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2006 DIGILAW 690 (CAL)

SK. RAHIM v. STATE OF WEST BENGAL

2006-11-09

ALOK KUMAR BASU, TAPAS KUMAR GIRI

body2006
ALOK KUMAR BASU, J. ( 1 ) THE learned Assistant Sessions Judge, Additional Court, hooghly while disposing of Sessions Trial case No. 3 of 2003 convicted Sk. Rahim, sk. Murshed Ali and Kaji Abdul Hassan under Sections 341/326 and 307 of the IPC and all of them were sentenced to suffer imprisonment for one month for the offence under Section 341 of the IPC, rigorous imprisonment for seven years for the offence under Section 326 of the IPC and rigorous imprisonment for ten years for the offence under Section 307 of the IPC. The learned judge also directed for payment of Rs. 75. 000/- by each of the convicted person as compensation to cover the cost, of treatment of the victim girl and also for her future maintenance in default all the victims were directed to suffer simple imprisonment for one year each under Section 357 of the cr. P. C. ( 2 ) SK. Rahim and Sk. Murshed Ali challenging the above order of conviction and sentence have preferred Criminal Appeal No. 612 of 2003 while Kaji Abdul Hassan has preferred Criminal Appeal No. 612 of 2003 and both the appeals have been taken up together for disposal. ( 3 ) IT is pertinent to mention that while disposing of bail application filed by one of the appellants persons in connection with criminal Appeal No. 611 of 2003, on 8th may, 2006, a Rule was also issued for enhancement of punishment imposed against convict Sk. Rahim and Abdul Hassan by the trial Court and while hearing the present appeals, we have also heard submissions made on behalf of convicts Rahim and Abdul hassan in connection with the Rule issued for enhancement of their punishment. ( 4 ) THE prosecution case in brief was that on 25-1-1998 at about 6. 30 p. m. when nargis Alam, daughter of informant Farida alam was returning from her private coaching riding on a bicycle, near her house she was attacked by three persons, and one of the accused persons assaulted on her head while the second person assaulted her at her abdomen by a fire arm and the third one assaulted her with fist and blows. As a result of such sudden attack and assault nargis Alam fell on the ground being seriously injured and hearing her cry, her parents and others came on the spot and she was immediately shifted to a local hospital and thereafter for better treatment she was taken to Beck Bagan Nursing Home at kolkata where after operation a bullet was recovered from her abdomen and subsequently nargis was taken to Vellore for further treatment as after receipt of the bullet injury at he abdomen, her lower limits became paralytic. ( 5 ) FARIDA Alam, mother of Nargis on 26th january, 1998 lodged a formal complaint before Panduah Police Station and on receipt of such formal complaint, the cage was initiated and after completion of investigation, charge sheet was submitted against the present appellants under Sections 341, 326 and 307 of the I. P. C. ( 6 ) THE learned Trial Judge after framing charges against all the three appellants under sections 341/32g and 307 of the I. P. C, asked the prosecution to produce evidence since all the appellants pleaded innocence and claimed for trial. ( 7 ) THE prosecution before the learned trial Judge examined nine witnesses in all including P. W. 1 Farida Alam mother of nargis, P. W. 2 Nargis herself, P. W. 3 and P. W. 4 two local residents, P. W. 5 father of nargis, P. W. 7 Dr. Mansur Mumtaj who was the surgeon of Beck Bagan Nursing Home and conducted operation on Nargis, P. W. 8 the first I. O. and P. W. 9 the second I. O. who also submitted the charge sheet. Prosecution also produced the original written complaint of P. W. 1, one seizure list regarding recovery of bullet from the abdomen of nargis, sketch map of the place of occurrence and all papers relating to the treatment of Nargis both at Beck Bagan Nursing home and also at Vellore. Prosecution also produced the original written complaint of P. W. 1, one seizure list regarding recovery of bullet from the abdomen of nargis, sketch map of the place of occurrence and all papers relating to the treatment of Nargis both at Beck Bagan Nursing home and also at Vellore. ( 8 ) THE learned Trial Judge, after considering prosecution evidence both oral and documentary and after hearing submissions of prosecution and accused persons found all the appellants guilty of the offences under sections 341/326 and 307 of the I. P. C. and although no separate charge was framed under Section 34 of the I. P. C. , the learned trial Judge having regard to the prosecution evidence found all the appellants guilty sharing a common intention and all of them were convicted and sentenced accordingly. ( 9 ) BEING aggrieved by and dissatisfied with the order of conviction and sentence, sk. Mursheed and Sk. Rahim