Calcutta High Court (Appellete Side)
Abdul Sheikh & Anr vs The State Of West Bengal on 8 December, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:-
HON'BLE JUSTICE CHITTA RANJAN DASH
AND
HON'BLE JUSTICE PARTHA SARATHI SEN
C.R.A. No. 333 of 1992
Abdul Sheikh & Anr.
-Versus-
The State of West Bengal
For the appellant : Mr. Partha Sarathi Bhattacharyya, Adv.
: Ms. Swarnali Saha, Adv.
For the State : Mr. Prasun Kumar Dutta, Adv.
: Mr. Md. Kutubuddin, Adv.
: Mr. Santanu Deb Roy, Adv.
Last Heard on : 18.11.2022
Judgment on : 08.12.2022
PARTHA SARATHI SEN, J. : -
1.
The instant appeal arises out of ST No. III of August, 1992 (arising
out of Sessions Case No. 11 of December,1991) wereby and whereunder
the learned trial court convicted the present appellants under Sections
147/148/302 read with Section 149 of the Indian Penal Code and thus
sentenced them to suffer rigorous imprisonment for the periods as
mentioned in the said impugned judgement and also for fine. The
appellants felt aggrieved and thus preferred the instant revisional
application.
2. For effective disposal of the instant appeal the facts leading to
initiation of the aforesaid sessions trial is required to be discussed in a
nut shell.
3. On 23.07.1985 one Dhananjoy Mondal of Beniakandi, P.S
Karimpur came to P.S Karimpur in District Nadia and gave Ezahar that
on the previous night at about 10:30 p.m, he, his three sisters, two
brothers and his parents were sleeping in their home. He stated further
that at about 12:30 a.m 20/25 persons entered into their house with
arms like 'daw', 'hansua', stick and torch light and started calling his
father and at that time they were using abusive languages. It is his
further version that in the light of the said torch he could identify one
Abdul Sk., Son of Ruhul Sk. @ Bhadu and Abu Samed, son of Lt. Saber
Sk. of his village. He stated further that Abu Samed started assaulting his
father with 'hansua' and his mother made an attempt to protect his
father. It is his further version that when he and his mother and sisters
raised hue and cry, they were threatened by the said miscreants. After
sometime the said miscreants left the P.O along with their two buffaloes
leaving their father in injured condition. At the time of their departure the
said miscreants hurled bombs. He stated further that sometimes
thereafter the co-villagers came to their house and thereafter his father
was shifted to Karimpur Hospital by his relatives Prasanta Biswas and
Jiten Mondal and some of his co-villagers namely Fakir Sk. and Pocha Sk.
It is his further version that on the way to hospital his father succumbed
to his injuries.
4. In his Ezahar it has been stated further by the informant that in the
year 1983 Abdul Sk. falsely implicated his father in a murder case for
which his father had to remain in custody for a considerable length of
time. On account of this a discord existed between the family members of
the said Abdul Sk. and the family members of the said informant.
5. On the basis of such complaint Karimpur P.S Case No. 15 dated
23.07.1985 was started. Investigation was taken up and after completion
of the said investigation charge sheet was submitted against five accused
persons including the present appellants. Trial Court Record reveals that
subsequently the case was committed to the Court of Sessions who by his
order dated 12.03.1992 transferred the said case to the learned trial court
for trial and disposal. Lower Court Record reveals further that on
09.07.1992, learned trial court considered the entire materials as placed
before him and thereafter framed charges under Sections 147/148/302
read with 149 of the Indian Penal Code against the four accused persons
namely, Abdul Sk., Abu Samed, Mannan Sk. @Mono and Haksuddin Sk.
Since the aforementioned four persons pleaded their innocence, the trial
proceeded.
6. Before the learned trial court the prosecution in order to bring
home the charges has examined 11 witnesses in all and some documents
have been exhibited on behalf of the prosecution.
7. For effective disposal of the instant appeal we shall discuss the oral
evidence of those prosecution witnesses which are relevant.
