowari field of the village and there the accused Dilip Pal gave a blow in the hand of Lalmohan Das by a tarowal and the accused persons, then assaulted Dipak Ghosh and thereafter all the accused persons assaulted Lalmohan Pal. I tried to resist the accused persons, but they also assaulted me and accused Dilip Pal gave me a blow on the left wrist by a tarowal. I received bleeding injury. The accused persons thereafter enetered into different residences and caused damage there. All the injured persons were brought to the Pandua Hospital. Myself and Lalmohan Pal were ultimately transferred to Chinsurah Hospital, therefrom we were sent to Nilratan Sarkar Medical College, Calcutta. Subsequently, I was also treated at Tollygunge Aragya Maternity Nursing Home and thereafter Apollo Hospital. The accused persons are present on dock and identified.” Therefore, the main targets of the accused persons, it appears were Lalmohan Das, Dilip Ghosh and Lalmohan Pal. This witness received injuries while trying to save them. This is very natural as people tend to save the weak and aged persons when strong persons target weak persons like Lal Mohan Paul – who is an aged person.

Swapan Das(PW8) as per Ext.8 and the evidence of Dr. Debi Prasad Bannerjee(PW19) was referred to the Plastic Surgery Department of any Teaching Hospital. Later it appears, this victim was operated upon at Arogya Nursing Home, 71, Tollygunge Circular Road, Cal-53 on 7.3.01 as Dr. Dhruba Jyoti Bhowmick(PW22) of the said Nursing Home who treated him there in his evidence deposed, “This is the discharge certificate issued from Arogya Maternity Home in respect of the patient Swapan Das. The patient was admitted under me there. He was admitted in nursing home with injury in his left hand. I treated the patient and repaired all flexor tendons and ulnar nerve under general anesthesia. This portion in the discharge certificate was written in the Nursing Home in due course of official business. The discharge certificate is marked Ext.8(a).

On 16.3.03, I was also attached to MRI Hospital. This is the follow up instruction in respect of one patient named Swapan Das. The case was in respect of injury repaired by (me) injury under general anesthesia.” He proved the prescriptions in respect of the patient as Ext.4(n) and Ext.4(o).

Thus we find that both the victims Lal Mohan Pal (PW11) and Swapan Das (PW8) received cut injuries and their tendons were cut, and the same had to be repaired by way of operation. In the case of Lal Mohan Pal, the repairing work was done at Imambara District Sadar Hospital while in the case of Swapan Das it was done at the Arogya Maternity Home. The dictionary meaning of the word 'tendon' as per the Oxford Learner's Advanced Dictionary of Current English means, “tough, thick cord that joins muscle to the bone.” When this cord is cut, corresponding bone to which the cord was connected with the muscle can not be moved as muscular movement on account of disruption of the link with the muscle and the bone, can not be transferred to the bone, thus making the movement of the organ by use of muscular power impossible. This injury is, therefore, definitely a grievous type of injury, which if not repaired would lead to a non functioning organ of one's body.

The evidence of two of the aforesaid target victims have already been discussed. The third target victim, Dipak Ghosh (PW9) in his evidence stated, “The incident took place on 3.3.2001 at about 10/11 A.M. when the accused persons appeared in the Barowari field with tarowal, tangi, nepala, Katari and other weapons in their hands and assulted first Lalmohan Das and thereafter I was assaulted on my head and thereafter they assaulted Lalmohan Pal and thereafter they assaulted Biswanath Biswas. Thereafter, the accused persons entered into different residences and damaged the articles thereof. The injured were brought to the Pandua Hospital . All the accused persosn are present on dock and identified.” From the evidence of Dr. Ujjal Bandopadhyay (PW14), we find that this witness also received several injuries. Regarding him the aforesaid Doctor stated, “On the same date I also did examine one Dipak Ghosh, male 24 years. On examination I did find one cut injury over the right fore-head about 1” in length and another cut injury on right frontal scalp ¾” in length. Active bleeding was found.” He then proved the injury report as Ext.4(c).

