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IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

PRESENT:

HON’BLE JUSTICE CHAITALI CHATTERJEE (DAS)

CRA 573 OF 2010

NABA KUMAR KOLEY

VS

STATE OF WEST BENGAL

With

CRA 588 OF 2010

GUNADHAR KOLEY

Vs.

STATE OF WEST BENGAL

For the appellant : Mr. Gunjan Kumar Singh, Adv.

Mr. Prakash Mishra, Adv.

For the respondents : Ms. Baisali Basu, Adv.

Mr. Aninda Sundar Chatterjee, Adv.

Heard on : 04.02.2026

Judgment on : 08.04.2026

Uploaded On : 08.04.2026

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CHAITALI CHATTERJEE (DAS) , J.:-

1. This appeal is against the judgement and order of conviction dated

09.09.2010 and 10.09.2010 passed by the Additional Session Judge, 4

th

Court, Burdwan in Session Trial No. 29/2006 arising out of Sessions Case

No. 106/2006 where by an order of convi ction has been passed under

Section 307/324/34 of the Indian Penal Code.

Factual Matrix :-

2. A written complaint was lodged by one Shibshankar Koley before the OC,

Jamalpur PS on 18.06.2005 alleging that on 18.06.2005 at about 10

o’clock in the morning, two of his younger brothers namely Gunadhar

Koley and Naba Kumar Koley was suddenly attacked by their third brother

Balai Koley with an intention to kill him at the farm house of their house.

It was further alleged that Gondar Kaley hit him repeatedly with his

hensua /sickle at different parts of body of Balai Koley causing bleeding

injuries to him. The condition of Balai was very much serious. He further

averred that two brothers had dispute with Balai Koley over the issue of

landed property.

3. On the basis of such complaint Jamalpur PS Case No. 48/05 dated

18.06.2005 under Section 326/307/34 was initiated. On completion of

the investigation the charge sheet was submitted against the two accused

persons. Since the charge was exclusively triable by the Session Court it

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was committed to the learned District Judge and subsequently transferred

before the learned Additional Sessions Judge, 4

th

Court, Burdwan for trial.

4. The learned court on perusal of the materials on record and after hearing

the parties framed the charge under Section 307 and 324 IPC against the

two accused persons. The prosecution adduced ten witnesses and proved

the documents. The learned trial Court on assessment of the evidences

adduced, after hearing the arguments advanced by the prosecution a s

well as the learned defence counsel, passed the order of conviction against

both Gunadhar Koley and Naba Kumar Koley for committing an offence

under Section 324/307 of the IPC. Challenging the same both Gunadhar

and Naba Kumar Koley filed two separate appeals before this Court and

the appeal filed by Gunadhar was registered as C.R.A 588 of 2010 and

both the matters were heard analogously.

Submissions

5. The learned advocate appearing on behalf of the appellants argued that

previously a criminal case was lodged being CRR No.388/2002 under

Section 379/325/ 447 of the Indian Penal Code by the present

Nabakumar Koley and as a counter blast this complaint was filed by the

defacto complainant out of grudge. The prosecution did not examine the

witnesses whose houses are shown to be adjacent to the house of the

victim. The learned advocate highlighted the political rivalries between

the parties which are apparent from the evidence. It is argued that P.W. 1

was not the eye witness and should have informed the police at the first

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instance when the incident happened. The evidence of the injured P.W. 2

did not inspire confidence and no controlled earth was sent to FSL. The

evidence of P.W. 3, 5 & 8 being hearsay, cannot be relied upon and he

did not sign on the seized article. P.W. 4 further admitted that no

controlled earth stained with blood was taken as sample. Despite being

aware of the incident, he did not inform the police or the doctor. He also

denied to put the signature in the seizure list. P.W. 6 had no knowledge.

There are glaring inconsistencies found from the evidence of P.W. 7, the

village person and an eye witness, from the testimonies of the

prosecution witnesses which suggest the injury sustained due to fall of

the victim because of a push and is corroborated by P.W. 2.

