Calcutta High Court (Appellete Side)
Ahok Chakraborty @ Khokan & Anr vs State Of West Bengal on 18 June, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:-
HON'BLE JUSTICE CHAITALI CHATTERJEE DAS
CRA 515 OF 2007
AHOK CHAKRABORTY @ KHOKAN & ANR
VS
STATE OF WEST BENGAL
For the Appellants : Mr. Dipanjan Chatterjee, Adv.
For the State : Mr. Kalyan Kumar Bhattacharjee, Adv.
Mr. Kakan Das, Adv.
Ms: Rimpa Adhikari, Adv
For the State : Mr. Z.N. Khan, Adv.
Mr. Asif Dewan, Adv.
Last Heard on : 24.04.2025
Judgement on : 18.06.2025
CHAITALI CHATTERJEE DAS, J.:-
1.
The instant criminal appeal has been filed against the judgement and order
dated 21st August, 2007 passed by the Additional District and Session
Judge, Fast Track, 3rd court, Diamond Harbour, 24 Paragana’s South in
Session Trial number 6(5) 04 where present appellants were convicted under
Section 325 of the Indian Penal Code and suffered an order of sentence of
imprisonment for three years.
Page 1 of 20
The brief resume of the case
2. A complaint was lodged by Rajkumar Haldar before the officer in charge,
Raidighi Police Station, Companirthek ,24 Parganas South, against the
present appellants , alleging an attack with deadly weapons on his wife and
son , Sujala and son Sabyasachi respectively and they sustained head
injury ,fractured hand injury and was hospitalised for considerable days
for the purpose of surgery and treatment . The neighbours recovered them
with bleeding injuries and admitted at Raidighi Hospital. Later they were
shifted because of the serious nature of injury, to Diamond Harbour Sub-
Divisional Hospital. It was further alleged that there was political animosity
as Shujala was a worker of S. U.C.I party and contested as a candidate
during last Gram Panchayet election and she was often harassed by the
appellant .She lodged a diary before the police station prior to the date of
incident over an issue of cutting of a tree in their dwelling house and out of
grudge she was attacked brutally by the present appellants with a motive to
kill her and her son.
3. On the basis of this complaint, Raidighi P. S case number. 76 dated 31.7. 03
under Section 325/326/307 I.P.C started and after completion of the
investigation, the charge sheet was submitted against the present appellants
under Section 325/326/308 I.P.C. After commitment, the case was
transferred before the court of Additional District and Session Judge, Fast
Track , 3rd Court, Diamond Harbour and the charge was framed against the
present Appellants under Section 325/326 /307 of the Indian penal code
Page 2 of 20
and the same was read over and explained to the accused persons to which
they pleaded not guilty and claimed to be tried. Accordingly, the trial
commenced and after taking evidence of 14 prosecution witnesses and the
exhibited materials, the learned Session Judge passed the order of
convictions against the present appellant. Being aggrieved, thereby the
instant appeal has been filed.
4. The Learned advocate appearing on behalf of the Appellants argued that the
prosecution has miserably failed to establish the charges under section 326
and 307 I.P.C and therefore the Learned Court had to pass the order of
conviction only under section 325 I.P.C . It is the case of the defence that
the victims sustained injuries as they fell down from a Sanko situated near
the house of the Appellants when they were running out after assaulting
the Appellant No1 ,as a result he had to be treated by the same doctor who
also referred the Appellant No.1 and said fact has been admitted by him
while adducing evidence as P.W. 5 The Learned Court failed to consider that
prior to the date of incident as alleged there was a dispute regarding cutting
of tree between Sujala Halder and the Appellant over which the Appellant
No1 sustained bleeding injuries in his wrist and over that incident a
complaint was pending as lodged by the Appellant No.1. The learned
advocate, appearing on behalf of the appellant further argued that the
prosecution has failed miserably to establish the charges under Section 326
and 307 of the Indian Penal Code and therefore the learned Court passed
the order of conviction only under Section 325 IPC. It is further argued that
the victims sustained injuries while they were running away after assaulting
the accused Ashok Chakraborty. The learned trial court failed to consider
Page 3 of 20
that prior to the alleged date of incident, one complaint was lodged by the
wife of the de-facto complainant against the appellant No.1 regarding cutting
of tree within their premises .No offending weapon was recovered, no sketch
map was prepared to ascertain the exact place of occurrence .No witness
were cited from the locality, no blood stained earth or weapon or wearing
apparel was recovered or sent before the forensic expert, no seizure list was
filed. The injured did not lodge the complaint and the husband of the
injured who lodged the complaint was informed about the incident over
telephone by Tapan Shikari who heard the incident from Sujala Halder, and
then went to the Police Station along with this Tapan Shikari who is the
scribe of the complaint.
