Abu Fazel Fakir & Ors vs The State Of West Bengal
2022 Latest Caselaw 1578 Cal

                IN THE HIGH COURT AT CALCUTTA
               CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI

                             C.R.A 51 of 2017

                           Abu Fazel Fakir & Ors
                                    Vs.
                      The State of West Bengal

                                   With

                             C.R.A 18 of 2017
                              Salam Mallick
                                    Vs.
                      The State of West Bengal

     For the Appellants:             Mr. Imtaz Ahmed, Adv.


     For the State:                  Mr. Ranabir Ray Chowdhury, Adv.,
                                     Ms. Faria Hossain, Adv.,
                                     Mr. Sandip Chakrabarty, Adv.


Heard on: 23 November, 2021.

Judgment on: 29 March, 2022.

BIBEK CHAUDHURI, J. : -

1.

These two appeals arise from the judgment and order of conviction

and sentence passed in Sessions Trial No.418 of 2017; namely, Abu Fazel

Fakir, Sakina Khatun, Ashma Begum, Sahanara Begum, Rausan Fakir,

Sajehar Fakir, Mojehar Fakir, Sahida Begum.

2. The appellants in CRA 51 of 2017, were convicted for committing

the offence under Section 324/34 of the IPC and sentenced to suffer

imprisonment for two years each with fine and default clause.

3. The appellant, namely, Salam Mallick in CRA 18 of 2017 was

convicted for the offence punishable under Section 304-(II)/324/34 of the

IPC and sentenced to suffer simple imprisonment for three years with fine

and default clause for the offence punishable under Section 304-(II)/34 of

the IPC. The appellant also suffered punishment with simple

imprisonment for two years with fine and default clause for the offence

punishable under Section 324/34 of the IPC in Sessions Trial No.418 of

2009 by the learned Additional Sessions Judge, Uluberia, Howrah.

4. The appellants in both the appeals faced trial under the charge of

Sections 341/326/323/506 and 304-(II)/34 of the IPC on the basis of a

charge-sheet filed against them upon a written complaint submitted by

one Noor Jahan Khatun with the officer-in-charge, Shyampur P.S on 15th

May, 2008. In the written complaint, it is alleged by the de facto

complainant that on 15th May, 2008 at about 1.30 pm her grand-father,

Amantu Fakir was going to take bath in a pond near Kalitala, Pichaldaha.

At that time, accused Nazir Fakir asked her grand-father as to why he

had cast his vote to a rival political party. Nazir Fakir also wrongfully

restrained him on his way to pond and abused him with filthy language.

When Amantu Fakir raised protest against the said abusive language of

Nazir Fakir, later assaulted Amantu with a stick. In the mean time, other

accused persons namely Abu Fazal Fakir, Rausan Fakir, Nasir Fakir,

Sajehar Fakir, Mojehar Fakir, Sakina Begum, Ashma Begum, Sahida

Begum, Sahanara Begum and Ananuara Begum assembled at the place of

occurrence and assaulted Amantu Fakir, Nader Kazi, Rustam Kazi Fakir,

Saddam Kazi Fakir, Ruksana Khatun, Afsar Kazi Fakir and Rahima

Begum seriously. They were medically treated in the local hospital.

Amantu Fakir and Saddam Kazi were referred to bigger hospital for proper

medical treatment.

5. During investigation of the case Saddam Hossain @ Saddam Kazi

Fakir succumbed to his injury on 17th May, 2008.

