Calcutta High Court (Appellete Side)
Dipankar Ghosh & Anr vs The State Of West Bengal on 31 July, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
&
The Hon'ble Justice Prasenjit Biswas
C.R.A.(DB) 20 of 2022
Dipankar Ghosh & Anr.
-Versus-
The State of West Bengal
For the Appellants : Mr. Arindam Jana, Adv.
Mr. Sumanta Ganguly, Adv.
Mr. Yuvraj Chatterjee, Adv.
Mr. Rahul Surtani, Adv.
For the State : Mr. Debasish Roy, Ld. A.P.P.
Mr. Partha Pratim Das, Adv.
Mrs. Manasi Roy, Adv.
Hearing concluded on : 10th July, 2025
Judgment On : 31st July, 2025
Prasenjit Biswas, J:-
1.
The present appeal has been preferred by the accused
appellants against judgment and order dated 19.01.2022 passed
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by the learned Additional Sessions Judge, 4th Court, Krishnagar,
Nadia, in connection with Sessions Case No. 09(11)10.
2. By passing the impugned judgment these appellants were
found guilty for commission of offence punishable under Section
307 of the Indian Penal Code along with fine of Rs. 10,000/- each
and in default of payment of fine to undergo further simple
imprisonment for three months.
3. Being aggrieved with the said impugned judgment and order
of conviction the present appeal is filed at the behest of the
appellants.
4. Prosecution story in nutshell has unfolded by Ratan Ghosh
(PW1) is that:
“On 19.07.2009 at 7 A.M. a conflict was started
between the nephew of the de-facto complainant
namely, Asit Ghosh (PW4) and the appellant no. 2
namely, Tarak Ghosh regarding their business. After
five minutes all the accused persons namely, Meghnath
Ghosh, Jaldhar Ghosh, Dipankar Ghosh, Tarak Ghosh,
Sujit Ghosh, Prasanta Ghosh, Nemai Ghosh came to
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3the house of this de-facto complainant carried with
sharp cutting weapons like “henso”, “chipda”, iron rod
and stick and Megnath Ghosh assaulted Asit Ghosh at
his head with iron rod subject to kill him but Asit
managed to save himself by his left hand. Tentul Ghosh
and Joydeb Ghosh tried to rescue Asit Ghosh. Then
Dipankar Ghosh tried to murder Tentul Ghosh and hit
him with ‘Chipda’ on his head and blow of dao struck
on the right hand of Tentul Ghosh and Tarak Ghosh
assaulted Joydeb Ghosh on his head by sharp cutting
‘Henso’ with an intention to murder him. As a result,
Joydeb Ghosh and Tentul Ghosh suffered bleeding
injury. Thereafter, the local people came and the
accused persons fled away along with weapons. The
victim was taken to Saktinagar Hospital by the said
people.”
5. Over the complaint a case being Dhubulia P.S. Case No.
293/2009 dated 19.07.2009 under Section 448/325/326/307/34
of the Indian Penal Code was started against the accused persons.
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4
6. Thus, the criminal law was set in motion. Police investigated
the case and after completion of investigation charge-sheet was
submitted under Section 147/148/149/448/323/326/307 of the
Indian Penal Code against the seven accused persons namely,
Meghnath Ghosh, Jaldhar Ghosh, Dipankar Ghosh, Tarak Ghosh,
Sujit Ghosh, Prasanta Ghosh, Nemai Ghosh. Charge was framed
by the learned Trial Court against the accused persons under
Sections 148/448/307 read with Section 149 of the Indian Penal
Code against the said seven accused persons.
7. In this case, 17 (seventeen) witnesses were cited on behalf of
the prosecution and documents were marked exhibits on its
behalf. Neither any oral, nor any documentary evidence was
adduced on behalf of the defence.
8. Mr. Arindam Jana, learned Advocate for the appellants
submitted that from the prosecution evidence offence under
Section 307 Indian Penal code is not made out in the present
matter. Findings of the learned Trial Court about conviction of
sentence against the accused appellants under Section 307 of the
Indian Penal Code are illegal. At this juncture, learned counsel for
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the appellants referred to the entire evidences as well as the injury
report prepared in respect of the injured persons and argued that
injury said to have been caused by the appellants to the injured
persons is not on vital part. If the entire prosecution case is taken
into consideration, then also accused appellants could be
convicted offences under Sections 323 and 324 of the Indian Penal
Code. Since in this matter, these appellants have served out
imprisonment in considerable period of time, it is submitted
relying upon the law laid down by the Hon’ble Apex Court in the
case of Vasudev-vs-State of Madhya Pradesh reported in (2022)
4 SCC 735 that the present appeal may be decided extending
leniency on the basis of imprisonment already undergone.
