Calcutta High Court (Appellete Side)
Bablu Ghosh vs The State Of West Bengal on 22 May, 2026
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.A. 285 of 2007
Bablu Ghosh
-Vs-
The State of West Bengal
For the Appellant : Mr. Prabir Majumder
Mr. Snehansu Majumder
For the State : Mr. Avishek Sinha
Judgment on : 22.05.2026
Ananya Bandyopadhyay, J.:-
1.
This appeal is preferred against judgment and order of conviction dated
30.04.2007 passed by the Learned Additional Sessions Judge, Fast Track
Court – I, Krishnagar, Nadia in Sessions Trial No.XII(9)2005 arising out of
Sessions Case No.88(4) of 2005 convicting the appellant under Section 325
of the Indian Penal Code and sentencing him to suffer rigorous
imprisonment for 3 years and to pay a fine of Rs.1,000/- in default to suffer
rigorous imprisonment for 4 months for the offence punishable under
Section 325 of the Indian Penal Code.
2. The prosecution case precisely stated one Nisith Biswas son of Shri Narayan
Biswas of village Chakbehari under Tehatta P.S. filed a written complaint on
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11.01.2005, before the Officer-in-Charge, Tehatta Police Station, inter alia,
stating the appellant assaulted his father PW-2 severely. The complainant
also alleged that the appellant pushed his father who was an old man of 65
years causing him to fall on the ground. Thereafter, the appellant assaulted
him with back side of a spade. Labours who were working in the field namely
PW-3, PW-4, PW-8, PW-9 and PW-10 witnessed the incident. The
complainant on receiving the information went to the spot and removed his
father on a trolley to Tehatta Sub-Division Hospital and wherefrom he was
referred to Shaktinagar District Hospital as his condition was serious.
The appellant on the previous date of the incident came to the land of the
complainant, to collect some leaves of Sugarcane tree of the complainant,
who refused to such collection.
On the date of the incident a buffalo of the complainant entered into the
land of the appellant and the father of the complainant brought back the
buffalo before it caused any harm to the land of the appellant. The appellant
in spite of that assaulted the father of the complainant. The elder brother of
the appellant namely Asit Ghosh annoyed with the complainant filed a G.D.
being no.601/04 dated 15.12.2004.
3. On the basis of the aforesaid complaint, the Tehatta P.S. Case No.26/05
dated 10.02.2005 under Section 326/308 of the Indian Penal Code was
initiated against the appellant.
4. On completion of investigation, the investigating agency submitted charge-
sheet against the appellant under Sections 326/308 of the Indian Penal
Code.
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5. Charges were framed against the appellant under Section 308 of the Indian
Penal Code to which the appellant pleaded not guilty and claimed to be tried.
6. In order to prove its case, the prosecution examined as many as 14
witnesses and exhibited certain documents.
7. The Learned Advocate for the appellant further submitted as follows:-
i. “The prosecution case in a nutshell is that on 11.01.2005 at about 1
pm, while the informant and others were not present in their home, the
appellant had beaten the father of the informant with a opposite side of
a spade, and pushed him. Due to such assault the informant’s father
received injuries. PWS 3,4,8,9 and 10 had witnessed the said incident.
Upon receipt of the information the informant shifted his father to
Tehatta BPHC in a trolly van, wherefrom he was referred and was
admitted to Shaktinagar Hospital undergoing better for treatment.
That with regard to the above noted incident, on 10.02.2005, i.e.
after about one month of the alleged date of occurrance facto
complainant had filed an information and accordingly Tehatta Police
Station Case No. 26/2005 dated 10.02.2005 under sections 325 of the
Indian Penal Code was commenced.
After completion of the investigation the police had submitted charge
sheet under section 326/308 of the Indian Penal Code against the
appellant. There after the Learned Trial Judge had been pleased to
frame charges against the appellant under section 308 of the Indian
Penal Code.
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That to bring home charges against the appellants the prosecution
had examined a total number of 14 witnesses. Thereafter the appellant
was examined under Section 313 of the Code of Criminal Procedure.
After completion of trial the Learned Trial Judge had been pleased to
convict the appellant under Section 325 of the Indian Penal Code and
sentenced him to suffer rigorous imprisonment for three years for the
offence punishable under section 325 of the Indian Penal Code, and to
pay a fine of Rupees 1000/-, in default of payment to suffer a further
rigorous imprisonment for four months each for the offence punishable
under section 325 of the Indian Penal Code. Hence this criminal appeal.
SCANNING OF THE WRITTEN COMPLAINT:
ii. The informant filed the complaint before the officer in charge, Tehatta
police station, on 10.02.2005 i.e. after about one month of the alleged
incident. Prosecution failed to explain such inordinate delay.