6. During trial, prosecution examined as many as 17 witnesses.

Amongst them the de facto complainant deposed in the trial court as

PW1. PW2 is one Motiyer Rahaman who is the scribe of the written

complaint. PW3 Amantu Fakir. PW.4 Rahima Begum and PW5 Rustam

Kazi Fakir are the injured eyewitnesses. PW6 Jahadul Islam, and PW7

Mujibor Fakir also claimed to be the eyewitnesses of the occurrence. PW7

brought his father Amantu Fakir and four other injured persons to the

hospital. PW8 Kazi Abdul Kader is a witness to the seizure of certain

articles from the place of occurrence. PW13 Dr. Gautam Sarkar was

posted as Medical Officer at Jhumjhumi Block Primary Health Center. On

15th May, 2008, he medically examined one Saddam Fakir who had

defused swelling on left temporal region of head with a history of assault

by one Nazir Fakir. PW9 Dr. Sagarika Bhattacharya was a Medical Officer

attached to N.R.S Medical College and Hospital. On 16th May, 2008, she

examined injured Saddam Hossain who was referred to the hospital from

Uluberia Sub-Divisional Hospital. The injury report prepared by PW9 and

PW11 were marked exhibits during trial of the case. Remaining witnesses

except PW13, PW15, PW16 and PW17 are police personnel. PW13, PW15,

PW16 and PW17 are Medical Officer including the Autopsy surgeon.

7. At the outset let me record that charge as aforesaid were framed

against 10 accused persons. Amongst them accused Nasiruddin Fakir

was acquitted from the charge by the learned Judge in the court below.

From the evidence of the de facto complainant and other witnesses, viz.,

PW2 to PW5 it is ascertained that the incident dated 15th May, 2008 was

an outcome of political rivalry between supporters of two rival political

parties. It is further ascertained that Amantu Fakir was a supporter of

CPIM, while the accused persons were supporters of TMC.

8. The de facto complainant was examined in this case as PW1. She

stated in her evidence that on the date of occurrence at about 11.30/12

noon his grand-father was going to take bath. At that time accused Nazir

Fakir obstructed him and abused him with filthy language. When the

grand-father of the de facto complainant, namely, Amantu Fakir raised

protest and asked Nazir as to why he was abusing him, Nazir asked him

as to why he had cast vote in favour of CPIM. During such altercation

between Amantu Fakir and Nazir Fakir other accused persons, namely,

Abu Fazel Fakir, Mojehar Fakir, Salehar Fakir, Salam Mallick, Saiful

Mallick, Nasir Fakir, Rausan Fakir, Sakina Begum, Asma Begum, Sahida

Begum and Sahanara Begum rushed to the spot being armed with lathi

and sword and assaulted him. The family members of Amantu, namely,

Nader Fakir, Rustam Kajir Fakir, Afsar, Saddam Fakir, Rahima Begum,

Ruksana Khatun also rushed to the spot but the accused persons

assaulted them with lathi, iron rod and sword all of them sustained

bleeding injury. They were medically treated in the local hospital. Amantu

Fakir and Saddam Hossain were referred to Uluberia hospital. During

cross examination of PW1 it was suggested that Amantu Fakir and other

injured persons of this case assaulted some of the accused persons on the

selfsame date at about 10.30 am and ransacked the house of the

Jahangir Fakir which the de facto complainant denied PW3 Amantu Fakir

is one of the injured persons. He corroborated the evidence of the de facto

complainant. It is found from his evidence that on the date of occurrence

at about 11.30/12 noon when he was going to take bath, Nazir Fakir

prevented him and assaulted him on his head with a mugur like article (a

bamboo made hammer mainly used to break chunks of earth) due to

political rivalry. As a result of assault he sustained bleeding injury on his

head. He raised hue and cry and immediately other accused persons

came out from their house with lathi, iron rod, sword etc on their hands.

Salam Mallick and Bubai Mallick also joined with the accused. The family

members of Amantu Fakir also rushed to the spot to save him but the

accused persons assaulted them causing bleeding injury on their persons.

PW3 specifically stated that Salam Mallick assaulted Saddam Hossain

with a lathi. Saddam fell down on the ground. Then Bubai Mallick and

Nazir Fakir also assaulted him with a lathi and mugur like substance.

The injured persons were medically treated. PW3 and Saddam Hossain

were referred to Uluberia S.D Hospital. From Uluberia S.D Hospital

Saddam was referred to N.R.S Medical College and Hospital, Calcutta and

he succumbed to his injury. From his cross examination, it is found that

accused Salam Mallick was a leader of TMC in their locality at the

relevant point of time.

9. PW4 Rahima Begum is another injured witness who corroborated

the evidence of PW3 in her examination in chief. She further stated that

she along with others came to the place of occurrence to save Amantu

Fakir from the hands of the accused persons but she was assaulted by

the accused persons causing bleeding injury to her. Deceased Saddam

Hossain was his son.