5. It is further submitted that on the date of incident at morning hour, the
victim and her son were damaging the fencing situated on the Eastern Side
of the house of the accused and on protest by the appellant No1 she
assaulted him and she had to obtain an order of bail in connection with the
said case. Therefore, only to save themselves from the complaint lodged by
the wife of the appellant No.1, this complaint was lodged falsely implicating
the present appellants.
6. The Prosecution on the other hand raised an objection and submits that
the contention of the appellant is not correct and the prosecution has been
able to prove the charges beyond all reasonable doubt and the order of
conviction as passed by the learned session court requires no interference. It
is further submitted that the complaint was lodged by the husband of the
victim/ wife before the Officer-in-charge Raidighi P.S against the present
appellant alleging an attack on his wife Sujata Halder and their son aged
Page 4 of 20
about 12 years with Chopper and sharp weapons with a motive to kill them
as a result the wife and son sustained fractured injuries and also an injury
on head. They had to admit at Raidighi Hospital and from there referred to
Diamond Harbour Sub divisional Hospital and it was specifically stated they
were fighting for their life at Diamond Harbour Hospital when the complaint
was lodged. The motive for such attack was political rivalry as his wife was a
worker of S.U.C.I Party and she contested as a candidate from her village in
the last election of Gram Panchayat. Furthermore a complaint was lodged by
his wife against the appellant over the issue of cutting tree in their dwelling
house on the last day that is on 30th July 2003 and out of grudge on the
next morning they attacked on them. Accordingly prayer for dismissal of this
Appeal.
Heard the submission of the Learned Advocates
7. The prosecution case is launched on the basis of a written complaint filed by
Rajkumar Halder, the husband of the victim/injured, alleging and incident
of an assault on her and her son on July 31, 03 at about 7 A.M. when they
attacked the house of the de-facto, complainant with chopper an other
sharp weapon. The defence has tried to make out a case of animosity on
account of different political ideology between the victim, wife and the
Appellant No. 1. Furthermore on 30th July, 2003, a dispute cropped up
between them when the appellants cut a tree in the dwelling house of the
de-facto complainant and she lodged a diary at the police station against
them and out of grudge on the next morning, they attacked brutally on the
victims.
Page 5 of 20
8. On the basis of the complaint the Raidighi P.S, case no 76 dated 31st July,
2003 started under Section 325, 326 and 308 IPC and after completion of
investigation the charge-sheet was submitted. The matter was committed
before the Sessions Court being exclusively triable by the Learned Session
Judge where the prosecution adduced 11 witnesses and in order prove the
charges framed under Section 325/326 and 307 IPC by the learned Court
against the accused persons. In this case wife of the de-facto complainant
being injured adduced evidence as P.W.6 and specifically stated how she
was assaulted by means of Lathi on her head, by accused Khokan
Chakraborty as a result she sustained bleeding injury on her head. She also
deposed that her son Sabhyasachi came rushed to her to rescue and was
also was also assaulted on the head by a Kaste thrown by Reena
Chakraborty and Khokan Chakraborty assaulted with Lathi on his head for
which Sabyasachi fell down on the ground. They had to remain admitted in
the hospital till 3rd of August 2003 and was referred to SSKM Hospital for
better treatment. Moreover said son was admitted at PG Hospital and
subsequently on 6th August, 2003 she was admitted to Heart Clinic,
Saltlake where she was treated till 16th of August, 2003 after that she was
admitted to Raidighi Hospital for surgery .She also deposed that her son
had to remain admitted for about 15 days as the injury was very severe .
Considering The Learned Court passed the order of conviction punishable
under Section 325 IPC against the present appellants .Out of three accused
instead of Section 326/307 IPC.
