Sk. Mustafa & Ors vs The State Of West Bengal & Anr
2022 Latest Caselaw 5081 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                         APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH

                             CRR 264 of 2007
                            Sk. Mustafa & Ors.
                                     -vs.-

                      The State of West Bengal & Anr.

For the petitioners           :     Ms. Rituparna De Ghosh,
                                    Mr. Siddhartha Paul

For the State                 :     Mr. Anwar Hossain,
                                    Ms. Manisha Sharma

Heard on                      :    18.07.2022 & 28.07.2022.


Judgment on                   :     04.07.2022

Tirthankar Ghosh, J:-

      The present revisional application has been preferred against the

judgement and order dated 21.12.2006 passed in Criminal Appeal No.7 of 2005

by the learned Additional Sessions Judge, Fast Track, 4 th Court, Malda wherein

the learned Appellate Court was pleased to interfere with the order of

conviction and sentence passed by the learned Sub-divisional Judicial

Magistrate, Malda in connection with GR case No.4180 of 1998 (T.R. Case no.

266/01).
                                         2


      The learned trial Court was pleased to convict eight accused persons

namely, Sk Gaffar, Sk Nazimul, Sk Asimul, Sk Chand Md., Sk Malek, Azul,

Nafila Bewa and Sk Mostafa. After holding the aforesaid eight persons guilty of

the offence the learned trial Court was pleased to sentence them under

Sections 323/34, 324/34, 326/34 of the Indian Penal Code.


      The Appellate Court on a re-appreciation of the evidence was pleased to

acquit Sk. Gaffar, Sk Chand Md., Sk Malek, Azul and Nafila Bewa in respect of

all the charges and discharged them from their bail bonds.


      So far as Sk Mustafa, Sk Asimul and Sk Nazimul @ Sk Sajemul are

concerned the learned Appellate Court was pleased to hold them guilty of

offence and sentence them as follows:


         1.

In case of Sk Mustafa the learned Appellate court affirmed his

conviction and sentenced him only for offence under Section 323 of

the Indian Penal Code and directed him to suffer simple

imprisonment for one year and fine of Rs.1,000/- in default to

suffer simple imprisonment for one month.

2. In respect of Sk Asimul and Sk Nazimul @ Sk Sajemul the learned

trial Court sustained the conviction and sentence, so far as the

offence under Section 326/34 of the Indian Penal Code is

concerned and sentenced them to suffer simple imprisonment for

two years and fine of Rs.2,000/- in default to suffer simple

imprisonment for two months.

The genesis of the case relate to Manikchak Police Station case no.90/98

dated 24.09.98 under Section 143/341/323/326/379/506 of the Indian Penal

Code. The allegations were that the accused persons on 31.08.98 at about

11/11.30 am assembled with deadly weapons and forcefully removed the

embankment raised by the villagers for protecting them from flood waters, as a

result of which a protest and altercation started and the accused persons

assaulted the complainant and several other persons severely, when the

injured persons had to be hospitalised.

On completion of investigation charge-sheet was submitted against all

the accused persons under Sections 143/341/323/324/326/506 of the Indian

Penal Code. The prosecution in order to prove its case relied upon 12 witnesses

which included the complainant, injured persons, doctors and investigating

Officer of the case. Defence did not adduce any evidence for rebutting the

prosecution case. The prosecution relied upon complaint which was marked as

Ext.1 and the injury reports which were marked as Ext.2 series. The learned

trial Court took into account the evidence of PW11 who is Medical Officer and

examined all the injured persons on 31.08.98. Each and every aspect of the

injuries were taken into consideration which included the nature of the injury

and the probable cause of the same being sharp edged weapons was recorded

in the injury reports in respect of all the injured persons namely, Sk Tafizul,

Sk. Kasim, Saifuddin, Sk Faizuddin, Sk Sariful and Sk Sahid. The doctor while

describing the injury report of Sk Kasim stated that the nature of injury is

slight which might be caused by lathi. The details of the injury report and the

nature and extent of the injuries and the opinion reflects that the learned trial

Court gave importance regarding the occurrence of the incident on 31.08.1998

and the injuries of the victims. The learned Appellate Court re-appreciated the

medical evidence particularly Ext.2 and on appreciation of the oral evidence as

well as the injury report learned Appellate Court categorically recorded that

PW5 Sk Kasim, (injured) made a general allegation against Sk Mustafa that he

assaulted him with a lathi. In respect of PW2 who happens to be the son of the

complainant, Sahid, it was stated in the written complaint that he sustained

head injury because of the assault but the injury report Ext.2/1 do not reflect

any head injury of Tafizul. In Ext.2/3 which happens to be the injury report of

Sk Faizuddin it is reflected that he stated before the doctor that Sk Asimul

assaulted him and did not name any other persons but in Court at the time of

oral deposition he stated that Sk Asimul and Sajemul assaulted him on his

head. It was observed by the learned Court that in the injury report it is

reflected that Sk Faizuddin sustained only one injury and there were no other

injuries.

Ext.2/4 is the injury report of Safiul who was examined as PW3. He

during his oral examination made a general statement in respect of the

accused persons but in cross-examination he stated that accused Hasimul

assaulted him which resulted in injury. Ext.2/5 is the injury report of Sk Sahid

who is the complainant of the case and it is reflected that he was assaulted by

Sajemul with farsa.

The learned appellate Court on an analysis of the oral evidence, the

complaint and the injury report was of the view that there was omnibus

allegations and statement against Sk. Gaffar, Sk Chand Md., Sk Malek, Azul

and Nafila Bewa and as such it was difficult for the Court to come to a

conclusion that they had common intention for inflicting injuries to the

complainant and the injured witnesses. In view of such finding the learned

Appellate Court set aside the order of conviction and sentence against the said

persons and on an appreciation of the oral evidence and the injury report

arrived at a finding that Sk Asimul and Sajemul @ Najemul should be

convicted under Section 326/34 of the Indian Penal Code and accused Sk

Mustafa should be convicted under Section 323 of the Indian Penal Code.

I have considered the judgment of the learned Appellate Court and the

manner in which it was appreciated after comparing the oral evidence, the

injury report and the statement before the doctor, after scrutiny of the evidence

made by the learned Appellate Court, I am of the view that the finding of guilt

so far as the present petitioners are concerned cannot be interfered with.

However, having regard to the fact that the incident is of 31.08.1998 and

more than 23 years have passed in the meantime, I do not think any useful

purpose would be served by sending the present petitioners namely, Sk

Mustafa, Sk Asimul and Sk Nazimul @ Sk Sajemul to prison. There sentence

are reduced and modified to the period which has already been undergone by

them in course of the trial and during pendency of the appeal.

With the aforesaid observations CRR 264 of 2007 is disposed of.

Pending Applications, if any, are consequently disposed of.

Department is directed to send back the Lower Court Records and

communicate this judgment, so that effective steps are taken by the learned

trial Court.

All parties shall act on the server copy of this judgment duly downloaded

from the official website of this Court.

Urgent Xerox certified photocopy of this judgment, if applied for, be given

to the parties upon compliance of the requisite formalities.

(Tirthankar Ghosh, J.)