Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 128 (CAL)

Abul Hossain v. STATE OF WEST BENGAL

2009-02-19

G.C.GUPTA, KISHORE KUMAR PRASAD

body2009
Judgment : GIRISH CHANDRA GUPTA, J. (1) This appeal is directed against a judgment dated 29th May, 1992, passed by the learned Additional District and Sessions Judge, Raiganj, Uttar Dinajpur, in Sessions Trial No. 4 of 1992 arising out of Sessions Case No. 65 of 1990 convicting the accused Abul Hossain, Akimuddin, Abdur Rahaman Mia, Soleman Mia and Samsuddin @ Kalu under Sections 147, 324 read with Section 149, 325 read with Section 149 and under Section 304 Part II read with Section 149 of the Indian Penal Code. By an order dated 30th May, 1992, the learned Trial Judge sentenced each of the aforesaid convicts to rigorous imprisonment for eight years for the offence punishable under Section 304 Part II of the Indian Penal Code; rigorous imprisonment for two years for the offence punishable under Section 147; rigorous imprisonment for three years for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code; rigorous imprisonment for three years and to pay fine of Rs. 500/-each, in default to suffer R. I. for six months each for the offence punishable under Section 325 read with Section 149 of the Indian Penal Code. All the sentences were, however, directed to run concurrently. (2) The facts and circumstances of the case briefly stated are as follows : On 15th March, 1988, at about 8. 30 A.M. in the morning Nasiruddin Sarkar, accompanied by his son Ohedul Haque, P.W. 4, went to the field for the purpose of irrigating. All on a sudden the aforesaid convicts broke in the field of Nasiruddin Sarkar and mercilessly assaulted him with lathis. He was also shot at from a bow. Both the victim and his son Ohedul Haque, P.W. 4, raised alarm. The P.W. 5, Abul Hossain, P.W. 6, Dost Md., P.W. 7, Hasan All, P.W. 8, Niamat Ali, attracted by the hue and cry reached the place of occurrence. They found the victim, Nasiruddin Sarkar, lying on the ground. He was removed to his dwelling house. The victim himself disclosed the names of his assailants which has been deposed to by the P.W. 5 Abul Hossain, P.W. 7 Hasan Ali, and P.W. 8 Niamat Ali. The P.W. 4 Ohedul Haque, an eye witness, has also disclosed the names of the assailants. The victim from his dwelling house was removed to Harirampur Primary Health Centre. The P.W. 14 Dr. The P.W. 4 Ohedul Haque, an eye witness, has also disclosed the names of the assailants. The victim from his dwelling house was removed to Harirampur Primary Health Centre. The P.W. 14 Dr. A. B. Sarkar, who at the relevant time was attached to the aforesaid Primary Health Centre, deposed that he found multiple injuries on the body of the victim. For better treatment the patient was shifted to Malda District Hospital. Dr. A. B. Sarkar (P.W. 14) also issued a certificate which has been marked Exhibit 7. At the Malda District Hospital the victim Nasiruddin Sarkar was admitted under the care of Dr. Dipak Sanyal Talapatra the P.W. 1. The bed-head ticket of the Hospital has been tendered and marked Exhibit 1. On 15th March, 1988, in the afternoon the P.W. 4 Ohedul Haque, lodged a Geneal Diary with the P.W. 13 Narayan Kumar Majumder, Inspector-in-Charge of Harirampur. The said General Diary bearing No. 296 dated 15th March, 1988, was produced through the Court Witness No. 1 and has been marked Exhibit "A". On 16th March, 1988, a written complaint was lodged by the P.W. 4, Ohedul Haque , which has been marked Exhibit (3). The written complaint was received by the P.W. 10 N. K. Santra. The records reveal that on 15th March, 1988, a blood and mud stained Lungi, a blood-stained Chaddar and two pieces of bloodstained arrows were seized by the police vide Seizure List marked Exhibit 5. On 16th March, 1988, a bundle of trampled paddy plants were seized from the place of occurrence. On 18th March, 1988, at 5.50 P.M. the victim Nasiruddin Sarkar died. Inquest was held by the P.W. 11 S. Ali Mondal on 18th March 1988 itself. The body was thereafter escorted to the morgue by the P.W. 2 Ananda Gopal Dutta and the postmortem examination was conducted by the P.W. 15 Dr. B. K. Sanyal. On 18th March, 1988, at 5.50 P.M. the victim