9. After hearing the argument as advanced by the learned counsels of both the
parties, on perusal of the exhibited documents and after assessing the
Page 6 of 20
evidences of the prosecution witnesses the moot question now falls for
consideration is as to whether the learned court was right in passing the
order of conviction against the Appellants and or Whether the prosecution
was able to prove the charges beyond all reasonable doubts.
10. P.W. 4 deposed that the incident occurred on 1st Sraban at morning hours
when she was inside the house. She saw her bhasur Sailen Baidya and
Malati Baidya rushed to the road side where the incident occurred after that
she went to the place and found Sujala Halder and her son Sabyasachi
Halder lying with bleeding injuries on their head and broken hand. She
admitted that she did not state to the I.O that her sister-in-law and vasur
narrated her that Ashoke Chakraborty and his wife assaulted Sujala Halder
and her son.
11. P.W. 5 is Dr. Pratap Guhathakurata who was attached to Raidighi Rural
Hospital on 31.07.2003 when he examined Smt. Sujala Halder at the
emergency with a history of assault by Ashok Chakraborty and Rina
Chakraborty wife of Ashok Chakraborty. On examination of the patient he
found injuries as follows:
i) On the upper part of the right parietal area, lacerated injury of size
¼ inch ½ inch into ¼ inches.
ii) On the upper aspect of left side of occipital bone of size ½ inch
into ¼ inch into ¼ lacerated injury.
iii) She also got injured on the lower part of the left forearm with pain,
tenderness and swelling of size ¼ inch into ¼ inch.
iv) Inflicted on right forearm also. Pain and tenderness present at the
side of injury.
Page 7 of 20
12. He further deposed that patient was at the Rural Hospital and was
referred to S.D. Hospital Diamond Harbour for further treatment. He also
examined Sabyasachi Halder and Rajkumar Halder that is the de-facto
complainant aged about 10 years on the same day along with Sujala Halder.
The patient also complained that she was assaulted by Ashok Chakraborty
son of Anukul Chakraborty and Rina Chakraborty wife of Ashok
Chakraborty. On examination of the patient he found following injuries.
i) Got injured on the vertex with hard blunt instrument (lathi) as per
statement of the patient.
ii) Size of injury is ¼ inch into ¼ inch, superficial lacerated injury.
iii) He also inflicted on left elbow with hard blunt instrument (lathi) as
per statement of the patient. Pain ,tenderness and swelling were
present at the sides of injury. No abrasion seen at elbow. This patient
was also referred to Diamond Harbour S.D. Hospital for further
advice.
13. In his cross-examination he deposed that there is no note in the injury
reports that injured made complaint regarding the name of the assailants to
him at the time of their medical treatment. There is no reflection on both the
report that who actually assaulted the injured with the nature of weapon or
who assaulted the injured on which parts of the body. He also admitted that
there is no note in both injury report that the patient complained about the
assault with lathi. He did not inform the police prior to giving medical
treatment .In his cross-examination also he said that “This type of injury
may not be happened in respect of both injured if two persons at the same
time assault with the help of blunt weapons/Lahti. Such type of injury
Page 8 of 20
might be caused if a person fell down from a broken the Sanko. From his
cross-examination it can be seen that on 31st July, 2003 he also referred
Ashok Chakraborty to Diamond Harbour Hospital for better treatment with
the injury of left wrist.
14. P.W. 9 DR. Rajat Kanti Saha who was posted at Diamond Harbour S.D.
Hospital on 31st July, 2003 as Medical Officer, examined Sujala Halder on
that day referred from Raidighi Rural Hospital with a history of assault as
stated by the E.M.O of S.D. Hospital at Diamond Harbour. On examination
he found that patient was conscious and there was deformity on her left
four-arm and her right four-arm. He advised x-ray examination and also
C.T. scan of brain and found fractured injury of both bones of left forearm.
