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2016 DIGILAW 513 (CAL)

Asraful Sk. v. State of West Bengal

2016-06-28

SIDDHARTHA CHATTOPADHYAY

body2016
ORDER : Siddhartha Chattopadhyay, J. This instant criminal appeal emanates from the judgment and order of conviction dated 28.08.2008 and 29.08.2008 passed by the learned Additional District and Sessions Judge, 4th Fast Track Court, Jangipur, Mursidabad in Session Trial No. 06.05.2007, by which the learned Trial Court has convicted all the appellants. 2. According to the appellant learned Trial Court did not consider the evidence, factual aspects and legal aspects in its proper perspectives. 3. This Court is called upon to answer if the impugned order is sustainable or not in view of the evidence and documents led by the prosecution. Before that factual aspects require recapitulation. 4. The complainant’s case in a capsulated form is such that on 27.05.2004 at or about 8 a.m. all the convicts/appellants trespassed in the ancestral dwelling house of the complainant with deadly weapons. The complainant and others screamed for help and the local people came to the spot. When the complainant resisted the convict/appellant, one of the convicts Majibur Rahaman hit him on his right leg and shouted with the words ‘finish off Sala’. The appellant Asarful Sk. hit him on his head with a Hansua to kill him. He suffered profused bleeding injury and fell down. When his brother Lutful Haque came for his rescue, he was also assaulted by the convicts. The victim complainant was seriously injured and he was taken to local hospital. On their way to hospital, his father and other relatives including some villagers went to police station and the concerned police station has sent him to Anupnagar Hospital. As his injury was fatal, so he was referred to Jangipur Hospital for medical treatment. According to the complainant, the convicts had committed the offence in a planned way. In spite of reporting, the police about the incident, police did not take any effective steps and for which he had to file complaint case before the concerned Magistrate, who being after satisfied with the complaint has committed the same to the learned Sessions Judge for trial. This gives rise to the occasion to adjudicate the case by the learned Trial Court. 5. The defence case as it appears to me from the trend of cross-examination and examination of the convict under Section 313 of the Criminal Procedure Code is their innocence and they have been falsely implicated out of enmity. 6. This gives rise to the occasion to adjudicate the case by the learned Trial Court. 5. The defence case as it appears to me from the trend of cross-examination and examination of the convict under Section 313 of the Criminal Procedure Code is their innocence and they have been falsely implicated out of enmity. 6. After the case is committed, the Trial Court has recorded evidence of the witnesses, examined the accused under Section 313 of the Criminal Procedure Code and thereafter has convicted them. 7. At the time of hearing of appeal learned Counsel appearing on behalf of the appellant contended that the learned Court below failed to appreciate the evidence in its entirety. He has referred to the injury report, which according to the doctor is simple in nature whereas the specific case of the complaint is such that he was assaulted with a Hansua which is a sharp cutting weapon. He further contended that no sharp cutting injury was available in the person of the victim. It appears from the injury report that there was lacerated injury on this scalp over the upper occipital regions. P.W. 7 has specifically mentioned it in evidence that he did not find any external injury mark except the scalp injury. Before the doctor concerned, the complainant did not mention the names of the assailants. He also contended that since there was family dispute over the property and for that reason they have been falsely implicated. 8. Since the witnesses are the ears and eyes of the criminal case, so their evidence has to be scrutinized. P.W.1 is a local witness. According to him on the relevant day the convicts being armed with Lathi, Rod, Ballam, Hansua and Shabal entered into the house of the defacto complainant and started breaking tiles. The victim Majibur Rahaman assaulted Islam Sk. with Lathi and then the convict Asarful Sk. assaulted the defacto complainant with Hansua on his head causing bleeding injury. Another victim rushed to the place of occurrence to save his elder brother and he was also assaulted. They took the victim to the nearby hospital and the complainant was given initial medical treatment and referred him to Jangipur Hospital. In course of cross-examination, the defence could not shake the evidence so far as assault is concerned. Mere bleeding injury does not mean that sharp cutting weapon was used. They took the victim to the nearby hospital and the complainant was given initial medical treatment and referred him to Jangipur Hospital. In course of cross-examination, the defence could not shake the evidence so far as assault is concerned. Mere bleeding injury does not mean that sharp cutting weapon was used. Doctor concerned has opined that there was a lacerated injury on this scalp. Doctors who have treated the victim never said that it was due to sharp cutting weapon. Therefore, assault by a Hansua, which is the sharp cutting weapon does not lie. Even if I assume that Hansua was used for such assault in that case it must be with the blunt side of that Hansua. 