10. PW5 Rustam Kazi Fakir is the elder brother of deceased Saddam

Hossain. In his examination in chief he stated on oath that Salam Mallick

assaulted his brother Saddam Hossain with the help of a lathi. As a result

of assault Saddam fell down. Then Nazir Fakir and Bubai Mallick started

assaulting Saddam. Thereafter they also assaulted Afsar Ali, Nader Kazi

Fakir, Ruksana and Rahima Khatun the injured persons were taken to

the local hospital. After initial medical support Amantu Fakir and Saddam

was referred to Uluberia S.D Hospital thereafter Saddam was referred to

N.R.S Medical College and Hospital, Calcutta as his physical condition

was deteriorating. On the next day, at about 10 pm Saddam succumbed

to his injuries. The witness admitted in his cross examination that the

accused persons also filed a criminal case against them and the said case

is still pending. PW6 Jahadul Islam also corroborated the evidence of

witnesses on behalf of the prosecution regarding the incident that took

place on 15th May, 2008. It is found from his evidence that accused Nazir

Fakir assaulted Saddam Hossain on his head with a bamboo. Saddam

Hossain and Amantu Fakir received bleeding injury and they were taken

to hospital. On the next date of occurrence Saddam Hossain expired at

N.R.S Medical College and Hospital. From his cross examination it is

found that police seized one mugur from Kalitala. The said Kalitala is at a

walking distance of one or two minutes from the house of the witnesses.

There are 10-15 houses in between the house of PW6 and Kalitala. PW7

Mujibor Fakir is the son of Amantu Fakir. According to him, he took his

father and four injured persons to the local hospital for medical

treatment. Saddam Hossain was then taken to Jhumjhumi Hospital by

his mother. Amantu Fakir and Saddam Hossain were referred to Uluberia

S.D Hospital. Thereafter Saddam was referred to N.R.S Medical College

and Hospital where he succumbed to his injury on the next date of

occurrence. He specifically stated that accused Salam Mallick assaulted

Saddam on his head with a lathi.

11. Thus, from the evidence of the eyewitnesses, it is ascertained that

Nazir Fakir, Mojehar Fakir, Abu Fazel Fakir, Salehar Fakir, Salam

Mallick, Saiful Mallick, Nasir Fakir, Rausan Fakir, Sakina Begum, Ashma

Begum, Sahida Begum and Sahanara Begum were the assailants of

Amantu Fakir, Saddam Hossain, Rahima Khatun, Ruksana Khatun and

Afsar Ali. The injury report prepared by Dr. Bhudeb Mondal who

medically treated the injured persons on 15th May, 2008 at Kamalpur

Block Primary Health Centre for the first time was marked as exhibit-9

collectively. The said Dr. Bhudeb Mondal deposed during trial as PW15.

On examination he found following injuries on the person of PW3 Amantu

Fakir:-

(i) Fresh lacerated wound over left parietal region, length

approximately 2 and ½" x 1 and ½".

(ii) Lacerated wound over frontal parietal region,

measuring about 2 and 1/2".

(iii) Lacerated wound over occipital region of scalp length 1

and ½ ".

All the wounds were stitched by PW15 and he was referred to

Uluberia S.D Hospital. According to the patient party, Amantu Fakir

was assaulted by Nazir Fakir, Abu Fazel Fakir and Sajehar Fakir.

12. PW15 also medically examined Sk. Rustam Ali and found the

following injuries:-

(i) Fresh lacerated wound over left forearm, length 1" x ½

".

(ii) Abrasion over right side of back.

The injury No.1 was stitched by the Medical Officer. According to

the patient he was assaulted by sharp metallic weapon by the above

named accused persons who assaulted Amantu Fakir.

13. PW15 also examined another injured namely, Sk. Nader Ali who

suffered the following injuries in the said incident:-

(i) Fresh lacerated wounds over right parietal region of

scale measuring about 2" x ½ ". The said injury was

stitched.

