ASHIM NASKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the order of conviction and sentence passed by learned 2nd Fast Track Court, Howrah on 21st February, 2009 in connection with sessions trial case no. 353 of 2006 thereby convicting the appellant under Section 325 / 34 of the Indian Penal Code and sentencing them to suffer Rigorous Imprisonment for 2 years and to pay a fine of Rs.2,000/- each in default to suffer Rigorous Imprisonment for 6 months each.

(2.) Being aggrieved by and dissatisfied with such order of conviction and sentence the appellant has preferred this appeal on amongst other grounds that learned trial Judge has failed to consider the enmity between the parties and that learned trial Judge has failed to consider that there was absolutely no evidence in order to come to a definite conclusion about the alleged injury of prosecution witness no. 7 but yet learned trial Judge has convicted all the appellants for the offence under Section 325 / 34 of the Indian Penal Code. It would not be out of place to mention in brief about the case of the prosecution as well as the evidence adduced on behalf of the prosecution in order to appreciate the case of the appellant. One Bamdeb Naskar lodged a written complaint scribed by one Gunadhar Naskar on 5.5.2000 stating inter-alia that Ashim Naskar, Ranjit Naskar, Ajoy Naskar and Sujoy Naskar had been to their paternal property to erect fencing and at that time the defacto complainant and his father raised objections. The aforesaid persons then attacked the defacto complainant and his father and assaulted them with iron rod, Sabol etc. causing injuries on their person. Hearing hue and cry his brother Monoj and mother Lakshmi and sister in law Kakali Naskar rushed to the place of occurrence and they were also assaulted by the aforesaid person. As a result of such occurrence, the mother of defacto complainant received fracture injury on her hand and his elder brother Monoj also received fracture injury on his head. On the basis of that written complaint Bally police station case no. 77 of 2000 under Section 325 / 307 / 34 of the Indian Penal Code was started against all the aforesaid persons and ultimately culminated in filing of charge sheet. Charge under Section 307 / 34 and 325 / 34 of the Indian Penal Code was framed against all the aforesaid appellants who pleaded 'not guilty' and claimed to be tried.

(3.) Prosecution witness no. 1 has stated that accused Ranjit Naskar is the elder brother of his father and Ashim Naskar is the younger brother of his father. He further stated that Ajoy Naskar and Sujoy Naskar are sons of Ranjit Naskar. According to prosecution witness no.1, the occurrence took place on 5.5.2000 at about 8 a.m. and they had long standing dispute over their paternal property with the appellants. He also stated that the accused persons assaulted his father and elder brother as well as his mother and they all sustained injuries on their person. Accordingly, the injured were taken to the hospital. Thereafter, he lodged a written complaint at the police station. It is apparent from the cross examination of prosecution witness no.1 that there are houses of Chintamani and other 10/12 persons near the place of occurrence and about 10/12 persons assembled at the place of occurrence. This witness did not state as to who assaulted him. A general statement has been given by prosecution witness no.1 to the effect that all the accused persons assaulted his father, mother and elder brother.