Calcutta High Court (Appellete Side)
Goutam Saha & Ors vs The State Of West Bengal & Anr on 2 March, 2026
2026:CHC-AS:359
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
CRR 3174 of 2018
CRAN 1 of 2019
(Old No. CRAN 709 of 2019)
Goutam Saha & Ors.
Vs.
The State of West Bengal & Anr.
For the Petitioners : Mr. Abhimanyu Banerjee
Mr. Arghya Mullick
For the State : Mr. Anand Keshari
Mr. Bikram Mitra
Heard on : 11.11.2025
Judgment on : 02.03.2026
Dr. Ajoy Kumar Mukherjee, J.
1. Petitioners herein are aggrieved with the judgment and order dated
10th September, 2018 passed by learned Additional District and Sessions
Judge, City Sessions Court, Calcutta, in Criminal Appeal no. 21 of 2018, by
which the Court below has affirmed the judgment and order of Conviction
and sentence dated 26th February, 2018 in GR Case No. 658 of 2010 for
committing offence punishable under section 326/34 of the IPC.
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2. One Subir Nag lodged a complaint at Amharst Street Police Station on
21.03.2010 at about 22.25 hrs., where it was alleged that the accused
persons/petitioners with common intention at first abused him with filthy
languages and thereafter assaulted him physically with bamboo stick and
iron rode due to having previous grudge. During such occurrence victim’s
mother-in-law Kunti, wife Rani came to rescue him but they were also
assaulted and they sustained injury. Ultimately his mother-in-law somehow
rescued him. As a result of such physical assault victim sustained severe
injuries and he was taken to Medical College and Hospital by his relatives
for his treatment. On the basis of complain police initiated Amharst Street
P.S. case no. 69 dated 21.03.2010 under section 324/34 IPC. After
completion of investigation police submitted charge sheet under section
326/34 IPC against all the accused persons/petitioners. Trial Court took
cognizance and thereafter the charge was framed against all the accused
persons under section 326/34 IPC.
3. Prosecution examined the defacto complainant Subir Nag as PW1 his
wife Rani Nag as PW2, his mother in law Kunti Das as PW3 and the Medical
Officers were examined as PW4,5 and 6 and the investigating officer was
examined as PW7. Accused did not adduce any evidence. But the accused
persons were examined under section 313 CR.P.C. and thereafter the trial
court by the impugned judgement convicted them under section 326/34 IPC
and was sentenced to suffer rigorous imprisonment of one year along with
fine of Rs. 5,000/- in default rigorous imprisonment for two months more.
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4. Being aggrieved by the said judgment the petitioners preferred
aforesaid criminal appeal and the appellate court also affirmed the judgment
of conviction passed by the Trial Court and thereby he dismissed the appeal.
5. Being aggrieved by the aforesaid judgment of affirmation learned
counsel for the petitioner argued as follows:-
(a) that the investigating officer never identified the place of occurrence and
no effort was ever made either to reconstruct the crime scene or to identify
the exact place of occurrence of the alleged incident. In fact the victim defacto
complaint was never taken to the PO for identification and no sketch map of
the PO has been exhibited or marked.
(b) No one from the locality was ever examined or cited as witness even
though the alleged incident took place on the street surrounded by shops and
stores
(c) The doctors were never examined during investigation as the IO did not
say that he had examined the doctor.
(d) No seizure list has been placed to support the seizure of medical report
marked exhibit 4 by the investigating officer from the medical college
hospital.
(e) The date time and place of seizure is also not available on record
(f) The ingredients of section 320 of IPC are not available in the instant case
as there was no grievous injury
(g) No weapon was sized by the investigating officer to substantiate charge
under section 326 of IPC.