FRAMING OF CHARGE:
iii. Framing of charges in this case is not proper. The Learned Trial Judge,
while framing of charge had failed to specify the actual place of
occurrence, and further he mentioned the alleged date and time of
occurrence as 11.01.2005 at 10:00pm, whereas the date and time of
the alleged occurrence, as per the FIR is 11.01.2005 at about 1 pm.
LIST OF WITNESSES:
PW-1 Nisith Biswas, (son of the injured, and the complainant).
PW-2 Narayan Biswas, (the injured).
PW-3 Sajamal Sk, (the neighbour).
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PW-4 Jahatap Sk, (the neighbour).
PW-5 Dr. Amit Mukherjee, (Medical Officer, who treated the patient at
the very first instance)
PW-6 Sanyashi Mondal, (the neighbor).
PW-7 Chandi Roy, (Neighbour).
PW-8 Madhu Sk, (Neighbour).
PW-9 Farid Sk, (Neighbour).
PW-10- Akbar Sk, (neighbor).
PW-11- Dr. S.K. Biswas, (Medical officer, who treated PW-2 at the
District Hospital).
PW-12-S.I. J.C. Chatterjee, (Investigating Officer).
PW-13, Dr.P.K. Bhattacharjee (Radiologist, who conducted the X-ray
upon the injured PW-2)
PW-14- ASI Nitai pada Chakraborty (Recording Officer)
SCANNING OF EVIDENCE:
Scanning of evidence would only reveal the exaggeration of facts, and
lack of truthfulness, stated by the witnesses, not backed by other
evidences.
a) PW-1, Nisith Biswas, the son of the injured (PW-2). He initially
lodged the FIR after one month of the alleged incident, without
fetching any explanation for doing so.
In the FIR he stated that at the alleged time of occurrence he
was not present in the house, and received information upon a
phone call, made by the co-workers in the said field. But in the
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examination-in-chief he clearly tried to improve his case by
saying that he was also working in another field and therefore
saw the alleged occurrence.
In the evidence in chief he stated that the appellant had
assaulted his father in the leg and on his hands with the
opposuite side of a spade. But the PW-5 Dr. AMit Mukherjee, who
treated the patient at the first instance did not support such
contention of PW-1, thereby negating the truthfulness of the
prosecution story. PW-5 in his evidence stated that except one
injury in the leg, he did not find any other injuries on the patient.
He also stated that the injury he mentioned in his report, might
occur in course of falling on the ground of on any hard or blunt
substance, which is in fact the defense version of the story.
In the FIR he stated that PWs 3,4,8,9, and 10 were present in
the field, whereas in his examination in chief he only mentioned
the names of PWs 8 and 9, being present with him on the said
land. However PWs 8 and 9 did not support the prosecution case,
and declared hostile by the prosecution. This casts a serious
doubt upon the prosecution story.
He stated in his examination in chief that his brother Nikhil
Biswas came afterwards in the field. But surprisingly said Nikhil
Biswas was never examined by the prosecution. Not only Nikhil
Biswas, none other members of the family, except the injured as
PW-2, were examined by the prosecution.
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He stated in his examination in chief that he had informed the
police station on the very date of the incident, whereas the
records say otherwise. This gives birth to a second FIR, which
probably never came record. Moreover, after this statement of the
PW-1, the in FIR dated 10.02.2005 was marked as exhibit-1.
That casts a serious defect on the validity of the FIR being
exhibit-l. Prosecution also did not examine the Scribe Sukdeb
Biswas.
b) PW-2, Narayan Biswas, is the injured and the father of PW-1. In
his examination in chief, unlike the version of PW-2 about
assaulting PW-2, on his hand and leg, he however mentioned
about dealing with only one blow by the appellant.
Thereafter he stated that after such assault and falling on the
ground, he fell unconscious, there after he was taken to Tehatta
Police Station, and thereafter to Tehatta B.P.H.C., and he
regained his sense only at shaktinagar hospital. But PW-5 the
Medical Officer who initially treated the patient and referred him
Shaktinagar Hospital, mentioned in his evidence that PW-2 was
well conscious. This casts doubt on the truthfulness of the
prosecution story. The evidence of PW-2 also gives rise to a
suspicion of presence of a second FIR, which has not been
brought on record, for some unknown reasons.
c) PW-3, Sajamal SK, is the witness, who was said to have been
present in the alleged place of occurrence by the PW-1, in his
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written complaint, did not support the prosecution case and was
declared hostile.
d) PW-4, Jehetap Sk, is the witness, who was said to have been
present in the alleged place of occurrence by the PW-1, in his
written complaint, did not support the prosecution case, and was
declared hostile.
e) PW-5, Dr. Amit Mukherjee, the Medical Officer, who examined
PW-2 at the First instance at Tehatta BPHC. He stated in his
examination in chief that the patient was brought by one Nikhil
Biswas (Not examined). He found only one fracture injury on the
left leg of the patient.
