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2011 DIGILAW 627 (CAL)

Md. Faiaz @ Faiz v. STATE OF WEST BENGAL

2011-05-04

ASHIM KUMAR ROY, J.N.PATEL

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JUDGMENT ASHIM KUMAR ROY, J. 1. THESE three criminal appeals, viz., C.R.A. No. 273 of 2002, C.R.A. No. 274 of 2002 and C.R.A. No. 341 of 2002 are arising out of a common judgment and order passed in connection with a sessions trial held before the learned Judge, City Sessions Court, II Bench at Calcutta. 2. IN the said trial the appellants Md. Faiaz @ Faiz, Md. Nawsad @ Pappu, Md. Salim @ Negro Salim, Sk. Raju @ Raju and another Rafi Ahmed @ Chorta Rafique were convicted under Sections 302/34 of the Indian Penal Code for intentionally causing death of one Sakil Ahmed @ Lala and sentenced to suffer imprisonment for life and to pay fine of Rs. 3,000/- and in default to suffer rigorous imprisonment for six months. They were also convicted under Sections 307/34 of the Indian Penal Code for attempting to commit murder of one Salim Ahmed and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 3,000/-, in default to suffer rigorous imprisonment for six months. While Md. Faiaz @ Faiz challenged his conviction and sentence in C.R.A. No. 273 of 2002, the two other appellants Md. Salim @ Negro Salim and Md. Raju @ Raju preferred one single appeal being C.R.A. No. 341 of 2002, similarly the other appellant Md. Nawsad @ Pappu preferred a separate appeal being C.R.A. No. 274 of 2002 against their conviction and sentence. However, no appeal has been preferred by the convict Rafi Ahmed @ Chorta Rafique. The aforesaid trial is an outcome of a First Information Report registered at the Taltala Police Station being Taltala Police Station Case No. 404, dated 14.10.1988, under Sections 302/307/34 of the Indian Penal Code. The said FIR was lodged by P.W. 3 Md. Salim Ahmed, who also sustained injuries in the selfsame incident in which his brother Sakil Ahmed @ Lala was killed. The case of the informant as transpires from the First Information Report is as follows; On 13.10.1988 at about 9 p.m. while the informant was returning home from his work he found, in front of Hazi Md. Salim Ahmed, who also sustained injuries in the selfsame incident in which his brother Sakil Ahmed @ Lala was killed. The case of the informant as transpires from the First Information Report is as follows; On 13.10.1988 at about 9 p.m. while the informant was returning home from his work he found, in front of Hazi Md. Mohassin Square at Taltala Lane, the accused Faiaz and Negro Salim were holding his elder brother Sakil Ahmed and the accused Chorta Rafique, Raju and Pappu were assaulting him with razors and bhojalis and on being so assaulted he at once he fell down on the ground with bleeding injuries on his person. Having seen the incident, when the informant rushed to rescue his brother he was also assaulted by the said accused persons with a sharp cutting weapon and he also sustained injuries on his leg. In the meantime, hearing the alarm raised by the informant, as the local people came to the spot, the accused persons fled away. Thereafter, his brother was removed to Nilratan Sarkar Medical College and Hospital, where doctor declared him brought dead and released the informant after giving necessary treatment. After conclusion of investigation police submitted charge-sheet against all the FIR named accused persons for the selfsame offences for which the FIR was registered. They were then placed on trial before the learned Judge, II Bench, City Sessions Court to answer charges under Sections 302/34 of the Indian Penal Code for causing murder of Sakil Ahmed @ Lala and under Sections 307/34 of the Indian Penal Code for attempting to commit murder of the informant Salim Ahmed. 3. HEARD the learned Counsels appearing on behalf of the parties. Perused the deposition of the witnesses and other materials on record as well as the impugned Judgment. 