(h) The contents of the Medical Report were not lawfully proved and the
signature of PW4 was never marked as exhibit. PW4/Doctor also did not
speak of any ‘fracture’ in his deposition or treatment being provided to the
alleged victim which were usually provided in case of fracture. The medical
report also does not speak of any fracture as the said term is not found
anywhere in the report. No X-Ray report either seized or exhibited to prove
the factum of alleged fracture near right elbow of the victim
(i) It is settled law that medical report in itself is not a substantive piece of
evidence and it is the evidence of the medical officer testifying regarding its
contents that makes it relevant but in the instant case, the medical officer
was never put any direct question about the contents of the medical report
during his examination in chief. The mere marking of the medical report
during his examination in chief cannot prove the contents of such report
(j) There are several contradictions in the deposition of witnesses regarding
place, time, chronology of the occurrence and also concerning place of
recording of statement. According to FIR incident occurred at 166/H/12 KC
Sen Street whereas in deposition it has been stated that it took place at 125
KC Sen Street and similarly FIR says incident took place at 22.15 hrs. while
according to deposition it is 22.45 hrs. to 11 hrs. According to FIR story,
while victim was going to mother’s house he has assaulted but in his
deposition he said that he was taken out from inside house of his mother and
thereafter he was assaulted with iron rods and bamboo sticks. Under the FIR
the statement of the victim was recorded when he was undergoing treatment
upon being brought directly from the Place of occurrence but in the deposition
it is stated that he first inform the Amharst Street Police Station and
thereafter he was bought to hospital. Similar contradictions are also there in
the deposition of PW2 and PW3, who are the wife and mother-in-law of
defacto complainant.
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(k) The Medical Officer did not verify and/or corroborate the contents of the
Medical Report and the Medical Report admittedly does not contain the word
‘fracture’ and during cross examination said Medical Officer admitted such
injuries sustained by the victim could have happened from a fall on any hard
surface and that he had no personal knowledge regarding the cause of
injury.
(l) The PW5 who is a Medical Officer and operated victim on 02.04.2010
deposed regarding his diagnosis of the injury after the victim’s
hospitalization on 29.03.2010 i.e. after eight days of the alleged incident and
in his deposition he stated that upon examination he found that injury
sustained by the victim was not too old and rather was a new injury
(m) Trial Court did not take into consideration as to how the medical repot
allegedly obtained from the medical college and hospital turned up in the
case diary without there being any seizure list to show it seizure.
(n) The appellate Court upheld the conviction order holding that ‘the chance
of attack by this accused persons cannot be ruled out’ which itself suggest
that the judgment of conviction and order of sentence are based on surmise
and conjectures.
6. Therefore, the point for determination by this court would be whether
the courts below were justified in passing the judgment of conviction and
order of sentence against the accused persons/petitioners.
7. Learned Trial Court while passed the judgment have scanned the
evidence of all the PWs and the injury report and observed as follows:-
“……in fact by way of cross examinations accused persons miserably failed to
shake the evidence of PW1 Subir Nag regarding assault by bamboo, iron rod
on 21.03.2010 night at 125, Keshab Chandra Sen Street, Kolkata, by
dragging him out from his residence in presence of his family member and
parents. Defence also failed to shake his evidence that by such assault his
right hand was broken, as they failed to shake evidence of PW2 Rani Das
regarding assault on Subir Nag on 21.03.2010 night by these accused
persons forcibly bringing him out of the room. Evidence of PW3 Kunti Das has
also remained unshakened by Defence cross-examination. Rather in cross
examination also she told that these accused persons forcibly took Subir Nag
out of the room and assaulted him. Defence also failed to shake her evidence
that due to such assault right hand of Subir Nag was fractured and he was
treated a Medical College and Hospital and Marwari Hospital. PW5 Dr. Adit
Dey and PW6 Aloke Jahuri deposed regarding their treatment of Subir Nag
subsequently. By way of cross examination accused persons also failed to
create any reasonable doubt or suspicion that they did not treat Subir Nag for
such injuries………..”
8. Thereafter the trial court came to the following conclusion.
“In this case presence at spot and participation of all the accused persons in
the crime is evident from depositions of PW1 Subir Nag , PW2 Rani Das, PW3
Kunti Das. By way of cross examinations defence could not shake the same
or could not create ay profuse doubt to such evidence There is also no alibi of
accused persons in this context on record. Accordingly, following kind
observations of Hon’ble Apex Court in AIR 1994 SC 76 it can be safely hold
that applicability Section 34of The Penal Code is also well established against
these accused persons. As such, after rejecting the unnecessary4
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embellishment we are left with a logically complete chain of the incident that
on 21.03.2010 accused persons in a joint concert forcibly brought out the
victim Subir Nag rom his residence in presence of his family members with
assault outside on the road leading to his fracture injury on the right hand
elbow and other injuries. Soon after the incident he was treated at Medical
College and Hospital and complaint was lodged before Police Station without
any unnecessary delay within fifteen minutes of the incident.
