Nisha Ghosh vs The State of West Bengal

Tapash Mookherjee, J—The present appeal is directed against the judgement and order of conviction dated 29th August, 2013 and 30th August, 2013 passed by the learned Additional Sessions Judge, FTC - II, Krishnagar, Nadia, in Sessions Trial No. V of April, 2006 (Sessions Case No. 118 of August, 2005). By the aforesaid judgement and order, the trial court convicted the appellant, Nisha Ghosh, of the offence punishable under Section 326 of I.P.C. and sentenced the appellant to suffer rigorous imprisonment for four years with fine of Rs.2000/- with a default clause.

The facts leading to the appeal transpiring from the FIR in the case, in short, are as follows:-

One Judhisthir Ghosh of village Baliadanga under P.S. Kaliganj had landed dispute with one Nisha Ghosh of the same village. On 10th January, 1990 at about 6 O'' Clock in the morning when the said Judhisthir Ghosh went to his land for cultivation, the said Nisha Ghosh suddenly attacked and assaulted Judhisthir by a ''Dao'' and after such assault, the said Nisha Ghosh along with his father-in-law, Ajit Ghosh fled away from the field. Judhisthir Ghosh sustained serious injury on his forehead and he was immediately shifted at Matiari hospital by his brother and some co-villagers. Subsequently, the wife of the said Judhisthir Ghosh submitted a written complaint at Kaliganj P.S. and narrated all the aforesaid facts on the basis which Kaliganj P.S. Case No. 11 dated 10th January, 1990 under Sections 326/307 of the Indian Penal Code. was initiated against the aforesaid Nisha Ghosh and Ajit Ghosh and after completion of investigation, charge sheet was submitted against them under Sections 326/307/114 of the Indian Penal Code.

The accused Ajit Ghosh absconded prior to the commitment of the case and as such the case stands filed against him for the present. The case was thereafter committed in due course to the court of the learned Sessions Judge, Nadia, from where the case was transferred to the court of the learned Assistant Sessions Judge, 2nd Court, Krishnagar, Nadia. Considering the materials collected during investigation, charge under Sections 307/34 of the Indian Penal Code was framed against the accused, Nisha Ghosh. The accused denied the charge and pleaded his innocence all along. Subsequently, the case was again transferred to the court of the learned Additional District and Sessions Judge, Fast Track Court No. II, Krishnagar, Nadia to complete the trial.

The prosecution examined 13 witnesses in total and proved some documents as well. Defence tendered no evidence whatsoever. Considering the evidence thus produced on record, the trial court found the accused, Nisha Ghosh, guilty of the charge under Section 326 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for four years and to pay fine of Rs.2000/- with default clause. Being aggrieved by and dissatisfied with such judgement of conviction and order of sentence, the accused, Nisha Ghosh, filed the present appeal.

Learned Advocate, Mr. De appearing for the appellant has submitted that the alleged victim himself has stated during his evidence that he has been suffering from acute mental disturbance since long and for such reason he is not in correct state of mind and so, whatever has been stated by him during evidence bears no serious value in law. Mr. De further submitted that the alleged eye witness i.e., P.W. 3 during his cross-examination demolished the prosecution case as a whole and there is manipulation in the FIR and for such reasons, trial court has committed error in law by finding the appellant guilty.

On the other hand, learned Advocate Mr. Keshari appearing for the State has argued that the victim himself has stated that the victim has been assaulted by the appellant and such statement of the victim finds total corroboration from the medical evidence and hence trial court has rightly convicted the appellant of the offence under Section 326 of the Indian Penal Code.

One Hari Shankar Ghosh (P.W.1) was the first witness for the prosecution. He denied having any knowledge about any fact in issue and he was declared hostile by the prosecution.

Judhisthir Ghosh (P.W.2) is the victim of the alleged incident of assault. Sri Ghosh in his evidence stated that on the day of the incident when he went to the field to cultivate his land, the appellant suddenly hit on the left side of his head by a ''Dao'' and due to such assault, he sustained bleeding injury on his head. He stated further that after such assault, he could manage to flee away from the spot and he was treated at first at Matiari P.H.C. and subsequently at Katwa hospital. Sri Ghosh stated further that his wife Chapa Ghosh submitted the FIR in the case.

One Rabinoy Ghosh (P.W.3) is a brother of P.W.2. He stated that on the day of the incident at about 9-00/9-30 a.m. while he was in the field for cultivation, he found the appellant entering their land which was being cultivated at that time by his brother Judhisthir Ghosh and after such trespass the appellant assaulted his brother Judhisthir Ghosh on the head with a ''Dao''. He further stated that after the incident he took his brother Judhisthir Ghosh in their house and thereafter his brother was shifted at Matiari P.H.C. from where his brother was referred to Katwa hospital for further treatment.

Kalicharan Ghosh (P.W.4) claimed to have written the FIR in the case and on being proved by him, the FIR in the case is marked Ext. 1.

Provakar Ghosh (P.W.5) is a co-villager of P.W.2. He stated that on the day of the incident P.W.2 was assaulted in the field while P.W.2 was cultivating his land. He stated further that having gone to the spot, he found the appellant standing on the spot and the appellant''s father-in-law who is the other accused in the case fleeing away from the field.

Naba Kumar Ghosh (P.W.6) was also a co-villager of P.W.2. However, he did not claim any direct knowledge about any fact in issue in the case. Similar was the evidence of Dulal Ghosh (P.W.7) and Khokan Ghosh (P.W.8).

Inspector of Police Dilip De (P.W.9) started investigation of the case and S.I. Debasish Roy (P.W.11) completed the investigation and submitted charge sheet.