Next important witness appears to be PW26 (Abhijit Das) who was 14 years of age when he deposed and therefore merely 8 to 9 years of age on the date of incident. He in his evidence stated, “Manmohan Das is my father. I am a student of class VII. Dilip Pal, Ashoke Pal, Kishore Pal and others assaulted my uncle Lalmohan Das. Dilip Pal assaulted by a talowar and thereby received bleeding injury in his right hand. Kishore Pal assaulted Dipak Ghosh by tangi on his head causing bleeding injury there. Lalmohan Pal was assaulted by Kishore, Dilip, Asok Pal. Dilip Pal assaulted by a tolowar. Kishore Pal assaulted him by tangi and Asok Pal assaulted him by chopper. Lalmohan Pal received bleeding injury in his abdomen, head, leg and back and chest and right hand. The injured persons were brought to hospital. Swapan Das while tried to rescue Lalmohan Pal, then he was also assaulted by Dilip Pal and thereby he received injuries in his right hand. Asok Pal chased me. He threw a brick bat towards me which ultimately hit my right leg. I then sat down. I was also treated by a doctor.

Keshab Pal, Dulal Pal, Nemai Adhikary, Sunil Adhikary Manik Pal, Prodip Pal, Mantu Pal were also present with the assailants. They were armed with lathi sota. The accused persons ransacked 5/6 residences belonging to Lalmohan Pal, Raja Mukherjea etc. The accused persons are present on dock and identified.” One can very well understand the impact such an incident would have on the mind of a young child. Therefore, he described the incident more vividly without exaggerating. The evidence of this witness gets sufficient corroboration in the evidence of the Dr.Ujjal Bandhyopadyay (PW14) who also examined this witness and regarding him he deposed, “ I also did examine on the same date one Abhijit Das, 8 years. On examination I did find pain and tenderness of left calf muscle with abrasion. This is the injury report prepared and signed by me. It is marked Ext.4(k).” I see no reason as to why the evidence of this witness should be doubted.

PW3 (Manmohan Das) is the father of injured PW 26(Abhijit Das) and he in his evidence stated, “On 3.3.01 at about 10/11 a.m. I found the accused persons armed with lathi, tangi, tolowaar, ballam, to assault Lalmohan Pal and Swapan Das in the field of the village. Lalmohan Pal received bleeding injury on his person. Swapan Das also received bleeding injury in his left hand joint wrist. Having been afraid of, I left the place. The accused persons also assaulted my mother, my son and ors. After the incident of the field, the accused persons enetered into the residence of different persons and ransacked their residences. Lalmohan Das also received injury in his right hand. The injured persons were brought to hospital..........” He is also a witness to seizure of alamats by the Police.

PW10 (Biswanath Biswas) is yet another witness to the rioting that took place in the field. He in his evidence stated, “On 3.3.01 at about 10/11 a.m. Dilip Pal, Asok Pal, Kishore Pal and ors. having armed with talowar, chapar, tangi and lathi appeared in the Barowari field and assaulted first Lalmohan Das on his hand and thereafter they assaulted Dipak Ghosh on his head by tangi and thereafter accused Dilip assaulted Lalmohan Pal by talowar. Asok also assaulted him by chapar. While I resisted to the act of the accused then accused Dulal Pal assaulted me by a lathi. I received bleeding injury on my head and took shelter on the ground.

The accused thereafter entered into the residence of different persons including my residence. They damaged my tiles and assaulted my wife. The injured persons were treated in Pandua Hospital...”

” The doctor Ujjal Bandopadhyay (PW14) corroborated his evidence and stated, “On the same date I also examined one Biswanath Biswas, male 49 years. On examination I did find superficial laceraated injury of right frontal scalp 1” x 1/4”. No active bleading was found.” He proved the said injury report as Ext.4(b). A lacerated injury can certainly be caused by an assault by lathi as stated by this witness and as such, I am convinced, he also deposed truthfully regarding the assault.

The evidence of aforesaid witnesses refers to the the first part of the assault that took place in the Borowari fields. Now comes the 2nd phase of the assault by the accused persons who entered the houses of victims and then assaulted them in their houses.

Smt. Satyabati Biswas (PW24) is the wife of PW10(Biswajit Biswas) and she is a witness to both the kind of assaults. She in her evidence stated, “On 3.3.01 at about 10/11 a.m. the incident was occurred. I heard hue and cry raised from the field. I came out of the residence and found Dilip Pal to give assault Lalmohan with a talowar on different place of his body and thereby he received bleeding injury in his person. Dilip Pal also assaulted Swapan Das and thereby he received injuries in his hand. Dulal Pal assaulted my husband Biswanath Biswas on his head. I tried to rescue my husband. I was then chased (by) the accused persons (who) entered my residence and damaged my tiles of the roof. Kishore Pal assaulted me by the handle of the tangi on my left shoulder. We were treated in a hospital. Accused persons are present on dock and identified.” Though medical report of this witness has not been proved by the prosecution, but her evidence inspires confidence.