In his cross examination he stated that the patient was well
conscious. That negates the claim of PW-2 to have been
unconscious, thereby casting doubt on truthfulness of the
prosecution story.
No name of the assailant was mentioned to the PW-5. Lastly
he opined that one might have sustained such injury by falling,
which completely nullifies the prosecution case.
f) PW-6, Sanyashi Mondal, is a neighbor who took some extent
supported the prosecution story as he claimed to have been
present at the spot. But he failed to say with which weapon the
appellant had allegedly assaulted the PW-2. In his examination
in chief he stated that he was watering in his land, but while in
cross he stated he was watering the land of Shyam Mondal, as
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there was none in the land of Shyam Mondal. He stated during
his evidence that he stated all these facts to the I.O., whereas the
I.O., PW-12, did not support his claim.
g) PW-7, Chandi Roy, is a neighbor who too some extent supported
the prosecution story as he claimed to have been present at the
spot. In his evidence he stated that he was grazing his buffalo in
the land. He stated during his evidence that he stated all these
facts to the I.O., whereas the I.O. PW-12 did not support his
claim.
h) PW-8, Madhu Sk, is the neighbour, who was said to have been
present in the alleged place of occurrence by the PW-1, in his
written complaint as well as in his evidence, did not support the
prosecution case, and was declared hostile. The fact of presence
of the PW-8, had been confirmed by PW-3 in his cross
examination.
i) PW-9, Farid Sk, is the neighbour, who was said to have been
present in the alleged place of occurrence by the PW-1, in his
written complaint as well as in his evidence, did not support the
prosecution case, and was declared hostile. The fact of presence
of the PW-9, had been confirmed by PW-3 in his cross
examination.
j) PW-10, Akbar Sk, is the neighbour, who was said to have been
present in the alleged place of occurrence by the PW-1, in his
written complaint as well as in his evidence, did not support the
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prosecution case, and was declared hostile. The fact of presence
of the PW-10, had been confirmed by PW-3 in his cross
examination.
k) PW-11, Dr. S.K. Biswas, The Medical Officer, who treated the PW-
2 at the District Hospital. On 20.01.2005 structure casing was
done, and patient was discharged from the said hospital.
However PW-1 had stated in his evidence that the injured was
admitted in the hospital for 18 days. This statement has been
proven to be false by PW-11. Therefore it appears that the
prosecution story is full of exaggeration and falsehood.
No name of the assailant was also mentioned before Pw-11,
by the patient party.
From the evidence of PW-11 it appears that another doctor
namely Dr. Tapan Banerjee had also treated PW-2. But he was
not examined by the prosecution.
l) PW-12, S.I. J.C. Chatterjee, he is the investigating officer of this
case. He did not seize the offending weapon. He did not cite
Mrityunjoy Ghosh, Banshi Mondal as witnesses. Though these
witnesses and were cited in the Sketch Map to be the adjacent
land owners, who could have been the best witness to
authenticate the prosecution case.
m) PW-13, Dr. P.K. Bhattacharjee, is the Radiologist, who held the x-
ray examination over the injured, PW-2.
n) PW-14, A.S.I. Netaipada Chakraborty, is the Recording Officer.
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POINTS OF ARGUMENT:
iv. Law provides that an F.I.R., should be made at the soonest possible
opportunity. But in that case F.I.R., was lodged after one month of the
alleged incident. No explanation as such was forthcoming from the side
of the prosecution for the inordinate delay.
v. Framing of charges in that case was not proper. The Learned Trial
Judge, while framing of charge had failed to specify the actual place of
occurrence, and further he mentioned the alleged date and time of
occurrence as 11.01.2005 at 10:00 p.m., whereas the date and time of
the alleged occurrence, as per the F.I.R., was 11.01.2005 at about
01:00 p.m.
vi. Description of the incident as stated by PWs 1 and 2, if thoroughly
scrutinized would reveal vital discrepancies in their respective versions,
though mostly it was parrot-like, not supported by any other evidences
as produced by the prosecution.
vii. The doctor being PW-5 and PW-11 has demolished the truthfulness of
the entire prosecution story with regard to the manner, and therefore
relying on such evidence while convicting the appellant would be
improper.
viii. In view of the above evidences of PWs 1, 2, 6 and 7, the credibility of
their evidences should be looked into the light of the contradictions and
the parrot-like nature of their depositions.
ix. The evidences of PWs 1,2,6 and 7 should be thoroughly scrutinized as
they are full of unclear doubts, defects, exaggerations, and lies, which
12has been demolished in every alternative way by PWs 3, 4, 5, 8, 9, 10,
and 11.
