Shri Sujit Biswas v. The State
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE ANANYA BANDYOPADHYAY CRR No. 10 of 2023 Shri Sujit Biswas ... Appellant
Versus
The State ... Respondent For the Appellant : Mr. D. Ilango For the State : Ms. A.S. Zinu Heard on : August 17, 2023 Judgment on : August 24, 2023 Ananya Bandyopadhyay, J.
1.
The instant Revisional Application has been filed under Section 397 of Criminal Procedure Code, 1973 read with Section 401 thereof being aggrieved by the judgment and order of conviction and sentence dated 30.12.2022 passed by the learned Chief Judicial Magistrate, North and Middle Andaman, Mayabunder in Trial No. 633 /19 arising out of G.R case No. 96 of 2019. By the aforesaid judgement, the appellant Sujit Biswas was convicted for commission of the offence punishable under Section 325, Indian Penal Code (for short IPC) and sentenced to suffer simple imprisonment for a term of two years alongwith
fine of Rs.20,000/- of which 50% shall be paid as compensation to the victim Raju Mondal.
2.
The prosecution case emanated on the basis of a complaint filed by the complainant which precisely stated that, he had engaged labourers (approximately) at the construction site of Kadamtala where a new dam was being erected. The de-facto complainant alongwith his labourers would commute on a regular basis reaching the aforesaid place of work at 7.00 AM in the morning and return at about 4.00 PM by a pick - up van provided by the Contractor Shri Swapan Kumar Roy from whom he had received the Sub-Contract. 3.
On 16.12.2019 the de-facto complainant witnessed 4-5 persons fishing at the dam at around 3.00 PM and the appellant being an auto rickshaw driver by profession used the water stored in the drum by the labourers for washing his legs. The de-facto complainant resisted the Appellant from using the water as aforesaid which resulted in a brawl and the Appellant pushed the de-facto complainant and had bitten his left wrist further assaulting him with a wooden stick whereby the de-facto complainant sustained grievous injury.
The de-facto complainant was treated at Primary Health Centre, Kadamtala.
4.
Based on the aforesaid complaint, Kadamtala Police Station case No. 07 of 2019 dated 16.02.2019 under Section 325 of the Indian Penal Code was instituted.
5.
Investigation was initiated which culminated in filing of a charge sheet being No. 09 of 2019 dated 11.03.2019 under Section 325 of Indian Penal Code.
6.
Charge was framed to which the Appellant pleaded not guilty and claimed to be tried.
7.
The prosecution in order to establish its case, cited 07 witnesses and exhibited certain documents.
8.
The learned Advocate for the Appellant submitted that the scuffle which ensued between the de-facto complainant and the Appellant consequently assaulting the complainant and the injuries sustained by him did not comprise the ingredients to constitute an offence under Section 325 of the Indian Penal Code. The Appellant did not have any mensrea to voluntarily injure the de-facto complainant. The Appellant had been wrongly convicted with a stringent punishment and prayed to set aside the impugned judgement and order.
9.
The learned Advocate for the State submitted that the injury sustained by the de-facto complainant did not suggest
the same to be grievous in nature and left it to the discretion of the Court.
10.
Circumspection of the evidence adduced by the Prosecution admittedly narrated an incident of scuffle between the de-facto complainant and the Appellant on a trivial issue of washing legs with the water accumulated in a drum by the labourers.
11.
The evidence of PW-5, the Chief Medical Officer at Primary Health Centre stated that, PW-5 observed one swelling over the left wrist of the de-facto complainant which was nearly 2 cm away from the wrist joint and on X-Ray detected a fracture of ulna bone of his left hand. PW-5 opined the nature of injury to be grievous caused by a blunt weapon and the medical report wherein her signature alongwith her opinion was marked as Exhibit -5. However, the X-Ray plate in support of the X-Ray to have been conducted was not exhibited. Moreover, PW-5 did not notice any mark of bite on the palm or hand or wrist or arm of the de-facto complainant. During her cross-examination, PW-5 stated that the injury sustained by Raju Mondal, de-facto complainant would also result on account of his fall on the ground.
12.
PW-2, de-facto complainant during his Examination in Chief deposed that on raising objection, the Appellant had shoved him resulting his fall on the ground. PW-2 further stated to have been bitten on his left arm which was not observed by the PW-5, the Doctor. The offending weapon ie. wooden stick was not sent for examination to detect its usage by the Appellant in assaulting the de-facto complainant. Sections 320 of IPC provides that - The following kind of hurt only are designated as "grievous":
1) Emasculation.
2) Permanent privation of the sight of either eye.
3) Permanent privation of the hearing of either ear.
4) Privation of any member or joint.
5) Destruction or permanent impairing of the powers of any member or joint.
6) Permanent disfiguration of the bead or face.
7) Fracture or dislocation of a bone or tooth.
8) Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. Section 321 of IPC provides that - Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby
to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". Section 322 of Indian Penal Code provides that- "Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
Section 323 of Indian Penal Code provides thatWhoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 325 of Indian Penal Code provides thatWhoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
13.
PW-5, the Doctor in the injury report marked as Exhibit - 5 mentioned about a fracture of the ulna of left hand with a blunt weapon. However, the incident of such fracture was not corroborated by the X-Ray plate.
14.
The PW-3 deposed that the Appellant had bitten PW-1 on his wrist contrary to the version of PW-2 to have been bitten on his left arm. During his cross-examination, PW-3 stated that he was not aware of the names of the persons working on that date. 15.
PW-4 reiterated the statement of PW-2 and PW-3 with regard to the bite on the left hand of the victim which was not observed by the PW-5. However, the incident of fall of the victim on the ground through a push by the Appellant has been corroborated. The act of the Appellant at a spur of the moment as a result of the fracas does not create a premeditated and intentional guilt motive to cause voluntary grievous hurt. PW-5 further stated that on examination she found smell of liquor from the mouth of the Appellant though he was not under the influence of alcohol. However, being obstructed from using the water for washing his legs the Appellant can be said to have been propelled to push the victim and is consequent fall on the ground. It was a sudden act and not a deliberate action intending to voluntarily cause grievous hurt to the de-facto complainant.
The explanation appended to Section 322 of Indian Penal Code stated " Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
Explanation - A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind. 16.
In the instant case, from the course of the incident, it appears that the Appellant did not intend to cause grievous hurt or was aware of the consequences of his act. The prosecution failed to establish the voluntary intention to cause the grievous hurt or for that matter only hurt.
17.
Under the facts and circumstances of the case, the failure on the part of the prosecution to establish the element of guilty motive to voluntarily cause grievous hurt under Section 325 of Indian Penal Code, the Criminal Revision Application is allowed.
18.
The judgement and order of conviction and sentence passed by the learned Trial Judge that is "that for the offence under section 325 of IPC, the convict is sentenced to punishment of simple imprisonment for a term of two years along with fine of Rs. 20,000/-, of which 50 % shall be paid as compensation to the victim Raju Mondal. It is made clear that in default of payment of such fine, the convict shall suffer simple imprisonment for further two months in addition to the simple imprisonment of two years sentenced" is hereby set aside. 19.
The Appellant is acquitted from the charges under Section 325 of Indian Penal Code.
20.
Accordingly the instant revisional application being No. CRR/10/2023 is disposed of. Connected application if there by any also disposed of.
21.
No order as to cost.
22.
Send down the LCR to the learned Court below along with the copy of this judgement.
23.
Urgent Xerox certified copy this judgement be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.
(Ananya Bandyopadhyay, J.)