The accused persons Goutam Saha, Sukumar Roy Chohwdhury, Bablu Sen,
Sumit Majumder, Babu nandy and Bappa Majumder, thus, stand convicted
i/s.248(2) of Criminal Procedure Code for violation of Section 326/34 of the
Penal Code.
9. When the matter came up before the appellate court he also scanned
the evidence and the law and affirmed the judgment by making following
observation.
“….Consider the submission of both sides. The documents and the oral
testimonies are thoroughly perused. I find that in this case only three
witnesses including the victim are produced as ocular testimony. From their
evidence it has come out that on that date at around 9.30 to 11.00 PM the
victim was called from his mother’s home by these accused and thereafter he
was assaulted and abused by these accused persons. One injury report was
prepared on the self-same day from which I find the history of assault, the
name of the assailants and also the nature of injury sustained by the victim.
It is true that for his fracture injury he was treated later on at Marwari
Hospital but the sustenance of fracture injury on that day cannot be
disbelieved., it has also come out from the evidence that he not only sustained
fracture injury but also sustained cut injury at his left eye, abrasion at left
elbow and tenderness at right elbow along with fracture at right elbow. If the
said persons would fall on earth/hard substance it may cause fracture injury
or abrasion but his injury below the left eye does not suggest the injury cased
due to fall on earth as suggested. So surely the cause of injury was different
from what was suggested by the defence to the doctor. It is true that in this
case there are no other witnesses of that locality to state in favour of
prosecution but at the same time it should not be forgotten the time of such
incident and thus I think medical evidence (exhibit 4) is vital one to reach to
the conclusion that the said person was attacked by those persons and
sustained injuries……….”
10. Therefore facts remains that FIR was lodged 55 minutes after alleged
occurrence, when name of all the petitioners were mentioned as assailants.
Injury report also disclosed the name of assailants. Victims wife, his mother
in law are the eye witnesses of the occurrence and who also sustained
injury, have corroborated the incidents of causing hurt by the accused
persons. Both the courts below after scanning evidence of the victim and
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two witnesses came to a finding that the petitioners have caused hurt to the
victim due to previous animosity.
11. It is well settled that when hurt are caused in furtherance of common
object by all accused persons armed with weapon, then even assuming that
particular accused was not the author of the injury, it does not exculpate
him or that such assailant(s) cannot expect conviction. When it has come
from the evidence of eye witnesses that while the complainant was beaten by
the accused persons, said eye witnesses came to his rescue, all the accused
persons forming an unlawful assembly are liable to be convicted of the
offence of causing hurt.
12. The law of interfering with such judgement of affirmation on scanning
evidence is well settled. It is to the effect that only in exceptional cases
where there are compelling circumstances and when observations are found
to be perverse, the High Court can interfere with such order of affirmation.
Interference of routine manner where the other view is possible should be
avoided unless there are good reasons to interfere. Therefore, I do not find
any reasons to interfere the concurrent findings of both the courts below at
least to the effect that all the accused persons/petitioners in furtherance of
their common intention have caused hurt to the victim. Though the
petitioners tried to point out certain discrepancies in the evidence of PWs
with that of contents of FIR in connection with place of occurrence, time of
occurrence etc. but such minor discrepancies are not material specially
considering the facts that the depositions were recorded after long time of
occurrence. Furthermore I find that such points were also agitated before
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court below and have already been decided against the petitioners and does
not call for interference by this Court.
13. Now the question is whether the hurt suffered by the victim can be
called as “grievous hurt” caused by the petitioners in furtherance of common
object. Before going further let me reproduce section 319 and 320 of the IPC
319. Hurt.–
Whoever causes bodily pain, disease or infirmity to any person is said to cause
hurt.
320. Grievous hurt.–
The following kinds of hurt only are designated as “grievous”:
(First)– Emasculation.
(Secondly)– Permanent privation of the sight of either eye.
(Thirdly)– Permanent privation of the hearing of either ear,
(Fourthly)– Privation of any member or joint.
(Fifthly)– Destruction or permanent impairing of the powers of any member or
joint.
(Sixthly)– Permanent disfiguration of the head or face.
(Seventhly)– Fracture or dislocation of a bone or tooth.
