Md. Illiyas @ Illu & Anr vs The State Of West Bengal
2022 Latest Caselaw 5223 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH

                             CRA 146 of 2019
                                    With

                           IA No. CRAN 3 OF 2020
                         (Old No. CRAN 498 of 2020)

                         Md. Illiyas @ Illu & Anr.
                                    -vs.-

                         The State of West Bengal

For the Appellant no.1        :    Mr. Pawan Kr. Gupta,
                                   Ms. Sofia Nesar,
                                   Mr. Santanu Sett

For the Appellant No.2        :    Mr. Shareg Siddique


For the State                 :    Md. Anwar Hossain,
                                   Mr. Iqbar Kabir,

Heard on                      :    19.07.2022 & 03.08.2022.


Judgment on                   :    10.08.2022

Tirthankar Ghosh, J:-

      The present appeal has been preferred against the judgment and order of

conviction and sentence dated 29.01.2019 and 30.01.2019 passed by the

Learned Additional District & Sessions Judge, 1 st Court, Sealdah, South 24
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Parganas, in Sessions Trial No. 4 (9)/2017 arising out of Entally Police Station

Case No. 233 dated 02.07.2017 wherein the learned Trial Court was pleased to

convict the appellants under Section 307/34 of Indian Penal Code and

sentenced both of them to undergo Rigorous Imprisonment for 7 years and fine

of Rs.20,000/- in default to undergo Rigorous Imprisonment for 3 months

more.


        Entally Police Station Case no. 233/2017 dated 02.07.2017 was

registered for investigation under Section 307/34 of the Indian Penal Code and

Section 25(1B)(a) of the Arms Act on the basis of a statement of Razia Begum

recorded by A.K. Choudhury, Sub-Inspector of Police. Razia Bibi (hereinafter

referred to as 'the complainant') stated that on 02.07.2017 at about 05.00 pm

while his son Sk Amirudding was sitting in front of the gate of Loreto School

beside Motijheel Bridge, two local boys namely Md. Illiyas @ Illu and his

brother-in-law Sk Saheb rushed towards him and by referring to a past dispute

threatened the victim/injured by stating that he was exceeding his limit and

tried to project himself as a hero. Immediately thereafter they started

assaulting the complainant's son and when he protested the accused Illu took

out a small gun from his pocket and said that he would kill him. Seeing such

incident the complainant rushed towards his son when Sk Saheb pushed her

back and by taking out a chopper he attempted to injure the throat of his son.

As the complainant's son shifted his body he was hit on his shoulder and

thereafter repeated injuries were inflicted on his arms and wrist. The

complainant's son was bleeding profusely, local people thereafter rushed when
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the accused persons fled away. The husband of the complainant had taken her

son to hospital and she approached the police station for seeking help.


      The Investigating Agency on conclusion of investigation submitted

charge-sheet under Section 307/34 of the Indian Penal Code and Section 25

(1B)(a) of the Arms Act. After the supply of the documents under Section 207 of

the Code of Criminal Procedure the case was committed to the Court of

Sessions and finally to the learned Additional District and Sessions Judge, 1 st

Court, Sealdah, South 24 Parganas and on or about 13 th November, 2017

charge was framed against both the accused persons as follows:


            "First-

            That you on or about 02.07.2017 at about 17.00 hrs beside
            Motijheel Bridge near Loretto School gate in furtherance of your
            common intention attempted to commit murder the son of the
            complainant by brandishing a firearms and assaulted him with a
            chopper as a result of which the injured sustained bleeding injury on
            his person and that you thereby committed the offence punishable
            u/sec. 307/34 of the I.P.C. and within the cognizance of this Court.

            Secondly -

            That you on or about 02.07.2017 at about 17.00 hrs beside
            Motijheel Bridge near Loretto school gate were in possession of
            firearms which is contravention of Arms Act and that you thereby
            committed the offence punishable u/sec. 25(1B)(a) of the Arms Act
            and within the cognizance of this Court."
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      The charge was thereafter read over to the accused persons/appellants

to which they pleaded not guilty and claimed to be tried.


      Prosecution in order to prove its case relied upon PW1, Rajia Begum,

complainant,     mother    of   the   injured/victim;   PW2   Sk.   Amiruddin,

victim/injured; PW3 Md. Sarib, eye-witness; PW5, Md. Nisar, seizure witness;

PW6, Md. Tinku Alam, seizure witness; PW7, Parvez Alam, seizure list witness;

PW8, Md. Kamal, a local resident; PW9, Subhendhu Modak, Arms Expert;

PW10, Dr. Prasanta Kumar Sinha, doctor who treated PW2 and PW11,

Investigating Officer of the case.