Jagannaath Ghosh (PW12) too was assaulted in his house. He in his evidence deposed, “The incident was occurred in the month of March, 01. I cannot give the specific date of the incident. The incident occurred on 10/11 a.m. at the time of incident Asok, Kishore, Delip and some other persons entered into my residence armed with a lathi and Dilip Pal assaulted me on my head by a laathi andAsok Pal gave me a blow by knife on my right leg and thereby received bleeding injury and fell down on the ground. The accused persons also assaulted my wife Madhabi Ghose and thereafter left the place. I was brought to Pandua Hospital for my treatment there. Some other persons also (got) injured and they were brought to Pandua hospital for their treatment. The accused persons are present on dock (identified).” PW14 (Dr, Ujjal Bandopadhyay) supporting him in his evidence deposed, “On the same date I also did examine one Jagannath Ghose male 60 years. On examination I did find one cut injury over the back of right thigh about 1” in length with active bleeding, small superficial lacerated injury over the frontal scalp with bleeding. Patient told pain in his left lower chest. This is the injury report prepared and signed by me. It is marked Ext.4(d).” Therefore, the evidence of this victim (PW12) can not at all be doubted.

His wife Smt. Madhabi Ghosh(PW25) in her evidence deposed, “Jaganath Ghose is my husband. On 3.3.01 at about 10/11 a.m. my husband was assaulted by Dilip Pal by a lathi and Asok Pal gave a blow of knife. Kishore also assaulted my husband by lathi. While my husband was being assaulted , I tried to rescue him and then I was also assaulted by those three persons. The other accused persons accused persons assaulted us within our residence. My husband received bleeding injury. I received pain in my body for assault. We were treated by Pandua Hospital. After assaulting the accused persons broke the tiles of the room. This is the knife by which my husband was assaulted. This is the lathi by which Dilip Pal assaulted my husband. Both are marked as mat Ext. I collectively. The accused persons are present on dock and identified.” Her evidence perfectly tallies with the evidence of her husband and she being a close relative of PW12, she would be the last person to shield the real culprits and falsely implicate innocent persons. Hon'ble Supreme Court in Dalip Singh and others v. The State of Panjab, AIR 1953 SC 364 (Vol,40 C.N. 81) observed, “ A witness is normally considered to be independent unless he or she springs from sources which are likely to be tainted and that usually means that unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person and hence the mere fact of relationship far from being the foundation of criticism of the evidence is often a sure guarantee of truth. No doubt no sweeping generalisations can be possible in all cases, but at the same time, there can not be any general rule of prudence to require corroboration before the evidence is believed. Each case must be limited to and governed by its own facts.”

Thus we find that that the accused persons were not satisfied by the rioting act displayed by them at the Borowali field to terrorize the villagers, but they also chased them, entered into their houses, ransacked their houses, assaulted them and damaged their houses by breaking the tiles of their roof etc in order to ensure that none in future should dare to oppose them when they exercised their exclusive dominion and control over the said field to the exclusion of all others. Such goondaism needs to be curbed with an iron hands.

Ld. Advocate for the accused persons submitted before this Court at the time of hearing arguments that in the FIR it is mentioned that the matter(dispute regarding possession over the field) was brought to the knowledge of the Police earlier, but the prosecution failed to produce the same. As such an adverse inference for non production of the same should be drawn against them. He also submitted that two of the victims of assault namely Uma Rani and Purnima Biswas were not examined by the prosecution. Therefore, the court should draw an adverse inference against the prosecution that the prosecution intentionally withheld them and had the two witness deposed, they would have deposed against the prosecution. This argument is unacceptable as u/Sec.134 of the Evidence Act no particular number of witnesses are required for the proof of any particular fact. It is the quality and not the quantity of the evidence adduced which matters. Non production of a G.D.E. to show the origin of the dispute is an insignificant omission which must be overlooked as the FIR lodged after the brutal organized crime is sufficient and satisfactory. Ld advocate for the accused persons pointed out some insignificant omissions in the FIR. But, I think, by now it is almost settled law that an FIR can not be expected to be an encyclopedia. Hon’ble Kerala H.C. in Mani v. State of Kerala,1987 observed, “A first information report is not, and need not be, a catalogue of all information that may be in the mind of the informant. Several fat ors would determine what would be said and what would be missed. The dimensions of perception, the sense of importance or unimportance of events in the mind of the maker of the statement, his own state of mind, his views of relevancy and irrelevancy would all form the backdrop in which the state made will have to be considered. A first information report is not an encyclopedia of the entire prosecution case , but only a starting point that alerts the investigating machinery into the process of probe the result of which will be evaluated y the Court. Therefore, no fault can be found with the first information report about a murder case lodged by a witness because the informant did not mention the injuries sustained by one of the witnesses in the course of the same transaction.” A similar view was taken by Hon’ble SC in Rattan Singh v State of H.P., AIR 1997 SC 768 wherein Hon’ble SC observed, “It is settled law that FIR are not taken as encyclopedia and omission of a fact therein, even if material, cannot by itself make the witness deposing about that fact unbelievable at that point.”

