Biren Roy And Another vs State Of West Bengal

The instant appeal is directed against a judgment and order of conviction dated 19th December, 2007 passed by the Additional Sessions Judge,

Islampur, Uttar Dinajpur in Sessions Trial No.17 of 2007 arising out a Sessions case No.13 of 2007.

The appellants were convicted under Section 326 and 324 of the Penal code.

The prosecution case in brief is that the appellant No.1 Biren Roy is the father of the appellant No.2 Pradip Roy. The victims Ajoy Roy (PW3) and

Gobinda Roy (PW2) were the nephews and cousins, of the appellant No.1 and 2 respectively. A bamboo from a grove belonging to the appellant No.1

and his family was hanging over the house of the victims. The house belonged to one Sailen Roy, the brother of the victims, where the latter also

resided.

On the 24th of June, 2005 at about 7.00 am Ajoy Roy was talking to the PW 4, uncle of the victims, in front of their house. The said bamboo,

hanging over the house of the victims was obstructing the free ingress and egress into the house of the victims.

Earlier when Sailen Roy (PW5), brother of the victims, had gone to the appellant No.1 to ask him to cut off the bamboo and or remove the same,

the appellant No.1 is stated to have refused and also threatened that if the victims cut the hanging bamboo the appellant No.1 would chop off the

victims and all of them.

Coming back to the 24th June, 2005 the second victim PW2 was speaking to his uncle Nagendranath Roy (PW 4) seeking an advice and solution in

respect of the hanging bamboo.

The said PW 4 is stated to have advised the victims to seek the help of the local panchayet. At that point of time the third accused who was a

minor, Tapan Roy, second son of the appellant No.1, rushed to the place of occurrence and started to heckle and jostle the second victim PW 2 and

used filthy and abusive language.

The first victim PW 3 came out of the residence hearing the commotion. Other neighbours also came to the place of occurrence to separate the

accused No.3 from the PW 2 and 3.

At that point of time the appellant No.1 and 2 armed with sharp cutting weapons like Hasua and Dao (sickles) assaulted PW 2 and 3 that resulted in

cut injuries on both the legs of PW3. PW 2 was also assaulted by the appellant Nos.1 and 2 that resulted in severe cut and bleeding injuries on both

legs and hands.

The injured were then brought to Dholua Block Primary Health Centre (BPHC). In view of the seriousness of the injuries, the victims were

referred to Islampur Sub-Divisional Hospital and thereafter transferred to the North Bengal Medical College for better treatment. PW 3 remained in

the hospital from 24th June, 2005 till 26th July, 2005. In course of treatment his left finger was required to be amputated for gangrene having

developed as a result of the assault by the appellant.

The F.I.R. Came to be lodged on the 25th of June, 2005 as the victims had to be taken for treatment. Pursuant to the F.I.R. Lodged under Section

324/326/307/506 read with Section 34 of the IPC a chargesheet under the same Sections was also submitted against the appellant Nos. 1, 2 and Tapan

Roy second son of the appellant No.1.

The trial started sometime in June, 2007. the prosecution examined as many as 10 witnesses who are as follows :

PW 1 â€" Usha Roy (Wife of PW 3 Ajoy Roy )

PW 2 â€" Gobinda Roy (Brother of PW 3 Ajoy Roy)

PW 3 â€" Ajoy Roy (The first victim)

PW 4 â€" Nagendranath Roy(Paternal uncle of PW 2 and 3 and brother of the appellant No.1)

PW 5 â€"Sailen Roy (Brother of PW 3 Ajoy Roy)

PW 6 â€" One Satyaban Roy(The neighbour)

PW 7 â€" One Naren Roy(Another neighbour)

PW8 - Sunil Goswami(The scribe of the complainant)

PW 9 - Saugata Chowdhury (Attached to Dholua BPHC)

PW 10 â€" Akhil Chandra Roy (The Investigating Officer)

The PW 1 who was the complainant deposed in detail the facts recorded in the complaint and proved the same. The victims PW 2 and 3

corroborated the evidence of PW 1. The said evidence was also corroborated by the evidence of PW 4, 5 and 6. Based on the above as also the

evidence of PW 9, the occurrence of the incident, role of the appellants and 3rd accused, the injuries on the victims, the nature of the dispute leading

to the incident all stood proved.

The Learned Sessions Judge also examined the appellants under Section 313 of the Cr.P.C. The appellants denied the entire incident. The

Learned Sessions Judge found that the injuries sustained by the victims were as a consequence of the assault by the appellants on them with weapons

and that the injuries life threatening. After a detailed discussion of the incident and after considering all the evidence on record, the Sessions Judge

found the 3rd accused Tapan Roy guilty of offence under Section 323 of the IPC and convicted him thereunder. Tthe appellant No.2 Pradip Roy was

held guilty of and punishable under Section 326 of the IPC. The appellant No. 1 Biren Roy was held guilty of and punishable under Section 324 of the

IPC and convicted accordingly.

On the question of sentence, however, the 3rd accused Tapan Roy was sentenced to fine only for a sum of Rs.300/-. The second appellant was

sentenced to suffer rigorous imprisonment for 3 years and was also ordered to pay fine of Rs.1,000/-. The first appellant was sentenced to suffer

rigorous imprisonment for 1 year and the period of incarceration undergone by the appellants was ordered to be set off under Section 428 of the

Cr.P.C.

Learned Counsel for the appellants would argue that there are inconsistancies in the evidence of PW 1. She stated in examination-in-chief that the

victims PW 2 and 3 were firstly brought to Chopra Police Station whereas in the complaint it was stated that they were taken to the Dholua BPHC

and subsequently to the Islampur Medical College Hospital (MCH).

I am of the view that the trial occurred 2 years after the incident and it is possible that there may be minor inconsistencies in the deposition of the

witnesses. The same by itself cannot be a ground for disbelieving and brushing aside the evidence of PW 1. The Learned Counsel for the appellants

also argued that PW 2 Gobinda Roy was admitted hospital only for 4 days and hence the wounds inflicted were not life threatening in nature.

I find from the evidence that the PW 3 Ajoy Roy was hospitalized for nearly a month and also suffered amputation of his little finger. The

ingredients of the Sections 324 and 326 under which the appellants were convicted are, therefore, present and the relevant facts have been proved.

The Learned Counsel for the appellant would next argue that there was an attempt from the constable who visited the place of occurrence first to

cover up the blood stained earth. PW 7, neighbour, had deposed that the constable who first visited the place of occurrence had asked him to pour

cow-dung water on the blood stained earth. I do not agree that this is an attempt to cover up any evidence as blood split on blood stained earth is of no

additional value in view of the evidence already on record. While it is true that the blood stained earth could not have been collected and sent for

forensic examination, the absence of same is not fatal to the instant case as the other evidence abundantly proved the charges against the appellant

Nos.1 and 2 and the 3rd accused.

I find that the charges against the appellants have been sufficiently proved and the judgment impugned well-considered and wholly sustainable. In

the circumstances the judgment and conviction impugned are upheld. The bail of the appellants shall stand cancelled. The appellants were taken into

custody and be made to undergo sentence already imposed by the Court below.

C.R.A. No. 95 of 2008 is hereby dismissed. No order as to costs.

Urgent Xerox certified copy of this judgment, if applied for, be supplied to the parties on urgent basis.