9. P.W. 2 is the brother of the complainant. She has also deposed and corroborated the complaint case almost in the same tone and tune. In course of cross-examination it was asked to her how many blows were given by the convicts and she could not say the number of blows. It appears from the evidence of this P.W. 2 that she is a rustic woman illiterate also. Therefore, it is not possible for her to specifically say as to how many blows were given because her evidence was recorded almost after four years from the date of occurrence. Evidence of P.W. 3, goes to show that such an incident took place. He has corroborated the complaint case. In course of cross-examination, his evidence remains unshaken. P.W. 4 is a doctor who has given initial treatment to the victim Islam Sk. and Lutful Haque. P.W. 5 is one of the victims. In his evidence he has given the detail of the incident which exactly tallies with the prosecution case. Defence could not demolish his evidence in course of cross-examination. P.W. 6 also corroborated the incident in toto. His also one of the victim of such assault. P.W. 7 is the another doctor of the Jangipur S.D. Hospital in his evidence is stated the difference scalp injury and except that he did not find any other injury. P.W. 8 is the advocate who had drafted the complaint. According to him he has read over and explained the contents of the complaint petition to the defacto complainant. These are the sum and substance of the prosecution evidence. 10. P.W. 8 is the advocate who had drafted the complaint. According to him he has read over and explained the contents of the complaint petition to the defacto complainant. These are the sum and substance of the prosecution evidence. 10. On perusal of the medical reports, entire evidence of prosecution side and particularly relying on evidence of P.W. 7, it appears to me that no sharp cutting weapon was used for committing such offence. It is also equally true that assault was taken place and the complainant and his brothers suffered injury due to such assault. After scrutinizing the evidence I find that the convict Asarful Sk. is the leader of the assailing party. Other convicts had taken part in the assault but not in such a manner as Asarful Sk. had done. Therefore, it seems to me that the judgment passed by the learned Trial Court has to be upheld but quantum of punishment has to be interfered with. The trial is pending since 2004 which indicates that for a decade the convicts/appellants are facing rigour of the trial. Learned Trial Court has convicted all the convicts/appellants under Section 147 of the Indian Penal Code and they are sentenced to suffer rigorous imprisonment for one year each and also to pay fine of Rs.500/- each in default of payment of fine they will suffer further simple imprisonment for four months each. They are also found guilty for committing offence under Section 426/149 of the Indian Penal Code and they are sentenced to suffer rigorous imprisonment of three months each only. They are also sentenced to suffer one year of rigorous imprisonment each for committing offence under Section 448/149 of the Indian Penal Code along with sentence to suffer for one year of rigorous imprisonment for committing offence under Section 323/149 of the Indian Penal Code. All the convicts were sentenced to suffer three years rigorous imprisonment and also to pay fine of Rs.1,000/- each in default of payment of said fine, they would suffer simple imprisonment for one month more for committing offence under Section 324/149 of the Indian Penal Code. All the convicts were sentenced to suffer three years rigorous imprisonment and also to pay fine of Rs.1,000/- each in default of payment of said fine, they would suffer simple imprisonment for one month more for committing offence under Section 324/149 of the Indian Penal Code. In regard to the convict Asarful Sk., he is also sentenced to suffer rigorous imprisonment of two years and also to pay fine of Rs.500/- in default of payment of fine, he will further suffer simple rigorous imprisonment for four months for committing the offence under Section 148 of the Indian Penal Code. It seems to me that the punishment given is harsh and disproportionate to the offence committed. This apart, the convicts/appellants are facing the Court proceedings for the said assault for about a decade. Therefore, considering all these aspects, I am of the view that the convict Asarful Sk., Majibur Rahaman, Khairul Sk., Rafik Sk., Nazrul Sk. and Asmaul Sk. shall be sentenced to pay fine of Rs.3,000/- each instead of rigorous imprisonment for one year and to pay fine of Rs.500/-each for the offence under Section 147 of the Indian Penal Code. They are also hereby sentenced to pay Rs.5,000/- each, instead of rigorous imprisonment for three months for committing the offence under Section 426/149 of the Indian Penal Code. The above named convicts/appellants are sentenced to pay fine of Rs.1,000/- each instead of rigorous imprison for committing offence under Section 448/149 of the Indian Penal Code. Instead of their sentence for imprisonment for one year, they are also sentenced to pay one thousand rupees each, for committing the offence under Section 323/149 of the Indian Penal Code. All the above named convicts be sentenced to pay fine of Rs.1,000/- each, instead of three years rigorous imprisonment for committing offence under Section 324/149 of the Indian Penal Code. 11. The convict Asarful Sk. is also hereby sentenced to suffer rigorous imprisonment for one year and be sentenced to pay fine of Rs.1,000/- instead of rigorous imprisonment for two years and to pay fine of Rs.500/-. If all the convicts/appellants do not pay the aforesaid fine amount in respect of each offence collectively within a month all of them shall undergo rigorous imprisonment for one year each. All the sentences shall run concurrently. The period of detention already undergone by Asarful Sk. be set off this modification, this criminal appeal is allowed. If all the convicts/appellants do not pay the aforesaid fine amount in respect of each offence collectively within a month all of them shall undergo rigorous imprisonment for one year each. All the sentences shall run concurrently. The period of detention already undergone by Asarful Sk. be set off this modification, this criminal appeal is allowed. They are also hereby discharged from their respective bail bonds. 12. Let a copy of this judgment be sent to the learned Court below for information and taking necessary action in accordance with law. 13. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.