Further found there was fracture at the base of proximal phalanx of right
index finger. He also produce the bed head tickets along with the treatment
sheet prepared by him, and prove the x-ray report prepared by DR. P. Maity
Radiologist of S.D. Hospital and the referral card to show that Sujala Halder
was transferred from Raidighi Hospital on 31.07.2003. He further deposed
that on 3rd August, 2003 he referred one patient named Sabyasachi Halder
aged about 10 years who was also referred from Raidighi Rural Hospital to
Diamond Harbour Hospital on 31st July, 2003. The patient was referred to
Emergency/ Neurosurgery O.P.D of Calcutta National Medical College &
Hospital for active management. The said patient had a history of physical
assault and had headache and persistent vomiting. The said C.T. scan
showed extra dural and intra cerebral hematoma over right parietal area of
brain and fracture of right parietal bone.
Page 9 of 20
15. In his cross-examination he said that there is no note in the referral card
that patient Sujala Halder was treated at S.D. Hospital, Diamond Harbour
as outdoor patient or indoor patient. There is no note in the referral card
that patient Sujala Halder was treated at S.D Hospital Diamond Harbour as
outdoor patient or indoor patient. Another DR. deposed as P.W. 10 DR.
Apurba Kumar Roy who was attached to Das’s Nursing Home, Newtown,
Diamond Harbour. On 3rd August, 2003 he also attached as consultant
Radiologist. He deposed that C.T scan of brain of Sabyasachi Halder as
referred by DR. R.K. Saha. The patient had clinical history of head injury,
headache and vomiting. The impression was suggestive of acute epidural
haematoma over parietal lobe convexity, intra cerebral haematoma at
parietal lobe and fracture at parietal bone on right side. According to him
such type of injury might be caused if hit on the head of a person by a sharp
cutting weapons.
16. He also did C.T. Scan of Sabyasachi Halder on 3rd August, 2008 with a
clinical history and found evidence of mile scalp haematoma over parietal
bone superiorly and posteriorly in midline. According to him such type of
injury also might be caused if hit on the head of person by a piece of wood.
In his cross-examination he said that in his note nothing was mentioned
that such type of injury might be caused if a person is hit by a sharp cutting
weapon and wooden piece on their head.
17. In this case the de-facto complainant was not present at the time of
incident and whatever he stated in his F.I.R or in the statement before the
Court was hearsay firstly from Tapan Sikari his friend then from his wife.
Tapan Sikari was not ocular witness and he also heard from Sailen Baidya
Page 10 of 20
about a scuffling between Ashok Chakraborty and the family members of
P.W. 1. He heard that wife of de-facto complainant and her son were
brought to Raidighi Hospital and accordingly found the injured and collected
telephone and informed the de-facto complainant.
18. Sailen Baidya deposed as P.W. 11 according to his testimony he was not
present when the incident occurred and on hearing shouting he rushed to
the pathway and found P.W. 6 and P.W. 7 lying on the path way in injured
condition. He shifted them to the hospital by a van rickshaw. He never
received any information as to how or why they sustained injuries on their
person. In his cross-examination he denied to have been interrogated by the
I.O. but this witness was not declared as hostile witness.
19. The son of the de- facto complainant Sabyasachi who was also injured
adduced evidence as P.W.7. According to his evidence on 31st July, 2003 at
about 7 A.M. he was reading at home and his mother was doing domestic
work when accused Khokan Chakraborty,Rina Chakraborty, Anukul
Chakraborty, and Arun Chakraborty came to their house and charged his
mother as to why she lodged G.D. Entry against them. He said that Khokan
Chakraborty assaulted his mother with a Lathi on her hands and head,
when he chase him this P.W. 7 was assaulted by Khokan Chakraborty with
Lathi on his waist as a result he fell down on the ground and then Rina
Chakraborty assaulted him with Kastey on his head. He lost sense at the
spot. Prasenjit Gharami ,Biswajit Sardar and Sailen Baidya rushed to the
spot according to these witnesses Prasenjit took away lathi from Ashok
Chakraborty alias Khokon Chakraborty . Biswajit Sardar brought them to
Raidighi Hospital for treatment and he regained sense at Raidighi Hospital.
Page 11 of 20
He said that he stated before the I.O. that on the said fateful day his mother
was working in the Courtyard and the accused persons came to their house,
charged her regarding lodging of G.D entry which continued half an hour.