Nasiruddin Sarkar died. Inquest was held by the P.W. 11 S. Ali Mondal on 18th March 1988 itself. The body was thereafter escorted to the morgue by the P.W. 2 Ananda Gopal Dutta and the postmortem examination was conducted by the P.W. 15 Dr. B. K. Sanyal. Upon examination, the injuries found by him coupled with his opinion, as regards the cause of death appearing from his evidence, read as follows : "I found the following external injuries on the body : 1) One abbression 2" x 1" on the right forearm medial side with laceration of " x " ; 2) One lacerated injury " x " over right wrist; 3) Abbression over centre of the back dimension " x " ; 4) One sharp cut injury " x " over medial side of right leg. It was found two inch below the right knee ; 5) Compound fracture 3" below right knee with dimension of " x "; 6) One abbression " x " inch over left knee. On desection I found peritoriam was covered with fluid. In stomach I found blackish fluid amounting about one ounce. The lever was found pale and enlarged and so also the kidney. No other abnormality was detected. Death according to my opinion was due to the above noted injuries which were ante mortem and homicidal in nature." (3) Mr. De, learned senior Advocate, appearing in support of the appeal, has advanced the following submissions : (a) The name of the accused, Akimuddin , was not disclosed by the P.W. 6 Dost Md., P.W. 7 Hasan Ali, and P.W. 8 Niamat Ali. He, therefore, submitted that the accused Akimuddin should be given the benefit of doubt. (b) Relying on a judgment of the Apex Court in the case of Md. Isak Md. and others v. State of Maharashtra reported in A.I.R. 1979 SC 1434, he prayed that sentence should be reduced to five years from eight years as awarded by the learned Trial Judge. (4) We have not been impressed by the first submission advanced by Mr. De, learned senior Counsel, appearing for the appellants. The names of the accused persons were disclosed in the General Diary lodged in the afternoon on 15th March, 1988. (4) We have not been impressed by the first submission advanced by Mr. De, learned senior Counsel, appearing for the appellants. The names of the accused persons were disclosed in the General Diary lodged in the afternoon on 15th March, 1988. As a matter of fact, it was sought to be contended before the learned trial Court that the written complaint lodged on 16th March, 1988, is an improvement upon what was disclosed to the police on 15th March, 1988. The defence took inspiration from the fact that P.W. 13 Narayan Kumar Majumder, when he was examined in Court, deposed that he had not brought the General Diary with him. The learned trial Court, in order to satisfy his own conscience, called for the General Diary Book which was produced through Santi Ranjan Biswas who was examined as a Court witness, and the General Diary Book containing relevant documents was tendered and marked Exhibit (A). From the General Diary it appeared that all the relevant particulars, including the names of the assailants, had in fact been disclosed and recorded therein. The eye-witness in this case is the P.W. 4 Ohedul Haque. He has disclosed that all the five accused persons attacked his father Nasiruddin Sarkar. The P.W. 6 Dost Md. in his evidence deposed that he reached the place of occurrence hearing the hue and cry and ascertained from the P. W. 5 Abul Hossain, the names of the assailants whereas the P.W. 5 Abul Hossain, himself has disclosed the names of all the five assailants. The P.W. 7 Hasan Ali and the P.W. 8 Niamat Ali deposed that the names of the assailants were declared to them by the deceased himself. The P.W. 12 Mahatab Ali, another son of the victim, also ascertained the names of the assailants from the victim himself and he deposed that according to the information which he received from his father, there were five assailants including the accused, Akimuddin. It is, therefore, not possible to hold that the name of the accused Akimuddin has not transpired or that the evidence adduced by the prosecution calls for any benefit of doubt being given to the accused Akimuddin. (5) The second submission advanced by Mr. De, the learned senior Counsel, for the appellants, has also not impressed us. The