14. PW15 also medically examined SK. Afsar Ali who received the

following injury on his person in the same incident by the above named

accused persons:-

(i) Fresh lacerated wounds over frontal bone of scalp

measuring about 2" x ½ ". The said injury was stitched.

15. PW15 also medically examined Rupsana Khatun who suffered the

following injury on her person in the said incident by the above named

accused persons:-

(i) Fresh lacerated wounds over frontal bone along mid

line sagital suture, measuring 1 and ½ " x 1 and ½ ".

The said one was stitched.

16. Mr. Imtaz Ahmed, learned Amicus Curie on behalf of the appellant

submits at the outset that the alleged incident which took place on 15th

May, 2008 at about 11.30/12 noon was an outcome of political rivalry

between the two groups of people of the same village. The de facto

complainant and her relatives were the supporters of CPIM, while the

accused persons were supporters of TMC. It is found from the cross

examination of the witnesses that on the previous day of the incident

there was Panchyat Election. According to the prosecution case, quarrel

broke out between the parties over the issue of casting vote. It is also

found from the cross examination of the witnesses on behalf of the

prosecution that the accused persons lodged a complaint of criminal

trespass, physical assault and other offences against the de facto

complainant and the witnesses that took place allegedly on the same date

at about 10.30 am. Thus, it is contended by the learned Advocate for the

appellants that as a result of political rivalry and due to the fact of

existence of counter case, it was not safe to hold the accused persons

guilty for committing offence under Section 324/34 of the IPC.

17. It is also submitted by Mr. Ahmed that the evidence against

accused Salam Mallick who was convicted under Section 304-(II)/34 of

the IPC is full of contradictions and the learned trial judge committed

gross error in convicting the accused Salam Mallick for committing

offence under Section 304-(II)/34 of the IPC.

18. Secondly, it is pointed out by Mr. Ahmed that PW2 Motiyer

Rahaman was a local leader of CPIM. At the relevant point of time he was

the pradhan of the Gram Panchyat of the said locality. He being the scribe

of the FIR, it is reasonably presumed that the said Motiyer Rahaman was

the mastermind in filing a complaint against the accused persons.

Thirdly, it is argued by Mr. Ahmed that the witnesses admitted that

during the incident the accused persons not only assaulted the injured

witnesses, but also pelted bricks towards them. PW15 Dr. Bhudeb Mondal

admitted during cross examination that similar type of injury which he

found over the person of Amantu Fakir, Rustam Ali, Sk. Nader Kazi might

be caused being hit by bricks in course of pelting of bricks. Therefore, it is

not proved beyond all shadow of doubt that the above named persons

received injury being assaulted by the accused persons. So, it was unsafe

for the learned trial judge to record conviction against the appellants. Mr.

Ahmed has next urged that PW14 Nikunja Behari Das was the first

Investigating Officer of the case. During investigation, he seized one

bamboo made mugur, one iron made sword, one old scarf (orna) stained

with blood, one old used check lungi stained with blood and one burnt

wood by under a seizure list in presence of witnesses. The bamboo made

mugur and sword were not sent to the forensic expert to ascertain as to

whether there was any finger print of any of the accused

persons/appellants or not. In the absence of such evidence it cannot be

specifically held that the accused persons committed offence under which

they were charged.

19. Thus, it is submitted by Mr. Ahmed that where the genesis of

occurrence was suppressed by the prosecution on behalf of the

prosecution and the accused persons was absolutely inimical and the

evidence of the eyewitnesses, including injured witnesses did not at all

inspire confidence in view of the conflict and contradiction between each

other, the accused persons were entitled to get benefit of doubt. It is

further submitted by the learned Advocate for the appellant that when

PW15 clearly stated that the injuries received by the injured persons

might be caused on being hit by bricks, the accused persons were entitled

to get an order of acquittal because from the evidence it is found that two

view are possible, one for acquitting the accused person and other for

convicting them. In such a situation rule of prudence should guide this

court to pass an order of acquittal of the appellants. In support of his

contention he refers to a decision of the Hon'ble Supreme Court in

Mahendra Pratap Singh vs. State of Uttar Pradesh reported in (2009)

11 SCC 334. On the point of contradiction and discrepancy between

medical evidence and ocular testimony the learned Counsel for the

appellants relies upon the decisions of the Hon'ble Supreme Court in

Chandu vs. State of Maharashtra : (2002) 9 SCC 408, Brijpal Singh vs.