preferred criminal Appeal No. 611 of 2003 and Abdul hassan preferred Criminal Appeal No. 612 of 2003. Mr. Basu, the Senior Counsel appearing for Abdul Hassan made his submissions challenging the order of conviction and sentence of all the appellants. Mr- Debasish roy appearing for Sk. Murshed adopted the main arguments of Mr. Basu and in addition to that Mr. Roy submitted a written note of argument on behalf of his client and similarly, mr. Pradip Roy representing Sk, Rahim adopted the submissions of Mr. Basu and mr. Roy only referred to two decisions in support of his client Sk. Rahim which we shall discuss at appropriate stage. Mr. Basu also submitted a written note of argument in support of his oral submissions. ( 10 ) THE main points taken by Mr. Basu, mr. Debasish Roy and Mr. Basu and mr. Roy only referred to two decisions in support of his client Sk. Rahim which we shall discuss at appropriate stage. Mr. Basu also submitted a written note of argument in support of his oral submissions. ( 10 ) THE main points taken by Mr. Basu, mr. Debasish Roy and Mr. Pradip Roy are as follows :-The FIR was not prompt and, in fact, it was lodged almost after 28 hours and, that apart, there was also unreasonable delay in dispatching the FIR to the local Court and in the FIR, there was no disclosure about the appellants and this clearly indicates that the name of the appellants was disclosed only during trial and it was clearly an after thought of the complainant party; the first investigating officer P. W. 8 did not seize the bicycle allegedly used by the girl and the I. O. also did not produce the wearing apparels of the victim and this also indicates that the prosecution story was concocted and fabricated against the appellants out of previous enmity; before the second I. O. P. W. 9 there was no disclosure by the material witnesses including p. W. 2, P. W. 3, P. W. 4 and P. W. 5 about existence of any electric light near the place of occurrence and prosecution also could not satisfy about the location of the place of occurrence; p. W. 3 and P. W. 4 are highly interested witnesses and their testimony before the court did not inspire confidence at all, more so, they were examined after a lapse of one year nine months and there is no explanation behind this unusual delay; p. W. 2 did not disclose the name of any of the appellants before the doctor soon after the occurrence although from the deposition of doctor as P. W. 7 it is available that p. W. 2 had the capacity to speak soon after her admission at the Beck Bagan Nursing home; from the statement of the doctor as well as from the Exhibit 4 series it appears that p. W. 2 disclosed before the doctor that two unknown youths attacked her and she did not mention the name of the assailants and it is very significant to note that she spoke about two assailants and the name of murshed Ali had never figured; there is nothing in the evidence of P. W. 2 to support the prosecution case that she disclosed the name of all the appellants before her parents within seven to ten days of the incident and in that background, statement of P. W. 1 and P. W. 5 disclosing the name of the appellants as gathered from P. W. 2 does not inspire any confidence; from the statement of P. W. 8 the first I. O. it is a available that the local witnesses examined by him did not throw any light about involvement of the appellants and this part of the evidence clearly demolished the prosecution story as sought to be projected during trial. There is no evidence to show what part murshed Ali played in the matter of assault on the victim girl and there is no evidence to suggest that Sk. Rahim caused any grievous hurt on the person of the victim girl. ( 11 ) THUS, Mr. Basu submits that in this particular case prosecution came up with very poor evidence to implicate the appellants and when the main witnesses namely p. W. 2, P. W. 3, P. W. 4 and P. W. 5 were examined after a lapse of one year nine months and when there was no seizure of the relevant materials in connection with the alleged occurrence, it would be highly risky and improper to support the order of conviction and sentence as recorded by the Trial court. ( 12 ) MR. S. S. Roy along with Ms. Minoti gomes appeared for the State and Mr. S. S. Roy while supporting the order of conviction and sentence submitted before us that for the circumstances already explained by the prosecution witnesses, P. W. 2 the principal witness of the prosecution could not be examined promptly and, in fact, when P. W. 2 after her prolonged treatment at Vellore was able to speak out properly, second I. O. P. W. 9 recorded her statement and P. W. 2 in her statement both before I. O. and also before the Court during trial clearly mentioned the name of all the appellants and she clearly stated the individual role of each of the appellants. Mr. Roy contends that P. W. 1 in all fairness