6. That apart the P.W. 9, the medical officer admitted that the injury cannot

be caused due to scuffling. No injury report of Gunadhar was exhibited

only the doctor deposed that and he also sustained certain bruises.

Therefore it is submitted that the learned Trial court passed the order of

conviction on the basis of surmise and conjecture and accordingly prayed

for dismissal of the appeal.

7. Per Contra the learned prosecution argued that 10 witnesses were cited on

behalf of the prosecution which includes the injured himself who proved

the nature of injury sustained and who assaulted him. It is settled law

that the testimony of the injured has to be weighed on a higher pedestal

especially when the medical evidence corroborates the ocular testimony.

In this case the evidence of the injured has inspired sufficient confidence

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for which no corroboration is necessary. The medical report supports the

case of prosecution as well as the evidence of local witnesses and therefore

the learned Court considering all aspect of the matter passed such order

of conviction which is not required to be interfered with.

Analysis :-

8. In view of above facts and circumstances considering the arguments

advanced by both the learned counsels and going through the materials

on record, the moot question falls for consideration is as to whether the

learned Court was right in passing the order of conviction against the

appellants and whether the prosecution was able to prove the case

beyond the shadow of all reasonable doubt.

9. In this case the complaint was lodged on the very date of incident as

alleged i.e. on 18.06.2005. The defacto complainant Shib Shankar Koley

deposed as PW 1 and his specific statement before the Court was that the

present appellant assaulted Balai Koley with lathi and Hasua resulting

severe injuries on him, the injured was taken to Jamalpur Hospital for

treatment. Accused Naba Kumar Koley assaulted Balai Koley with lathi

and Gunadhar assaulted him with hensua. The further case was that the

dispute cropped up as both Naba Kumar and Gunadhar took away the

accumulated untrashed Til plants belonging the Balai Koley which were

kept in a Khamar and as Balai raised protest he was assaulted. The

complaint was written by Rabindra Nath Das according to his instruction

and he signed thereon. On the basis of the complaint police came and

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seized blood stained cloths of his brother Balai Koley and the hensua. He

also signed in the seizure list. His evidence discloses that P.W. 1 Balai

Koley, Gunadhar Koley and his father resided separately in the ancestral

house and for last 7/10 years and Naba Kumar was residing at

Karalaghat and was carrying business from there. The mother and widow

sister used to reside with Naba Kumar Koley. It further transpires a

criminal case lodged by Naba Kumar against this PW 1, his wife and his

brother Balai Koley under Section 379/325/47 of Indian Penal Code

which was also pending. Prior to that in the year 2004 he further lodged a

complaint against them for the offence o f assault and criminal

intimidation which was also pending. His father was residing with him

being separated from the mother and a maintenance case was filed

against the father which is also pending. He admitted that all the three

brothers have their shares in the land where Til were cultivated and he

could not say whether any diary was lodged by Gunadhar against Balai for

removing such Til plants from the land cultivated by him. He took the

name of Mahadeb Koley, Sajal Koley and Kartick Santra and Sakti Koley,

Ram Dhara, Kashinath Dhara, Lakshman Dhara, Bidyut Koley, Netai

Dhara and others whose houses, cow shed, bamboo shrub, panchayat

tube well were situated surrounding his house. His evidence further

discloses that once Gunadhar Koley stood as a candidate of panchayat on

BJP ticket but he and the wife of Rabindra Nath Das got defeated in such

election. He did not lodge any prior complaint before lodging the present

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complaint. He could not say when those Til plants were harvested by his

brother and stacked there and did not witness taking way those Til plants.

He also could not say whether there was heated exchange of words

between the accused persons and Balai Koley prior to the incident of

assault but found his brother Balai lying on the ground writhing in pain.

According to this witness some people including farmers assembled at the

PO, but he did not see the assault. One of his villagers took the injured

brother in a rickshaw van to Jamalpur PS first and from there, referred to

hospital. After getting that news he went to the hospital and found his

brother lying there at the hospital at around 10 A.M when he went to

hospital. He took the name of Rabindra Nath Das, Iqbal and others who

visited hospital to see his brother. After that he came to the police station

and on asking by the police he lodged the complaint.