x. PW-12 being the Investigating Officer has miserably failed to properly
investigate into the case and bring out the actual facts, since he did not
seize the alleged offending weapon. He clearly conducted the
investigation in complete perfunctory manner by not citing the proper
and credible witnesses for the purpose of unearthing the truth, and
submitted charge sheet.
xi. The presence of jumbled-up questions in the examination of accused
under Section 313 of the Code of Criminal Procedure was next the same
not proper in the eye of law.
xii. By answering question nos.5 in the examination of accused under
Section 313 of the Code of Criminal Procedure, the appellant had duly
explained his side of the story, which the Learned Trial Judge had
failed to consider.
xiii. Moreover the Learned Trial Judge while convicting the petitioner did not
deal with the mandatory provision of Sections 360 and 361 of the Code
of Criminal Procedure read with Section 4 of the Probation of Offenders
Act, which makes the order of conviction and sentence defective.
xiv. The appellant was presently aged about 51 years. And since last 18
years, the appellant was suffered from the tremendous mental agony
and more over the prosecution had failed to prove its case against the
appellant beyond all reasonable doubts.
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In view of sets above the of facts and circumstances, since the
prosecution has failed to prove its case against the appellant beyond all
reasonable doubt, and moreover when the case is full of unclear
doubts, defects, exaggerations, and lies, which had been demolished in
every alternative way by PWs 3, 4, 5, 8, 9, 10, and 11. Therefore, the
appellant pray for the order of conviction and sentence to be set aside.
The appellant was liable to be acquitted from all charges labeled
against him.”
8. The Learned Advocate for the State submitted as follows:-
i. “It was trite law that the conviction given under Section 325 of the
Indian Penal Code must satisfy the essentials of a voluntary act
coupled with the intent to cause bodily harm to the victim leading to
specific severe injuries. Thereby to prove that the same had been
correctly given by the Learned Trial Judge, the evidence of the
prosecution witnesses and medical evidence was reiterated herein:-
a) Past Antecedent:- The F.I.R., clearly mentioned a past antecedent
of the appellant’s family whereby a complaint was lodged by
their local Field Committee against the appellants before the
concerned P.S. (bearing G.D. No.601/2004) dated 15.12.2004.
That suggested that the appellant had a bitter relation with the
Complainant which might have instigated him to commit the
present act with a malicious motive.
b) Previous Disagreement:- The de facto complainant divulged a fact
on the earliest occasion in the written complaint that on the day
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before the incident appellant came to their land to collect the
sugarcane tops (S.C.T.) for feeding his cattle, but the complainant
refused to give him the same. This inherently infuriated the
appellant. Subsequently when the Defacto’s buffalo entered the
land of the appellant by mistake, though no harm was caused by
it; appellant took up that opportunity wherein he came running to
the victim and beat him with the back of a spade knowing that
would culminate in serious bleeding injuries. The same was
supported by the appellant himself in his examination under
Section 313 Cr.P.C., (Question 4) wherein he stated that there
had been an altercation on the said day owing to the previous
Disagreement.
c) Intention to cause Bodily harm:- The appellant was well aware of
the fact that the victim was a sixty five year old man. When he
deliberately pushed the victim and beat him with the back of the
spade it was obvious that the act would inherently result in
bleeding injuries causing serious harm to the old man. Thus the
appellant performed the said act with the knowledge coupled
with the ultimate intention to bodily harm the victim with a
malicious intent.
d) Corroborative accounts of the eye witnesses:- PW-2, being the
injured victim himself stated that the appellant assaulted him by
the backside of the spade on the upper portion of his left leg. PW-
1 corroborated the said incident and rescued the victim from the
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field at the earliest opportunity with his brother. PW-6 who was
working in the nearby field corroborated the same and witnessed
that PW-2’s buffalo entered appellant’s land, following which the
appellant came to PW-2 and assaulted him. He beat and pushed
PW-2 and fled off. PW-7 also witnessed that appellant was
running to PW-2 whereby he pushed him and assaulted him with
a spade in his hand.
e) Though PW-3 had been declared hostile by the prosecution he
clearly deposed that being agitated by the prior incident of
buffaloes appellant came and pushed the victim whereby he fell
into the drain. This indicates that the appellant being an aged
man suffered seriously which was witnessed by the independent
eye witnesses including PW-6, PW-7 and others. The
corroboration here garners ground and supports the allegations
of the factum of bodily assault on the victim.
f) Veracity of Injuries:- PW-11, the medical officer who examined the
victim on 11.01.2005 found surgical assault and trauma on left
hip joint. The X-ray revealed sub trochanteric fracture on femur
on left side. PW-2 also complained of chest pain. He was
discharged from the hospital on 20.01.2005 after about ten days.