State of M.P : (2003) 11 SCC 219.

20. Learned P.P-in-Charge on the other hand, submits that FIR was

lodged in the instant case on the following date of occurrence. In the

written complaint it is stated on 15th May, 2008 during noon when

Amantu Fakir was going to take bath in a pond. He was obstructed by

Nazir Fakir on the rod near Kalitala @ Pirtala. Thereafter, Nazir Fakir

abused Amantu Fakir over the issue of casting vote. He also assaulted

Amantu Fakir with stick. When Amantu Fakir protested, other accused

persons came to the spot being armed with lathi, iron rod, sword, knife

etc. All the accused persons assaulted Amantu Fair, Nader Kaji, Nader

Kazi, Rustam Kaji Fakir, Saddam Kaji, Saddam Hossain, Ruksana

Khatun, Afshar Ali and Rahima Begam. The prosecution case was fully

corroborated by the de facto complainant (PW1), Amatu Fakir (PW3),

Rahima Begum (PW4), Rustam Kaji Fakir (PW5), Jahadul Islam (PW6),

Mozibur Fakir (PW7). From the evidence of PW15 Dr. Bhudeb Mondal it

transpires that Amantu Fakir, Sk. Rustam Ali, Sk. Nader Ali, Sk. Afsar Ali

and Ruksana Khatun received bleeding injury on their persons. The

wounds of the injured persons were stitched by PW15.

21. It is submitted by the learned P.P-in-Charge that the testimony of

the injured witnesses as its own efficacy and relevancy. The fact that the

witness sustained injuries on his body when they would show that he was

present at the place of occurrence and has seen the occurrence by

himself. Therefore, generally the evidence of injured witness should not be

discarded in the absence of convincing evidence from the side of the

accused persons. PW3 stated in his evidence that he was first assaulted

by Nazir Fakir on his head with a mugur like substance. Then other

accused persons armed with lathi, iron rod, knife etc attacked him. Then

Salam Mallick and Bubai Mallick also joined with the accused persons.

Deceased Saddam, Rustam, Rahima, Nader and Afsar rushed to the spot

to save PW3 but the accused persons also assaulted them. Salam Mallick

assaulted Saddam Hossain with a lathi. Saddam fell down on the ground

then Bubai Mallick and Nazir also assaulted him with a lathi and mugur

like substance. Other injured witnesses corroborated the evidence of PW3

in course of their deposition. Therefore, there is no reason to disbelieve

the evidence of the eyewitnesses. The ocular testimony of the eyewitnesses

was corroborated by the evidence of the Medical Officer. And therefore

they were rightly convicted by the learned trial judge. According to the

learned P.P-in-Charge there is no reason to take an alternative view in the

instant appeal.

22. Evidence of the injured eyewitnesses was doubted by the learned

Counsel for the appellant on the ground that the injured persons and the

accused persons had political rivalry and a counter case was lodged

against the injured witnesses also. It was also submitted by the learned

Amicus Curie for the appellant that the witnesses on behalf of the

prosecution might be injured as a result of pelting of bricks. However,

during trial, the accused persons failed to produce any document to show

the existence of counter case against the de facto complainant and the

witnesses.