10. P.W. 2 Balai, the injured and most vital witness of this case deposed

that at about 9.30 A.M. on 3

rd

Ashar, Gunadhar Koley struck him with a

hensua at the khamar of his cousin brother and Naba K umar tried to

assault with a lathi which he caught hold and due to such assault he

sustained cut and bleeding injury on his right hand, belly and left side in

between hip and thigh. He was taken Jamalpur where he was treated.

According to him as he raised protest against the accused persons who

tried to take away his Til plants which were stacked in the khamar and

hence he was assaulted. This witness was not examined by the IO in

connection with the case. His evidence further discloses that he was

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discharged from the hospital in the evening on that day and he regained

his sense at about 10:30 A.M. at hospital. He further deposed that there

was a heated exchange of word between him and the accused Gunadhar

and also accused Naba Kumar and he protested and at that time local

people did not assemble there. Such heated exchange continued for five

minutes and then Naba Kumar struck with probably a hensua with force.

He could not remember how many times he was struck. He described the

weapon as a sharp cut hansua and sharp portion is about one cubit. After

being struck with hansua he fell down, sustained severe bleeding injuries,

was suffering from pain and became senseless. He did not stated before

the police that he sustained cut injuries on his hand, belly and neck. He

also did not state to police when Naba Kumar came to assault with a lathi

he caught hold of the same. He did not state to police that said Iqbal of

Jankuli village and he stopped by his elder brother and Sajal and took

him in that motor cycle.

11. Since the evidence of injure manifest the manner of injury and the

graveness of injuries sustained, the medical report is to be examined as to

how far it supports the case of the injured .P.W. 9 is the medical officer

who examined Shyamapada Koley and Balai Kol ey. On examination of

Balai Koley he found the injuries which are as follows:-

1) Incised wound 5 to 10 CM in length in 1 CM

deep on anterior abdominal wall.

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2) Another incised wound of 2 CM in length on

anterior abdominal wall.

3) Incised wound of 1 CM length on the left hip

joint.

12. So the evidence of injured manifest that Nabakumar assaulted him

with lathi and Gunadhar assaulted with hensua. According to this witness

such type of injury can be caused if a bamboo with sharp edge is

connected strongly with one person this in injury number 1 in his report.

He did not advice the admission of the patient in their hospital nor

referred him to Burdwan Medical College and Hospital. He did not find any

hand injury in his report. He also said that if scuffling took place armed

with sharp cutting weapon, injury number 1 and 2 may be caused, but

injury number 3 cannot be caused and it may be caused if one is

contacted with piece of glass or like that. If one is contacted with pointed

portion of a sharp cutting weapon, penetrating injury can be caused. He

also said that one Gunadhar Koley was examined on 19.06.2005 and he

sustained bruise over the scalp. He also said that if one is contacted with

hard substance this injury can be caused. On examination of

Shyamapada Koley he found one abrasion of 2 CM in length on knee joint.

He could not recollect whether police seized the injury report or not and or

at all any requisition was sent by police or not.

13. It is a settled law that the evidence of the injured is to be given more

weightage and the sole evidence of an injured can be the basis for passing

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an order of conviction provided that inspire enough confidence in the mind

of court . The evidence of the doctor and the nature of injury sustained

canvassed that at least it was not serious to that extent that admission

was necessary .More so the case of the injured that he became senseless

and regained his sense after 10 a.m., hardly gets support from the injury

report which reveals that he himself gave the history of the injury. The

opinion of doctor suggests the cause of injury is not due to attack on him

with a hansua or a sharp cutting instrument but if someone fell on some

sharp objects. The doctor also did not mention in his report the age of the

injury .On perusal of the exhibited document being the injury report of

Balai Koley it is seen that the doctor took the short history of the incident

from the patient who said that two persons namely Gunadhar Koley and

Nabakumar Koley assaulted him with a hard object . The doctor also said

that hard object means solid substance like iron rod, lathi etc . and

Hensua is sharp cutting as well as blunt instrument as the back side of

hensua is blunt. According to this witness the patient did not disclose that

he was assaulted by hensua.

