Chattar Sheikh & Ors vs State Of West Bengal
2022 Latest Caselaw 553 Cal

                IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL APPELLATE JURISDICTION
                          APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Bivas Pattanayak


                            C.R.A. 910 of 2013

                            Chattar Sheikh & Ors.
                                     Vs.
                            State of West Bengal


For the Appellants      :     Mr. Angsuman Chakraborty, Adv.
                              Mr. S S Saha, Adv.

For the State           :     Mr. Saibal Bapuli, Ld. APP
                              Mr. Bibaswan Bhttacharya, Adv.

Heard on                :     15.02.2022

Judgment on             :     15.02.2022


Joymalya Bagchi, J. :-

       Appellants were made to stand trial on charges being framed

under sections 307/34, 326/34 and 459/34 IPC.

       The gist of the prosecution case levelled against the appellants is

as follows:

       Appellants are related to the victim, P.W. 2. Appellant No. 1 is her

uncle, while appellant Nos. 2 and 3 are the cousins of appellant No. 1.

These appellants along with one Hasibul Sk who was minor at the time of

occurrence, had a dispute with the father of the victim over construction
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of a bathroom and latrine adjacent to their house. Her father was digging

a pit at the same place. Over such dispute, the appellants had assaulted

her father. She lodged a complaint against the appellants. Out of grudge,

on 20th April 2009 around 11 p.m. while victim P.W. 2 was sleeping in her

room, the appellants trespassed into the room and threw acid on her face.

As a result, she suffered acid burn injuries and lost sight in her left eye.

She was initially treated at Kaliganj PHC and thereafter Berhampore

Hospital. She was finally discharged on 25th May 2009. On 22nd April

2009 Asnahara Bibi, elder sister of the victim, lodged written complaint

which was registered as Kaliganj PS case no. 171 of 2009 dated

22.04.2009

against the appellants. Upon completion of investigation,

charge-sheet was submitted against the appellants and they were put on

trial. In the course of trial, prosecution examined 13 witnesses and

exhibited a number of documents. In conclusion of trial, learned trial

Judge by impugned judgment and order dated 31.01.2013 and

01.02.2013 convicted the appellants for commission of offence punishable

under Sections 307/326/459 read with section 34 of the Indian Penal

Code and sentenced them to suffer imprisonment for life and to pay fine

of Rs.5000/- each in default, to suffer imprisonment for one year, for the

offence punishable under Section 307 of the Indian Penal Code, to suffer

imprisonment for life and pay a fine of Rs.3000/- each, in default, to

suffer imprisonment for one year, for the offence punishable under

section 326/34 IPC and to suffer imprisonment for life and also pay a fine

of Rs.3000/- each, in default, to suffer imprisonment for one year for the

offence punishable under section 459/34 IPC. All the sentences were

directed to run concurrently.

Appellants have challenged their conviction and sentence in this

appeal.

Mr. Chakraborty, learned Counsel appearing for the appellants

submits that the identification of the appellants by the victim is

unreliable. Her sister (P.W. 1) deposed the victim told her she could not

identify the assailants in the darkness. Before the investigating officer the

victim stated that she could not see anything with her own eyes and her

sister stated the assailants fled away from her room. Names of the

miscreants had not been disclosed before the treating doctor at Kaliganj

PHC or Berhampore Hospital. Even before registration of F.I.R., two of the

appellants namely Sattar Sk and Neki Sk were arrested. Hence, original

F.I.R. had been suppressed and written complaint of P.W. 1 cannot be

treated as F.I.R. Due to prior enmity, appellants have been falsely

implicated. Independent witnesses have not supported the prosecution

case. Accordingly, the appellants are entitled to an order of acquittal.

On the other hand, Mr. Bapuli with Mr. Bhattacharya, learned

Counsels appearing for the State submits that the prosecution case has

been proved through cogent and reliable evidence. They argued Sahanara

Khatun, P.W. 2 deposed the manner in which she had been attacked by

the appellants. Her elder sister Asnahara Bibi (P.W. 1) was present in the

house and saw the appellants run away. Similarly, P.W. 8, brother of the

appellant who was sitting in an adjoining house also saw the appellants

run away from the place of occurrence. As the family members were busy

with the treatment of the victim there was some delay in lodging FIR.

Failure to record names in the medical papers per se would not affect the

credibility of the prosecution case. Hence, conviction and sentence of the

appellants are liable to the upheld.

P.W. 2 is the injured victim in the present case. She deposed on 6th

Baisak at 11 p.m. while she was sleeping in her room, appellants came

into the room and threw acid on her left eye. Thereafter, the appellants

fled away. She raised alarm and neighbours came to the spot. Her elder

sister took her to Kaliganj PHC. From there, she was shifted to

Berhampore Hospital. She lost sight in her left eye and hearing in the left

ear. She also suffered injuries on her face. She identified the appellants in

court. In cross-examination, she stated appellants are related to her. They

were constructing a bathroom and latrine adjacent to their house. Her

father was digging a pit on the same spot. Dispute arose over such issue

and her father was mercilessly beaten. She lodged complaint against the

appellants at Kaliganj police station. She had disclosed the names of the

appellants to the doctor.