did not mention the name of the appellants in the FIR on 26th January, 1998, because, by that time she had no occasion to have any conversation with P. W. 2 who was seriously injured and was under treatment at the nursing home and naturally, after gathering specific information about the appellants from P, W. 2, P. W. 1 during her examination by the second T. O. disclosed the name of the appellants and she reiterated the same during her examination before the Court and similar was the position of P. W. 5, lather of P. W. 2 who was not examined by first I. O. and who was examined only by the second I. O. after a lapse of one year nine months. ( 13 ) MR. ( 13 ) MR. Roy submits that both P. W. 3 and P. W. 4 stated that they were examined by first I. O. P. W. 8, but, for the reasons best known to P. W. 8 their statements were not recorded and when they were examined by P. W. 9, they disclosed what they had seen at the time of occurrence and naturally, for the delay in their examination which was due to the latches of the investigation, no question can be raised about the veracity of their statements. ( 14 ) MR. S. S. Roy contends that from the cross-examination of P. W. 2 or her parents it is crystal clear that there is no challenge regarding the assault suffered by P. W. 2 or regarding the consequences of the assault suffered by P. W. 2 and the prosecution case in this regard was sufficiently corroborated by the doctor P. W. 7 and all the papers marked as exhibit 4 series. Mr. S. S. Roy contends that P. W. 2 was the main witness of the prosecution and P. W. 2 was not shaken during her cross-examination and p. W. 2 in her statement also disclosed about the motive behind the attack and it is significant to note that there has been no cross examination regarding this part of the statement of P. W. 2 and, in fact, on proper consideration of the statement of all the material witnesses it would appear that appellants did not succeed in the least to challenge the prosecution case through cross-examination of the material witnesses. ( 15 ) MR. Roy, therefore, submits that when the victim clearly deposed about her attack and assault and disclosed the name of all the appellants and when the fact of assault was sufficiently corroborated by medical evidence, the learned Judge correctly convicted all the appellants with the aid of Section 34 of the IPC and there appears no reason to interfere with the order of conviction and sentence. ( 16 ) WE have considered submissions made by Mr, Basu, Mr. Debasish Roy and mr. Pradip Roy on behalf of the appellants along with written notes submitted by the learned advocates. We have also considered submissions of Mr. S. S. Roy made on behalf of the State respondent. We have carefully perused the evidence of prosecution both oral and documentary. Debasish Roy and mr. Pradip Roy on behalf of the appellants along with written notes submitted by the learned advocates. We have also considered submissions of Mr. S. S. Roy made on behalf of the State respondent. We have carefully perused the evidence of prosecution both oral and documentary. ( 17 ) WE find from the FIR lodged by P. W. 1 that on 25th January, 1998 at 6. 30 p. rn, victim girl P, W. 2 was assaulted and soon thereafter she was removed first to a local hospital and thereafter for her better treatment and considering her physical condition she was removed to Beck Bagan Nursing home after operation a bullet was recovered from the abdomen of the victim girl and first I. O. P. W. 8 seized that bullet under a proper seizure list which is an exhibited document. We find further from Exhibit 4 series that the victim girl was subsequently treated at Vellore hospital since the bullet injury caused her serious damage at the lower limbs and as a consequence of that bullet injury, the victim girl, in fact, became seriously handicapped and it is available from the statement of the victim girl as P. W. 2 that after her treatment at Vellore she did not regain her capacity to walk and move independently and without the help of others she is not in a position to even attend her dally requirements. ( 18 ) THE FIR was lodged on 26th January, 1998 by the mother of the victim girl P. W. 1 and it is true that in the FIR she could not mention the name of the assailants. ( 19 ) FROM the statement of P. W. 1 and P. W. 5 the parents of the victim girl we get that both of them collected Information about the appellants from the victim girl within seven to ten days after her admission in Beck Bagan Nursing Home. ( 19 ) FROM the statement of P. W. 1 and P. W. 5 the parents of the victim girl we get that both of them collected Information about the appellants from the victim girl within seven to ten days after her admission in Beck Bagan Nursing Home. ( 20 ) IN this case the first I. P. P, W. 8 has categorically admitted that during his tenure as investigating