Bed Head ticket, treatment sheets are collectively marked as
Exbt.-3. PW-13, the radiologist corroborated the injuries in his
report (marked as Exbt.-7). Though the victim (PW-2) himself and
the de facto complainant (PW-1) mentioned that he could not
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recover properly after being discharged from the Nadia District
hospital so he was again admitted to Dumdum Hospital for
treatment for about 20 days. The prolonged period of admission
in the hospital indicates the veracity of the injuries sustained by
the victim being a senior citizen.
g) Contradictory versions of the Hostile Witnesses:- A greater
number of the eye witnesses who were named at the very
inception of the present case turned hostile during their
examination. PWs 3, 4, 8, 9 and 10 apparently supported the
defence version wherein the victim slipped and fell into a drain
sustaining injuries. On the contrary the Investigating Officer
acknowledged in his cross examination that each of the hostile
witnesses supported the prosecution story at the earliest
opportunity when he examined them wherein they mentioned
that the appellant assaulted the victim with the back of the spade
causing bleeding injuries and subsequently fled away from the
spot.
The present case has been a willful voluntary act of violence
wherein the appellant has knowingly harmed the aged victim leaving
bleeding injuries. The same has been corroborated by various
prosecution witnesses, ocular and medical evidence. The prolonged
period of medical attention reveals the veracity of injuries sustained by
the victim which prepares a strong foundation for the conviction given
under Section 325 of the Indian Penal Code. Thereby the Trial Court
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has rightly relied on the said facts as no legal deformities had cropped
up. At this stage acquittal would be bad in law. Thus, the conviction
given under Section 325 of the Indian Penal Code should be inherently
upheld to meet the ends of law and to avoid gross miscarriage of
justice.”
9. The prosecution’s narrative unfolds through a tapestry of testimonies,
beginning with Nisith Biswas (PW-1), who vividly recounts the events of that
fateful noon. His father, the venerable victim Narayan Biswas (PW-2), had
gone to tend their fields at the break of dawn, around 08:00 a.m. While
engaging in his own agricultural labors in an adjacent plot between 12:00
and 01:00 p.m., PW-1 witnessed their buffalo momentarily stray into the
land of the appellant. Despite his father’s immediate, reverent gestures of
apology with folded hands, the appellant, entirely unyielding, picked a
quarrel, rejected the supplication, and violently pushed the elderly man to
the ground. In a display of aggression, the appellant struck his prostrate
father with the reverse, blunt side of a spade, targeting his leg and hand.
The onslaught left the victim severely incapacitated, unable to stand, and
bearing significant bodily injuries. While the appellant fled the scene
alongside accomplices Madhu Sheikh and Farid Sheikh, the victim’s other
son, Nikhil Biswas, rushed to the spot. The injured person was immediately
transported to Tehatta Hospital, and subsequently transferred to
Shaktinagar Hospital, where he remained institutionalized for approximately
eighteen days. When full recovery remained elusive, he was shifted to Dum
Dum Nursing Home. The formal apparatus of the law was set in motion on
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the very day of the occurrence through a First Information Report (F.I.R.
Exbt.-1) scribed by Shukdeb Biswas under the explicit directions of PW-1.
During cross-examination, PW-1 defended this sequence, clarifying the
layout of the adjacent sugarcane fields and the positioning of a shallow
water machine situated some fifty cubits away.
10. This deposition is robustly corroborated by the victim himself (PW-2), who
detailed his submissive apology, the appellant’s ruthless indifference, the
subsequent physical assault with the backside of the spade on his left upper
leg, and his immediate lapse into unconsciousness. His medical journey
spanned several therapeutic institutions, moving via a trolley to Tehatta
Police Station and its adjacent hospital, onwards to Shaktinagar Hospital,
and eventually gaining lucidity at Krishnagar Hospital during an extended
confinement of ten to twelve days, followed by further care at Dum Dum
Nursing Home. Under cross-examination, PW-2 elucidated the agrarian
context of their long-standing sugarcane cultivation, which required
seasonal irrigation by the shallow machine, and noted that the appellant’s
land was then sowed with musuri crop. He further acknowledged the prior
tension regarding the collection of sugarcane leaves. Though a cluster of
witnesses–namely PW-3, PW-4, PW-8, PW-9, and PW-10 deviated from
their initial statements and were declared hostile by the prosecution, the
core testimonial edifice remained resilient through independent ocular
support. PW-6 and PW-7, both neighboring cultivators familiar with the
parties, affirmed the chaotic confrontation. They testified to witnessing the
appellant aggressively approach, shove, and assault PW-2 with a spade
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before fleeing, after which they assisted in carrying the injured victim away
from the fields.
