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2013 DIGILAW 18 (CAL)

In Re: Rafi @ Rafikul Islam Faraji v. .

2013-01-15

TOUFIQUE UDDIN

body2013
JUDGMENT Toufique Uddin, J. 1. This appeal arose out of judgment and order of conviction dated 30.03.2012 and thereby convicting the appellants no. 1 and 2 under Sections 447/326/34 of the Indian Penal Code and sentencing them to suffer imprisonment for four years and to pay a fine of Rs. 3,000/- each, with default clause and also convicting the appellants no. 3, 4, 5 and 6 under Sections 447/323/34 and sentencing them to suffer simple imprisonment for one month and to pay fine of Rs. 1,000/- with default clause. In the background of this appeal, the fact in a nutshell is as follows:- A complaint was lodged by one Israfil Sheikh, in Nakashipara Police Station on 22.03.2010 to the effect that on 21.03.2010 at 05.00 p.m. a quarrel took place when a she-goat delivered a kid and the complainant threw the dirt in a ditch. At that time the accused persons attacked their house with iron rods, Sabol and other dangerous weapon to kill his father Baga Sheikh @ Ismail Sheikh when Sariful Farazi assaulted his father with iron road, Sabol on his nose and other persons assaulted his father upon different parts of his body. As a result his father sustained severe injury of fracture on nose. The accused persons also assaulted the complainant and his associates. On receipt of complaint, Police caused enquiry, visited the spot, examined witness and after observing all formalities submitted charge-sheet under Section 307 of the Indian Penal Code. 2. The case was committed by the learned Magistrate to the learned Sessions Judge. 3. On hearing of both the sides charge was framed under Section 447/326/307/34 of the Indian Penal Code. The contents of charges were read over and explained to them and the accused persons pleaded not guilty and claimed to be tried. 4. To contest the case the prosecution examined 9 witnesses while none was examined on the side of the defence. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. From the trend of cross-examination of PWs and replies given by the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure, it appears that their case is total denial of offence with a further plea of innocence. 5. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. From the trend of cross-examination of PWs and replies given by the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure, it appears that their case is total denial of offence with a further plea of innocence. 5. On hearing of both sides, the Trial Judge held the accused persons guilty by the impugned judgment and convicted them accordingly. 6. Now the point for consideration is if the judgment suffers from any material irregularity and calls for any interference or not. 7. For appreciation of this case, learned lawyer for the appellant argued at length after drawing my attention to the relevant pieces of evidence. It was contended by the learned lawyer of the appellant that over the throwing of dirty articles into a piece of land which both sides claimed to be of their own, there was a skirmish between two parties when both sides sustained injuries and at that time the accused Sariful is alleged to have assaulted the victim over his nose by a Sabol causing grievous injury. He further argued that there was no acceptable evidence for holding other accused persons guilty because there was no coherent and consistent evidence of assault made by all the rest appellants. Moreso, there was improvement of statement in the court vis--vis the statement given during investigation under Section 161 of the Code of Criminal Procedure. 8. On the other hand, the learned lawyer for the State in his usual fairness made submission with reference to the materials on record and position of law. 9. I have duly considered the respective submissions made by the learned Counsels for both sides and perused the materials-on-record. 10. Though the fact of the case could be gathered from discussion of evidence, yet in precise form it should have been given first in the judgment. 11. I find that the Court below convicted the accused Rafikul Farazi and Sariful Farazi under Sections 447/326/34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for four years and to pay a fine of Rs. 3,000/-, in default to suffer rigorous imprisonment for six months. 11. I find that the Court below convicted the accused Rafikul Farazi and Sariful Farazi under Sections 447/326/34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for four years and to pay a fine of Rs. 3,000/-, in default to suffer rigorous imprisonment for six months. The other accused persons were convicted under Sections 447/323/34 of the Indian Penal Code and sentenced to suffer simple imprisonment for one month and to pay a fine of Rs. 1,000/- each, in default to suffer imprisonment for ten days. 12. A careful scrutiny of the materials-on-record leads me to hold that prosecution was able to prove the case in part because of the following facts:- 13. The throwing of dirty articles after the delivery of a kid by a she-goat the dispute arose and that is germane in this case. From the evidence of PW-2 it transpires that accused Rafikul instructed other accused persons to kill father of