officer, he did not examine the victim girl and, in fact, he did not make any attempt to examine the victim girl during her stay at the Beck Bagan Nursing home and similarly, this I. O. did not make any attempt to examine parents of the victim girl or any other relevant witnesses who could have thrown light about the involvement of the appellants. P. W. 9 the second I. 0. after taking charge of the investigation examined the victim girl, her parents and two witnesses P, W. 3 and P. W. 4. ( 21 ) THE main attack against the prosecution case and also against the findings and observation of the Trial Court has been that P. W. 1, P. W. 2, P. W. 3, P. W. 4 and P. W. 5 were all examined after a lapse of one year nine months and such inordinate delay in their examination seriously damaged the veracity of the prosecution ease and in that background, when no local independent witness came forward to supportthe prosecution allegation, the learned Trial Judge was not justified in placing reliance on the testimony of those witnesses of the prosecution. If has also been the point of the appellants that the victim girl soon afier her admission had full consciousness as it has been deposed by P. W. 7 the doctor who treated her and during that period the victim girl could have stated about the appellants and since the victim girl did not specify the name of the appellants at that stage and according to the doctor the victim girl only stated about the attack made by two youths, there was enough scope to hold conclusively that the appellants were no way involved behind the attack and assault of the victim girl. It has also been submitted on behalf of the appellants that the existence of the electric light near the P. O. was not disclosed by the material witnesses even before the second i. O. P. W. 9 and, that apart, the non-seizure of bicycle allegedly used by the victim girl and also non-seizure of her wearing apparels at the time of attack and assault also damaged the veracity of the prosecution case. ( 22 ) IN order to appreciate the prosecution evidence and in order to appreciate the points taken by the appellants during hearing of both the appeals, it would be proper on our part to record a few lines about the investigation conducted by the officers of this particular case and in this context, we must record that it has been held unanimously that latches in the investigation case can never demolish the veracity of the prosecution case if on proper assessment of the prosecution evidence collected during investigation, there are grounds to hold that prosecution really succeeded In establishing its case against the culprits. ( 23 ) FROM the statement of P. W. 8 the first I. O. we get that he took charge of investigation on 26th January, 1998 soon after lodging of the FIR and he did not examine the victim girl and her parents and he also did not examine P. W. 3 and P. W. 4 and it is important to note that he was in charge of investigation from 26th January, 1998 to 5th June, 1999. P. W. 8 in his examination-in-chief stated that on 1st February, 1998 he arrested Abdul Hassan, on 15th March, 1998 he arrested Sk. Rahim and on 5th may, 1998 he arrested Sk. Murshed and he disclosed that he arrested all the appellants on the basis of information collected and in this context, he also disclosed that on examination of the witnesses at the time of investigation he got information about involvement of the appellants. ( 24 ) THE second I. O. took up charge of the case on 7th September, 1999 and thereafter he examined the victim girl along with his parents and he also examined P. W. 3 and P. W. 4. ( 24 ) THE second I. O. took up charge of the case on 7th September, 1999 and thereafter he examined the victim girl along with his parents and he also examined P. W. 3 and P. W. 4. ( 25 ) APPARENTLY there was unusual delay in recording the statement of the materials witnesses of the case namely P. W. 1 to P. W. 5, but, it is clear from the deposition of P. W. 8 that for reasons best known to him he did not conduct the investigation in the manner it ought to have been done and there is no explanation from this witness as to what prevented him from not examining the victim girl, her parents and P. W. 3 and P. W. 4. ( 26 ) WE find from the statement of P. W. 1 and P. W. 5, parents of the victim girl that both of them within 7/10 days from admission of the victim girl In the Beck Began nursing Home came to learn from the victim girl herself that all the three appellants were Involved and both the parents in their statement before the second I. O. disclosed this fact which they also disclosed during their examination before the trial Court. ( 27 ) FROM the FIR along with the statement of P. W. 1 and P. W. 5 It is very much clear that at the time of actual assault on the victim girl, the victim girl was alone on the place of occurrence and she alone had