P.W. 1 is the elder sister of the victim. She deposed on the fateful

night she was sleeping in the veranda. On hearing hue and cry, she woke

up at around 11 p.m. and found the appellants come out of the room. She

identified the appellants with the help of lantern. P.W. 1 had told her that

she could not identify the persons due to darkness. Thereafter, she along

with her mother took her injured sister to hospital. She lodged written

complaint which was scribed by Abbas Ali Mondal, P.W. 7. She proved her

signature on the complaint. In cross-examination, she deposed that she

disclosed the names of the appellants to the doctor.

P.W. 8 is the younger brother of the injured victim. On the day of

the incident he was sitting in the house of his friend adjacent to their

house. On hearing hue and cry, he came out and saw accused persons

fleeing away from the spot. He found his sister with burn injuries on her

face. Her sister was taken to hospital. Police seized a pillow cover and

hurricane from the house. He identified the articles in court. In cross

examination, he stated that he had narrated the incident to the

Darogababu who wrote down the complaint. He had not signed on the

complaint. Immediately thereafter Darogababu had arrested Sattar Ali

and Neki. As there was delay in lodging complaint, Darogababu released

the two accused persons. On 22.04.2009 her sister lodged written

complaint.

P.Ws. 10, 11 and 12 are medical witnesses who treated P.W. 2.

P.W. 10 deposed he was posted at Kaliganj BPHC at the material point of

time. He found 9% burn injury on the face of P.W. 2. After primary

treatment, he referred the patient for better treatment to Nadia District

hospital. He proved the injury report (Exhibit 3). In cross-examination, he

stated that one doctor Asraf Sk had treated the victim earlier.

P.Ws. 11 and 12 treated the victim at Berhampore New General

Hospital. On 21.04.2009 P.W. 11 examined the victim. On examination,

he found acid burn injury on her scalp, face, both eyes, neck and right

shoulder joint. He recorded the history of injury. He referred the case to

his colleague Eye Surgeon, Dr. Ashoke Kr. Bhakta (P.W. 12). He proved

the medical report (Exhibit 4).

P.W. 12 examined the victim and found the injury on the left eye

was very grave. Victim had lost her sight in the left eye. Injury was

grievous in nature. The victim was discharged from hospital on

25.05.2009. He proved the injury report (Exhibit 4).

P.W. 13 is the investigating officer in the instant case. He deposed

on taking charge of investigation he visited the place of occurrence and

prepared rough sketch map with index, Exhibit 5. He examined

witnesses. He arrested the accused persons. He seized pillow cover under

seizure list. In cross-examination, he stated that he collected injury report

from Berhampore New General Hospital where there is no name of the

assailants noted in the FIR. He stated Sahanara told her she could not

see anything with her eyes. She heard from her sister that the accused

persons have fled away. P.W. 2 further stated that she could not recognize

the assailants in the light of lantern.

Relying on the evidence of P.W. 1 and that of investigating officer

(P.W. 13) it has been strenuously argued that identification of the

appellants by the injured victim, P.W. 2 is unreliable. P.W. 1 stated that

her injured sister had told her she was unable to identify the assailants

due to darkness. Similarly, investigating officer (P.W. 13) stated the

injured victim told her she could not identify the assailants with her own

eyes and P.W. 1 had told her that the assailants had fled away. In view of

the aforesaid evidence on record although there may be some doubt

whether P.W. 2 could have identified the assailants, deposition of P.W. 1

with regard to identification of the assailants is beyond reproach. P.W. 1

is the elder sister of the victim girl and was present in the house on the

fateful night. Hearing hue and cry, she woke up and saw the appellants

run away from the room in the light of lantern.

It is contended there is confusion whether she was sleeping in the

veranda or in her room. Minor variation with regard to the place where

she was sleeping does not affect the intrinsic truth of her version. The

incident happened on a hot night and windows and doors of the room

were open. Hence, even if the victim was in the room it was possible for

her to see the assailants run away in the light of the lantern. Her version

is corroborated by the younger brother, P.W. 8, who was sitting with a

friend in the adjacent house. Being alarmed by the cries, P.W. 8 also

came out of the house and saw the appellants run away from the place of

occurrence. These two witnesses clearly establish at the time occurrence

the appellants were in the room of the victim and after the incident had

run away. Even if one accepts that the victim was unable to identify her

assailants, in view of the evidence of P.W. 1 and 8, I have no doubt in my

mind that the appellants were the persons who inflicted acid burn injury

on the face of the victim.