8. PW1 being the informant in course of his examination-in-chief
stated that seven years back in the month of 'sravan' at about 12 a.m his
father was murdered. It is further version that on the relevant day and
hour he (PW1) and his father were sleeping on the same 'verandah' which
is situated on the east of their dwelling house and at that time about 25
people entered into their house and they started using filthy languages to
their father. It is his further version that he noticed that Abdul and Abu
Samed were assaulting his father with a 'hansua'. He further stated that
he could recognize the said two accused persons in the torch light which
was being focussed by the miscreants. He stated that the torch light
reflected on the wall and the on such reflection he could recognize the
miscreants. He stated also that thereafter the miscreants left P.O with
their two buffaloes. He further stated that thereafter they arranged for the
cart with the help of village people and took his father to Karimpur
Hospital. He further stated that his father was an accused in a murder
case of the brother-in-law of the accused Daud. He further stated whether
the present two appellants are residents of his village. He further stated
that after returning from P.S he came to learn from his mother that she
could recognize two other accused persons namely Manann and Manik.
9. In course of his cross examination he stated that accused Abdul Sk.
got his father arrested to police in a murder case falsely and since then
they had an ill feelings against the accused Abdul Sk.
10. According to the prosecution PW2 being the wife of the victim is
another ocular witness of the incident. In course of her examination-in-
chief she also stated that seven years back on 6th Sravan her husband
was murdered. She stated further that on the relevant night and hour at
about 12 o' clock in the midnight about 20/25 persons entered into their
house, they caught hold of her husband who was sleeping then and
started assaulting him by using abusive languages. She stated further
that the accused Abu Samed gave a blow of 'hansua' on the person of her
husband below his right arm pit. She stated also that another accused
Abdul assaulted on the leg of her husband. She tried to restrain the said
two assailants but they asked her to keep mum. She also stated that the
flash of the torch light of the miscreants illuminated the place and
accordingly she could identify five miscreants. She stated also that at that
time hurricane lamp was also burning. She further stated that thereafter
the miscreants left the P.O with a pair of buffaloes of her. She was also
cross examined by the defence extensively. In course of her cross
examination she denied the suggestions as given to her from the side of
the defence.
11. PW 3 is the daughter of the deceased and PW2. In her examination-
in-chief she stated that on the relevant night she was sleeping inside the
room while her parents were sleeping in the 'verandah' attached to the
said room. She stated that she woke up since her brothers and sisters
were crying then, while her father was groaning and at that time some
persons were abusing him. She stated that after hearing of such noise she
came out from her room and at that time she was assaulted on her left
shoulder. She also stated that at that time her father was already injured
and her mother was trying to guard her father from the assailants. She
stated that she could not recognize the assailant by name but in court
she identified Abdul Samed Sk., Haksuddin Sk. as assailants.
12. PW11 is the autopsy surgeon who conducted the post mortem over
the victim. In his examination-in-chief he stated that he noticed the
following injuries:-
"1.The loge gaping wound in right axille and pactoral region
measuring 7" X 2".
2.Lacucted injury our down chest in front. Latched injuries were
there in on dissection there was blood in plured cavity and right hug
was suptured. Stomach contained half diguted rice."
According to him the death of the victim occurred due to shock and
haemorrhage and as a result of injuries which are ante-mortem and
homicidal in nature.
13. PW10 is the Recording Officer as well as the first Investigating
Officer who in his examination-in-chief stated that on 23.07.1985 at
about 6:45 a.m he was discharging his duty as a Duty Officer at Karimpur
P.S and at that time PW1 (Dhananjay Mondal) made a verbal complaint to
him which was reduced into writing by him and on the basis of the same
he drew up the formal FIR and stated Karimpur P.S Case No. 15 dated
23.07.1985. He himself took charge of the investigation and went to
Karimpur Rural Hospital along with the de facto complainant. He made
inquest over the dead body of the victim, visited P.O, prepared sketch map
collected blood stained earth and the sample earth under the cover of his
seizure list, examined the complainant and the other witnesses and
recorded their statements under Section 161 CrPC, made a raid in the
house of the accused persons and could arrest some of the accused
persons and produced them in court.
14. PW9 is the second Investigating Officer. In course of his
examination-in-chief he stated that after taking charge of investigation
Karimpur P.S Case No.15 dated 23.07.1985 he arrested one Nabi Mallick.
He also examined Joydev Mondal, Fakir Sk. and Pacha Sk. and thereafter
recorded their statements under Section 161 of the Indian Penal Code. He
stated that after completion of investigation he submitted charge sheet in
this case.
15. In considered view of us the evidence of PW4, PW5, PW6, PW7 and
PW8 are not much relevant since they are post occurrence witnesses and
from their evidence nothing could be elicited which may be helpful either
for the prosecution or for the defence.