Ld. Advocate for the accused drew the attention of this Court to the evidence of Dr. T.K. Mondal (PW16) in his evidence stated that Lalmohan Pal was suffering from incised injury on tendon and nerve on his left wrist while Dr Ujjal Bannerjea sstated that he did find multiple lacerated injury over the scalp, lacerated injury over left and right arm, then how come the former doctor found incised injuries? As such in view of such discrepancies the accused persons deserve acquittal as two views are possible regarding the manner in which the said victim received injuries. He cited a Ruling of Hon'ble SC in Umrao v State of Haryana and others 2006 (2) Crimes 225 wherein Hon'ble SC observed, “High Court found that victim-deceased was discharged from Hospital on same day i.e. 12-09-92 and no fracture was found on his head but when he was re-admitted on 25-09-92 he had fracture of head and defence plea could not be ruled out that he suffered head fracture by fall. High court was right in its findings that if two views were possible, appellate court should not interfere with the judgment of acquittal.” But, he ignored the evidence of the said doctor that he examined him after his operation by Dr. Debi Prasad Bannerjea who repaired his cut tendon and nerves in the Operation Theatre. Naturally, the injured after being operated upon must be bandaged to avoid infection and to improve healing. Therefore, the said doctor examined only those injuries as were not operated upon and not bandaged. Such injuries must have been lacerated injuries that did not need any reparation by way of operation, but required only ordinary treatment. Therefore, I do not find any discrepancy in this fact. Besides, can it be believed that on the said date something mysterious happened with the result that about fourteen persons at different places fell down and or accidentally received injuries. Such incongruent and incredible stories devoid of any logic may convince an insane mind but can never induce confidence in the mind of a rational person. Therefore, there is absolutely no room for the court reasonably believing that two views are possible on the facts and circumstances of this case. There can only be one rational view that all the victims sustained injuries only as a result of assault at the hands of the accused persons and by no other manner such as by way of any accident.

Hon'ble Supreme Court in State of U.P. v Anil Singh, 1989 Cri.L.J. 88 = AIR 1988 S.C. 1998 observed that it is improper to reject the prosecution case merely because all the witnesses to occurrence were not examined. Hon'ble SC in the said ruling further observed “....With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reasons to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside a criminal trial merely to see that no innocent man is punished. A Judge also presides over to see that a guilty does not escape. One is as important as the other. Both are public duties which the Judge has to perform....”

Ld. Advocate for the accused persons on the basis of Ext.A – a certificate issued by the O/C Tarkeshwar Mukherji in favour of the victim Swapan Das stating that he has been assaulted by a group of miscreants and on his way to be shifted to a better Hospital/Nursing Home from Chinsura Hospital requested all concerned to extend a helping hand alledged that such a conduct on the part of the O/C was unusual and exhibited his partisan behaviour and biased against the accused persons. He argued, this is none of the functions of the O/C to solicit help for any person. I find it extremely difficult to accept such an argument. First of all the O/C himself is not an I.O. of this case. Secondly, it is the Constitutional duty of the State under Article 21 of the Constitution of India to protect the life and liberty of its citizens and when the O/C did something in pursuance of his such Constitutional duty, he needs to be applauded and not criticised. On the other hand I find that the I.O. by following imperfect procedures during investigation actually helped the accused persons. For example, the I.O. while making seizure of weapons etc did not mention from which place and from whose possession the same were recovered. He mentioned the place of seizure as village: Mahadebpur in each Seizure committed blunders making the importance of seizure almost ineffective. Fortunately the direct evidence of the prosecution witnesses is so strong, corroborated by medical evidence that his aforesaid flaws pales into insignificance.