4. HAVING gone through the materials on record, we find the prosecution case against convicts is based on evidence of eyewitnesses, viz., P.W. 3 Md. Salim Ahmed, who also sustained injuries in the selfsame incident, P.W. 4 Shamim Banu, the sister of the victim, P.W. 5 Ahamed Hossain, a local person, P.W. 6 Md. Azmat, P.W. 7 Md. Islam, brother-in-law of the victim. The P.W. 8 Nawsad Ali, P.W. 9 Abdul Rahim are post-occurrence witnesses. The P.W. 11 Rup Lal, P.W. 12 Nadim Khan were declared hostile during the trial. The P.W. 13 Dr. Azmat, P.W. 7 Md. Islam, brother-in-law of the victim. The P.W. 8 Nawsad Ali, P.W. 9 Abdul Rahim are post-occurrence witnesses. The P.W. 11 Rup Lal, P.W. 12 Nadim Khan were declared hostile during the trial. The P.W. 13 Dr. Debasis Basak examined the injured Salim Ahmed, P.W. 3 at the Emergency Department of N.R.S. Medical College and Hospital. While P.W. 14 Dr. Anil Halder examined the deceased Sakil Ahmed @ Lala at the hospital and declared him dead, the P.W. 17 Dr. R. Basu held postmortem on the dead body. The P.W. 19 Dhirendra Nath Kumbhakar is the Investigating Officer of the case, who submitted charge-sheet. The P.W. 18 A.S. Nayak is also a police personnel and took part of the investigation. The learned Counsel appearing on behalf of the appellants challenged the order of conviction on the ground, although as many as five persons claimed to have witnessed the occurrence and two others claimed to have arrived at the place of occurrence just immediately after the incident and came to know from the eyewitnesses as to how Sakil Ahmed and his brother Salim Ahmed were assaulted still nobody reported the incident to the police station which was situated very near. It was further contended that FIR was recorded on the statement of the P.W. 3 Md. Salim Ahmed at the instance of the police in which the appellants have been falsely implicated. On behalf of the defence it was also contended that none of the witnesses was at all reliable. While some of them were close relations of the victim, some were otherwise interested. However, having gone through the evidence of P.W. 3 Salim Ahmed, we do not find any reason to disbelieve the said witness, who also sustained injury in the selfsame incident. His evidence also creates much confidence when we find immediately after the incident before his attending doctor at N.R.S. Medical College and Hospital he disclosed the name of the assailants. The learned Counsel appearing on behalf of the appellants miserably failed to show any reason for which this Court shall disbelieve the evidence of P.W. 3 Salim Ahmed, who is not only the own brother of the victim Sakil Ahmed @ Lala but also sustained injuries in the selfsame incident, therefore, he has no reason to screen the real offender and implicate the appellant and another falsely. So far as the evidence of the P.W. 4, Shamim Banu and P.W. 7 Md. Islam are concerned, we are not ready to disbelieve them simply because they are the relations of the victim when we found that their evidence are otherwise acceptable. So far as the P.W. 5, Ahamed Hossain and P.W. 6 Md. Azmat are concerned, their evidence have been vehemently criticized by the learned Counsel of the defence claiming that they are chance witnesses. Merely because a witness is a chance witness that does not make the said witness unreliable unless there is justifiable reason to suspect them. In this case all the prosecution witnesses have faced a lengthy cross-examinations during the trial but defence was unable to bring out anything from their cross-examinations which may casts a shadow of doubt as to their credibility. We also find the eyewitnesses right from the stage of the First Information Report gave a vivid description about the presence and participation of the appellants and another in the commission of the offences. They also clearly described the manner in which the deceased was assaulted, the distinct role played by them and as to how the P.W. 3 Salim Ahmed sustained injuries. We also found soon after the incident the name of the convicts have been disclosed to the police as well as to the doctor who examined the injured. Therefore, we have no doubt that the Trial Court very rightly came to its conclusion that the convicts are responsible for causing death of Sakil Ahmed @ Lala and injuries to P.W. 3 Salim Ahmed. 5. IN this case the postmortem was held by the P.W. 13 Dr. Debasis Basak. He found the following injuries on the person of the deceased; "(1) One incised punctured would 1" x 3" x muscle and of the would one end was sharp and other end blunt, placed obliquely (sic) over later aspects of upper most part of the left thigh and placed 33" above heel and 8" below iliac crest correspondingly. On desection and tracing the track it was seen to have cut through the skin, fascia, and muscle of thigh correspondingly to cut through and through the ascending branch of lateral circumflex artery through and through to finally terminate into the muscle of the thigh. The track was convergent in nature and directed medial wards and sown words from left to right. The track was convergent in nature and directed medial wards and sown words from left to right. (2) One incised puncture would 1" x 3" x