16. On conjoint perusal of the evidence of PW1 and PW2 it appears to
us that PW1 being the son of the victim and PW2 being the wife of the
victim had adduced sufficient inspiring evidence towards the guilt of the
present appellants. It appears to us that the First Information Report in
the instant case has been recorded within few hours of the incident which
in the circumstances of the case cannot be considered as unreasonably
delayed. It further appears to us that version given in the F.I.R is
substantially the same as one spoken to by the PW1 and PW2 before the
Court. There had not been any acceptable suggestions why PW1 and PW2
should adduce false evidence against the appellants. It is most unlikely
that these two witnesses would allow the real culprits to escape and
unnecessarily implicate some other innocent persons on the happening of
such a tragedy in their family. Admittedly from the evidence of PW1 and
PW2 it reveals that there existed an animosity and/or strain relation
between the family members of PW1 and PW2 and the present appellant
no.1 Abdul Sk. over the arrest of the victim on account of murder of a
close relative of the present appellant no.1 but nothing could be elicited in
the course of cross-examination of PW1 and PW2 that on account of such
family rivalry they have unnecessarily implicated the present appellant
and allowed the real culprits to remain outside the screen. On perusal of
the evidence of PW1 and PW2 it appears to this Court that their
consistent evidence also gets due corroboration from the evidence as
adduced by the autopsy surgeon i.e. PW11.
17. On a number of occasions the reliability of the evidence of the eye
witnesses have come up for consideration of the Hon'ble Supreme Court
as well as of different High Courts and it has been consistently held that
even if the eye witnesses are related to the deceased, his evidence has to
be accepted if found to be reliable and believable because he would
honestly be interested in ensuring that the real culprits are punished .
The same view was taken in the reported decision of Indra Pal
Singh vs. State of U.P reported in (2008) 16 SCC 648.
18. At this juncture this Court also proposes to see as to how far as the
prosecution in the case in hand before the learned trial court is
successful to prove the charges of Sections 147,148 and 149 of the
Indian Penal Code. On perusal of the evidence of the prosecution
witnesses more specifically the evidence of PW1 and PW2 it appears to
us that it was their clinching evidence that on the fateful night at about
12 a.m at least 25 persons including the present appellants formed an
unlawful assembly and in prosecution of their common objective
committed violence upon the victim and his family members with deadly
weapon like 'hansua' and thus caused death of the victim who is the
father of PW1 and husband of PW2. In a reported decision Daya
Kishan vs. State of Haryana reported in (2010) 2 CrCLR (SC) 365
the Hon'ble Supreme Court while dealing with a case under Section 149
of the Indian Penal Code expressed the following view:-
"There are two essential ingredients of Section 149 viz. (i) commission of
offence by any member of an unlawful assembly and (ii) such offence must
have been committed in prosecution of the common object of that assembly
or must be such as the members of that assembly knew to be likely to be
committed. Once the court finds that these two ingredients are fulfilled,
every person, who at the time of committing that offence was a member of
that assembly has to be held guilty of that offence."
19. On perusal of the evidence as adduced by the prosecution witnesses
before the learned trial court it appears to us that all the essential
ingredients of Sections 147, 148 and 149 of the Indian Penal Code have
been proved as against the present appellants and thus this Court holds
that the learned trial court is very much justified in holding the present
appellants guilty of the offence as mentioned above.
20. In view of such, the instant appeal fails. The impugned judgement
and order dated 27.11.1992, as passed by Learned Additional Sessions
Judge, Nadia in S.T. No.III of August 1992 arising out of Sessions Case
No.11/December 1991 is hereby affirmed.
21. The bail bonds of the present appellants namely Abdul Sheikh and
Abu Samed @ Abu Samad stand hereby cancelled.
22. Since the present appellants i.e. Abdul Sheikh son of Ruhul Sk. and
Abu Samed @ Abu Samad son of Lt Saber Sk. both of Beniakandi, P.S
Karimpur, District Nadia are on bail by the order of this Court they are
directed to surrender before the learned trial court within a month from
the date of passing of this order to suffer the remaining part of their
sentence failing which the learned trial court shall issue non-bailable
warrant of arrest against them.
23. Let a copy of this judgement along with LCR be sent down at once.
24. Urgent Photostat certified copy of this judgement, if applied for, be
given to the parties on completion of usual formalities.
I agree.
(Chitta Ranjan Dash, J.) (Partha Sarathi Sen, J.)