9. Beside the above submission it is further contended by the
learned counsel for the appellants that the offending weapons as
allegedly used by these appellants were not produced before the
alleged eye-witnesses during trial for identification. It is said that
in such score also the appellants are entitled to the benefit of
doubt. At this juncture, learned Advocate made reliance upon the
decision rendered by the Hon’ble Apex Court in case of Mohd.
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Muslim- vs. State of U.P. reported in (2023) 7 SCC 350. It is
further contended by the learned Advocate that the offending
weapons were not seized during investigation. It is said that blood
stained ‘gamcha’ collected from the place of occurrence was not
produced during trial. Moreover, although blood stained ‘sari’ of
PW6 was seized but not produced during trial. So, it is said by the
learned Advocate that there are discrepancies and embellishments
in the evidences of the eye-witnesses and post occurrence
witnesses regarding role played by the appellants in the alleged
incident. Medical evidence which was produced by the side of the
prosecution does not inspire confidence. Attention of this Court is
drawn to the evidences of PW13 and PW15 and it is said that the
offending weapons ought to have been produced before the doctors
who treated the injured persons after the alleged assault. It is
further contended by the learned Advocate that the injury report
of the victims was not marked as exhibits in this case. So, it is
said that the evidences of the prosecution witnesses are highly
unreliable in nature and ought not to form the basis of conviction
in the instant case. So, it is said that the impugned judgment and
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order of conviction passed by the learned Trial Court may be set
aside, in the above stated reasons.
10. Per contra, Mr. Debasish Roy, learned Advocate for the State
said that there is nothing material in the present case for which
the impugned judgment and order of conviction passed by the
learned Trial Court may be set aside. It is said that all the
ingredients to constitute the offence under Section 307 of the
Indian Penal Code have been proved by the prosecution from its
evidence. Medical evidence fully supports the oral version.
Findings of the Trial Court Record in the impugned judgment and
order are based on correct appreciation of facts and evidence.
Although, no minimum sentence has been provided for the offence
under Section 307 of the Indian Penal Code yet sentence imposed
by the Trial Court against the accused appellants vide impugned
judgment and order is adequate and proper and no further
leniency is warranted in this matter.
11. We have considered the rival submissions advanced by the
learned counsels for the parties and have gone through the entire
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record including the case laws relied upon the learned counsel for
the appellants carefully.
12. In this case, PW2, Tentul Ghosh, PW3, Joydeb Ghosh and
PW4, Asit Ghosh who are the injured eye-witnesses in this case
stated in the same line that these appellants assaulted them with
weapon and as a result they sustained severe injuries on their
persons. PW2 stated in his evidence as Asit Ghosh was his
nephew he tried to save him and, on that moment, one of the
appellants Dipankar Ghosh assaulted him with ‘Dao’ with an
intention to murder him and the accused tried to hit him on his
head but he removed himself and the blow of ‘Dao’ hit him on his
right hand. It is said by this witness that PW3, Joydeb Ghosh also
rushed to the spot then appellant no. 2, Tarak Ghosh assaulted
Joydeb Ghosh with ‘Chhipda’ and hit him on his head.
13. PW3, Joydeb Ghosh another injured/victim of this case has
stated in his evidence that the accused persons namely, Megnath
Ghosh, Nemai Ghosh, Sujit Ghosh and Prasanta Ghosh along with
these two appellants came to the house of his elder brother Tentul
Ghosh and Megnath Ghosh and tried to hit Asit Ghosh on his
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9
head with iron rod and the same blow hit Asit Ghosh on his left
hand. It is said by this PW3 that Tentul Ghosh tried to save Asit
Ghosh and rushed to the spot and then appellant no. 1 Dipankar
Ghosh tried to assault Tentul Ghosh with a ‘chhipda’ with an
intention of murdering him, by hitting him on his head but the
blow struck him on his right hand’s shoulder portion. This
witness rushed to the spot and tried to save Tentul Ghosh and
then Tarak Ghosh came to the spot and hit on his head with the
‘Chhipda’
14. PW4, Asit Ghosh, another victim stated in his evidence that
these appellants along with other persons entered into the house
of Tentul Ghosh with iron rod, ‘chhipda’ and lathi and at first
Megnath Ghosh assaulted him with an iron rod with the intention
of murdering him tried to hit him on his head but the blow struck
on his left hand. It is said that his elder uncle Tentul Ghosh on
seeing him being assaulted tried to rescue this witness and then
appellant no. 1 tried to hit Tentul Ghosh with a ‘chhipda’ on his
head with an intention of murdering him. However, as Tentul
Ghosh could remove his head at the last moment, the blow of
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‘chhipda’ hit him on the right hand’s shoulder portion. As a result,
Tentul Ghosh on being seriously injured fell down on the ground
with profuse bleeding condition. It is said by this witness that his
father Joydeb Ghosh then rushed to the spot in order to save
Tentul Ghosh and then Tentul Ghosh (appellant no.2) hit his
father Joydeb Ghosh with a ‘chhipda’ on his head with intention of
murdering him.