the occasion and opportunity to see her assailants and naturally. P. W. 1, mother of the victim girl could not disclose the name of the assailants. ( 28 ) AFTER going through the entire evidence of the prosecution we find that P. W. 2 is the main witness of the prosecution and she was the victim of the attack and she soon after her admission at the nursing home and on asking by the attending doctor of the nursing home she disclosed that she was attacked by two youth and this statement of the victim girl is to be considered in the background of her the then physical condition. There is no dispute that the victim girl with serious injury on her i head and abdomen was admitted in the nursing home and soon after her admission she underwent a serious operation by which the bullet from her abdomen was recovered and in that state of physical condition when the victim girl was under serious physical shock and trauma, it was not possible for her to give full identity of the appellants and the victim girl disclosed the same after 7/10 days to her parents and the victim girl during her statement before the trial Court fully stated, how and in what manner the appellants assaulted her and in that deposition she disclosed the name of all the assailants. ( 29 ) THE deposition of P. W. 3 and P. W. 4 has been seriously challenged by the appellants on the ground that out of previous enmity and due to their special relation with father of the victim girl they deposed falsely against the appellants, but, we do not share this view of the appellants, because P. W. 8 never made any attempt to examine the persons who could have thrown light and P. W. 8 for reasons best known to him did not make any attempt to examine the proper witnesses and in that background when we examine the statement of P. W. 3 and P. W. 4, after taking into consideration the statement of victim girl herself, we hold that P. W. 3 and P. W. 4 supported the prosecution case rightly and their statement cannot be disbelieved. ( 30 ) WE find from the statement of the victim girl that she also disclosed the motive behind the attack and it is important to mention that on this motive part the appellants put no question to discredit the victim girl and thus, when we consider the evidence of the victim girl in the background of the peculiar feature of this case where the first i. O. neglected his duty and although the second I. O. after a lapse of one year and nine months had the occasion to examine the victim girl and other material witnesses, we have enough reasons to hold that even if there are any omissions or contradictions in the statement of witnesses examined by the second I. O. , that would not affect the veracity of the prosecution case. ( 31 ) THUS, after considering the submissions of both the sides and having regard to the prosecution evidence as a whole, with special reference to the statement of victim girl herself and all the papers relating to her treatment Exhibit 4 series, we are of the clear opinion that all the three appellants took active part in the assault of the victim girl. ( 32 ) MR. Pradip Roy submitted before us with reference to the two decisions reported in AIR 1980 SC page 1758 : (1980 Cri LJ (NOC) 179)in the case of Prabha Rashu machhi and Anr. v. The State of Gujarat AIR 1998 Cri LJ page 2625 (Del) in the case of om Prakash v. the State that there is no evidence to show that his client Sk. Rahim caused an injury dangerous to the life of the victim girl and on that consideration, Sk. Rahim cannot be convicted either under section 326 or under Section 307 of the ipc. ( 33 ) WE have examined both the decisions and we find that in the case of Om Prakash v. The State reported in 1998 Cri LJ page 2625 for non-examination of the doctor the benefit was given to the accused person, but, in our case doctor was examined and the doctor in his examination clearly deposed about the injuries suffered by the victim girl on her head and we find from the deposition of the victim girl that Sk. Rahim assaulted her on her head with a sharp cutting weapon. ( 34 ) THUS, after considering submissions of both the sides and having regard to the evidence on record we find that there is no merit in the present appeals and the learned trial Court in proper appreciation of fact and evidence on record correctly recorded the order of conviction and sentence against all the appellants taking aid of Section 34 of the IPC. ( 35 ) WE, therefore, find no merit in the present appeals and both the appeals are liable to be dismissed. ( 36 ) WE, now come to the question regarding enhancement of punishment of Sk. Rahim and Kaji Abdul Hassan. We find from record that on 8th May, 2006 a Division bench of this Court exercising appellate jurisdiction while disposing of the bail application of Sk, Murshed Issued a Rule for enhancement of punishment of Sk. ( 36 ) WE, now come to the