14. P.W. 4, Shyamapada Koley the father of complainant, the accused and

the injured deposed that on 3

rd

Ashar at about 9 to 9.30 A.M. an incident

took place on the back side of the village club at bamboo shrub. On that

day accused Gunadhar Koley and Naba Kumar Koley were trying to take

away the Til plants of Balai Koley kept there to which Balai protested and

Naba Kumar assaulted with lathi and Gunadhar started assaulting with

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hansua. When he went to save then Gunadhar also assaulted him by

hansua and thereafter fled away therefrom. They were treated at Jamalpur

Hospital. He identified the hansua by which Balai and he were assaulted.

From his evidence an ongoing dispute between him and the accused

persons since long is evident and further that prior to the incident used

reside at Ashram at Deoghar for some time. He did not discuss about the

incident to anybody else, but he did not state to IO that on 18.06.2005 at

9:00 A.M. Balai brought Til plants from the field and kept in the khamar

of Sajal Koley. From his evidence it is further seen that he could not say

on how many time Balai was struck by hensua but after that Balai fell

down on the ground and become senseless. There were severe bleeding

and clothes were soaked with blood and he was also struck with hensua

and was hit on the leg. This witness initially said that he was taken in a

rickshaw van then said he does not know how he was taken . But he did

not go with Balai.

15. P.W. 5 Iqbal Ahmed whose name was taken by the injured as well as

the complainant deposed that an incident happened on 18.06.2005 in the

khamar of Naba Kumar and Balai Koley and another, but he did not see

the incident, but heard from Shyamapada koley and thereafter from Balai

Koley. He did not make any statement at the police station before th e

complaint was lodged. The injury report reveals that the patient was

brought by Sk. Iqbal Ahmed. The Injured himself said that he did not say

to the I.O. that the elder brother of victim stopped the ongoing motor cycle

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and took him in the motor cycle .P.W. 4, the father could not say that

whether Shib Shankar and Sajal stopped the motor cycle of Iqbal in whose

motor cycle the injured was taken .The elder brother being the defacto

complainant on the contrary deposed that he did not accompany his

brother to the hospital and also did not inform Iqbal. This Iqbal Ahmed

accompanied the complainant from hospital to the police station and he

accompanied the police to the village. He belonged to a particular political

party .Further interesting fact revealed from the evidence of Sajal that at

the police station he found Iqbal, Shyamapada and Rabindranath Das but

did not say that he stopped the motor cycle of Iqbal and took the injured

in that motor cycle .

16. P.W. 7 being a resident of Deeperman under Jamalpur PS knew both

the accused as well as the injured. He deposed that he did not have any

knowledge about any incident between accused and Balai Koley and

Shyamapada koley excepting that there was a marpit (commotion) over Til

plant which happened on 3

rd

Ashar last year at about 9/10 A.M when

Gunadhar was lifting Til plants of Balai which was stacked by him. This

witness gave a different version as he saw that Balai came from the field

with hensua to assault Gunadhar and Gunadhar pushed him as a result

he fell down on the bamboo. This witness was thereafter declared hostile.

His demanure was recorded as not good as he was trying to give answer

after looking towards the accused and took long time to reply. He gave

reply to court that Balai Assaulted Gunadhar by hand. There was heated

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exchange of word and thereafter dashing and pushing in between Balai

and Gunadhar Koley. Due to that Balai fell down and sustained cut injury

on his person and he stated this to the police.

