Aminul Islam @ Amenur Molla vs The State Of West Bengal
2022 Latest Caselaw 2565 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Appellate Jurisdiction
                           Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri


                          C.R.A. 520 of 2018

                     Aminul Islam @ Amenur Molla
                                 Vs.
                      The State of West Bengal



Amicus Curiae :            Mr. Dipanjan Dutt, Adv.


For the State    :         Mr. Ranabir Roy Chowdhury, Adv.
                           Ms. Sujata Saha, Adv.


Heard on                           : 06.05.2022.

Judgment On                        : 06.05.2022.

Bibek Chaudhuri, J.

The appellant has filed the instant appeal assailing the judgment

and order of conviction passed by the Trial Court for committing offence

under Section 324 of the Indian Penal Code and consequence sentence

of imprisonment for a term of one year with fine of Rs.1,000/-, in

default, to suffer simple imprisonment for further 3 months.

The Officer-in-Charge, Gazole Police Station in the District of Malda

received a written complaint from one Mosiluddin Ahmed on 7 th August,

2016 alleging, inter alia, that on 6th August, 2016 at about 7:45 p.m., his

younger brother Serajuddin Ahmed was returning from mosque after

observing Namaz. At that time the appellant along with Khatir

Mahammad, Nazir Hossain @ Bhaltu, Maijul Rahaman @ Nathua and

Mansur Rahaman wrongly restrained him in front of the house of one

Jainul @ Buku and assaulted him on his head with iron rod and Hasua

with the intention to kill him. As a result of assault, the brother of the

de-facto complainant was seriously injured. Hearing hue and cry the

villagers rushed to the place of occurrence. The de-facto complainant

with his two sons also reached the spot and found Serajuddin lying on

the ground in injured condition. He was immediately taken to Gazole

Primary Health Centre. The Medical Officer referred him to Malda

Medical College & Hospital considering serious nature of assault in the

person of Serajuddin. He was admitted to Malda Medical College &

Hospital and subsequently to a Nursing Home. It is also stated that the

accused persons are habitual offenders. They also assaulted some other

people of the village and they were facing trial in G.R. Case

No.1069/1991. On the basis of the said complaint, police registered

Gazole Police Station Case No.462/2016 dated 7 th August, 2016 and took

up the case for investigation. On completion of investigation, police

submitted charge-sheet against the accused persons. The Trial Court

framed charge against five accused persons including the appellant

under Sections 341/325/307/34 of the Indian Penal Code. As the

accused persons pleaded not guilty when the charge was read over and

explained to them, trial of the case commenced. On conclusion of trial,

the appellant was convicted and sentenced in the manner disclosed

above while other accused persons were acquitted from the charge.

When the instant appeal came up for hearing, the appellant did not

take any step. Therefore, Mr. Dipanjan Dutt, Advocate was requested by

this Court to act as Amicus Curiae on behalf of the appellant in the

instant appeal. Mr. Dutt, readily accepted the proposal and he has

submitted the case of the appellant with all diligence and sincerity.

It is submitted by the learned Amicus Curiae that in a criminal trial

the prosecution is duty bound to prove at the foremost the date, time

and place of occurrence and the manner of the incident constituting the

offence before the Trial Court. If there is any deviation in proving the

aforesaid facts, the entire prosecution case becomes suspect. He

substantiate his argument referring to the written complaint (Exhibit.1).

The written complaint was lodged on 7 th August, 2016 with the Officer-

in-Charge, Gazole Police Station. In the written complaint it was

specifically stated that the incident took place yesterday at about 7:45

p.m. on the road of their village in front of the house of one Jainul @

Buku while his brother Serajuddin was returning from mosque after

offering Namaz to his house.

Mr. Dutt next tekes me to formal FIR. In Column No.3 of the

formal FIR, the police officer recorded the date of occurrence as on 6 th

July, 2016. He also refers to the evidence of the de-facto complainant

namely Mosiluddin Ahmed who stated on oath in his evidence that the

incident took place on 6th July, 2016 at about 7:45 p.m.. Therefore, if

the oral evidence of the de-facto complainant and the recording of

formal FIR are taken into consideration, there is no other alternative but

to hold that the FIR was lodged just after one month of the alleged

incident. There is no explanation whatsoever regarding delay in lodging

the FIR. The learned Trial Judge did not even consider the matter in the

impugned judgment. Therefore, there is every reason to hold that

concocted story came up before the Court as a result of delayed FIR.

Coupled with the delay, according to the Mr. Dutt, admittedly

the relation between the de-facto complainant and his brother in one

side and the appellant and other acquitted accused persons on the

other hand was inimical in view of the fact that admittedly a counter

case is pending over the self same incident filed on behalf of the

accused persons. In other words, in the alleged incident, admittedly

some of the accused persons suffered injury and over the said

incident a criminal case was filed against the de-facto complainant,

his brother and others by the accused persons. In view of existence of

such counter case, false implication of the appellant cannot be ruled

out.

It is further submitted by learned Amicus Curiae that except the

injured, no eye-witness of the occurrence was examined by the

prosecution. Admittedly, P.W.1, Amirul Sarkar, P.W.5, Abdul Kuddus

and P.W.6, Jainul Sarkar did not see the incident of assault allegedly

inflicted by the appellant on the brother of the de-facto complainant.

Therefore, the evidence of the said three witnesses are in the nature

of hearsay. The de-facto complainant also did not see the incident

because it is found from his evidence that on 6 th July, 2016 at about

7:45 p.m. his brother Serajuddin left the mosque before his

departure. He reached the place of occurrence hearing hue and cry

and saw his brother in wounded condition. Therefore, Serajuddin

sustained injury before arrival of the de-facto complainant.