Dr. Jatin Roy Chowdhury (P.W. 10) was posted as a Medical Officer of Matiary P.H.C. at the relevant time and he examined P.W.2 on the day of the occurrence as claimed. He also described the injury, he found on the body of the P.W.2.

Dr. Swapan Kumar Nayak (P.W.12) was also a Medical Officer posted at Katwa Sub-Division hospital at the relevant time and he also examined P.W.2 in that hospital. Dr. Samir Kumar Hazra (P.W.13) also examined the P.W.2 on 10th January, 1990 as stated by him. Both P.W.12 and P.W.13 described also the injuries they found in the person of P.W.2.

A G.R. case starts from the F.I.R. and as such, the F.I.R. is an important document in any G.R. case. In the present case, P.W.4 has claimed to have scribed the F.I.R. and on being proved by him the said document has been marked as Ext.1. Surprisingly, P.W.4 in his cross-examination has stated that he has scribed the F.I.R. at the police station as per the instruction of the Darogababu. He has further added that the F.I.R maker, Chapa Ghosh, was not present at the police station when the F.I.R. has been scribed. From the endorsement in the left margin of Ext.1, it is found that Ext. 1 was scribed not at the police station but at the village of the occurrence and subsequently, sent to police station by a police constable. It is not, therefore, clear at which place or under whose dictation Ext.1, i.e. the alleged F.I.R. has been scribed. Chapa Ghosh whose L.T.I does appear on Ext.1 is dead. So, it cannot be ascertained at which place or to whom she dictated the facts to prepare the F.I.R. Mr. Keshari has no answer to such anomaly.

Mr. Keshari submitted that the prosecution case entirely stands upon the oral testimony of the victim, i.e. P.W.2 which is supported by the medical evidence produced.

P.W.2 in his examination-in-chief stated that he was assaulted by the present appellant with a ''Dao'' on the left side of his head. But during his cross-examination, he himself stated that he was suffering from ''mental trouble'' and ''disturbances'' since last few years. I agree with Mr. Keshari to the point that ''mental trouble'' or ''mental disturbances'' does not mean insanity or mental disorder. But immediately after saying so, P.W.2 clarified that he himself was not aware of what is being stated by him. So, it cannot be said that P.W.2 was in right state of mind when he deposed in the case. It is, therefore, very difficult to rely him totally.

P.W.10 examined P.W.2 within a short period after the incident and the injury report prepared by him has been marked as Ext. 3. It is noted in that injury report that the patient alleged that he was assaulted by the present appellant. A similar statement is found recorded in Ext. 5 which is another injury report prepared by P.W. 13. Mr. Keshari has argued that the aforesaid statement of P.W.2 before two doctors examining P.W.2 are sufficient to corroborate the testimony of P.W.2 that P.W.2 was assaulted by the present appellant. On the other hand, Mr. De argued that from the other evidence on record it is found that P.W.2 was not in a physical condition to make any statement before any doctor treating him. So, the history of injury might have been stated by any person accompanying P.W.2.

P.W.2 in his evidence had not stated that he had narrated the history of assault on him before any of the doctors examining him. On the contrary, P.W.2 during his cross-examination stated that he became senseless after the assault and he regained his senses a few days thereafter. In Ext. 5 it is noted that the patient, i.e.P.W.2 was semi conscious when he was brought to the hospital. In Ext. 4 it is further noted that the general condition of the patient at the time of admission was very low and the patient lost his memories to some extent during his recovery period. The opinion of the doctor, treating P.W.2 on the very day of the incident, being so, it is doubtful whether P.W.2 was in a right state of mind to make any statement before the doctor during his treatment after the incident.

P.W.3 in his examination in chief claimed to have witnessed the incident of assault. He further claimed that P.W.2 was assaulted with a ''Dao'' by the present appellant. But surprisingly during his cross-examination he changed his version totally and claimed that it was not the present appellant but the other accused Ajit Ghosh who assaulted P.W.2 with a ''Dao''. He further added that after the incident he himself along with the present appellant shifted P.W.2 at the local hospital. P.W.3 was none but a brother of P.W.2. It is therefore a mystery as to why P.W.3 made such a contradictory statement. Mr. Keshari pointed out that after examination in chief in which P.W.3 implicated the present appellant totally, the case was deferred on prayer of the defence and on the subsequent day, when cross-examination of P.W.3 was resumed, P.W.3 deviated totally from his earlier statement during examination in chief and the fact itself indicates that P.W. 3 was illegally influenced by the defence. Such a contention of Mr. Keshari cannot be ruled out totally but in such a case the prosecution required to re-examine P.W.3 after the cross-examination for clarification but prosecution had not done so. In the circumstances, the benefits of the statement of P.W.3 cannot be given to any of the parties.

So, from what has been discussed above, it is clear that the oral testimony of P.W.2 is the only evidence for the prosecution to identify the assailants of P.W.2 but as discussed earlier, P.W.2 himself admitted that he himself was not aware of what he was saying. In the circumstance, it is not safe, in my considered opinion, to rely upon the testimony of P.W.2 during his examination in chief blindly, especially when there is no supporting materials. Learned trial court was therefore wrong to find the appellant guilty of the offence alleged.

In view of the discussions and decisions recorded above, the appeal is allowed. The judgement and order of conviction and sentence passed against the appellant Nisha Ghosh in the case are hereby set aside and he is found not guilty of the charge under Section 326 of the Indian Penal Code and he is accordingly acquitted.

The appellant, Nisha Ghosh, be released at once from the jail if he is not liable to be detained in connection with any other case.

The L.C.R be sent back to the trial court along with a copy of this judgement at once.

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