muscle and of the would one end was sharp and the other end was blunt placed obl. Over mid one-third of left thigh placed 3" below injury no. 1 and 30" above heel and 11" below ilicrest correspondingly. On desection and tracing the track it was seen to have cut through the skin fascia and muscle in the way cutting through and through descending branch of lateral circumflux artery, to finally terminate in the muscle of thigh corresponding. The track was convergent in nature and directed down wards medial ward with downward inclination. Extensive extravess action of fluid and clotted blood seen to have infiltrated into the tissues in and around the injuries as noted. No other injuries except those described could be detected even on careful desection and examination under a hand lense. No foreign body detected." 6. THUS, according to the evidence of Autopsy Surgeon, he found only two injuries on the upper part of the left thigh of the deceased and there is nothing on record to show that any injury was caused on the vital parts of the body. Now, considering the nature of injuries and the portion of the body on which same was inflicted, we are of the considered opinion it cannot be inferred in the case at hand the bodily injury was caused to the victim with the intention to cause his death. We, therefore, alter the conviction of the appellants from Section 302 of the Indian Penal Code to Section 304 Part I of the Indian Penal Code and there under sentenced each of them to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-, and in default the convicts shall be liable to suffer rigorous imprisonment for a further period of two years each. It is also directed if the fine amount is realized the entire amount shall be paid to the legal heirs of the deceased Sakil Ahmed. Now, coming to the question of conviction of the appellants under Sections 307/34 of the Indian Penal Code for causing injury to P.W. 3 Salim Ahmed, we find the P.W. 13 Dr. Debasis Basak attended the patient at the emergency of N.R.S. Medical College and Hospital and treated him. Now, coming to the question of conviction of the appellants under Sections 307/34 of the Indian Penal Code for causing injury to P.W. 3 Salim Ahmed, we find the P.W. 13 Dr. Debasis Basak attended the patient at the emergency of N.R.S. Medical College and Hospital and treated him. According to the P.W. 13 he found one abrasion on left mid-thigh 1 cm. and one lacerated injury on the lateral aspect of the left thigh 3" x 1 cm. In our considered opinion from the evidence of the P.W. 13 as regards to the nature of injury and the portion of the body on which the same was inflicted there is no scope to infer that such injury was caused to the P.W. 3 Salim Ahmed in an attempt to murder him. We are of the further opinion from the nature of the injury and the portion of the body on which the same was inflicted, it cannot be suggested that if such injury caused the death of the victim, then the appellants and another would have been guilty of murder. Accordingly, their conviction under Section 307 of the Indian Penal Code is also converted to one under Section 324 of the Indian Penal code and there under each of them are sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 5,000/- and in default to suffer further imprisonment for one year. If the fine amount is realized the entire amount shall be paid to the P.W. 3 Salim Ahmed. 7. IN the result, the appeals are allowed in part. 8. DESPITE, the facts the appeals in question have been disposed of, the issues still confronting us, when out of total 5 convicts, 4 of them by preferring appeals before this Court against their order of conviction and sentence partly succeeded and their conviction have been whittled down to lesser offences and accordingly sentences are reduced, as to whether, such benefits of the judgment can be extended to the non-appealing convict Md. Rafi @ Chorta Rafique, in the event he is found similarly placed with the said appellants. There is no controversy rather it is well settled that a High Court while exercising its appellate power under Section 386 CrPC, may also exercise its revisional jurisdiction and/or inherent jurisdiction not only when there is a formal application but also suo motu. Rafi @ Chorta Rafique, in the event he is found similarly placed with the said appellants. There is no controversy rather it is well settled that a High Court while exercising its appellate power under Section 386 CrPC, may also exercise its revisional jurisdiction and/or inherent jurisdiction not only when there is a formal application but also suo