Sk. Din Mohammed Naskar @ Bappa vs State Of West Bengal
2022 Latest Caselaw 5103 Cal

                                         1



                        IN THE HIGH COURT AT CALCUTTA
                       CRIMINAL APPELLATE JURISDICTION
                                APPELLATE SIDE


   PRESENT:
   THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY

                               CRA 408 of 2015

                       Sk. Din Mohammed Naskar @ Bappa
                                     Vs.
                            State of West Bengal


   For the Appellant                : Mrs. Indrani Gupta, Adv.

   For the Respondent               : Mr. Bidyut Kr. Roy, Adv.

Ms. Sima Biswas, Adv.

Mr. Pratick Bose, Adv.

   Hearing concluded on             : 4th August, 2022

   Judgment on                      : 5th August, 2022

Siddhartha Roy Chowdhury, J:-

1. This appeal is directed against the judgment and order of

conviction passed by the learned 17th Fast Track Court of

Additional District and Sessions Judge, Alipore in S.T.

No.02(02)2011/S.C. No.23(09)2010.

2. The fact of the case in short is that on 6th June, 2009, one Sk.

Asraf Mistri set the criminal administration of justice into motion

by informing the Officer-in-charge of Behala Police Station in

writing about an incident that took place on 27th May, 2009 in

between 10.00 a.m. and 10.30 a.m. at 507/14 Parui Pacca Road,

Masjidpara, Kolkata - 61, when his sister Nurangaj Bibi was

assaulted by her brother-in-law, Sk. Din Md. Naskar. It was stated

that the victim, Nurangaj Bibi, got involved in quarrel with her

mother-in-law when the accused came there, being armed with

branch of guava tree and started assaulting the victim. The victim

got her right knee fractured due to such assault. It was further

stated that the victim was admitted to Vidyasagar Hospital, Female

Surgical Ward, bed no.48. The informant further explained the

delay caused in informing the police by citing his engagement in

the treatment of his sister.

3. As the information disclosed, offence cognizable in nature, Behala

P.S. Case No.233/09, dated 06/06/09 was registered under

Section 498A/325/308 I.P.C.

4. After compliance of the provision of Section 207 of Cr.P.C., the

case was committed to the Court of learned Sessions Judge, 24

Parganas (South) and it was transferred to the learned Trial Court

on 2nd February, 2011.

5. After considering the materials on record, learned Trial Court was

pleased to frame charge under Section 498A/308 I.P.C. Pleading

his innocence to the charges, the accused person claimed to be

tried.

6. To bring home charges, prosecution examined nine witnesses

including the victim. Sk. Asraf Mistry, the informant, as P.W.1

adduced evidence and his signature on the written information

submitted by him was admitted as Exhibit-1/1. From his evidence,

I find that he took the victim to hospital and got her admitted.

Before going to hospital, police was informed.

7. P.W.2, Israil Mistry is the brother of the victim who stated that on

27th May, 2009, the quarrel took place between his sister and her

mother-in-law. Subsequently, the brother-in-law of his sister, Nur

Md. Laskar, assaulted Nur Angez Bibi, as a result, she sustained

injury over different parts of her body and over her right knee.

P.W.2, during cross-examination, stated that he was a resident of

Alam Nagar, Mistry Para, Budge Budge. He did not witness the

incident. From his evidence, I find that prior to admitting the

victim lady to the Vidyasagar Hospital, they informed Police and

such information was reduced into writing.

8. P.W.3, Sk. Adut Ali Naskar, is the son of the victim who stated that

on 27th May, 2009 in the morning at around 10 a.m., quarrel took

place between his mother and his grand-mother, over some issues

in the family. Suddenly, his uncle intervened and assaulted his

mother by a thick guava branch, his mother sustained injuries

and her right knee got fractured. In a bid to save his mother, he

also sustained injury being assaulted by his uncle. His mother was

taken to local police station and from there to hospital. Her right

knee was injured and she was admitted in the hospital for 44

days. During cross-examination, he stated that his brothers, Sk.

Sabir Ali Naskar, Sk. Selim Ali Naskar and Namita Bag were

present at the time of incident. He denied the suggestion that his

mother was not assaulted by the accused person and accused

person has been implicated in this case falsely because of the

family dispute.

9. P.W.4, Sk. Wahab Ali Naskar, is the husband of the victim who

parroted his son. From his evidence, I find that the victim was

taken to Vidyasagar Hospital and his son Sk. Adut Ali Naskar

lodged a G.D. Entry No.233 at Behala Police Station after 44 days.