Ld advocate for the accused persons citing a ruling of Hon'ble Patna H.C. in Zaffar Alam v. State of Bihar, 2002(1) Crimes 441 wherein Hon'ble H.C. observed. “In a criminal case, place of occurrence is an important aspect of the case which is to be proved beyond all reasonable doubt and in the manner as alleged.” submitted that in this case the prosecution miserably failed to fix the correct P.O. and as such the benefit thereof should go to the accused persons as in absence of a fixation of a correct P.O., the prosecution case can not be believed and therefore, the accused persons deserve an acquittal. I find it difficult to accept this argument. In this case, there are 14 assailants and almost the same number of victims who were assaulted at different places. A few of the victims were first assaulted at the field, some of them were chased and assaulted while the others were assaulted in their respective houses at the time of ransacking of their houses. Therefore, the P.O. in such circumstances, can never be a single fixed geometrical point and in view of the manner the crime was committed becomes stretched from the field to the houses of the victims in the village Mhadevpur and thus acquires the shape of the proverbial elephant who is described differently by seven blind men who catch hold of different parts of the animal and describe the animal differently on the basis of their sense of touch and yet none of them is completely correct or totally false. When the P.O. is stretched from a field and continues up to the residential houses of several victims who were assaulted in their respective house, it can not be pinned down to a single geometrical point, and any attempt to do so would definitely be a travesty of justice and would result in miscarriage of Justice. Suffice it to state that not a single witness or victim stated the P.O. to be a place which is not the field or the house of one of the victims. Therefore, the aforesaid ruling viewed from this angle is not in conflict with the facts of this case. Hon'ble Kerala H.C. in State of Kerala v. Narayan Bhaskaran, 1992 Cri.L.J. 238 advised, “ Evidence must be approached with a sense of reality, with an awareness of life in its ordinary quality, and not from an unrealistic angle. Exaggerated devotion to maudlin sentiments, make a mockery of criminal law. Criminal law has a purpose to serve. The object is to suppress criminal enterprise, and punish the guilty. In this process, it must, however, be ensured that benefit of reasonable doubts are given to the accused.” A similar view was expressed by Hon'ble SC in Such Singh and another v. State of Panjab, 2003 Cri.L.J.3876 and Hon'ble SC opined, “ Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law....”

Hon'ble SC in Krishnegowda and others v. State of Karnataka, 2000 SCC (Cri) 174 again quoted an observation made by them in Para 16 of their Ruling in Masalti v. State of U.P. AIR 1965 SC 202 as under:

“ Mr Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused persons, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable.” In this case also, I have already shown several injured prosecution witnesses whose injuries were duly established also by medical evidence gave a consistent version of the incident, at least that part of the chain of events that took place in quick succession as was witnessed by them.”

Hon'ble SC in a recent Judgment in CASE NO.: Appeal (crl.) 609 of 2006 PETITIONER: Chandrappa & Ors RESPONDENT: State of Karnataka DATE OF JUDGMENT: 29/04/2008 BENCH: S.B. SINHA & HARJIT SINGH BEDI JUDGMENT: J U D G M E N T NON-REPORTABLE CRIMINAL APPEAL NO.609/2006 HARJIT SINGH BEDI,J. where the facts of the case are almost similar to the present one recorded the facts in Para 1 of their Judgment confirming the order of conviction passed by Hon’ble High Court gave their opinion in para 9 of the judgement regarding discrepancies as follows:-