Medical evidence on record corroborates the ocular version of the

aforesaid witness. P.W. 10 treated the victim at Kaliganj BPHC while

P.Ws. 11 and 12 had treated her at Berhampore New General Hospital. All

the doctors noted acid burn injuries on her scalp, head and face. Her left

eye had been wholly damaged and the injury was grievous in nature. She

was in the hospital for more than a month.

It is argued that the present case is improbable as the independent

witnesses have not supported the case. I am unable to accept such

proposition. P.Ws. 3 to 6 are the neighbours who were examined in the

case. P.W. 5 was declared hostile and was cross-examined vis-à-vis

departure from his previous statement to police. Appellants were related

to the victim and incident occurred due to a long standing family feud. It

is common knowledge that local people do not wish to take sides in a

family dispute. Hence, most of the neighbours kept mum or departed

from their earlier version to police supporting the prosecution case. On

the other hand, the incident has been established beyond doubt through

the deposition of the injured witness P.W. 2 as well as her relations P.Ws.

1 and 8 and the medical evidence on record. Version of a witness cannot

be thrown out merely because he/she is related to an injured victim.

Relationship between parties is not a ground to discredit the evidence of a

witness if the same is otherwise credible. Furthermore, it is most unlikely

that a relation of an injured victim would screen the actual offender and

falsely implicate another in the crime.

It is argued false implication is due to previous grudge. Enmity is a

double-edged sword. While previous enmity may give rise to false

implication, it may also provide motive to commit the crime. In the

present case there was a running feud between the relations in the family.

Appellants who were related to the injured witness had assaulted her

father earlier. She lodged complaint against the appellants and out of

grudge they threw acid on her face on the fateful night. Depositions of

P.Ws. 1, 2 and 8 in that regard are clear, convincing and inspires

confidence. Medical evidence also corroborates their version. In this

backdrop, I am of the view that the prosecution case cannot be thrown

out on the plea prior enmity had prompted the witnesses to falsely

implicate the appellants. On the other hand, such prior grudge had

provided motive to commit the crime.

It is further argued that there was delay of two days in lodging the

F.I.R. There was suppression of an earlier complaint lodged with the

police. In this regard, Mr. Chakraborty refers to the evidence of P.Ws. 1

and 8 as well as the investigating officer (P.W 13). He submitted that the

family members had gone to the police station on the same day and

lodged complaint. Such complaint did not see the light of the day.

I have considered the aforesaid submission in the light of the

evidence on record. P.W. 8 stated they took the injured to Kaliganj PS and

informed Darogababu about the incident. Darogababu, however, did not

take his signature on the complaint but proceeded to act on it and

arrested two of the appellants. Failure on the part of the police to reduce

the oral complaint by P.W. 8 into a signed document and treat it as F.I.R.,

is a defect in investigation. However, conduct on the part of the police to

arrest two of the appellants clearly show that the accusation on the night

of the incident itself was directed against none other than the appellants.

Failure on the part of the Officer-in-Charge to obtain signature of P.W. 8

on the complaint is a remissness in the process of investigation which

does not affect the intrinsic quality of the prosecution case. That apart,

family members were engaged in saving the life of the injured who was

initially taken to Kaliganj BPHC and then shifted to Berhampore New

General Hospital. Due to their involvement in her medical treatment,

there was some delay in lodging the written complaint by P.W. 1 at the

police station which has been treated as F.I.R. Judged from this

background, delay in lodging F.I.R. has been substantially explained and

does not affect the credibility of the case.

In the light of the aforesaid discussion, I am of the opinion the

prosecution has been able to prove that the appellants out of previous

grudge threw acid on the face of the victim thereby causing grievous

injury resulting in loss of sight in the left eye and hearing in the left ear.

Hence, I uphold the conviction recorded against the appellants.

Coming to the issue of sentence, I have no doubt in my mind that

the offence is a heinous one resulting in permanent disfigurement of the

face and loss of sight and hearing. However, incident occurred due to a

long-standing family feud. Appellants do not have prior convictions. It is

also pertinent to note that the appellants have already undergone

imprisonment for more than 12 years.

Balancing the aggravating and mitigating factors in the present

case, I am of the opinion, interest of justice would be served in the event

the sentence of life imprisonment imposed on the appellants on each

count be modified and it is directed that the substantive sentences be

reduced to rigorous imprisonment for 10 years each on each count and

the sentences shall run concurrently. Fine amounts, as awarded by the

trial Court, shall remain unaltered.

With the aforesaid modification as to sentence, the appeal is

disposed of.

Period of detention suffered by the appellants during investigation,

enquiry and trial shall be set off from the substantive sentence imposed

upon them in terms of section 428 of the Code of Criminal Procedure.

Copy of the judgment along with L.C.R. be sent down to the trial

court at once.

Urgent Photostat Certified copy of this order, if applied for, be

supplied expeditiously after complying with all necessary legal formalities.

I agree.

(Bivas Pattanayak, J.)                             (Joymalya Bagchi, J.)




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