PHANI BHUSAN GHOSH Vs. SIBAKALI BASU

JUDGEMENT

(1.) This rule has been obtained by Phani Bhusan Ghosh and Sital Sarkar. Phani Bhusan has been convicted of having: committed an offence punishable under section 355 of the Indian Penal Code, that is to say, of having assaulted a person with intent to dishonour him. Sital Sarkar, petitioner No. 2, was convicted under section 323 of the Indian Penal Code, that is to say, of having caused simple hurt; both the petitioners have been sentenced to pay certain fines in default to undergo imprisonment for certain terms.

(2.) The case for the prosecution briefly is as follows: one Sibakali Bose lives in the village of Harope. He is the complainant. His son-in-law Nanda Dulal Das lives in the village of Khalore. On the 26th December 1947, Siba Kali went to his son-in-law and stayed there. On the 28th of the same month at about 7-30 a.m. the petitioners Phani Bhusan and Sital Sarkar and one Chandi Sarkar had an altercation with Nanda Dulal over the repairing of an old fencing which was on the land of Nanda Dulal. Sibakali tried to intervene on behalf of his son-in-law whereupon Sital Sarkar gave him a blow while Phani Bhusan struck him with a slipper on the left ear.

(3.) The defence taken is that Nanda Dulal enchroached on the land of the accused and erected a new fencing thereon. Over this there was an altercation and in the course of such altercation Nanda Dulal abused Sital's father and trespassed upon Sital's land in order to assault Sital. The complainant Sibakali hastened to the spot to support his son-in-law when he fell down upon the hard ground and sustained injuries. It was suggested by the defence that this case was started in order to cimcumvent any possible case that might be instituted by the accused petitioners. Seven witnesses were examined on behalf of the prosecution. Of these 7, 2 witnesses, namely P.W.s 3 and 4(Sudhir Kumar Bose and Bibhuti Bhusan Bose) were not tendered for cross examination and their evidence was expunged. Among the witnesses was a Doctor who examined the injuries on Sibakali. The prosecution rely upon the medical evidence as negativing the defence story that the injuries might have been caused by a fall. The defence gave no evidence but contented itself with making certain suggestions. The learned Magistrate has believed the prosecution story and convicted the petitioners as stated above.