the complainant and accused Sariful assaulted the complainant's father over his nose with iron rod. But evidence of PW 6 and PW 7 appears to be contradictory in the light of confrontation taken from the I.O., PW 9 over the fact that Rafi instructed Sariful to attack the victim. What is not stated in the statement made under Section 161 of the Code Criminal Procedure but disclosed in court as PW is ordinarily an improvement rendering prosecution case weak. Regarding such instruction, allegedly given by accused Rafikul, there is no sound and uniform corroborative evidence. Common intention is required to connect the accused Rafikul. Even if for argument's sake (here, I do not accept due to insufficiency of evidence), it is believed that Rafikul ordered Sariful to hit the victim, yet Section 34 IPC will not be attracted. We may put reliance on the decision reported in 1956 CrLJ 341 . A mere direction from one person to another and carrying out that direction by the other may be only instigation within the meaning of Section 114 of the Indian Penal Code and may not be a case of joint act falling under Section 34 IPC. Only on this score alone Section 326 IPC cannot be attracted against accused Rafikul. The FIR is silent over the fact that Rafikul ordered Sariful to assault. 14. Only on this score alone Section 326 IPC cannot be attracted against accused Rafikul. The FIR is silent over the fact that Rafikul ordered Sariful to assault. 14. Also I do not find consistent and corroborative evidence to hold that other accused persons caused injury or rather assaulted the victim or his associates. There is no injury report in report of other persons viz. son and wife of the victim. 15. Though in a case under Section 323 IPC injury or report thereof cannot be insisted upon for proof of assault, yet consistent evidence is required. Wherefrom the learned trial court imported the evidence that "others by remaining present there either gave twists and blows to the victim PW 5 or assaulted, pushed or slapped few of the family members of the victim side (vide page no. 16 of the judgment), I fail to find. A Judge should not act on surmise and conjecture or be swayed by emotions. Admittedly, there is a pending counter-case lodged by the accused person over the incident of same day. 16. Now comes the question of evidence of the Doctor who examined the victim. It transpires from his evidence that the patient-victim disclosed to him that Sariful assaulted over his nose due to which he sustained injuries. He did not name any other persons or he did not say any other person assaulted either him or his relations. Therefore, the charge against other accused persons appears to have not been proved by the prosecution. 17. Now the question is whether the sentence passed by the learned Trial Court is to be maintained or not. The learned trial court did not extend the benefit of Section 360 of the Code of Criminal Procedure to the appellants considering gravity of offence etc. It is needless to mention that there is no evidence-on-record to prove that the accused persons were previously convicted or not. There is no blemished antecedents appearing in the record against them. The incident involved both sides and took place on the spur of the moment. It transpires that the learned trial court held guilty other accused persons for commission of offence under Section 447/323/34 IPC and the Court took them in custody. There is no blemished antecedents appearing in the record against them. The incident involved both sides and took place on the spur of the moment. It transpires that the learned trial court held guilty other accused persons for commission of offence under Section 447/323/34 IPC and the Court took them in custody. It transpires from the record that the accused persons were held guilty and taken into custody on 31.03.2012 and further the accused Sariful Farazi got bail in connection with appeal on 27.09.2012, that is after a lapse of six months. The record further shows that prior to submission of charge-sheet, the petitioner also suffered detention for a period of about one month and eleven days. Since the present offence committed by the accused Sariful appears to be the first one and in absence of any previous record I thought it fit that the sentence of punishment should be converted to the period of already undergone by the present appellant - Sariful. It is further pointed out that the accused Sariful is also named as Safi Farazi and regarding such name, there is no dispute from the side of the State also. Accordingly, the appeal succeeds in part. The appellant no. 2 namely Sariful @ Safi Farizi's sentence be modified to the extent that he should suffer imprisonment for the period already undergone and should pay a fine of Rs. 3,000/-, in default he would suffer further imprisonment for one month. In case of realization of fine amount, the same should be paid to the victim. The rest of the appellants be acquitted and released from bail bonds forthwith if not otherwise wanted. The appeal is accordingly disposed of. Let the Lower Court Record be sent down to the Court below for taking necessary action according to law. Urgent Xerox Certified copy of this order be given to the parties, if applied, for upon compliance of necessary formalities.