17. Lastly PW 3, Sajal Kumar Koley also a hearsay witness deposed that he

heard from Rabiandra Nath Garai that Shayamapada Koley went to save

when he also sustained injury on his leg due to assault by Gunadhar with

hansua. He identified the hansua and his signature in the seizure list. His

evidence discloses that he is a contractor and on most occasions he went

out for his work. He admitted that no signature was there on the seized

hansua or the wearing apparel. Rabindra nath Das is the scribe who wrote

the complaint, deposed as P.W 8 and denied to have any knowledge

almost the incident and he also heard about the incident .His wife was

nominated in panchayet election on C.P.I (M) party ticket. He did not

make any statement before police. However it transpires that the defector

complainant mentioned about his presence in the Hospital

18. P.W. 10 is the Investigating Officer, who after being endorsed with the

case for investigation visited the PO and drew a rough sketch map along

with index. He examined the witnesses, recorded their statement and after

completion submitted the charge sheet. He did not seize any blood stained

earth from PO and in the seizure list the time of seizure was not

mentioned and the place of seizure was not filled up. He did not make any

respectable person of village as a witness to the seizure list. He collected

the injury report as there is note in the CD to that effect, but he did not

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find any report regarding injury report of Shayamapada Koley being

collected. He did not send the seized article for FSL for examination and

did not consult the doctor in respect of alleged article.

19. In summation of the foregoing discussions ,the entire case reveals that

there existed not only a strained and inimical relationship among the

brothers but also significant divergence in their political ideologies

.Additionally ,their parents were embroiled in marital discord ,resulting in

a clear division within the family ,with members living separately in two

distinct groups. On the day of incident a heated altercation ensued

between the parties, during which they engaged in mutual pushing, and

attempted assault upon each other .In course of such scuffle, the injured

person fell to the ground and sustained incised wounds however after

giving medical treatment without admission was discharged from the

hospital on the same date.

20. P.W.3 Sajal Ghosh, a seizure list witness in whose presence the

offending weapon and the wearing apparels of Balai Koley were seized. At

the time of incident he was at Srikrishnapur near Karalghat since morning

as he had a business .After he returned, his business partner Rabindra

Garai informed him about the gondogol (skirmish) in between the brothers

and asked him to go there. From that place he went to Hospital around

noon time and then left for police station. At that time his uncle

Shayamapada and brother Shib shankar koley were also present at the

police station and the complaint was lodged by Shibshankar .Then he

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signed on the seizure list at police station. He also disclosed that before he

reached at the police station, the police already visited the village and he

did not meet the police at the village. So it is a clear admission that the

seizure was not done at the place of occurrence but at the police station.

The exhibit 2 being the seizure list the place of seizure is found to be

blank, so no place was mentioned in the seizure list. The witness denied to

sign on the seized wearing apparel or the Hansua and he saw those at the

Police Station. P.W. 1 also could not say wherefrom such Hansua was

seized though he signed on the seizure list. He also did not witness the

incident as when he reached, found his brother Balai in lying condition

writhing in pain. The severe inconsistencies found with regard to the

persons who accompanied the injured to the hospital and as dis cussed

lastly it is revealed that Iqbal got him admitted from the medical paper

.The de facto complainant did not accompany his brother to hospital but

he took the name of one Bharat Dhara who took the injured in a rickshaw

van to Jamalpur P.S. first, and then to hospital but this version was not

established. In fact P.W 1 found him suffering from pain but did not say

he was senseless and before the doctor the patient gave the description

who assaulted him .From the evidence of the I.O it could be gathered

further that on 18.6.05 at about 9 A.M Balai brought teel plants from the

field and kept at the khamar of Sajal koley but the injured Balai said

where he stacked the teel plant was by the side of a club and that place

did not belong to them. He denied to have stated the I.O that he cut the

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teel plant on that day brought at the khamar for drying .The injured

deposed that he sustained cut injury in his hand but no injury was found

in his hand as per the Doctor’s report.

21. Shyamapada the father stated about a cut injury sustained by him in

his leg by hansua but the testimony of the doctor speaks about only a

small abrasion at his knee joint which shows how exaggerated version is

narrated by the father against his son. The father even could not say how

his son was taken to hospital .He could not say who informed the police as

within 30 minutes police came to their village and he did not discuss the

incident with anyone when p.w 5 deposed that he came to learn from

Shyamapada.