decision of the Apex Court in the case of Md. Isak Md. (5) The second submission advanced by Mr. De, the learned senior Counsel, for the appellants, has also not impressed us. The decision of the Apex Court in the case of Md. Isak Md. and others v. State of Maharashtra (supra) is distinguishable on facts. In that case, the charge was framed under Section 302 of the Indian Penal Code. The learned Trial Judge acquitted the accused. In appeal against the acquittal, the High Court held the accused guilty under Section 304(1) of the Indian Penal Code. Their Lordships were of the opinion that the offence really was covered by Section 325 read with Section 34 of the Indian Penal Code. What weighed with Their Lordships is the fact that the evidence in that case was also lacking in material particulars. (6) In the case before us the evidence discloses that an unarmed person was irrigating his field. He was attacked by the accused persons who were armed with bows, arrows and lathis. The victim Nasiruddin Sarkar was shot at from the bow. As a matter of fact, two blood-stained arrows were seized. The victim Nasiruddin Sarkar aged about 55/56 years was mercilessly beaten. The accused persons, as a matter of fact, went to the place of occurrence with the object of killing the victim, Nasiruddin Sarkar. It is not due to any provocation that the victim Nasiruddin Sarkar was assaulted. The case suggested on behalf of the defence and denied by the P.W. 4 Ohedul Haque was as follows : "Not a fact that accd. Abul Hossain mortgaged his homestead to my father. The witness volunteers Abul Hossain sold away the homestead to my father. Not a fact that Abul Hossain redressed the loan writing as a labour in our house. Not a fact that my father did not return back the property even after liquidation of the loan. Not a fact that Abul Hossain has been entangled in this case on false allegation to create pressure in him." (7) The suggestion given on behalf of the defence, makes it amply clear that the accused persons wanted to punish the victim because according to them, he had refused to release the property of the accused Abul Hossain. Therefore, the accused persons formed an unlawful assembly with the wrongful object of punishing the victim for the supposed violation of the right of the accused Abul Hossain. Therefore, the accused persons formed an unlawful assembly with the wrongful object of punishing the victim for the supposed violation of the right of the accused Abul Hossain. There is, therefore, no substance in the submission advanced by Mr. De, learned senior Counsel, for the appellants. (8) No other submission was extended. We are of the considered opinion that the conviction does not call for any interference. (9) Mr. De, learned senior Counsel, appearing for the appellants, lastly submitted that the appeals pending for more than 18 years and the accused persons are now in the wrong side of their age and, therefore, some concession, in so far as the sentence is concerned, should be made. (10) Considering this submission, the punishment awarded by the learned trial Court to the appellants, Abul Hossain, Akimuddin, Abdur Rahaman Mia, Soleman Mia and Samsuddin @ Kalu, for the offence punishable under Section 304 Part II of the Indian Penal Code is reduced to simple imprisonment for seven years. (11) All the convictions for the smaller offences and the sentences are maintained with the modification that the imprisonment will be simple instead of rigorous imprisonment. The sentence directing the accused persons to pay fine is also deleted. All the sentences shall run concurrently. (12) The appellants shall get the benefit of set off under Section 428 of the Code of Criminal Procedure. (13) The convicts were released on bail by an order dated 13th July, 1992. Their bail bonds are cancelled. They are directed to surrender to their bail bonds at once and to serve out the sentence as modified by this order. (14) With the aforesaid modification of the sentences, this appeal is partly allowed. (15) The Criminal Section of this Court is directed to send down a copy of this judgment and the lower Court records to the concerned learned trial Court forthwith for information and necessary action.