      The prosecution also relied upon 7 documents which included Ext.1,

Seizure List dated 09.07.2017; Ext.2, signature of PW5 on label; Ext.3,

signature of PW6 on label; Ext.4, signature of PW7 on seizure list dated

13.07.2017

; Ext.5, report of the arms expert; Ext.6, label on fire arm and

Ext.7, Medical Report of the doctor dated 02.07.2017.

PW1, Rajia Begum, is the mother of the injured Sk Amuruddin (PW2) and

the complainant of the case. She deposed that she has three sons and two

daughters namely, Sk Hider, Sk. Rahaman, Arju Begum, Sk Amiruddin and

Farin Khatoon. According to her on 02.07.2017 at about 05.00 pm she was

sitting under bridge no.10 and there was a nearby police camp as well as

Loreto School. The accused Illiyas was engaged in abusing and hurling filthy

languages and she saw her son Sk Amiruddin was playing and he was

assaulted by Illiyas with fist and blows. She thereafter rushed to the spot when

Illiyas brandished a pistol by taking out from his waist and touched the same

on the forehead of her son Amiruddin. At that time Amiruddin caught hold of

the hand of Illiyas when the other accused Saheb pushed her and he fell down.

After that Saheb took out a chopper stating that he would kill Sk Amiruddin

and thereafter started inflicting with the chopper at Sk Amiruddin. Her son

received injuries on his shoulder and wrist. As public assembled the accused

persons fled away. Her husband took her son Amiruddin to hospital and she

came down to the police station to lodge the complaint. She also stated that the

Officer concerned wrote the complaint where she inserted her left hand thumb

impression. She also identified the accused persons Illiyas and Saheb in Court.

PW2, Sk Amiruddin is the victim and the injured person who deposed

that on 02.07.2017 at about 05.00 pm an incident took place in front of Loreto

School gate when he was engaged in playing and also sitting there. He deposed

that Illiyas came there and abused him and thereafter assaulted him with fist

and blows and finally took out a pistol stating that 'you have exceeded your

limit'. Saheb thereafter rushed and started assaulting him with chopper on his

shoulder and wrist. Witness stated that he sustained bleeding injuries, became

unconscious and was taken to NRS Hospital and regained his sense at NRS

Hospital. He identified the accused persons in Court.

PW3, Md. Sarib, deposed that on 02.07.2017 at about 05.00 pm the

incident took place in front of Loreto School gate when he was playing along

with the injured Sk Amiruddin (PW2). He deposed that the accused persons

came there and started abusing Sk Amiruddin and thereafter Illiyas assaulted

Amiruddin with fist and blows and brandished pistol stating that he would kill

him. At that time PW1, mother of Amiruddin rushed when the other accused

Saheb pushed her and inflicted chopper injuries on the shoulder and wrist of

Sk Amiruddin. Public assembled there and the witness thereafter returned to

his house and was later on examined by the police. The witness identified the

accused persons in Court.

PW5, Md. Nisar, is a seizure list witness. He identified his signature in

seizure list which was marked as Ext.1 and he also identified his signature on

label which was marked as Ext.2. However, he was declared hostile by the

prosecution as he stated he knew nothing about the case.

PW6, Md. Tinku Alam, is also a seizure list witness who identified his

signature on the seizure list which was marked as Ext.1/1 and his signature

on the label which was marked as Ext.2/1. However, the witness was also

declared hostile as he deposed he knew nothing about this case and he did not

know the reason why he signed on the seizure list.

PW7, Parvez Alam, was a witness to the recovery of the chopper and

signed in the seizure list which he identified in Court and was marked as Ext.4.

PW8, Md. Kamal, is a hawker by profession who was tendered and stated

that he knew nothing about the case.

PW9, Subhendu Modak, was an Arms Expert who examined the arms

which was recovered in connection with the Entally PS case no. 233 dated

02.07.2017. He identified the report which was marked as Ext.5. He also put

his signature on the label and identified the signature which was marked as

Ext.6.

PW10, is Dr. Prasanta Kr. Sinha, who treated the injured Sk Amiruddin

at NRS Medical College Hospital on 02.07.2017 in respect of the injuries. He

stated as follows:

"On examination I found cut injury over left shoulder measuring 1 inch x ¼

inch mussle deep. No.2 one cut injury mearsing 1 inch x 1/6 th inch x skin deep.