22. The learned Sessions Court relied upon the evidence of P.W. 2, the

injured, P.W. 4 the father and P.W. 5 Iqbal Ahmed despite having glaring

inconsistencies in their evidences. The Learned court further relied upon

the sketch map and satisfied that the khamar is the place of occurrence

when the I.O. during his evidence admitted in the index he did not

mentioned that khamar belongs to whom and also in the charge sheet he

did not mention the same. He did not examine the adjoining owner

Saktipada koley as shown in the sketch map. That apa rt the P.W. 4

Shyamapada Koley said that the khamar belonged to Sajal kumar Koley

and as per F.I.R the P.O. was khamar of Shib Shankar Koley. The place of

occurrence is also not established as the P.W. 1 said it was a Khamar

where til plants were stacked .The injured said the Khamar was of his

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cousin brother P.W. 4, the father deposed it was at the bamboo shrub on

the backside of village club and the I.O. did not ascertain in wh ose

Khamar the incident took place.

Conclusion

23. From the threadbare assessment of the evidences glaring discrepancies

are found which creates enough doubt in the case of the prosecution in

the manner in which the case has been narrated .The Hon’ble Supreme

Court in Rai Sandeep @ Deepu vs The State (NCT ) of Delhi reported in

1

laid down the principles guiding for treating the witness as of sterling

quality in paragraph 22 which reads as follows:

In our considered opinion, the “sterling witness”

should be of a very high quality and calibre whose

version should, therefore, be unassailable. The court

considering the version of such witness should be in a

position to accept it for its face value without any

hesitation. To test the quality of such a witness, the

status of the witness would be immaterial and what

would be relevant is the truthfulness of the statement

made by such a witness. What would be more

relevant would be the consistency of the statement

right from the starting point till the end, namely, at

the time when the witness makes the initial statement

and ultimately before the court. It should be natural

and consistent with the case of the prosecution qua

the accused. There should not be any prevarication in

1

(2012) 8 SCC 21

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the version of such a witness. The witness should be

in a position to withstand the cross examination of

any length and howsoever strenuous it may be and

under no circumstance should give room for any

doubt as to the factum of the occurrence, the persons

involves, as well as the sequence of it. Such a version

should have co-relation with each and every one of

other supporting material such as the recoveries

made, the weapons used, the manner of offence

committed, the scientific evidence and the expert

opinion. The said version should consistently match

with the version of every other witness. It can even be

stated that it should be akin to the test applied in the

case of circumstantial evidence where there should

not be any missing link in the chain of circumstances

to hold the accused guilty of the offence alleged

against him. Only if the version of such a witness

qualities the above test as well as all other such

similar tests to be applied ,can it be held that such a

witness can be called as a “Sterling witness” whose

version can be accepted by the court without any

corroboration and based on which the guilty can be

punished to be more precise, the version of the said

witness on the core spectrum of the crime should

remain intact while all other attendant materials,

namely, oral, documentary and material objects

should match the said versio9n ion material

particulars in order to enable the court trying the

offence to rely on the core version to sieve the other

supporting materials for holding the offender guilty of

the charge alleged.

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24. In the present case the testimony of the injured failed achieve such

parameters and hence cannot be said to be of sterling quality and hence

his evidence cannot be relied upon solely for passing any order of

conviction. More so another version of the incident has been canvassed

which described that the injured assaulted Gunadhar by hand in course

of heated altercation and then there was jostling and push and the injured

fell down which was a bamboo garden having pieces of bamboos scattered

and he sustained injuries. Therefore even though it is considered that the

injured sustained injuries on that day it is not established beyond doubt

that that was due to assault made by the appellants. Accordingly the

judgement and order of conviction passed by the learned session judge is

liable to be set aside.

25. Hence this CRA 573 OF 2010 is hereb y allowed. The Judgement and

order passed by the Learned Additional Session Judge, 4

th

Court,

Burdwan is hereby set aside. The appellants be released from their

respective bail bond.

26. Copy of the order along with LCR sent down forthwith to the concerned

Court for taking appropriate steps.

27. Urgent certified copy of this order, if applied for, be supplied

expeditiously after complying with all necessary legal formalities.

(CHAITALI CHATTERJEE DAS,J.)