With regard to delay in lodging FIR, Mr. Dutt also refers to the

cross-examination of P.W.2 where he clearly admitted that he lodged

complaint after one moth of the incident.

He next refers to the evidence of P.W.4, Serajuddin Ahmed who

is the injured person in the incident. In order to cover up the lacuna

with regard to the date of occurrence, P.W.4 deposed that the

incident took place on 6th August, 2016. He also stated that he was

assaulted by the acquitted accused persons with the help of iron rod

and by the appellant with Hasua. As a result of receiving Hasua blow

on his head, he sustained a deep cut injury and the said wound was

stitched up with 23 stitches.

Learned Amicus Curiae then takes me to the injury report of

P.W.4 (Exhibit 2) which was issued by Dr. Shyam Sundar Halder,

P.W.3. On perusal of the said injury report it is found that Medical

Officer examined the injury on 6th August, 2016 at about 8:33 P.M. at

Gazol Rural Health Centre and found a cut injury approximately 4 cm.

in length on the head of the patient. In the injury report the medical

officer opined that such injury may be caused by lathi. Though in the

injury report the medical officer did not state as to whether the injury

sustained by P.W.4 was incised or lacerated wound, the medical

officer in consultation with the injury report opined during his

evidence that the said cut injury was lacerated injury.

It is submitted by Mr. Dutt that if there is laceration, the injury

cannot be held to be caused by Hasua because if a person is assaulted

with the help of Hasua there shall be incised wound. Therefore, the

appellant was wrongly connected with the injury sustained by P.W.4

because the prosecution case is that the appellant caused injury on

the head of P.W.4 with the help of Hasua.

For the reason stated above, learned Amicus Curiae submits

that the appellant was wrongly convicted. The evidence on record is

not sufficient against the appellant and he is entitled to be acquitted

of the charge.

Mr. Ranabir Roy Chowdhury, on the other hand, submits that if

there is any discrepancy between ocular and medical evidence, ocular

of the witness shall prevail. P.W.4 stated on oath in unequivocal term

that the appellant gave a blow of Hasua on his head, as a result of

which he sustained a deep cut injury. The other accused persons

assaulted him with iron rod. It is not in dispute that P.W.4 sustained

injury of the date and time of occurrence. Therefore, it matters little if

the medical officer fail to state the nature of injury received by P.W.4.

Mr. Roy Chowdhury further submits that the learned Trial Judge

considered the evidence of the witnesses in delayed way and

dispassionate manner. If the injured person's evidence is believed,

the appellant cannot escape from his conviction.

Having heard the learned counsel for the parties and on careful

perusal of the evidence on record, the question that arises before this

Court for consideration is the date of occurrence when the incident

took place. In the FIR dated 7 th August, 2016 the de-facto

complainant stated that the incident took place yesterday, meaning

thereby the incident took place on 6 th August, 2016. The formal FIR

was filled up stating the date of occurrence as on 6 th July, 2016. The

de-facto complainant stated that he lodged the complaint after one

moth of the occurrence. Therefore, the recording of the date of

occurrence in the formal FIR tallies with the evidence of P.W.2. If on

the other hand, the evidence of P.W.4 is taken into consideration, it

would be found that the incident allegedly took place on 6 th August,

2016. Again on perusal of the injury report it is ascertained that the

incident took place on 6th August, 2016 and the injured was examined

medically on 6th August, 2016 at 8:33 p.m. at Gazol Rural Health

Center. Therefore, if the Court accepts the evidence of the de-facto

complainant, then there would be no other alternative but to hold that

P.W.4 received injury on 6th August, 2016 but the de-facto

complainant himself stated on oath that he lodged complaint one

month after the incident meaning thereby the incident took place on

6th July, 2016 on which date P.W.4 did not receive any injury. The

appellant cannot be implicated for any incident that took place on 6 th

August, 2016. Therefore, prosecution failed to prove the date of

occurrence when the incident took place.

It is true that in case of discrepancy between ocular and medical

evidence, ocular testimony shall prevail because the medical evidence

is in the nature of an expert's opinion. The Court cannot deny that

P.W.4 received cut injury on his head but in order to ascertain the

nature of injury, the evidence of expert can only be relied on. When

the medical officer stated that P.W.4 sustained lacerated injury, the

said injury cannot be treated as incised wound on the basis of ocular

testimony of P.W.4. If the P.W.4 is assaulted with the help of a Hasua

on his head, there would have been an incised wound. Unfortunately

enough, no incised wound was found on the head of P.W.4. When the

allegation of the prosecution is that the appellant assaulted P.W.4

with Hasua, in the absence incised cut injury, the appellant cannot be

connected with the injury sustained by P.W.4.

Therefore, in my considered view, the appellant is entitled to

benefit of doubt and the learned Trial Judge ought to have recorded

an order of acquittal in favour of the appellant.

In view of the above discussion, this Court is of the view that

the impugned judgment and order of conviction and sentence is liable

to be set aside.

Accordingly, the instant appeal is allowed. The judgment and

order of conviction and sentence passed by the learned Additional

Sessions Judge, Fast Track 2nd Court at Malda on 31st July, 2018 and

1st August, 2018 respectively in Sessions Trial No. 2(9) of 2017 arising

out of Sessions Case No. 348 of 2017 is set aside.

The appellant is acquitted from the charge and discharge from

his bail bond.

Let a copy of this Judgment along with lower court record be

send down to the Court below.

Urgent photostat certified copies of this order may be delivered

to the learned Counsel for the parties, if applied for, upon compliance

of all formalities.

(Bibek Chaudhuri, J.)