No.3. one cut injury on left sole measuring ½ x 1/6 th inch x skin deep."

The doctor also identified the medical report which was prepared and

signed by him and the same was marked as Ext.7.

PW11, Amit Kr. Chowdhury is the Investigating Officer of the case.

Mr. Pawan Kr. Gupta, learned advocate appearing for the appellant no.1

submitted that there was a delay in lodging the FIR and there are major

discrepancies in the narration of the evidences of the complainant, the injured

and eye-witnesses. According to him the time which has been referred by the

doctor in the medical report and the time stated in the FIR regarding the

treatment of the injured are completely different. There are no materials in

evidences to suggest that the appellant had any intention to kill the injured

and the learned trial Court erroneously convicted and sentenced the

appellants. Additionally, it has been submitted that the appellants have been

falsely implicated in connection with the instant case out of rivalry and the

prosecution failed to prove the case beyond all reasonable doubt thereby

warranting interference by this Court.

Mr. Shareg Siddique, learned advocate appearing for the appellant no.2

submitted before the Court that there are hardly any evidence from where the

appellant no.2 can be implicated in connection with the instant case. According

to the learned advocate the learned Trial Court ignored the contradiction which

appeared in evidence and accepted the prosecution story as gospel truth to

arrive at its finding. The present appellant has been implicated because he is

merely a relation of appellant no.1 and the seizure list witness having turned

hostile, dilutes the prosecution case for convicting the appellant no.2. Learned

advocate also relied upon a judgment of Karnataka High Court in Monahar -Vs.

- State of Karnataka reported in ILR 1996 KAR 3419 and submitted that in

similar circumstances the offences as alleged were converted from Section 307

of the Indian Penal Code to Section 324 of the Indian Penal Code and in the

present case also the injuries being simple, the appellant must be granted the

same benefit.

Mr. Anwar Hossain learned advocate appearing for the State opposes the

contentions advanced by the appellants and submitted that there are

overwhelming materials appearing against the present appellants and the

learned Trial Court after assessing and scrutinizing the evidences arrived at its

finding of guilt on being satisfied that the prosecution has proved the case

beyond reasonable doubt, as such there is no scope for interference in the

judgment and order of conviction and sentence passed by the learned Trial

Court.

I have considered the evidence adduced by the prosecution, apart from

the oral evidences another factor which has to be taken into consideration is

regarding the history of the patient in the instant case which has been

recorded by the PW10 who treated PW2 at the hospital. Serial no.10 of Ext.4

which is the report of NRS Medical College and Hospital, Kolkata, Emergency

Room states "short history of the case as stated by the patient that one Saheb

and Ilu assaulted with chopper and fist and blows". The injuries were also

stated in the said report which are referred to above. The evidence in this case

of PW1, PW2 and PW3 are required to be considered in the background of the

medical evidence and the history which have been recorded by the doctor,

PW10. Although the evidence of PW1 states that the appellant No.2 stated that

he would kill PW2 and started inflicting injury with a chopper but PW2 who is

the injured did not state that any words were uttered to kill him rather it was

stated that Appellant no.1 brandished a pistol and threatened him as stated

that "you have exceeded your limit" while the appellant no.2 Saheb assaulted

by inflicted injury with a chopper on his shoulder and wrist. The version of

PW2 is corroborated by PW3 Md. Sarib.

Having assessed the nature of the oral evidences as well as that of the

medical evidence, I am of the considered view that the intention of the accused

persons was to inflict injury and not to kill the injured/victim/PW2. However,

the deadly weapons so used or which surfaced in course of the evidence of the

case do suggest overacts. Divulging the name of both the appellants at the first

instance before the medical officer who treated PW2 and the role of the

appellants being corroborated by three witnesses including the injured witness,

leads to the inference that the accused persons were responsible for the

offences as complained of. However, having regard to the fact of the present

case emphasis must be on the evidence of PW2 who happens to be the injured

witnesses.

Accordingly the conviction of the appellants are converted from that of

Section 307 of the Indian Penal Code to Section 326 of the Indian Penal Code.

Consequently, the sentence so imposed by the learned trial Court is reduced to

a period of five years Rigorous Imprisonment with the fine amount and the

default sentence remaining un-altered.

Thus, CRA 146 of 2019 is partly allowed.

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.)