“1. The facts leading to the filing of this appeal by way of special leave are as under: 2. PW-1 Bhagyavathi, wife of Thimmappa deceased of village Arebilachi, is the complainant in the case. Thimmappa was the son of Navilapa. Navilapa had, in addition, five other sons Devendrappa, Manjappa, Chandrappa, Nagarajappa and Gadigeshappa and two daughters including Ratnamma PW-2. Navilapa had about 12 acres of ancestral land and he had divided the said land equally between himself and his sons and all were in possession of their respective shares thereafter. Thimmappa, Devendrappa and Manjappa were residing separately whereas the other two, Chandrappa and Gadigeshappa, were residing in their old family home whereas Nagarajappa was residing with his father Navilapa and his sister Ratnamma. Thimmappa, however, acquired about 10 acres of land on his own but his brothers Chandrappa and Gadigeshappa were demanding a share out of this land as well and on account of this development, the relationship between the brothers had become strained. Chandrappa and Gadigeshappa also filed a suit seeking a share in the 10 acres acquired by Thimmappa with the result that the relation between the brothers was further strained. At about 4 p.m. on 1.8.1993, Thimmappa told his wife Bhagyavathi that he had learnt that Chandrappa and Gadigeshappa had gone to the field to pluck coconuts and that he was going to prevent them from doing so. Thimmappa and his brother Devendrappa PW3 then left for the fields on a scooter. A few minutes later Rathnamma PW2, sister-in-law of Bhagyavathi PW-1 came to her house and informed her that she had seen Chandrappa and Gadigeshappa accompanied by their brother-in-law Hanumanthappa, Shiva and Siddeshappa along with Bhoomesha and Manja proceeding towards the field armed with Choppers and sickles and she apprehended some danger. Bhagyavathi and Rathnamma then left for the field and as they reached the outer fencing at about 4.30 p.m., they saw all the accused as well as Bhoomesha and Manja assaulting Thimmappa with sickles and choppers. PW3 Devendrappa went to the rescue of his brother but he too was assaulted and having sustained an injury he ran away towards the village. PWs1 and 2 thereafter entered the garden and saw that Thimmappa was lying grievously injured near the Samadhi adjoining the land. The accused Siddeshappa and Hanumanthappa also abused and assaulted the two women. PW4 Prashanth Kumar, who was attracted to the place, rushed in with some water which he attempted to put into Thimmappa's mouth but he succumbed to his injuries at the spot. PW3 Devendrappa was also taken to the Bhadravathi hospital by PW11 Rudrappa whereas PWs.1,2 and 4 stood near the dead body. It was also noticed that the accused while running away had left behind a sickle and a club near the dead body. An FIR was got registered by PW1 Bhagyavathi at about 11.45 p.m. at the Police Station.

9.. It has been contended by the ld Counsel for the appellants that the discrepancies between the statements of the eye witnesses inter-se would go to show that they had not seen the incident and no reliance could thus be placed on their testimony. It has been pointed out that their statements were discrepant as to the actual manner of assault and as to the injuries caused by each of the accused to the deceased and to PW3 the injured eye witness. We are of the opinion that in such matters it would be unreasonable to expect a witness to give a picture perfect report of the injuries caused by each witness to the deceased or the injured more particularly where it has been proved on record that the injuries had been caused by several accused armed with different kinds of weapons. We also find that with the passage of time the memory of an eye witness tends to dim and it is perhaps difficult for a witness to recall events with precision. We have gone through the record and find that the evidence had been recorded more than 5 years after the incident and if the memory had partly failed the eye witnesses and if they had not been able to given an exact description of the injuries, it would not detract from the substratum of their evidence. It is however very significant that PW2 is the sister of the 5 appellants, the deceased and PW3 Devendrappa and in the dispute between the brothers she had continued to reside with her father Navilappa who was residing with the appellants, but she has nevertheless still supported the prosecution. We are of the opinion that in normal circumstances she would not have given evidence against the appellants but she has come forth as an eye witness and supported the prosecution in all material particulars.”

PW2 (Kalyan Mukherjee) is the scribe who identified the F.I.R. Ext.1 written by him. From his evidence we find that the Police seized the chopper from the house of Dilip Pal in his presence he signed on the seizure-list as a witness to seizure. PW5(Subrata Kumar Pal) is a witness to seizure of blood stained Lungi and bed-cover from his house belonging to his father Lalmohan Pal. This seizure shows the extent of bleeding injuries received by Lalmohan Pal after the assault. PW6 (Indramohan Das) is again a seizure-list witness. The I.O. in his presence seized one chappal and lathi from the house of Ramesh Pal and seized blood stained T-Shirt-Genji of Biswanath Biswas, and seizure of one torn red coloured Sari of his Boudi Rekha Das. The I.O. also seized some broken pieces of tiles and brickbats from the house of PW7(Arindam Deb s/o Niranjan Deb) suggesting that an incident of ransacking took place in his house.

PW13( Tarkeswar Mukherjee) is the O/c who after receiving the FIR started a Police case against the accused persons and endorsed the case for investigation to the I.O. Guiram Mal (PW27).

PW15(Swapan Chaowdhury) is a formal witness who produced 6 page bed-head-ticket of Lalmohan Pal from the Imambara Sadar Hospital.

PW27 (Guiram Mal) is the I.O. of this case who after completion of investigation submitted a Charge-sheet against the accused persons as described at the very outset of this Judgement.

From the evidence on record, we find that though the Prosecution witnesses generally made allegations against all the fourteen accused persons and identified them in the Court as assailants. But, even then, none even once named Suresh Pal in his evidence specifically. As such, he in my opinion should be given the benefit of doubt. Some of the accused persons played a leading role and their overt act have been specifically detailed by the prosecution witnesses. I enumerate below the names of such accused persons, the names of the witnesses who identified them specifically and the names of their victims.