23. I have already discussed the evidence of PW3. PW4 another

eyewitness who stated on oath that hearing the hue and cry of PW3 the

family members of Amantu Fakir, namely Rustam Kaji Fakir, Saddam

Kaji, Rahima Begum (PW4), Nader Kaji Fakir, Sk. Afsar Ali, Ruksana

Khatun came out of their house and they saw that Nazir Kaji, Abu Fazel

Fakir, Mozahar Fakir, Sazehar Fakir, Rousan Fakir, Nasir Fakir, Salam

Mallick, Bubai Mallick, Ashma Begum, Sakena Begum, Sahida Begum,

Sahanara Begum were assaulting by PW3. When they reached the place of

occurrence the said accused persons also assaulted them with lathi, iron

rod and knife as a result they sustained bleeding injury. Salam Mallick

assaulted Saddam Hossain on his head with a lathi as a result of which

he fell down. Nazir Fakir and Bubai Mallick also assaulted Saddam with

lathi. The injured persons raised hue and cry then the accused persons

fled away. PW4 took Saddam Hossain to Jhumjhumi Hospital but doctor

referred him Uluberia Hospital. From Uluberia S.D Hospital he was

referred to N.R.S Medical College and Hospital where he succumbed to his

injuries on the next day. PW4 Rahima Bigum is the mother of Saddam

Hossain. This Court does not find any reason to disbelieve the evidence of

PW4 on the ground that due to political rivalry PW4 would implicate some

persons other than the real culprits who caused death of her son. The

evidence of PW5 also corroborates on all material particulars the evidence

of PW3 and PW4. In his examination in chief he stated that seeing the

accused persons assaulted Amantu Fakir, he first rushed to the spot but

Nazir Fakir assaulting him on his back with a sword. Blood stain sword

was recovered from the place of occurrence by PW14. It is true that the

said weapon was not sent to the forensic science laboratory for

examination, but for this reason, the evidence of Rustam Kaji Fakir

cannot be discarded. PW6 Jahadul Islam is a disinterested witness of the

locality. He supported the prosecution case in all material particulars.

PW7 Muzibor Fakir is the son of PW3 Amantu Fakir. He is an eyewitness

and corroborated the evidence of the injured witness. PW8 Kaji Abdul

Kader proved the seizure list of a mugur made of bamboo, one knife, one

blood stain scarf (orna) and one stripe lungi from the place of occurrence

in his presence.

24. It is ascertained from the trend of cross examination that the

learned defence counsel in the trial court engaged himself mainly to cross

examine the witness to establish that deceased Saddam Hossain was not

assaulted by Salam Mallick and he is not an accused under the charge of

Section 304(II) of the IPC. There was however, little cross examination

regarding the involvement of the accused persons in assaulting Amantu

Fakir and four other relatives of Amantu.

25. From the evidence on record, presence of injured witnesses at the

place of occurrence and witnessing the incident does not raise any doubt

in the mind of this court. However, on careful perusal of the evidence of

the eyewitnesses it is found that during evidence they stated the names of

Nazir Fakir, Salam Mallick and Bubai Mallick as the perpetrator of

specific assault upon deceased Saddam Hossain. PW3 Amantu Fakir

stated on oath that he was first assaulted by Nazir Fakir and then other

accused persons also assaulted him. Before the Medical Officer the

injured Amantu Fakir stated the names of Nazir Fakir, Abul Fazal Fakir,

Sezeher Fakir as his assailants. He received four numbers of bleeding

injuries on different parts of his head. Other injured witness also stated

the names of the above named persons before the Medical Officer.

26. Therefore, a reasonable question falls for adjudication as to whether

the learned trial judge was correct in convicting all the appellants taking

aid of Section 34 of the IPC.

27. It is well known that to establish the common intention of several

persons so as to attract the mischief of Section 34 of the IPC, the following

two fundamental facts have to be established; (i) common intention to

commit an offence, and (ii) participation of the accused in commission of

the offences. If the above two ingredients are satisfied, even overt act on

the part of some of the persons sharing the common intention was held to

be not necessary. A finding that the assailant concerned had a common

intention with the other accused is necessary for taking resort to Section

34. In other words, to attract Section 34 of the IPC, it is not necessary

that each one of the accused must assault the injured persons. It is

enough if it is shown that they shared a common intention to commit the

offence and in furtherance thereof each one played his assigned role by

doing separate acts, similar or diverse. The facts of this case are eloquent

and the role played by the accused persons preventing PW3 Amantu Fakir

from going to the pond to take bath, assaulting him and his relatives

when they came to the spot to save Amantu Fakir has been proved

beyond any shadow of doubt. Therefore, the learned trial judge rightly

held that all the accused persons took part in causing physical assault to

the injured witnesses and they acted pursuant to a pre-arranged plan.

The facts clearly are consistent only with the hypothesis of their acting in

furtherance of a common intention. They have, therefore, rightly been

convicted with the aid of Section 34 of the IPC.