20. The prosecution has adduced evidence of some of the neighbours who
also were present and helped the injured to be admitted at the hospital and
one of such witness is Prasenjit Gharami who deposed as P.W. 12 being a
co-villager who knew both the family members. According to him incident
occurred at about 7.30 to 8.00 A.M and on hearing hue and cry he rushed
near the house of accused Ashok Chakraborty and found him assaulting
P.W.6 that is Sujata Halder with a Lathi and he took the Lathi from Ashok
Chakraborty. He also found Sabyasachi Halder lying injured condition and
he sustained bleeding injury on his person. The testimony of this witness
fully corroborates the testimony of the injured Sabyasachi who took his
name and that he took the lathi from the assailant Ashoke alias Khokon
Chakraborty.
21. Biswajit Sardar deposed as P.W. 13 who said that after hearing a sound
of gondogol (hue and cry) he rushed to the spot and found the injured on
bleeding injuries on their person. He shifted both the injured to Raidighi
Hospital for medical treatment. He said that police could not interrogated
P.W.s 6 and 7 as they were unconscious and regained their sense at about 4
P.M. at S.D. Hospital. In this case the I.O adduced evidence as P.W. 14.On
31st July, 2003, he was attached to Raidighi police station, as S.I. and he
visited the place of occurrence prepared a rough sketch map along with
index of the P.O. examined different witnesses, collected injury report and
Page 12 of 20
bed head ticket of the patient and arrested accused Ashoke Chakraborty. He
submitted the charge-sheet under Section 325/326/308/109 IPC.
22. Admittedly, he never met the injured from 31st July, 2003 to 28th August,
2003 but recorded the statement of other witnesses. He failed to give
explanation as to why he recorded the statement of injured person after a
gap of 28 days. In this case the defence has tried to make out a case of
sustaining injuries by P.W.6 while she was cutting trees in front of the
house of Ashoke Chakraborty with the help of Kastey standing on the
Sanko. The said fact has been denied by the injured P.W. 6 and P.W. 7.,
P.W. 12 denied of existence of any Sanko at the side of the house of Ashoke
Chakraborty but admitted about a fence in that position .The I.O. said in his
evidence that witness Subhadra Mudi that is P.W. 3 in her statement before
the I.O stated that on the relevant date and time Smt. Sujala Halder was
cutting tree in front of the house of Ashoke Chakraborty with the help of
Kaste standing on the sanko and she fell down from the sanko.
23. Therefore from the above it can be gathered that the defence tried to make
out a case that both the injured sustained injuries as they fell from the
Sanko while Sujala Halder the mother was cutting trees but in order to
substantiate their case excepting the suggestions given to the injured no
other cogent materials can be found to be relied upon specially when those
suggestions were denied by the witnesses. P.W 3 Subhadra Mudi in her
examination in chief specifically stated that she while proceeding to collect
water from the Tube well situated near the house of Ashoke Chakraborty
saw the accused persons assaulting the victims /injured. So this revelation
completely washed away the defence of the Accused person as discussed
Page 13 of 20
above. The wife of De-facto complainant, Sujala Halder P.W. 6 specifically
said that Ashok Chakraborty attempted to assault her with garden lathi on
her head as she tried to save herself with hands and sustained injury on
both her hands; as a result both of her hands were broken. Going through
the evidence of DR. Rajat Kanti Saha as P.W. 9 it can be seen that on 31st
July, 2003 the patient Sujala Halder was referred from Raidighi Rural
Hospital with a history of assault. He suspected fractured could be there as
found deformity on her left forearm and from the x-ray report found the
fracture of bones of left forearm and also fractured at the base of Phalanx of
right index finger. Similarly Sabyasachi Halder was also referred from
Raidighi Rural Hospital to Diamond Harbour Hospital on the same day when
he referred the patient to Calcutta National Medical College and Hospital to
emergency a Neuro Surgery, OPD Department.
24. The record in patient to Diamond Harbour Hospital which is marked as
Exhibit 4 reflects the above fractured injury and history of assault however
no name of the accused found mentioned from the evidence of P.W.10 Dr.
Apurba Kumar Roy who did the C.T. Scan of Sabyasachi Halder and Sujala
Halder on 3rd August, 2003, which was prepared under his supervision and
marked with Exhibit 8. The C.T. scan report shows the clinical history of
head injury assault with evidence of mild scalp haematoma over parietal
bones, superiorly and posteriorly in midline. DR. Pradip Guhathakurata who
adduced evidence as P.W.5 and examined the injured on 31st July, 2003 as
Medical Officer of Raidighi Rural Hospital deposed that the patient was
admitted with a complaint that she was assaulted by Ashoke Chakraborty,
Rina Chakraborty. However in his cross-examination he said that the injury
Page 14 of 20
contains no note regarding the name of the assailant at the time of their
medical treatment.