His wife was discharged from hospital. During cross-examination

he stated that he did not witness the incident.

10. P.W.5, Mujibar Rahaman Mallick, stated that his cousin sister,

Nurangez Bibi, was assaulted on 27th May, 2009 at about

10/10.30 a.m. He was not present at the time of incident. He got

the information over phone. During cross-examination he stated

that he heard everything and did not witness anything. He denied

the suggestions put to him touching the innocence of the accused

person.

11. P.W.6, Dr. Md. Haroon, is the physician who attended the victim.

He stated that on 27th May, 2009, as Medical Officer of Vidyasagar

S.D. Hospital he attended Noor Angez. She sustained fractured

injury on her right patella. As Medical Officer, he operated upon

knee of the patient. The medical papers issued by the hospital were

admitted into evidence as Exhibits 2/1, 2/2, 2/3 & 2/4. X-ray

plates were admitted as Exhibits 2/5 & 2/6. During cross-

examination, he stated that there was no record as to who brought

the patient to hospital. He did not record the statement of the

patient. As disclosed by the patient her injury was caused due to

fall.

12. P.W.7, Bikash Kanti Dey, is the recording officer who stated that

on 6th June, 2009, he received written information from Asraf

Mistri and registered Behala P.S. Case No.233 dated 06.06.2009

under Section 498A/325/308 IPC against the accused, Sk. Din

Md. Naskar and mother-in-law of Nurangaj Bibi. The formal F.I.R.

is admitted as Exhibit 3. During cross-examination, he stated that

he did not have any direct knowledge about the incident.

13. P.W.8, Aloke Paul is the investigating officer who claimed to have

visited the place of occurrence, prepared a sketch map with index

admitted as Exhibit 4. He examined witnesses and recorded their

statement under Section 161 Cr.P.C. and collected bed head ticket,

injury report and arrested the accused, Sk. Din Md. Naskar @

Bappa. After completion of investigation, he submitted charge-

sheet. During cross-examination he stated that he found the

Xerox copies of injury reports annexed with the complaint. He

could not say whether any General Diary was recorded upon

receipt of information. He could not say if any other General Diary

Entry was made before the G.D. Entry No.439 dated 06/06/2009.

The I.O. further stated that the incident took place as a fall out of

family dispute between the victim and the accused person.

14. P.W.9, Nur Angez Bibi who stated that on 27th May, 2009 in

between 9.30 a.m. to 10.00 a.m., quarrel broke out between herself

and her mother-in-law over the family issues when her brother-in-

law came being armed with a branch of guava tree and assaulted

her, she sustained injury on her right knee and over other parts of

her body, she was taken to Vidyasagar Hospital for treatment. Her

right knee was fractured. Steel plate was implanted by the Doctor.

She was released from the hospital and again on 16th November,

2009 she was admitted when the steel plate was removed. She

remained in the hospital for the 72 days. She identified the

accused in Court. During cross-examination, she stated that when

the accused assaulted her at that point of time, her mother-in-law

and her son, Sk. Adut Ali Naskar, were present. After the incident,

the neighbouring people came, she told the Doctor of the hospital

about the history of the injury, she sustained. She denied the

suggestion put to her touching the innocence of the accused

person. No other witness was examined.

15. Learned Trial Court after considering the evidence on record came

to a conclusion that there was no element of offence within the

meaning of Section 498A of the IPC; even there was no evidence to

constitute offence under Section 308 of the IPC. But learned Trial

Court found the accused person culpable for committing offence

within the meaning of Section 325 of the IPC and invoking the

provision of Section 222 of Cr.P.C., the learned Trial Court

recorded an order of conviction under Section 325 of the IPC and

accused person was sentenced to suffer simple imprisonment for

one year and to pay find of Rs.15,000/-; out of which a sum of

Rs.10,000/- was directed to be paid to the victim lady upon

realization of fine.

16. Being aggrieved by and dissatisfied with such order of conviction,

the accused person preferred this appeal.