11. The medical jurisprudence embedded in the case file solidifies the oral
testimonies with scientific certainty. Dr. PW-5, the initial medical officer at
Tehatta B.P.H.C. who examined the victim on January 11, 2005, noted
localized tenderness over the left greater trochanter of the left femur, which
subsequent radiological examination revealed to be a distinct fracture of
both the left greater trochanter and the femoral shaft (Exbt.-2 and Exbt.-3).
While the defence elicited during cross-examination that the victim was
conscious upon arrival and that such trauma could theoretically result from
a severe fall, the gravity of the injury was magnified by the deposition of PW-
11, an Orthopedic Surgeon at Nadia District Hospital. Reviewing the history
of surgical assault, he detailed a sub-trochanteric fracture of the neck of the
left femur, which necessitated structural casing before the patient’s
discharge on January 20, 2005. This finding was further refined by the
Radiologist (PW-13) from Ranaghat Sub-Divisional Hospital, who formally
marked the X-ray plates and reports as Mat. Exbt.-1/1 and Exbt.-7,
identifying a pertrochanteric fracture of the neck of the femur accompanied
by an avulsion of the trochanters – an injury he conceded during cross-
examination could be sustained by falling heavily upon a hard, blunt
substance.
12. The investigative trajectory managed by the police infrastructure confirms
the rigorous adherence to statutory procedure. S.I. Nitai Pada Chakraborty
(PW-14) took up the mantle of investigation for Tehatta P.S. Case No.
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26/2005, initially registered under Section 325 of the Indian Penal Code. He
visited the place of occurrence, drafted a meticulous rough sketch map
(Exbt.-3), recorded the statements of available witnesses, and apprehended
the appellant on February 10, 2005. His documentation included
statements from Sajamol Sk., Madhu Sk., and Akbar Sk., all of whom
consistently pointed to the appellant arriving armed with a spade,
questioning the victim about the straying buffalo, and delivering blunt-force
blows. Upon collecting the requisite medical records and consulting with
superior officers, PW-12 submitted a formal chargesheet under Sections 326
and 308 of the Indian Penal Code. The procedural initiation was further
supported by A.S.I. PW-14, who recorded the initial written complaint and
formal F.I.R. (Exbt.-5/1), thereby completing a coherent legal ledger where
oral testimonies, objective medical trauma, and investigative documentation
align seamlessly to delineate the criminal act.
13. The Learned Counsel appearing for the appellant has vigorously assailed the
judgment of conviction, mounting a multi-pronged challenge rooted in the
structural fragility, profound contradictions, and procedural infirmities that
riddle the prosecution’s case. It is contend at the very threshold that the
evidentiary scanning unmasks a narrative heavily distorted by systemic
exaggeration, an acute deficit of truthfulness, and a conspicuous lack of
independent corroboration. The foundational document of the criminal
action, the First Information Report, is severely compromised by an
inordinate and unexplained delay of an entire month. The informant, Nisith
Biswas (PW-1), initially asserted that he was away from the theater of
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occurrence, learning of the incident through an auditory telephonic
communication from co-workers, yet he subsequently pivoted during his
examination-in-chief to falsely position himself as an eyewitness to the
assault – a transparent attempt to embellish and improve upon his dynamic
position. Furthermore, his testimonial claim that the appellant delivered
multiple blows with the reverse side of a spade to both the upper and lower
extremities of his father stands entirely demolished by the primary medical
officer, Dr. Amit Mukherjee (PW-5), who detected only a single injury on the
leg, completely falsifying the version of a sustained physical onslaught.
14. The structural edifice of the prosecution is further destabilized by the
extensive hostility of its crucial independent witnesses. While the informant
originally named a cluster of neighboring cultivators–specifically PWs 3, 4,
8, 9, and 10 – as being present during the agrarian confrontation, these
individuals resolutely refused to align with the state’s thesis, culminating in
their formal declaration as hostile witnesses. This mass defection of the
independent populace severely erodes the credibility of the judicial
accusations. Additionally, the non-examination of vital characters, notably
the victim’s other son, Nikhil Biswas–who was purportedly the first to
arrive and manage the initial medical transport–and the scribe of the F.I.R.,
Shukdev Biswas, leaves inexplicable chasms in the narrative. The defence
emphasizes that the scientific evidence meticulously deconstructs the
assertion of a deliberate, violent assault. Both the initial examining
physician (PW-5) and the subsequent orthopedic surgeon (PW-11) conceded
under the fire of cross-examination that the solitary femoral fracture
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discovered could naturally and predictably follow a severe, accidental fall
onto a hard, blunt surface, thereby validating the defence’s perspective of
the event. PW-5 further nullified the victim’s claim of immediate post-
traumatic unconsciousness by affirming that the patient was fully conscious
upon admission, while noting a total absence of any identified assailant’s
name in the earliest medical records.
15. The critique extends sharply to the perfunctory and careless methodology
adopted by the investigative agency. The Investigating Officer, S.I. J.C.