Thus we find that there is direct and specific allegation against these three accused persons namely Dilip Paul, Ashoke Paule and Kishore Paul assaulting Lalmohan Pal whose condition became critical and he was indeed been battling with life. From Ext.6 (Seven Sheets) – the treatment records of this injured witness, we find that he suffered from multiple injuries, and was operated upon for repairing of nerve and tendon. The continuation sheet of NRS Hospital reads, “c/o multiple cut injuries by Bhojali on chest, in both hands and on head.” Therefore, it appears that the accused persons indeed assaulted him with the common intention to murder him. But, fortunately, he survived. PW8(Swapan Das) who went to the rescue of Lalmohan Pal ended up in receiving almost equally serious injuries as already discussed above. Therefore, I have no hesitation in concluding that the accused persons except accused Suresh Paul committed offences u/Sections148/149/324/427/307 IPC. The prosecution, in my opinion has been able to prove the guilt of the aforesaid accused persons for the aforesaid offences beyond all reasonable doubts. All the five points are decided in favour of the prosecution and against the accused persons accordingly.

Hence, it is

O R D E R E D

that the accused Suresh Paul is acquitted from the offence u/Secs.148/149/324/427/307 IPC and discharged from his bail-bonds. The accused 1)Dilip Paul, 2) Ashoke Paul, 3) Kishore Paul, 4) Manick Paul, 5) Raja Paul, 6) Dulal Paul, 7) Keshab Paul, 8) Prodip Paul, 9) Mantu Paul, 10) Netai Adhikary, 11)Rajua Adhikary, 12) Sunil Adhikary and 13) Raju Mondal are found guilty of having committing an offence under Sections 148/149/324/427/307 IPC and they are taken into Judicial Cusstody. Their bail-bonds stands forfeited. Fix 28-04-2009 for examination of these convicts u/Sec.235(2) of the Cr.P.C. on the question of sentence.

( Harjinder Singh )

Special Judge-E.C.-Additional District &

Sessions Judge, Hooghly

Chinsura.

28-04-2009: EXAMINATION OF THE CONVICTS ON THE QUESTION OF SENTENCE UNDER SECTION 235(2) OF THE Cr.P.C.:- The convict Dilip Paul on being asked on the question of sentence submits that he has an ailing father and mother and that his mother is blind. He further submits that his family consists of parents, wife, one son and one daughter aged 7 and 9 years respectively. He further submits that he is 37 years of age and prays for mercy. He further submits that he is a political victim and that he has done no wrong.

Convict Ashoke Paul on being asked on the question of sentence submits that he is 35 years of age, he is married and he has one son. He further submits that he is a professional tutor. He submits that he is innocent and he is a political victim in this case and prays for mercy.

Convict Kishore Paul on being asked on the question of sentence submits that his family consists of his parents, wife and son aged 2 ½ years. He further submits that he is a daily laborer. He further submits that he is daily laborer . He further submits that he has been implicated in this case on account of political reasons.

Convict Manik Paul on being asked on the question of sentence submits that his family consists of his mother, wife, one son and one daughter aged about 6 years and 4 years respectively. He further submits that he has a tea-stall and he is aged about 28 years and he prays for mercy.

Convict Raju Paul on being asked on the question of sentence submits that he is aged about 45 years. He further submits that his family consists of his wife, son aged 22 years and a daughter aged 15 years. He prays for mercy.

Convict Dulal Paul on being asked on the question of sentence submits that he is aged about 45 years and his family consists of his wife and one son aged 12 years. He further submits that he earns as a day-laborer and prays for mercy.

Convict Keshab Paul on being asked on the question of sentence submits that he is aged about 40 years and his family consists of his wife and a daughter aged about 4 years. He submits that he earns as a laborer and prays for mercy.

Convict Pradip Paul on being asked on the question of sentence submits that he is 40 years old and earns his livelihood as a plumber. He further submits that his family consists of wife and one daughter and two sons aged 14 years, 10 years and 8 years respectively and prays for mercy.

Convict Mantu Paul on being asked on the question of sentence submits that he is aged about 32 years and his family consists of his mother, wife and a daughter aged 2 years and prays for mercy.

Convict Netai Adhikary on being asked on the question of sentence submits that he is unmarried and he is engaged as worker in the manufacture of pitch-board and his mother is dependent on him and prayes for mercy. He further submits that he is aged 31 years.