25. On perusal of the injury report of Raidighi Medical Hospital exhibit 2, name
of Ashoke Chakraborty and Rina Chakraborty as assailant are found
mentioned there in. The nature of injuries and the medical report
combined with the incident on the previous day between Ashoke
Chakraborty and the wife of de-facto complainant, the existing inimical
relationship, there is no room to doubt that the Sujala Halder sustained
injuries on the relevant day and time due to the assault inflicted on her. So
far the son of the de-facto is concerned the specific testimony of P.W 3 has
fully corroborated the version of the injured as to how he was assaulted by
the accused persons/ appellants. Sufficient corroborations can be found
from the testimony of P.W.12 who can be said to be another ocular witness
who on hearing hue and cry rushed near the house of Ashoke Chakraborty
and found him assaulting P.W. 6 that is wife of the de-facto complainant
with the lathi and he took the lathi from Ashoke Chakraborty. However he
did not see the assault inflicted on Sabyasachi Halder as he was lying there
on injured condition. The version of P.W. 13 also helps the chain to
complete as he deposed when he found both lying with bleeding injuries
and he shifted them to Raidighi Hospital. Both the witnesses are neighbour
to the de-facto complainant as well as the accused persons. The version of
Sabyasachi Halder P.W. 7 that the presence of Prasenjit Gharami, Biwajit
Sarkar and Sailen Baidya are corroborated as this witness also said that
Prasenjit took away Lathi from Ashok Chakraborty. It is a fact both the
injured said that because of such assault they fell down on the ground and
Page 15 of 20
the possibility cannot be ruled out that may be the bleeding injuries
sustained on their heads were because of that, however the cause of such
falling down was due to the assault made by the accused Ashok
Chakraborty and Rina Chakraborty which has been sufficiently
established. It is argued that since an inimical relationship was existing
between the parties prior to the date of the alleged incident there was
another incident as on account of which Sujala Halder had to lodge a
complaint against the present appellant No.1 they have been falsely
implicated in this case but the said defence cannot find any legs to stands
upon on the basis of the injury report dated 28th August, 2003. Enmity is a
double edged weapon and because of enmity false cases are made on the
other hand enmity makes relation bitter which may even go up to any
serious offences like murder. The germane of this case lies in that.
26. In the cross-examination under Section 313 of Cr.Pc the appellant No. 2
specifically stated that Sujala Halder came with weapon and strike her
husband at left hand for that he sustained injury and treated himself at
Raidighi Hospital and on the day Sujala got injured after falling from Sanko
(Bamboo made narrow bridge) . Appellant no.1 also stated specifically that
he is innocent and the F.I.R was lodged falsely in his name. On the date of
occurrence Sujala came with weapon and attacked on his left hand and due
to that he got injured and was treated at Raidighi Hospital but Sabyasachi
got injured after falling from Sanko. In order to visualise the exact location
of Sanko if the evidence of P.W. 1 can be seen, the existence of a Sanko at a
distance of two hands to the eastern side which runs to South to North can
be seen. He also said about a broken fencing at the eastern side of the house
Page 16 of 20
of the accused. P.W.5 Doctor said that the nature of injury may not happen
in respect of both the injured if two persons hit at a time with the help of
blunt weapons/ lathi. Such type of injury might be caused if a person falls
down from broken Sanko.
27. The essential ingredients to attract the offence under section 325 I.P.C
are accused caused voluntary hurt and the hurt was grievous within the
meaning of section 320 I.P.C. Section 320 I.P.C will be attracted in cases of
hurt as follows;
320. Grievous hurt.- The following kinds of hurt only are
designated as “grievous”:
First.- Emasculation.
Secondly.- Permanent privation of the sight of either eye.
Thirdly.- Permanent privation of the hearing of either ear.
Fourthly.- Privation of any member or joint.
Fifthly.- Destruction or permanent impairing of the
powers of any member or joint.
