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2019 DIGILAW 943 (CAL)

Mojaffar Hossain v. State of West Bengal

2019-11-21

TIRTHANKAR GHOSH

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JUDGMENT : TIRTHANKAR GHOSH, J. 1. The revisional application has been preferred against the judgment and order dated 22nd January, 2009 passed by the Ld. Additional Sessions Judge, Cooch Behar in Criminal Appeal No. 5/2008 wherein the Ld. Appellate Court was pleased to affirm the judgment and order dated 2nd January, 2008 passed by the Ld. Judicial Magistrate, 1st Class, Mekhliganj, Cooch Behar in connection with G.R. Case No. 42 of 2003. The Ld. Trial Court was pleased to hold the present petitioners guilty of offences punishable under Sections 143/341/324/325 of the Indian Penal Code (IPC) and sentenced each of them. The Ld. Trial Court for the offence under Section 143 of the IPC imposed a fine of Rs. 500/- i.d. S.I. for 15 days, for the offence under Section 342 imposed a fine of Rs. 500/- i.d. S.I. for 15 days, for the offence under Section 324 of the IPC S.I. for 1 year and to pay a fine of Rs. 500/- i.d. S.I. for 1 month, for the offence under Section 325 of the IPC S.I. for 2 years and to pay a fine of Rs. 500/- i.d. S.I. for 1 month. The Ld. Appellate Court concurred with the findings of the Ld. Trial court so far as the order of conviction is concerned, however, the Ld. Appellate Court modified only the sentence relating to Section 325 of the IPC to S.I. for 1 year. 2. The prosecution case in short is that one Saira Banu, wife of Sahidul Islam, resident of Haldibari informed the Officer-in-Charge, Haldibari Police Station to the effect that her husband Sahidul Islam had been cultivating a particular land for more than 15 years. On 1st March, 2003 at about 9 AM when he was cultivating his land along with Mustafa, the neighbors namely, Mojaffar Hossain, Moynul Haque, Rafikul Islam, Faridul Haque, Fazlul Haque and Firoza Khatoon with the aid of sharp weapons attacked them. The complainant's husband and Mustafa being assaulted raised hue and cry, hearing which the complainant's nephew, Samiruddin went to save them, who was also assaulted. The complainant alleges that the accused persons with the aid of deadly and sharp weapons injured the head of the complainant's husband, as a result of which, he lost his senses and the other two victims suffered grievous injuries on their person. The complainant alleges that the accused persons with the aid of deadly and sharp weapons injured the head of the complainant's husband, as a result of which, he lost his senses and the other two victims suffered grievous injuries on their person. All the injured were taken to Haldibari Hospital and from there to Jalpaiguri Hospital. The complainant therefore requested the Officer-in-Charge of the police station to take appropriate action against the named accused persons. On the basis of the aforesaid complaint Haldibari Police Station Case No. 19 dated 1st March, 2003 was registered for investigation under Sections 143/341/324/326 of the IPC against the aforesaid named six persons. On completion of investigation the Investigation Officer (IO) submitted chargesheet under Sections 143/341/353/354/326 of the IPC against five of the accused persons and as no evidence could be collected against Firoza Khatoon, she was discharged from the case. 3. On 16th April, 2003 the Ld. ACJM was pleased to take cognizance of the offence and after compliance with the provisions of Section 207 of the Cr.P.C. was pleased to transfer the case to the Ld. Judicial Magistrate for trial and disposal. Accordingly, on 3rd November, 2003 the Ld. Magistrate was pleased to frame charge under Sections 143/324/341/326 of the IPC against the five accused persons and the charge was thereafter read over to the accused persons to which they pleaded not guilty and claimed to be tried. 4. The prosecution in order to prove its case relied upon 15 witnesses and number of documents while the defence examined none and the plea of the defence was one of denial of the prosecution case, false implication and innocence. The Ld. Magistrate on conclusion of trial was pleased to hold the five accused persons guilty of offences under Sections 143/341/324/325 of the IPC and sentenced them as aforesaid. 5. The present petitioners being aggrieved by the judgment and order of conviction preferred an appeal before the Ld. Sessions Judge, Cooch Behar, such appeal was numbered as Criminal Appeal No. 5/2008 and the Ld. Appellate Court after hearing both the sides was pleased to affirm the judgment and order of conviction so passed by the Ld. Judicial Magistrate, Mekhliganj. However, the Ld. Appellate Court was pleased to modify the imprisonment in respect of the offence under Section 325 of the IPC and modified the same from S.I. for 2 years to S.I. for 1 year. Judicial Magistrate, Mekhliganj. However, the Ld. Appellate Court was pleased to modify the imprisonment in respect of the offence under Section 325 of the IPC and modified the same from S.I. for 2 years to S.I. for 1 year. 6. Mr. Subir Banerjee, Ld. Advocate appearing for the petitioners at the time of hearing took the plea of juvenility in respect of the petitioner No. 5 namely Fazlul Haque. This Court by an order dated 18th July, 2019 directed the Ld. ACJM, Mekhliganj to conduct an inquiry following the provisions of law and arrive at a conclusion regarding the age of petitioner No. 5. The Ld. ACJM, Mekhliganj after recording evidence of the Headmaster of Kamala Kanta High School and the Headmaster of Samila Bose Junior Basic School, Debanganj, Haldibari and the documents relied upon by them from the official records maintained with the concerned school arrived at a finding regarding the date of birth of petitioner No. 5 to be 19th January, 1989. As the offence alleged in the FIR was committed on 1st March, 2003, the age of the petitioner No. 5 was 14 years 1 month and 12 days at the time of the said incident. Considering the conclusion arrived at by the Ld. ACJM, Mekhliganj, I am of the view that the petitioner No. 5 namely, Fazlul Haque was juvenile at the relevant point of time when the incident took place, as such his case is to be decided differently from rest of the others. 7. It is seen from the records of this case that the prosecution relied upon PW-1 Saira Banu, PW-2 Anil Sen, PW-3 Anarul Haque, PW-4 Mojammel Haque, PW-5 Mohabul Haque, PW-6 Mihir Kumar Dutta, PW-7 Islam Mohammed, PW-8 Ainul, PW-9 Sahidul Islam, PW-10 Ahiar Alam, PW-11 Naben Barman, PW-12 Dr. Bipul Chandra Roy, PW-13 Bidyut Kumar Roy, PW-14 Md. Safiul Islam and PW-15 Mostafa Md. For appreciation of evidence the deposition of PW-1, PW-9 (who happens to be an injured witnesses), PW-12 and PW-14 who are medical experts are relevant for the purpose of this case. So far as corroboration is concerned PW-5 and PW-11 are also important, rest of the witnesses either became hostile or evaded the issue of witnessing the incident and as such the same are not worthy of consideration for arriving at a proper finding of this case. 8. So far as corroboration is concerned PW-5 and PW-11 are also important, rest of the witnesses either became hostile or evaded the issue of witnessing the incident and as such the same are not worthy of consideration for arriving at a proper finding of this case. 8. It is seen from the evidence of PW-1 that when Mostafa was ploughing the land, Mojaffar (Petitioner No. 1) snatched the plough from his hand and struck him at his left leg with a ballam. At that time Sahidul Islam (PW-9) went to rescue Mostafa when the petitioner No. 1 hit him at his head with the said ballam and he started bleeding profusely. Following the aggression of petitioner No. 1, Rafikul Haque (Petitioner No. 3) struck Sahidul (PW-9) with a knife on his head. Faridul Haque (Petitioner No. 4) hit Sahidul with an iron rod on his left leg. Moynul Haque (Petitioner No. 2) struck on the right hand of Sahidul with a big knife and Fazlul Haque (Petitioner No. 5) struck Sahidul on his back with a bamboo stick. 9. It is seen from the evidence of PW-9 Sahidul Islam that he narrated before the Court regarding the name of all this accused persons yet he admitted that since he was unconscious it was not possible for him to state as regards the specific role played by each of the accused persons. However, the facts as narrated by PW-1 are corroborated by the medical evidence that is the evidence of PWs. 12 and 14 and Exts.3 and 8, the respective reports submitted by them. 10. It is seen from the Ext.3 which was prepared by PW-12 that the following injuries were present on the person of PW-9, Sahidul Islam:- (i) cut injuries seen all over the head 1.5" - 2" in length each. (ii) cut marks all over lateral side of forehead. (iii) swelling on the left forearm with bony fracture. (iv) wound over left leg joint just above the lateral malleolus (injuries complicated and grievous). 11. It is seen from the Ext.8 which was prepared by PW-14 that the following injuries were present on the person of PW-9, Sahidul Islam:- (i) lacerated injury over the untex 2½ " length fresh wound. (ii) lacerated injury over right parietal region of scalp 1" in length. (iii) lacerated injury over left parietal region of scalp. (iv) fracture of left ulna. (ii) lacerated injury over right parietal region of scalp 1" in length. (iii) lacerated injury over left parietal region of scalp. (iv) fracture of left ulna. (v) compound fracture of left fibula. (vi) swelling with fracture of second metacarpal of right hand. (vii) blunt trauma on left side of chest [(iv), (v) and (vi) are grievous injuries]. 12. Thus the testimony of PW-1 can be relied upon and the said fact that the victim sustained injury and they were taken to the police station and the hospital are corroborated by two van-rickshaw pullers being PW-5 and PW-11. 13. I have taken into account the judgment delivered by the Ld. Judicial Magistrate, Mekhliganj, Cooch Behar in GR No. 42/2003 (TR 156/2003) and the Appellate Court's order passed in Criminal Appeal No. 5/2008, I hold that both the Courts committed no illegality while arriving at a finding of guilt in respect of the present petitioners. As such the order of conviction so passed by the Ld. Trial Court as well as that of the Ld. Appellate Court is hereby affirmed. 14. Inspite of the convictions so arrived at I think that the sentence in respect of each of the petitioners are to be considered separately. 15. As it has been found that Fazlul Haque (Petitioner No. 5) was a juvenile on the date of commission of the offence, relying upon Pradeep Kumar vs. State of U.P. 1995 SCC (Cri) 395, Bhola Bhagat vs. State of Bihar, (1997) 8 SCC 720 , Upendra Kumar vs. State of Bihar, (2005) 3 SCC 592 and Vineet Kumar Gupta vs. State of Punjab, (2009) 17 SCC 587 , his order of conviction is not interfered with but so far as the sentence which has been awarded, the same is set aside. 16. In the examination of the Ld. Trial Court under Section 313 of the Cr.P.C. it is found that the age of Faridul Haque (Petitioner No. 4) is shown to be of 18 years. I hold that it was incumbent upon the Ld. Magistrate to consider that if on June, 2007 a person happens to be 18 years of age then if the offence is committed in the year 2003 presumably he would be a juvenile. I hold that it was incumbent upon the Ld. Magistrate to consider that if on June, 2007 a person happens to be 18 years of age then if the offence is committed in the year 2003 presumably he would be a juvenile. As such without going into further complexity, I uphold the conviction so far as the petitioner No. 4 is concerned and extend the same benefit as awarded to petitioner No. 5, consequently the sentence so imposed against him is also set aside. 17. So far as the petitioner No. 2 Moynul Haque and petitioner No. 3 Rafikul Haque are concerned, their sentence in respect of commission of offence under Section 324 of the IPC and Section 325 of the IPC, are modified to three months simple imprisonment along with fine of Rs. 500/- and it is directed that all the sentences shall run concurrently. 18. Petitioner No. 1 Mojaffar Hossain is found to be the main aggressor in respect of the offences so committed. Accordingly, his sentence in respect of the offences under Section 324 of the IPC and Section 325 of the IPC are modified to a period of six months simple imprisonment along with a fine of Rs. 500/- and it is directed that all the sentences shall run concurrently. 19. So far as rest of the offences are concerned the sentence in respect of the petitioner Nos. 1, 2 and 3 would remain unaltered. 20. Needles to mention that the petitioner No. 1 was detained from 02-03-2003 to 16-04-2003 during the course of investigation, petitioner No. 2 Moynul Haque was in custody from 05-03-2003 to 16-04-2003 and petitioner No. 3 Rafikul Haque was detained in custody from 10-04-2003 to 16-04-2003. Considering the said detention the provisions of Section 428 of the Cr.P.C. will apply and the said period would be set off from the substantial sentence so imposed upon them. 21. CRR 527 of 2009 is accordingly partly allowed. 22. Department is directed to communicate this order to both the Courts below and the LCR be sent back to the Lower Courts below. 23. Ld. Trial Court is directed to implement the order of sentence so passed by this Court.