15. PW1, Ratan Ghosh, the de-facto complainant and eye-
witness to the incident stated in the same line of PW2, PW3 and
PW4. It is said by this witness that acquitted accused Megnath
Ghosh with intent of murdering Asit, tried to hit him on his head,
but Asit managed to save himself. It is further stated by this PW1
that when Tentul Ghosh tried to rescue him, the appellant no. 1
with an intention of murdering Tentul Ghosh hit him with a
‘Chhipda’ on his head but, however, he missed his head and the
blow struck on the left hand of Tentul Ghosh. It is further said by
this witness that Joydeb Ghosh (PW3) tried to save Tentul Ghosh
(PW2) and in the process with intention of murdering Joydeb
Ghosh, appellant no.2 Tarak Ghosh assaulted him on his head
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with ‘chhipda’ and as a result PW2 and PW3 suffered bleeding
injuries and they fell down on the ground.
16. PW5, Parthana Ghosh and PW6, Sumitra Ghosh also
supported the statements made by injured persons i.e. PW2, PW3
and PW5.
17. PW8, Balika Ghosh, an independent witness to the incident
has stated in her evidence that appellant no. 1, Dipankar Ghosh
with a ‘chhipda’ tried to give a blow on the head of PW2 (Tentul
Ghosh), but the said blow missed the head of PW2 and struck on
his right hand shoulder, he fell down on the ground and
thereafter, Joydeb Ghosh (PW3) another injured came to rescue
PW2 and then Tarak Ghosh came to the spot and assaulted PW3
on his head by a ‘chhipda’ which was in his hand. It is said by this
witness that after sustaining blow by ‘chhipda’, PW3 fell down on
the ground and thereafter Megnath Ghosh being armed with an
iron rod in his hand tried to assault PW4 (Asit Ghosh) on his
head, but the said blow missed his head and struck on his left
hand. The statement of this witness corroborates the statements
made by the injured eye-witnesses i.e. PW2, PW3 and PW4.
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18. PW13, Dr. Rahul Gupta who examined the injured Tentul
Ghosh and Joydeb Ghosh stated in his evidence that the victim
Tentul Ghosh complained before him that he was assaulted by the
appellant no. 1, Dipankar Ghosh at 7 A.M. on 19.07.2009 by a
‘Da’. It is said by the doctor that after exploring the wound of
Tentul Ghosh at O/T it appears that he sustained about 8″/3″/3″
bone cutting injury and there was sharp cut on the right shoulder
of Tentul Ghosh which was a sharp bone cutting injury cutting
the scapular spine and aerial and with drooping of the shoulder
muscle cut all along. This witness further stated that another
victim Joydeb Ghosh (PW3) was admitted in the hospital with the
history of assault under his care and Joydeb Ghosh had
complained of being assaulted by the appellant no. 2, Tentul
Ghosh at 7 A.M. on 19.07.2009 with a ‘Da’ and on examining the
victim he found injury on the person of Joydeb Ghosh, a scalp cut
irregular lacerated on the midline parietal area.
19. PW 14, Dr. Susanta Kumar Biswas made his statement
before the Trial Court that he examined the victim Tentul Ghosh
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(PW2) and found injuries on his right shoulder along with
fractured neck of right humorous.
20. PW15, Dr. Ajana Baral who medically examined PW2 and
PW3 found sharp cutting injuries on the scalp of the patient. This
witness opined that such type of injury can occur if a person is hit
by a sharp edged weapon.
21. Trial Court after hearing the parties and appreciating the
evidences was of the view that the prosecution was able to prove
the guilt of the accused- appellants for the offence under Section
307 of the Indian Penal Code beyond reasonable shadow of doubt
and convicted and sentenced the appellants for the aforesaid
offence. It also appears that the Trial Court acquitted the accused
persons namely, Nemai Ghosh, Megnath Ghosh, Joydeb Ghosh,
Sumitra Ghosh, Parthana Ghosh for the offence under Section
148/307/149 of the Indian Penal Code. The Trial Court perused
the entire record in the light of submissions raised by the learned
counsel for the parties and found that on the relevant date and
time all the appellants were involved in commission of the present
offence. We have analysed the entire evidences adduced by the
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prosecution as stated above and find no error. Therefore, findings
recorded by the Trial Court in the impugned judgment and order
for commission of the offence by the appellants need no
interference.