Sixthly.- Permanent disfiguration of the head or face.
Seventhly.- Fracture or dislocation of a bone or tooth.
Eighthly.- Any hurt which endangers life or which causes
the sufferer to be during the spacer of twenty days in
severe bodily pain, or unable to follow his ordinary
pursuits.
28. In the instant case from the nature of injury inflicted upon both the
injured was fractured injury and also the son of P.W. 1 sustained severe
head injury which could have been fatal .The learned court observed that it
was proved clearly that both the Appellant caused the grievous injury to the
victim but no sufficient materials to show that they used any dangerous
weapon to cause injury to the victims and therefore passed the order of
Page 17 of 20
conviction under section 325 I.P.C instead of section 326 I.P.C and thisorder has not been challenged by the prosecution .This Court further
concurs with the observation of the Learned Session Court . Therefore this
court finds no reason to interfere with the judgement and order of
conviction.
29. Now this court finds that the incident occurred in the year 2003 that is
long before 12 years and the appellant number 1 was behind the bar some
time . Furthermore there is no history of any previous complaint against the
appellant therefore this court is of the view so far the sentence part is
concerned that requires modification and the probationer of offenders Act if
can be applied to be looked into.
30. Section 3 & 4 of the Probation of Offenders 1958 are extracted hereunder;
power of court to release certain offenders after admonition ;-‘where any
person is found guilty of having committed an offence punishable under
Section 379/380 or Section 381 or Section 404 or Section 420 of the IPC or
any offence punishable with imprisonment for not more than two years or
with fine or with both ,under the Indian Penal Court or any other ,or any
other law, and no previous conviction is proved against him and the court
by which the person is found guilty is of opinion that ,having regard to the
circumstances of the case including the nature of the offence and the
character of the offender ,it is expedient so to do ,then notwithstanding
anything contained in any other law for the time being in force ,the court
may instead of sentencing him to any punishment or releasing him on
probation of good conduct under section 4 release him after due admonition.
Page 18 of 20
31. In a decision reported in1 (State of Maharastra vs Jagmohan Singh Kuldip
Singh Anand ) The Hon’ble Apex Court extended the benefit of the Probation
of Offenders Act ,1958 and observed:-
“The learned counsel appearing for the accused submitted
that the incident is of the year 1990 .The parties are
educated and neighbours. The learned counsel ,therefore
prayed that the benefit of the Probationer of Offender
Act,1958 may be granted to the accused .The prayer made
on behalf of the accused seems to be reasonable .The
accident is more than 10 years old ,The dispute was
between the neighbours over a trivial issue of claiming of
drainage .The accident occurred in a fit of anger .All the
parties educated and also distantly related .The accident
is not such as to direct the accused to undergo sentence of
imprisonment .In our opinion it is a fit case in which the
accused should be released on probation by directing them
to execute a bond of one year for good behaviour”.
In section 4 of the said Act do not distinguish the category of offender and
can be applied where the offence is not punishable with death or life
imprisonment.
32. Therefore considering the facts and circumstances of the case, the nature
of offence for which the order of conviction passed, absence of any criminal
antecedent and that the incident occurred on a spur of moment on account
of the inimical relationship and most importantly the passage of time of
1
(2004) 7 SCC 659
Page 19 of 20
more than 12 years, this court is of the view benefit of the Act of 1958
should be extended to the Appellant.
Hence though the order of conviction is sustained the sentence is firstly
reduced to two years instead of 3 years and instead of sending the
Appellants to the Jail they are directed to file two sureties each to the tune
of Rs. 5000/- along with their personal bonds before the District Probationer
Officer concerned with an undertaking to the effect that he shall maintain
peace and good behaviour during the period of two years from this date and
such bonds is to be filed within a period of 2 months from the date of this
judgement .
It is made clear in case of breach of any of the above conditions, the
appellants shall be taken into custody and shall have to undergo sentence
awarded to them.
33. With the aforesaid modification this criminal Appeal is disposed of being
allowed in part.
34. Let a copy of this order along with the Trial court records be sent to the
concerned court for necessary compliance.
35. Let a copy of this judgement along with the Trial court record be forthwith
sent before the Trial Court.
(CHAITALI CHATTERJEE DAS, J.)
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