Chatterjee (PW-12), miserably failed to secure or seize the alleged weapon of
offense, the spade, and inexplicably omitted to cite adjacent land owners,
such as Mrityunjoy Ghosh and Banshi Mondal, who were best situated to
offer a transparent, neutral perspective of the territorial dispute. This
superficial investigation was compounded by glaring flaws committed during
the framing of charges by the learned Trial Judge, who misstated the place
of occurrence and introduced an irreconcilable discrepancy regarding the
temporal coordinates, listing the incident at 10:00 p.m. on January 11,
2005, in stark contrast to the F.I.R.’s notation of 01:00 p.m.
16. The appellate submission highlights that the depositions of the remaining
witnesses, PW-1, PW-2, PW-6, and PW-7, suffer from a artificial, parrot-like
uniformity that cracks under scrutiny, revealing critical contradictions
regarding the actual weapon used, the specific lands being irrigated, and the
historical context of the dispute. Finally, it is argued that the trial court
committed a fatal statutory omission by failing to consider the mandatory,
reformative provisions governing probation under Sections 360 and 361 of
23
the Code of Criminal Procedure, alongside Section 4 of the Probation of
Offenders Act. Given that the appellant has endured the agonizing crucible
of criminal prosecution for over eighteen years and is now advanced in age,
and since the state has failed to bridge the distance between mere suspicion
and proof beyond a reasonable doubt, the learned counsel prays that the
defective conviction be set aside and the appellant be restored to his liberty
through an absolute acquittal.
17. The Learned Counsel representing the State champions the integrity of the
impugned judgment, asserting with authoritative emphasis that the trial
court’s findings are structurally unassailable and thoroughly anchored in
the evidence. It is strenuously argued that the testimonial matrix presented
by the prosecution possesses an organic coherence that easily transcends
minor, immaterial variations. The narrative of the egregious agrarian assault
finds its foundational strength in the unflinching ocular accounts of the
informant (PW-1) and the venerable victim (PW-2). Their depositions
seamlessly intertwine, charting the genesis of the conflict from a transient
boundary transgression by livestock to a ruthless, disproportionate eruption
of violence by the appellant. The state refutes any insinuation of falsity by
highlighting that the core accusation–the delivery of a severe, disabling
blow with the blunt reverse side of an agricultural spade – remains entirely
unswerving and logically aligns with the horrific skeletal trauma
subsequently quantified by medical science.
18. Addressing the structural critique leveled against the prosecution’s
witnesses, the learned counsel for the State submits that the hostile
24
defection of certain neighboring rustic cultivators, specifically PWs-3, 4, 8,
9, and 10, does not operate as a fatal blow to the judicial fabric. It is a well-
settled jurisprudential tenet that the grain of truth can be successfully
sifted from the chaff of reluctant testimonies. The survival of independent
corroboration in the robust, ambient evidence of PW-6 and PW-7, who
arrived at the scene in the immediate aftermath of the violence to witness a
chaotic theater and assist the incapacitated victim, effectively salvages the
prosecution’s truth from the shadows of intimidation or local apathy.
Furthermore, the State dismisses the alleged medical discrepancies as mere
hyper-technical interpretations of clinical jargon. The diagnostic
documentations of Dr. Amit Mukherjee (PW-5) and the specialized
assessments of the Orthopedic Surgeon (PW-11) converge perfectly onto a
singular, objective reality: the presence of a devastating, sub-trochanteric
fracture of the left femur. The argument that such an injury could be a
byproduct of an accidental fall is critiqued as an imaginative defence
construct, completely detached from the violent reality of the assault
detailed by the victim.
19. The State forcefully neutralizes the arguments regarding procedural deficits
and investigative lethargy. The non-seizure of the offending spade or the
absence of signatures from alternative local landholders in the investigative
maps are characterized as minor imperfections attributable to rustic
investigative environments, which do not compromise the integrity of the
prosecution’s case. The temporary confusion surrounding the temporal
coordinates within the formal charges is revealed to be a clerical oversight
25
that caused no prejudice to the defence during the trial. Finally, responding
to the plea for leniency and the invocation of the Probation of Offenders Act,
the State demands an uncompromising application of punitive justice,
arguing that a brutal physical assault executed upon a defenceless, elderly
citizen over a trivial agrarian dispute constitutes an offense against the
public conscience that defies the spirit of reformative leniency. The State
concludes that the distance between mere accusation and absolute certainty
has been completely bridged, rendering the conviction sustainable in law
and equity.