motu. Inherent power of the High Court can be exercised both in relation to substantive as well as the procedural matter. It of course goes without saying that such power has to be exercised in very exceptional cases and that too in dealing with an extraordinary situation in the larger interest of administration of justice and for preventing manifest injustice being done. In other words, the inherent jurisdiction of the High Court certainly to be exercised even suo motu. It acts ex debitio justitiae. It can, thus, do real and substantial justice for which alone it exists. In this regard, in our opinion, it would be sufficient to refer the observation of the Hon'ble Supreme Court in the case of Popular Muthiah Vs. State, reported in (2006) 3 SCC (cri) 245. Similarly, on the point when there are more than one convicts and out of all the convicts while a few preferred appeal challenging their order of conviction and sentence but not the rests and the appellate Court acquitted those convicts, who preferred the appeal and come to a definite finding that the case against all the convicts are interdependent and inextricably integrated, nothing prevent the appellate Court to extend the benefit of acquittal to the non- appealing convicts, in the context the decisions of the Hon'ble Supreme Court in the case of Hari Nath and Anr. Vs. State of U.P., reported in AIR 1988 SC 345 as well as in the case of Brathi @ Sukhdev Singh Vs. State of Punjab, reported in AIR 1991 SC 318 can very well be referred and relied upon. 9. NOW, in our endeavour to examine the question, whether the non- appealing convict Md. Rafi @ Chorta Rafique is standing on the same footing with the other convicts, the appellants before us, we find from the evidence of the eyewitnesses to the occurrence as well as the injured witness that while the accused Faiaz and Negro Salim were holding the victim Sakil Ahmed, the non- appealing convict Md. Rafi @ Chorta Rafique is standing on the same footing with the other convicts, the appellants before us, we find from the evidence of the eyewitnesses to the occurrence as well as the injured witness that while the accused Faiaz and Negro Salim were holding the victim Sakil Ahmed, the non- appealing convict Md. Rafi @ Chorta Rafique, Raju and Pappu assaulted him with razors and bhojalis on the upper portion of his left leg. We also find at the time of the occurrence while the brother of the deceased P.W. 3 Md. Salim Ahmed tried to rescue him the accused persons conjointly pounced upon him and he was also assaulted. Thus, there is no scope to distinguish the case of the non- appealing convict from that of the appellants before us. We have no doubt this non-appealing convict is standing on same footing with the appellants before us. On the face of the evidence on record and the role attributed to him, this non- appealing convict cannot also be held guilty under Section 302 of the Indian Penal Code and at its highest he will be liable for an offence punishable under Section 304, Part I of the Indian Penal Code. We are, therefore of the opinion that the non-appealing convict Md. Rafi @ Chorta Rafique is very much entitled to enure to the benefit which has been extended to the present appellants. Accordingly, we alter the conviction of the non-appealing convict Md. Rafi @ Chorta Rafique, to one under Section 304 Part I of the Indian Penal Code from Section 302 of the Indian Penal Code for causing death of Sakil Ahmed and there under sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- and in default to suffer rigorous imprisonment for a further period of 2 years and it is further directed if the fine amount is realized the entire amount shall be paid to the legal heirs of the deceased Sakil Ahmed. Similarly his conviction under Sections 307/34 of the Indian Penal Code for attempting to commit murder of Salim Ahmed is also converted to a conviction under Sections 324/34 of the Indian Penal Code and there under he is sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. Similarly his conviction under Sections 307/34 of the Indian Penal Code for attempting to commit murder of Salim Ahmed is also converted to a conviction under Sections 324/34 of the Indian Penal Code and there under he is sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 5,000/- and in default to suffer further imprisonment for one year and it is also directed in the event the fine amount is realized the same shall be paid to the P.W. 3 Salim Ahmed. Let the Lower Court Records be sent down to the Court below forthwith. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible.