Aziz @ Azizul & Ors vs State Of West Bengal
2021 Latest Caselaw 199 Cal

                IN THE HIGH COURT AT CALCUTTA
               CRIMINAL APPELLATE JURISDICTION
                        APPELLATE SIDE


PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH


                               CRA 90 of 1986

                          Aziz @ Azizul & Ors.
                                   -vs.-
                          State of West Bengal


For the Appellants              :   Mr. Mrityunjoy Chatterjee

For the State of West Bengal    :   Mr. Ranadev Sengupta

Heard on                        :   06.03.2020 & 04.01.2020

Judgment on                     :   15th January, 2021.



Tirthankar Ghosh, J:-

      The present appeal has been preferred against the judgment, order

and sentence dated 12.02.1986 passed by the learned Additional Sessions

Judge, 1st Court, Suri, Birbhum, in connection with the Sessions Case No.

62 of 1984 (Trial No. 2 of June of 1985) wherein the learned Court was

pleased to convict the appellants and sentenced each of them for the offence

under Sections 148/149/379 of the Indian Penal Code for a period of two

years and sentenced the appellant Azizul for the offence under Section 307

of the Indian Penal Code for five years and pay a fine of Rs.1,000/-, i.d. to

suffer R.I. for six months.
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      The prosecution case in brief is that at about 10.30 am on

10.12.1979 when Sk. Mortuja Ali was supervising paddy being thrashed at

his farmyard which were done by the laborours being Siru Mahara and

Sakim Mia, the accused persons after forming an unlawful assembly and

with deadly weapons entered the farmyard with the intention of looting the

paddy, bullock carts from the said farmyard. On receipt of such information

Rowsan Ali came from his house with a lathi and chased the accused

persons, when the accused Aziz shot an arrow which penetrated the chest of

Rowsan Ali. After sustaining injury, Rowsan Ali fell down on the ground and

the other accused persons assaulted him with an intention to kill him. It is

also alleged that the daughter and wife of the said Rowsan Ali were also

assaulted as they tried to save him. The further allegation is that the

accused persons took away paddy, buffalos, cart etc. from the farmyard of

Rowsan Ali and threatened some of the witnesses who went to call a doctor

for the treatment of Rowsan Ali.


      On the basis of the information lodged by Mortuja Ali with the

Inspector-in-charge, Suri Police Station, the instant case being No. 12 dated

10.12.1979 under Sections 147/148/149/326/307 of I.P.C. was registered

for investigation. Police authorities on completion of investigation submitted

charge-sheet under Section 148/307 read with Section 149, Section 323

read with Section 149, Section 379 read with Section 149 of the Indian

Penal Code. The case was committed to the Court of Sessions after

compliance of the provision of Section 207 of the Code of Criminal Procedure

and the learned Court after considering the arguments advanced on behalf
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of both the parties was pleased to frame charge under Section 148 IPC,

149/307 IPC, 149/323 IPC, 149/379 IPC.


       The prosecution in order to prove its case relied upon 23 witnesses

namely, PW1, Sk. Mortuja Ali, complainant; PW2, Sk. Rowsan Ali, Victim;

PW3,    Sakim   Momin,     Labour;   PW4,    Siru   Mohara,    Labour;   PW5,

Khairunnessa Bibi, mother of the complainant; PW6, Asgar Ali, relative of

PW1; PW7, Rahima Bibi, daughter of the victim; PW8, Sujai Momin, villager;

PW9, Sujan Mohuri, villager; PW10, Sk. Mutai, villager; PW11, Md. Mazibul

Islam, villager; PW12, Sk. Abdur Rashid, villager; PW13, Tarapada Majhi,

villager; PW14, Sk. Md. Yusuf, Pradhan of Damdama Gram Panchayet;

PW15, Md. Sruman Ali, employee of State Electricity Board at Suri; PW16,

Sk Ajijul Haque, seizure list witness; PW17, Sk. Barjahan, villager; PW18,

Mir Abdul Jobbar, post-occurrence witness; PW19, Dr. Jyoti Prokash

Ghosh, Medical Officer attached to Suri Sadar Hospital; PW20, Tushar Kanti

Ghosh, S.I. of police attached to Murarai police station; PW21, Baidyanath

Bhatttacharjee, Clerk of Suri Sadar Hospital since 1973; PW22, Abdul

Kabir, S.I. of Police attached to Suri Police Line and PW23, Syed Masudar

Rahaman, Medical Officer attached to Purandarpur S.H.C., and number of

documents being. Exbt.1, signature of PW1 on FIR; Exbt.1/1, FIR; Exbt.2,

signature of PW12 on the Seizure list of blood stained earth; Exbt.2/1,

signature of PW15 on the seizure list; Exbt.2/2, signature of PW16 on the

seizure list; Exbt.2/3, seizure list; Exbt.3, signature of PW12 on the Seizure

list if arrow with iron blade, one half pant and one shirt; Exbt.3/1, signature

of PW15 on the seizure list; Exbt.3/2, signature of PW16 on the seizure list;
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Exbt.3/3, seizure list; Exbt.4, signature of PW12 on the Seizure list of patta

and paddy; Exbt.4/1, signature of PW15 on the seizure list; Exbt.4/2,

signature of PW16 on the seizure list; Exbt.4/3, seizure list; Exbt.5,

Signature and endorsement of PW20 on the injury report; Exbt.6, carbon

copy of sketch map with index; Exbt.7, seizure list; while defence tendered

one witness namely, Abdul Rahim.


      PW1, is the complainant of this case and the son of the victim Rowsan

Ali who is PW2. The witness in his deposition before the Court stated that

when with the help of the laborours he was supervising thrashing of paddy

at the farmyard, the accused persons being Ohid, Abdul Ajij, Hannan,

Motim, Odud, Mohosin Mallik, Nazir, Moksed, Abdul Rahim, Owares Motim,

Rahamatulla Dhansad and others surrounded them and each of them were

being armed with deadly weapons. One of the accused namely, Nazir struck

with the backside of the blade of tangi on the left thigh of the witness when

he rushed to his house to call his father. When Rawsan Ali (father of the

witness) came with a lathi some of the accused persons shouted to shoot an

arrow, at that time Aziz shot an arrow at his father which struck at the left

side of his chest and he fell down. The accused persons thereafter, assaulted

his father and the culprits took away the paddy from the farmyard, the

witness thereafter, went to the police station for informing the incident and

he was arrested. The witness further stated that he lodged a written

complaint which was treated as FIR but also added that his verbal

statement was also reduced to FIR. The witness identified all the accused
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persons who were present in Court and added that the laborours fled away

when he was surrounded by the accused persons.


      PW2 deposed before the Court that when his son was supervising the

thrashing of paddy at the farmyard the accused persons with an intention of

looting the same surrounded him and after hearing the hue and cry of his

son he rushed towards the farmyard when he found the accused persons

named by the PW1 were looting the paddy. He further stated that the

accused persons were armed with deadly weapons and he was injured when

Aziz shot an arrow which struck him at the left side of his chest and he

became senseless. According to him the arrow was pulled out from his chest

by his wife and daughter who helped him to go inside his house. The

witness also deposed that the accused persons entered in his house and

took away his buffalos, cart with two bullocks, plough and the paddy. The

witness also identified the accused persons in Court.


      PW3, PW4, PW8, PW9, PW10, PW11, PW12, PW14 and PW16 were

declared hostile.


      PW5 is the wife of the victim and mother of the complainant. She

narrated the incident in the same manner as PW1 and PW2. The witness

also identified all the accused persons in the Court.


      PW6 is the seizure list witness in respect of the cart which was seized.


      PW7 is the daughter of PW2, who narrated the incident in a similar

manner as PW5 and also identified all the accused persons in Court.
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      PW13 was tendered by the prosecution and the cross-examination

was declined.


      PW15 is a seizure list witness who deposed in Court that in his

presence the police Officer seized arrow with iron blade, one cream colour

half shirt and one ganji with a hole on the left side and blood stained.


      PW17 was tendered by the prosecution and the cross-examination

was declined.


      PW18 described himself as post-occurrence witness and was able to

identify only two of the accused persons namely, Ohid and Nazir.


      PW19 is the doctor who examined the victim Rowsan Ali (PW2). The

relevant part of his deposition before the Court may be set out as follows:


      "Patient was brought by Abdul Rahim. Patient said that he was
assaulted by Ajijul by arrows and by lathi, Ohid, Nazir and other about 40
persons. On examination I found that following injuries -

          1.

One incised would transgular 3 c.m. in diameter lung deep just left lateral to middle of chest. Air from lungs was coming out from the wound.