28. The learned trial judge convicted all the appellants under Section

324/34 of the IPC, while accused Salam Mallick was convicted also for

committing offence under Section 304(II) of the IPC for causing culpable

homicide not amounting to murder of Saddam Hossain.

29. It is found from the evidence of the eyewitnesses that Saddam

Hossain was first assault on his head by Salam Mallick and he fell down

on the ground. Then Nazir Fakir and Bubai Mallick also assault him with

the help of lathi and iron rod on his head. It is ascertained from the

evidence of PW9 Dr. Sagarika Bhattacharya who examined Saddam

Hossain at N.R.S Medical College and Hospital that at the time of his

examination, the patient was totally unconscious, pulse was not palpable,

blood pressure could not be recorded, pupil was dilated, almost fixed and

heart song was very occasionally audible. From the post-mortem report it

is found that he had one stitched up injury over left parietal region, left

parietal and temporal region, subdural hemorrhage over both cerebral

hemisphere, intra cerebral hemorrhage with clot over right parietal lobe.

All the injuries showed evidence of vital reaction and the patient died due

to the effects of head injury, antemortem in nature. From the evidence on

record it is found that he received at least four injuries on different parts

of his head and he was not assaulted alone by Salam Mallick. He was also

assaulted by Nazir Fakir, Bubai Mallick and according to the injury report

Sezehar Fakir and seven and eight others. Therefore, this Court is not in a

position to hold conclusively as to who gave the fatal blow to Saddam

Hossain causing his death. Therefore, Salam Mallick could not be

convicted alone under Section 304-(II) of the IPC. Therefore, Salam

Mallick, the appellant of Criminal Appeal No.18 of 2017 is entitled to get

benefit of doubt and the learned trial judge ought to have passed an order

of acquittal of the charge under Section 304-(II) of the IPC.

30. For the reasons stated above the appellants in CRA 51 of 2017

namely, Abu Fazel Fakir, Sakina Khatun, Ashma Begum, Sahanara

Begum, Rausan Fakir, Sajehar Fakir, Mojehar Fakir, Sahida Begum

were rightly convicted under Section 324/34 of the IPC.

31. Appellant Salam Mallick in CRA 18 of 2017 is entitled to be

acquitted of the charge under Section 304(II)/34 of the IPC.

32. However, the order of conviction passed against him by the court

below under Section 324/34 of the IPC stands.

33. Now comes the question of sentence. The incident took place in the

year 2008. The appellants are facing trial before the learned court below

and also in this court for last 14 years. They have suffered tremendous

mental agony during these years with pendency of a criminal case on

their head. All the appellants are villagers, mostly maintain their

livelihood as agricultural labourer. Some of the convicts are village

housewives. The appellants do not know the intricacies of political

ideology they become supporters of different political parties without

having any knowledge about politics. They are practically preys and

pawns in the hands of political powers.

34. Therefore, for the offence punishable under Section 324/34 of the

IPC this Court is of the view that the accused persons shall be adequately

punished if they are sentenced to suffer simple imprisonment of one year

with fine of Rs.1000/- in default to undergo further simple imprisonment

for three months each for the offence under Section 324/34 of the IPC.

35. The appellants in CRA 51 of 2014 and CRA 18 of 2017 are

sentenced accordingly.

36. The CRA 51 of 2017 is dismissed on contest. CRA 18 of 2017 is

partly allowed on contest and conviction and order of sentence passed

against the appellant Salam Mallick under the charge of Section

304(II)/34 of the IPC is set aside.

37. Period of detention of the appellants in custody during

investigation, trial and hearing of the appeal, if any shall be set off against

the actual period of sentence of imprisonment in terms of Section 428 of

the Code of Criminal Procedure.

38. Before I part with, I acknowledge of the serious effort of the learned

amicus curie in assisting the hearing of the appeal on behalf of the

appellants. The court appreciates his endeavour.

39. Let a copy of this judgment be handed over to the appellants duly

signed by the ACO of this Court free of cost.

40. Let a copy of this judgment be sent to the court below with the

lower court record.

(Bibek Chaudhuri, J.)