question regarding enhancement of punishment of Sk. Rahim and Kaji Abdul Hassan. We find from record that on 8th May, 2006 a Division bench of this Court exercising appellate jurisdiction while disposing of the bail application of Sk, Murshed Issued a Rule for enhancement of punishment of Sk. Rahim and Abdul Hassan on the ground that in view of evidence on record, the punishment imposed by the Trial Court against both the appellants appears to be grossly inadequate. ( 37 ) IN answer to the Rule, Mr. Sekhar basu submits before us that the Bench which had issued the Rule, in fact, had no jurisdiction to issue the Rule for enhancement of punishment, because, in this case government did not prefer any appeal under section 377 of the Cr. P,c, for enhancement of punishment and the Bench also did not exercise any suo motu revlslonal Jurisdiction for enhancement of punishment and in view of this factual position, reliance should be placed on a decision of the Hon'ble supreme Court in the case of Sahab Singh and Ors. v. the State of Haryana reported in air 1990 SC page 1183 : (1930 Cri LJ 1202 ). Mr. Basu contends with reference to para 5 of the reported decision that since no appeal was preferred by the State and since the Bench while issuing the Rule had no revlsional jurisdiction, the Issuance of the rule itself was without Jurisdiction and on the basis of that Rule, no order can be passed for enhancement of the punishment, ( 38 ) IT has been argued on behalf of the state that when the Division Bench by its order dated 8th May, 2006 issued the Rule for enhancement of punishment and the rule was duly served upon the appellants, the implication was that the Bench exercised suo motu revisional jurisdiction and naturally, keeping In mind the observation of the hon'ble Supreme Court appearing in the decision of Sahab Singh (supra), the Bench had the jurisdiction to issue the Rule and on the basis of such Rule, this Court can very well consider the question regarding enhancement of punishment in view of the fact and evidence on record. ( 39 ) IT is the mandate of the Constitution of India as found in Article 21 of the Constitution of India that no person shall be deprived of his life and his personal liberty except according to procedure established by law and undoubtedly the question of enhancement of punishment has to be decided in accordance with procedure established and recognized by law. ( 40 ) FROM the decision of the Apex Court reported In the case of Sahab Singh and Ors. (supra) we find that punishment imposed by the Trial Court can be enhanced by the high Court either where the State Government has preferred an appeal under Section 377 (1) of the Code of Criminal Procedure or where the High Court exercised revisional jurisdiction either on an application or suo motu. ( 41 ) ADMITTEDLY in this case the State government did not prefer any appeal under section 377 (1) of the Code of Criminal procedure for enhancement of punishment of the appellants and naturally, the question would arise whether the Bench while issuing the Rule exercised suo motu revisional jurisdiction or not. ( 42 ) WE find that on 8th May, 2006 when the Bench issued the Rule, it was exercising its power under the criminal appeal jurisdiction and undisputedly, it did not have revisional jurisdiction and considering this aspect, we are of clear opinion that the bench while passing the order for issuance of Rule for enhancement of the punishment lacked jurisdiction and naturally, on that consideration, we are in total agreement with the submission of Mr. Basu that since the state Government did not prefer any appeal and the Bench passing the order regarding issuance of Rule lacked revisional jurisdiction, the issuance of Rule for enhancement of punishment as done in the present case cannot be taken into consideration. ( 43 ) THUS, after hearing both the sides, we are of the view that on the basis of Rule issued by the Bench on 8th May, 2006, we cannot legally consider the question of enhancement of punishment and, therefore, we are inclined to discharge the Rule without considering the question of enhancement of punishment. ( 44 ) IN the result, we dismiss both the appeals and we confirm the order of conviction and sentence and also the order regarding payment of compensation. We also discharge the Rule regarding enhancement of punishment. ( 44 ) IN the result, we dismiss both the appeals and we confirm the order of conviction and sentence and also the order regarding payment of compensation. We also discharge the Rule regarding enhancement of punishment. ( 45 ) SEND a copy of this judgment along with LCR to the Trial Court at once for information and necessary action. ( 46 ) URGENT xerox certified copy of this judgment and order be supplied to the appellants on making proper application and after complying with all legal formalities at the earliest.