2. One bruise on front of right thigh.

3. One bruise on back of chest.

Patient was fully conscious. Injury No.1 was grievous. Patient was admitted by me in the hospital.

On the same date, I examined Ohid, son of Late Sk. Jafar of Chhoto Turigram, P.S. suri at 1.40 P.M. brought by Khagendranath Mitra of Suri P.s. Patient said that Rowsan, Murtaj Ali, Motai Sk, Sujai, Momin and Khorsed

assaulted him with tangi and fists and blows. On examination I found that following injury -

1. One incised would on outer aspect of left foot below nakle joint 6 c.m. X 1 c.m. bone not cut.

2. One abrasion lenier 4 c.m. long below injury no.1.

3. Patient complained pain on front of chest.

Injury nos. 1 and 2 were simple caused within 24 hours by sharp cutting weapon."

PW20 is one of the Investigating Officer of the case.

PW21 is a Clerk of Suri Sadar Hospital who brought the injury register

and submitted it in Court. He was not cross-examined by the defence.

PW22 is the Police Officer, who recorded the First Information Report

as per version of the informant/complainant PW1.

PW23 is the Medical Officer attached to Purandarpur S.H.C. The

witness deposed that he had examined some of the persons but he did not

notice any marks of injuries on those persons.

The defence also examined one witness namely, Adbul Hossan, who

deposed in favour of one of the accused Abdul Rahim. He deposed that

Abdul Rahim was handicapped person and between 9.12.1979 to

11.12.1979 he was at the mosque by the side of his house and Rahim was ill

so he offered him medicine.

The learned advocate for the appellants submitted that they have been

falsely implicated in the case and the narration in the FIR is embellished to

the extent that the actual incident was not stated. Learned advocate

thereafter, refers to the deposition of PW19, the doctor who in his deposition

stated to have examined one Ohid who was also implicated in the instant

case as an accused and the deposition of the said witness would reflect that

the injuries were sustained by him on being assaulted by the informant and

his associates. The learned advocate also draws attention of this Court to a

part of the evidence of PW1/informant who stated that he was initially

arrested by the police authorities and released on the next morning. It is

further contention of the learned advocate that as the foundation of the case

is on distorted set of facts, no reliance can be placed on the deposition of

PW1 and PW2 and the appellants, therefore, are entitled to be acquitted.

The learned advocate for the State supported the conclusion arrived at

by the learned trial Court and stressed that there has been a consistent

version in the deposition of the prosecution witnesses. According to him the

victim, i.e., PW2 has narrated the incident and the injury suffered by him

particularly naming the person who has inflicted the fatal blow with the aid

of an arrow. Such version of the victim is corroborated by other prosecution

witnesses. Additionally, the learned advocate submitted that the tenor of the

prosecution witnesses and the spirit with which they have deposed reflects a

ring of truth in the prosecution version which cannot be disbelieved. Thus

there is no scope for this Appellate Court to interfere with the order of

conviction and sentence so imposed by the learned trial Court.

I have taken into account the contentions advanced by the rival

parties and on an appreciation of the same particularly the evidence of PW1,

PW2 and PW19, I am of the view that the prosecution has deviated from the

original facts as there is no explanation regarding the injury suffered by one

of the appellants which finds place in the evidence of PW19. Further it is

also fact that PW1 was initially detained by the police authorities and this

has been deposed in the examination-in-chief.

Therefore, PW1 and PW2 was also involved in a fight or scuffle with

the appellants surfaces out from the examination-in-chief or prosecution

version. None of the villagers supported the version of PW1 and PW2. The

other witnesses who supported the prosecution version happen to be the

wife and daughter of PW2.

Having regard to the fact that the informant and the victim have

presented a distorted version of events before a Court of Law, I am of the

opinion that it would be unsafe to rely upon such testimony to arrive at a

finding of guilt against the present appellants.

Thus the order of conviction and sentence so passed by the learned

Additional Sessions Judge, 1st Court, Suri, Birbhum in Sessions Case no. 62

of 1984 (Trial No. 2 of June of 1985) is hereby set aside.

The appellants are acquitted of the charges and are discharged from

the bail bonds.

Therefore, the Criminal Appeal being C.R.A No. 90 of 1986 is allowed.

Department is directed to communicate this order to the Ld. Trial

Court and send the LCR forthwith to the Court below.

Urgent Xerox certified photocopies of this judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

(Tirthankar Ghosh, J.)