(Eighthly)– Any hurt which endangers life or which causes the sufferer to be
during the space of twenty days in severe bodily pain, or unable to follow his
ordinary pursuits.
14. Now in the instant case the petitioners assaulted the victim, which
resulted fracture injury and the fact was established by the testimony of
injured. There was no possibility of false implication of the accused persons
who were held guilty. The injury report written immediate after occurrence
at 11 PM on 21.03.2010 by the attending physician clearly reflects that he
noted that X-Ray of right elbow shows fracture at right elbow. Said
document has been marked as a whole as exhibit 4 without objection.
Concerned doctor faced the dock as PW4. Victim thereafter had to undergo
surgical operation and was discharged from hospital on 13th April, 2010 as
appearing from the evidence of Medical Officer namely PW6. Therefore, from
the injury report and evidence of concerned doctor, it is clear that the
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present hurt attracts seventh category of grievous hurt i.e. fracture of a bone
and also attracts eighth category of grievous hurt which states that any hurt
which endangers life or which causes the sufferer to be during the space of
20 days in severely bodily pain or unable to follow his ordinary pursuit. In
the instant case the hurt was caused on 21.03.2010 and the victim was
discharged on 13.04.2010 and thereby he was unable to follow his ordinary
pursuit for more than twenty days. Therefore, there appears to be no scope
also to interfere with the observation of the courts below that the hurt
caused by the petitioners to the victim was a grievous hurt.
15. Now in order to punish the offenders under section 326 IPC, it is not
only sufficient to show that the accused persons caused grievous hurt
voluntarily with the knowledge that thereby they were likely to cause hurt or
grievous hurt to the victim but also the prosecution is required to show that
the assailants has caused grievous hurt by means of any of the following.
(a) By any instrument of shooting, stabbing or cutting;
(b) By any instrument, if used as a weapon of offence likely to cause
death;
(c) By fire or heated substance;
(d) By poisonous or corrosive substance;
(e) By explosive substance;
(f) By any substance deleterious to the human body to inhale or
swallow;
(g) By means of any animal.
16. In the instant case from the FIR, evidence adduced by the
complainant and the eye witnesses, history of assault, it clearly reflects that
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prosecution case all along is that the accused persons assaulted the victim
by bamboo stick (lathi) rod etc. and the grievous injury i.e. fracture was
caused at the right elbow of the victim. From the definition of weapon of
offence under section 326 it is clear that the instrument of offence must be
one, not which is liable but which is likely to cause death, the instrument
uses must be one of which one can predicate that the probable result of its
use will be by virtue of its very nature, death. It must be inherent in the
nature, of the instrument used, the death is likely to ensue (para 15(b) as
above).
17. Here the grievous injury at right elbow of the victim resulted from a
blow with a bamboo stick or rod. The blow with the help of bamboo stick or
rod causing grievous injury at right elbow can hardly be said to cause death.
To attract section 326 the instrument by virtue of its very nature should be
such that one should reasonably predicate that by its use as weapon of
offence, death would be probable and it is something inherent in the
instrument which rendered death probable.
18. That being the true import of the word ‘likely’ used in section 326 the
bamboo stick or rod said to have been used for assault of the victim at right
elbow in the instant case cannot be said to be by its very nature an
instrument “likely to cause death” within the purview of that section. That
aspect of the matter has not been taken care of by both the courts below,
while they had put the law with the facts and circumstances of the case.
19. Therefore, though I am agreeable to the observation made by the
courts below that the accused persons/petitioners caused grievous hurt to
the victim but such grievous hurt was since not caused by dangerous
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weapon, the conviction of the petitioners is altered to one under section 325
of Indian Penal code and thereby they are sentenced to suffer simply
imprisonment for six months along with fine of Rs. 5000/- (five thousand
only) to each of the convicted persons/petitioners in default another simple
imprisonment for two months for each convict/petitioners.
20. The petitioners are directed to surrender before the trial court within a
period of 4 weeks from the date of this judgment to serve out the sentence in
default the court below will be at liberty to take all necessary steps including
issuance of warrant of arrest against petitioner(s). to secure their attendance
before the trial court to serve out sentence
21. CRR 3174 of 2018 along with connected Applications are thus
stands disposed of.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(DR. AJOY KUMAR MUKHERJEE, J.)
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