22. Prosecution case is that that these appellants armed with
deadly weapons assaulted the victims with intention to murder
them. In this case, no injury report is marked as exhibits in this
case but we have minutely have gone through the medical
documents and the evidences of the doctors i.e. PW13, PW14 and
PW15 and it emerges that the victims sustained injuries on their
persons, no injury report regarding nature of injury was filed in
this case. If such is the position then it is not possible to ascertain
whether the injury sustained by the victims were grievous in
nature or not. If the medical documents in respect of the victims
are taken in light of submission raised by the learned counsel for
the appellants it can be said that the injury sustained by the
victims were not grievous in nature. The prosecution failed to
produce the report to show that the injury sustained by the
victims were grievous in nature. The attending circumstances
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emerged from the prosecution evidences; it has indicated that the
assault made upon the victims was not with intention to kill them.
If such is the position, findings of the Trial Court that offence
under Section 307 Indian Penal Code against the accused
appellant has been proved by the prosecution, in our considered
opinion, is not based on correct appreciation of facts and evidence.
Perusal of the impugned judgment and order also reveals that no
discussions at all have been made by the Trial Court in the
impugned judgment and order about constitution of offence under
Section 307 of the Indian Penal Code. We are of the opinion that
the Trial Court erred in holding guilty to the appellants for
committing the offence under Section 307 of the Indian Penal
Code.
23. On close scrutiny of the entire evidences brought on record
by the side of the prosecution it emerges that the appellants could
only be held guilty for the offence under Sections 323 and 324 of
the Indian Penal Code. So, it can be said on scrutiny of the
evidences brought on record, the findings recorded by the Trial
Court on this point can be termed to be illegal and perverse and
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the same are not based on correct appreciation of evidences.
Hence, the same required interference by this Court. In our
opinion, the appellants are found guilty for the offence under
Sections 323 and 324 of the Indian Penal Code and not for the
offence under Section 307 of the Indian Penal Code. Hence,
submission raised by the learned counsel for the appellants has
some force and to that extent it is acceptable and the appeal to
this extent is liable to be allowed.
24. It is trite law that appropriate sentence should be awarded
after giving due consideration to the facts and circumstances of
each case, nature of the offence and the manner in which it was
executed or committed. Object of sentencing should be to protect
society and to deter the criminal in achieving the avowed object of
law. Further, it is expected that the Courts would operate the
sentencing system so as to impose such sentence which reflects
the conscience of the society and the sentencing process has to be
stern where it should be. The Court will be failing in his duty if
appropriate punishment is not awarded for a crime which has
been committed not only against the individual victim but also
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against the society to which the criminal and victim belong. The
punishment to be awarded for a crime must not be irrelevant but
it should conform to and be consistent with the atrocity and
brutality which the crime has been perpetrated, the enormity of
the crime warranting public abhorrence and it should respond to
the society’s cry for justice against the criminal. We have perused
the record and found that the appellants remained in custody for
sometime; the incident occurred in the year 2009 and as such, the
appellants have faced rigours of trial for considerable years.
Having regarded to the totality of the facts and circumstances of
the case particularly the fact that no minimum sentence has been
provided in the Indian Penal Code for the offences under Section
323 and 324 of the Indian Penal Code as also in this case, the
appellant has served out considerable period of sentencing
imposed upon them. We are of considered view that ends of justice
would meet if the sentence of the appellants is reduced to the
period already undergone.
25. In the light of the foregoing discussion, this appeal is liable to
be allowed in part and the conviction of the appellants under
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Section 307 is modified and altered to the offence under Sections
323 and 324 of the Indian Penal Code. The impugned judgment
and order dated 19.01.2022 is liable to be modified to the extent
as discussed above.
26. Accordingly, the instant appeal is allowed in part.
27. Conviction of the appellants for the offence under Section
307 of the Indian Penal Code is altered and modified into the
offence under Sections 323 and 324 of the Indian Penal Code. The
jail sentence imposed on the appellants will be reduced to what is
already undergone by the appellants. In other words, this Court
alter the jail sentence of the appellants and award “what is already
undergone by them” and at the same time imposes fine of Rs.
20,000/- for the offence under Section 324 of the Indian Penal
Code each and fine of Rs. 1000/- for the offence under Section
323 of the Indian Penal Code each. Fine amount imposed upon
the accused appellants for the aforesaid offences shall be
deposited by the appellants within two months from today.
However, in case they fail to deposit the fine amount as stated
above after adjusting the sum of Rs.10,000/-, if already paid by
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the appellants, they will have to undergo simple imprisonment for
a period of one month.
28. Accordingly, the instant appeal be and the same is hereby
allowed in part and modified to the aforesaid extent.
29. In view of provision of Section 437A of Cr.P.C. the appellants
shall have to execute bail bonds with sureties and such bail bonds
shall be in force for six months.
30. Let a copy of this order along with the Trial Court Records be
sent down to the Trial Court immediately for taking necessary
steps in this regard.
31. Urgent Photostat certified copy of this order, if applied for, be
given to the parties on payment of requisite fees.
[PRASENJIT BISWAS, J.]
32. I Agree
[DEBANGSU BASAK, J.]