KRISHNA PADA PRAMANIK Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 26.11.2009 and 27.11.2009 passed by learned Additional District and Sessions Judge, Fast Track Court, Amta, Howrah in sessions trial no. 420 of 2008 arising out of GR case no. 899 of 2006 whereby and where under learned trial Judge has convicted the appellant for the offence under Sec. 326 of the Indian Penal Code and sentenced him to suffer simple imprisonment for 4 years and to pay a fine of Rs.5,000.00 in default to suffer further Simple Imprisonment for 6 months. Learned Advocate appearing on behalf of the appellant contended that learned trial Judge has erroneously convicted the appellant for the offence under Sec. 326 of the Indian Penal Code since the injury sustained by the injured is simple in nature and learned trial Judge thereby misguided himself in convicting the appellant for the offence under Sec. 326 of the Indian Penal Code. Learned Advocate appearing on behalf of the state however contended that learned Judge has relied on the evidence of the Government doctor and thereby correctly convicted the appellant for the offence under Sec. 326 of the Indian Penal Code. However, no other point have been argued by any of the parties with regard to the legality of the judgment. It is, therefore, apparent from the record as well as from the judgment of the learned trial Judge that the appellant assaulted Sukumar Dolui with rod like substance and thereby Sukumar Dolui sustained one and half inch incised looking injury on his person. The prosecution has adduced some witnesses in order to prove the nature of the injury sustained by Sukumar Dolui. Prosecution witness no. 6 Dr. Subir Kanti Sinha examined Sukumar Dolui, prepared and signed some documents vide exhibit 2 series. The certificate issued by prosecution witness no. 6 is marked as exhibit 3. The doctor advised C.T. scan of brain of Sukumar Dolui vide exhibit 4. The medical certificate issued by prosecution witness no. 6 is marked as exhibit 5. According to prosecution witness no. 6 Sukumar Dolui sustained cut injury on his head measuring one inch and as per his opinion such injury is simple in nature. It is, therefore, apparent from the evidence of prosecution witness no. 6 that Sukumar Dolui sustained simple injury on his head. Prosecution witness no. 7 Dr. V. Gupta conducted C.T. scan of brain of Sukumar Dolui but did not find any abnormality in such report vide exhibit 6. Prosecution witness no. 8 Dr. J. N. Ghosh conducted chest x-ray of Sukumar Dolui vide exhibit 6/1 and found no abnormality in the chest x-ray of Sukumar Dolui. Learned trial Judge has heavily relied on the evidence of prosecution witness no. 9 who examined Sukumar Dolui at S.S.K.M. hospital. The doctor did not find any history of unconsciousness and vomiting of the patient. As per prosecution witness no. 9, one and half inch incised looking wound over right side of the skull was found on the head of Sukumar Dolui. The report of the doctor has been marked exhibit 7. In his cross examination prosecution witness no. 8 has admitted that he did not use magnified glass at the time of examination and he did not measure the length, depth, shape, margin and floor of the injury though such specifications are required to be noted in the injury report. The doctor prosecution witness no. 9 has admitted in his cross examination that incised looking wound may also be caused by blunt weapon depending on the quantum of force. The doctor has further admitted that he did not use magnifying glass to ascertain the injury to be incised looking wound or incised wound. He has further stated in his cross examination that he did not give any opinion regarding the nature of injury as grievous in connection with this case. The observation of the doctor in exhibit 9 may be reproduced below:- <FRM>JUDGEMENT_213_LAWS(CAL)2_2018_1.html</FRM>

(2.) It is, therefore, apparent from the aforesaid injury report issued by prosecution witness no. 9 that there is absolutely no description of the nature of injury by the doctor upon whose evidence learned trial Court has relied on in order to come to a finding that the injury is grievous in nature. The doctor found one and half inch incised looking wound over right side of skull. There is marked difference between incised wound and incised looking wound. incised looking wound cannot be an incised wound. In order to ascertain as to the nature of wound it was incumbent upon the doctor concerned to examine the injury with the help of magnifying glass. If the injury is incised looking would in that event the margin of such injury would be irregular. In case of incised wound the margins of the injury would be regular. The doctor did not examine properly in order to come to a definite finding that the injured sustained incised wound and that is why the doctor has specifically stated that he found one and half inch incised looking wound. The doctor also did not mention the nature of injury in exhibit 7. Learned trial Court however has observed that the injury report issued by prosecution witness no. 9 is more reliable than that of a private doctor and with the help of 8th clause of Sec. 320 of the Indian Penal Code accepted the injury of Sukumar Dolui as grievous injury without having any medical report to that effect. All the witnesses namely prosecution witness no. 6 Dr. Subir Kanti Sinha, prosecution witness no.7 Dr. V. Gupta and prosecution witness no. 9 Dr. Chanda Naskar were produced by the prosecution. The aforesaid doctors never stated anything with regard to the grievous injury sustained by the injured. On the contrary, prosecution witness no. 6 and prosecution witness no. 7 have categorically stated that the injury sustained by Sukumar Dolui is simple in nature. In that view of this case, learned trial Court has erroneously held the appellant guilty under the offence punishable under Sec. 326 of the Indian Penal Code without having any medical evidence to that effect. However, the facts and circumstances of the case clearly reveal that Sukumar Dolui was assaulted by the appellant with an iron rod and thereby Sukumar Dolui sustained injury on his person. In that view of this case the conviction of the appellant is modified and the appellant is thus convicted under Sec. 323 of the Indian Penal Code. The appellant was in custody from 03.10.2006 to 29.11.2006 during the pendency of this appeal. That goes to show that the appellant was almost in custody for about 2 months. Therefore, the conviction of the appellant is modified in terms of the following order. The appellant Krishnapada Pramanik is convicted for the offence under Sec. 323 of the Indian Penal Code and he is sentenced to suffer the period already undergone by him for such offence and to pay a fine of Rs.5,000.00 in default to suffer further Simple Imprisonment for one month only. With this modification the appeal stands dismissed.

(3.) Let a copy of this judgment along lower Court record be sent down to the trial Court information and necessary action.