20. The prosecution’s narrative, reconstructed through the crystalline optics of
ocular and scientific evidence, establishes the culpability of the appellant
beyond the threshold of reasonable doubt, satisfying the statutory
ingredients of Section 325 of the Indian Penal Code. The foundational
bedrock of the criminal occurrence rests upon the unimpeached testimonies
of the informant, Nisith Biswas (PW-1), and the injured victim, Narayan
Biswas (PW-2). Their depositions present an organic, contextual consistency
regarding the genesis of the conflict on that fateful noon, where a transient
straying of livestock into the adjacent plot of the appellant provoked a
disproportionate, violent retribution. The appellant’s aggressive rejection of
the elderly victim’s submissive, folded-handed apology, followed by a violent
push and a blunt-force strike with the reverse side of an agricultural spade,
stands structurally validated. While the learned counsel for the appellant
has sought to dismantle this edifice by highlighting the hostile defection of
independent rustic witnesses–namely PWs 3, 4, 8, 9, and 10–it remains a
26
fundamental canon of criminal jurisprudence that the grain of truth can be
successfully sifted from the chaff of defensive or uncooperative testimonies.
The ambient corroboration offered by PW-6 and PW-7, neighboring
cultivators who arrived at the theater of occurrence in the immediate
aftermath to witness the chaotic scene and assist the incapacitated victim,
effectively salvages the prosecution’s core thesis from the shadows of local
apathy or intimidation.
21. The defensive paradigm attempting to characterize the structural injury as
an accidental casualty of a fall onto an undulating agrarian terrain is
thoroughly dismantled by the objective determinations of medical science.
The primary examination by Dr. Amit Mukherjee (PW-5) immediately
identified profound localized tenderness over the left greater trochanter of
the femur, an injury subsequently diagnosed through the radiological
expertises of PW-11 and PW-13 as a devastating pertrochanteric fracture of
the neck of the left femur accompanied by an avulsion of the trochanters.
This profound orthopedic trauma perfectly mirrors the mechanical
application of force described by the ocular witnesses–specifically, a heavy
blow delivered by the blunt, reverse side of a spade onto a prostrate body.
The technical admissions elicited during cross-examination that such
fractures could theoretically manifest from an accidental fall represent mere
clinical abstractions, which fail to displace the coherent, lived reality of the
assault narrated by the victim. Furthermore, the procedural discrepancies
emphasized by the defence–including an initial clerical error in the
temporal coordinates of the formal charge sheet and the non-seizure of the
27
offending tool–constitute routine blemishes born out of rustic investigative
environments, which do not puncture the core truth of the physical assault.
22. To satisfy the legality of the conviction under Section 325 of the Indian
Penal Code, the evidence must unequivocally demonstrate the voluntary
causing of grievous hurt as defined under Section 320 of the Code. The
radiological confirmation of a pertrochanteric fracture of the neck of the
femur constitutes a clear fracture or dislocation of a bone under clause
‘Seventhly’ of Section 320, resulting in an extended institutional
confinement spanning multiple therapeutic facilities, including Tehatta
B.P.H.C., Nadia District Hospital, and Dum Dum Nursing Home. The
appellant’s act of striking an elderly, non-resisting person with an
agricultural implement carries the requisite judicial imputation of
knowledge, if not direct intent, that such blunt force applied to the pelvic
region would result in grievous injury. The trial court’s structural analysis
of the evidence and its subsequent finding of guilt under Section 325 IPC
are, therefore, legally sound, untainted by perversity, and fully sustainable
on facts and law.
23. Consequently, the appeal against the conviction is missing in merit and
must be dismissed. However, balancing the scales of punitive justice with
the mitigating realities of human existence requires a measured
modification of the penal consequence. The criminal transaction dates back
to the year 2005, and the appellant has endured the psychological and
social crucible of a protracted criminal prosecution for over two decades. He
has advanced significantly in age, possesses no prior criminal antecedents,
28
and the conflict itself arose from a spontaneous, localized agrarian dispute
rather than any premeditated malice or professional criminality. While the
brutal nature of an assault on an elderly citizen precludes the complete
extension of reformative clemency under the Probation of Offenders Act, the
ends of justice would be appropriately met by modifying the substantive
sentence of imprisonment to the period already undergone by the appellant
during the investigation and trial, while maintaining the financial penalty
imposed by the learned court below to alleviate the victim’s suffering. The
conviction under Section 325 of the Indian Penal Code is hereby sustained,
the appeal stands dismissed with the aforementioned modification of
sentence, and the appellant is discharged from his bail bonds subject to the
realization of fine.
24. Accordingly, the instant criminal appeal being CRA 285 of 2007 is
dismissed. Since a considerable time has elapsed from the date of
occurrence of the offence and the sentence is reduced to the period of
incarceration undergone by the appellant.
25. There is no order as to costs.
26. Trial Court records along with a copy of this judgment be sent down at once
to the Learned Trial Court for necessary action.
27. Photostat certified copy of this order, if applied for, be given to the parties on
priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)
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