GOPINATH SEN Vs. STATE

JUDGEMENT

(1.) CR. No. 348 of 1978 of Serampore, district hooghly arose out of a complaint lodged by the opposite party no. 2 complainant alleging that three persons viz. Jaideb, Bhedo and Ganesh (accused No. 2 to 4) cut bamboos from his bamboo-clump on 13. 11. 78 and sold them to one Panchanan (Accused No. 1) and that on protest next clay the present petitioners Nos. 1 to 4 gopinath, Sudhir, Tapan and Manindra (Accused Nos. 5 to 8) assaulted him and the aforementioned Joydeb, Bhedo and Ganesh (Accused nos. 2 to 4) excited them to assault him. The learned Magistrate convicted all the accused excepting Panchanan (Accused No. l)under Sections 32 3 and 147 of the [indian Penal Code and sentenced them to a fine of Rs. 100/- in default to 20 days simple imprisonment each on each count. Criminal Appeal No. 5 7 of 1983 filed by accused Nos. 5 to 7 and Criminal Appeal No. 61 of 19 83 filed by accused No. 2 to 4 and 8 were heard together by the learned sessions Judge, Hooghly, who affirmed only the conviction and sentence passed by the learned Magistrate against accused Nos. 5 to 8. Hence this revision on allegation that the learned Sessions judge confirmed the findings of the learned Magistrate with regard to the charge under Section 323 of the Indian Penal code, on contradictory or no evidence.

(2.) IT appears from the judgment that the learned Sessions judge held the incident of cutting of bamboos and carrying them away to the house of Panchanan on the evidence of P. Ws. 2 to 4 and 6 and recovery of a number of bamboos from the house: of the said Panchanan. Relying on the evidence of the complainant and his witness Tarak (P. Ws. 1 and 4) as corroborated by G. D. Entry (Ext. 4) and medical evidence (P. W. 8) the learned Sessions judge concluded that the present four petitioners had actually assaulted the complainant opposite party No. 2. As a result he confirmed the conviction of these four appellants under section 323 of the Indian Penal Code and finding the punishment: nor at all severe he refused to interfere with it.

(3.) IT is pointed out first that even the complainant himself says once that the assault took place in the first floor of the house and that he again says that the occurrence took place in the Dalan. The occurrence, so says the complainant started at the bamboo-clump and ended at the first floor. It may be that part of the incident took place in the 'dalan' in the ground floor or in the 'dalan' or the first floor. That makes very little difference and is really no contradiction at all.