17. It is contended by the learned Advocate appearing on behalf of the

appellant that the learned Trial Court failed to appreciate the

evidence on record. The incident took place on 27th May, 2009

while police was informed on 6th June, 2009 and there was no

plausible explanation of delay. The son and brother of the victim

took the victim to hospital and on their way to hospital, they

informed police. The son of the victim, Sk. Adut Ali Naskar, P.W.3,

stated that on their way to hospital they went to local police station

first and a diary was lodged; but the said diary was not produced

before the Court. The victim during her evidence stated that she

narrated the incident to the Doctor and P.W.6, the attending

physician, stated that the victim told him that she sustained injury

due to fall, which belies the case of the prosecution. But learned

Trial Court did not rely upon the testimony of the PW 6 in absence

of any note on the medical paper. When it appears that the victim

sustained injury due to fall, the learned Trial Court had no reason

to record an order of conviction; rather the victim should have

been given benefit of doubt.

18. Learned Advocate representing the State, however, refuting the

contention of the learned Advocate for the appellant, submits that

the victim as P.W.9 before the Court stated that she was assaulted

by the accused person with a branch of guava tree and sustained

injury on her right knee. The Doctor found fracture injury on the

right knee. She was admitted to hospital for 44 days. Therefore,

the evidence of victim is getting support from the testimony of the

attending physician and the medical report. When Doctor during

his evidence stated that he did not record the statement of patient

as to the cause of injury; his subsequent statement allegedly made

by the patient as to the cause of injury due to fall is of no

consequence and should be ignored. The learned Trial Court was

justified in recording the order of conviction; though the learned

Court took a lenient view in imposing punishment upon the

accused person.

19. The best witness of the case is undoubtedly the victim, Nurangej

Bibi, she sustained injury. She got her right knee fractured being

assaulted by the accused person. Her testimony regarding injury is

corroborated by the attending physician of the hospital, P.W.6, the

Doctor. True it is, there was acrimony between the parties over

their property. On the date of incident, a quarrel took place

between the victim and her mother-in-law but with the advent of

the accused person, the incident took an ugly shape when the

accused person assaulted the victim.

20. It is further adverted by learned Advocate for the State that there

was delay of 10 days in informing the police about the incident

which took place on 27th May, 2009 and the case was registered on

6th June, 2009. But the delay has been explained as well. In course

of argument, the learned Advocate representing the State submits

that though the Investigating Officer ought to have collected the

copy of the G.D. Entry No.233, but for inaction on the part of the

Investigating Officer, prosecution case should not suffer

particularly when there is nothing to impeach the credibility of the

victim, P.W.9. According to the learned Advocate for the State, the

Court should ignore the said fact and should maintain the order of

conviction.

21. Upon perusal of the oral testimony of P.W.3, the son of the victim

and P.Ws. 4 & 5, I find that on the date of incident, police was

informed and the information was reduced into writing in the form

of G.D. Entry No.233. Prosecution, however, did not produce the

said G.D. Entry which contained the maiden information regarding

the incident. A criminal charge is required to be proved beyond

doubt. Here, in this particular case the G.D. Entry made on 27th

May, 2009 containing the maiden statement of the alleged

incident, was not produced. This is a vital piece of evidence. Police

admittedly was informed on the date of incident by the son and

other persons accompanying the victim, which was recorded in the

G.D. Entry Book. This action of police gives birth to the

presumption that at the first instance no cognizable of offence was

disclosed. Had there been any such disclosure, police would have

registered F.I.R. under Section 154 of the Cr.P.C. Section 114

illustration (e) says that Court should presume that official acts

have been regularly performed. There is no evidence to rebut such

presumption.

22. Delay per se may not render prosecution case doubtful as there

may be various reasons for lodging the F.I.R. with some delay.

There is no hard and fast rule that any delay in lodging the F.I.R.

would automatically render the case of Prosecution doubtful. But

in this case delay in informing the police in writing has not been

explained properly. Cumulative effect of delay in informing the

police about the incident coupled with non-production of

document, containing maiden statement of the alleged incident,

together with the testimony of the Doctor regarding the cause of

injury, as disclosed by the patient and the said Doctor not being

declared hostile by the Prosecution, make the case of the

Prosecution shrouded with shadow of suspicion and under such

circumstances and I do not find any reason be in agreement with

the learned Advocate for the State to maintain the order of

conviction rather I am inclined to extend benefit of doubt to the

appellant/convict.

23. In my opinion, the impugned judgment and order of conviction

should not be allowed to remain in force and should be set aside,

which, I, accordingly, do.

24. Consequently, the appeal succeeds.

25. The convict/appellant is on bail and he is discharged from the bail

bond.

26. The appeal being CRA 408 of 2015 thus disposed of.

27. Urgent Photostat certified copy of this judgment, if applied for,

should be made available to the parties upon compliance with the

requisite formalities.

(Siddhartha Roy Chowdhury, J.)