Convict Sunil Adhikary on being asked on the question of sentence submits that he is aged 25 years. He further submits that his family consists of his mother and his elder brother lives separately from him. He further submits that he is married and has one daughter aged 1 ½ years and prays for mercy.

Convict Raju Roy on being asked on the question of sentence submits that he is aged about 27 years and that his family consists of himself and his blind mother. He further submits that he works as a helper to a mason and prays for mercy.

Convict Raju Mondal on being asked on the question of sentence submits that he is aged 28 years and his family consists of his mother, widowed grandmother and younger brother who is unemployed and prays for mercy.

From the submissions of the convicts made above it appears that all of them have some kind of familial liability. Yet, in a case under Sec.307 I.P.C. Which is punishable with imprisonment for life, the benefit of Probation of Offenders' Act cannot be extended to the convicts. Keeping in view the familial liabilities of the convicts, the extreme punishment of imprisonment for life should not be imposed.

From the evidence on record we find that seriously injured victims – Lalmohan Paul was assaulted by sharp cutting weapons by the accused persons, viz. Dilip Paul, Ashoke Paul and Kishore Paul, who appears to have played a leading role in the incident of assault. As such, the punishment of these three convicts, in view of the nature of role played by them has to be higher than the other convicts. The other accused persons who played a lesser role, though their presence contributed to moral courage of the unlawful assembly leading to victimization of as many as 14 or more victims and though equally liable for the punishment on account of their sharing the same common intention with their leaders, deserve a lesser punishment. Therefore, in my opinion, R.I. for 7 years and to pay fine of Rs.10,000/- each i.d. to suffer additional S.I. for 5 months each for the offence u/Sec.307 I.P.C. in respect of convicts Dilip Paul, Ashoke Paul and Kishore Paul would suffice the ends of justice. So far as the other ten convicts are concerned, in their case for the same offence R.I. for five years and to pay afine of Rs,5000/- each in default to suffer additional S.I. for 2 ½ months each would suffice the ends of justice. The offence u/Sec.324 IPC being a minor offence of the offence u/Sec. 307 I.P.C. merges into the offence under Sec.307 I.P.C. As such, no seperate sentence for the said offence should be imposed. As regards the offence u/Sec.148 I.P.C. all the convicts in my view should suffer R.I. for two years each only. As regards the offence under Sec.427 I.P.C., a fine of Rs.1000/- each would suffice the ends of justice.

Hence, it is

O R D E R E D

that the thirteen convicts who have been found guilty and convicted under Secs. 148/149/324/307 I.P.C. by this Court on 27-04-2009 are hereby sentenced as follows:-

Convicts Dilip Paul, Ashoke Paul and Kishore Paul are sentenced to suffer R.I. for seven years each and to pay a fine of Rs.10,000/- in default to suffer further S.I. for five months each for the offence u/Sec.307 I.P.C. The remainingten convicts, viz. Manik Paul, Raju Paul, Dulal Paul, Keshab Paul, Pradip Paul, Manatu Paul, Netai Adhikar, Sunil Adhikari, Raju Roy and Raju Mondal are sentenced to suffer R.I. for 2 ½ months each for the offence under Sec. 307 I.P.C. The offence u/Sec.325 I.P.C. being a minor offence of the offence under Sec.324 I.P.C., no seperate sentence for the aforesaid offence is passed. All the thirteen convicts are further sentenced to suffer R.I. for two years each for the offence u/Sec.148 I.P.C. As regards the offence under Sec.427 I.P.C. the convicts are sentenced to pay a fine of Rs.1000/- each in default to suffer additional S.I. for fifteen days each. All the sentences shall commence concurrently and the period of detention in Judicial custody, if any, shall be set off from the period of sentences imposed by this Court as above. The seized alamats, if any, shall be destroyed six months after the expiry of the period of appeal. 50 % of the fine amount, if realised, shall be paid as compensation under Sec.357 of the Cr.P.C. in equal share to the victims, vis. Lalmohan Paul and Swapan Das, while the remaining 50% of the fine amount, if realised, shall be paid in equal share to the remaining twelve victims named in the F.I.R.

Let a certified copy of this judgment be given free of costs to the convicts at once. Request Copying Department accordingly.

Let a copy of this judgement be also forwarded to the District Magistrate, Hooghly u/Sec.365 of the Cr.P.C.

Let a copy of the operative part of this judgement be sent to the complainant for his information and necessary action.

( Harjinder Singh )

Judge, Special Court (E.C. Act)-Cum- Additional

Sessions Judge, Hooghly, Chinsura.