Calcutta High Court (Appellete Side)

Mujibar Sheikh @ Sk. & Ors vs The State on 19 September, 2022

IN THE HIGH COURT AT CALCUTTA (Criminal Appellate Jurisdiction) APPELLATE SIDE

Present:

The Hon'ble Justice Shampa Dutt (Paul)

C.R.A. 165 of 2005

Mujibar Sheikh @ Sk. & Ors.

-Vs-

The State.

For the Appellant       :     Mr. Debabrata Roy,
                              Ms. Karabi Roy,
                              Ms. Sarbani Mukhopadhyay,
                              Mr. Soumik Mondal.



For the State           :     Mr. Saibal Mondal,
                              Ms. Puspita Saha.




Heard on                :     01.07.2022

Judgment on             :     19.09.2022




Shampa Dutt (Paul), J.:

This appeal is directed against judgement and order dated

February 21, 2005 passed by the Additional Sessions Judge, 4th Court,

Nadia, Krishnagar in Sessions Trial No. 5(II) of 2004 convicting the

appellants and sentencing them to suffer R.I. for 2 years each for the

offence punishable under Section 148 and 34 IPC and to suffer R.I. for 1

year each for offence punishable under Section 323/34 IPC and further

sentenced the appellants to suffer R.I. for 5 years each and also to pay

fine of Rs. 5,000/- each i.d. to suffer further one year each for offence

punishable u/s. 325/34 IPC. All the sentences to run concurrently.

Period of detention, if any to be set off as per Section 428 Cr.P.C.

Prosecution case in short is that a written complaint was made

by one Gulnahar Begum, wife of Najrul Islam Mondal to the officer-in-

charge, Kaliganj P.S. stating that on 09.05.1999, at about 7 A.M. while

her brother Majaffar Hossain was returning home through pucca rasta,

at that time near the house of Majaffar accused Hafijul Sheikh abused

him in filthy languages and started assaulting with an iron rod. Out of

fear Majaffar raised alarm and hearing the same the members of his

family rushed to the P.O. and tried to rescue him. On seeing those family

members, from the house of Sahabat Sheikh near the P.O. the accused

persons namely, Mustakin, Mujibar both sons of Rahamat Sheikh-

Anaruddin Sheikh, Hasibur Sheikh, Sahabat Sheikh and his two sons

Munirul Sheikh and Sarikul Sheikh attacked Majaffar and his family

members being armed with iron rod, lathi, etc. The husband of the

defacto complainant sustained grievous hurt on his entire person

including head. Majaffar, his father Abu Bakkar Sk. and maternal uncle

Amanat also sustained grievous injuries. The local villagers having

rushed to the place of occurrence, resisted the accused persons and then

fled away. With the help of local people, the injured persons were at first

taken to Mira P.H.C. where mother of the defacto complainant and

brother Kadar Ali were released after primary treatment and rest injured

persons were referred to Shaktinagar Hospital considering gravity of

their injuries.

On the basis of the said complaint Kaliganj P.S. Case No. 96/99

dated 09.05.1999 u/s 147/148/149/323/325/326/308 I.P.C. was

started. On completion of investigation, charge sheet was filed against all

the appellants. The case was committed to the Court of Sessions and

charge was framed. On completion of trial, the appellants were convicted

and sentenced as above.

Mr. Debabrata Roy, learned lawyer for the appellants has

submitted that it is the case of the appellants that the learned Trial

Court erroneously convicted the appellants inspite of the charge not

being proved beyond all reasonable doubt. That the appreciation of

evidence by the Trial Court is not proper. That the learned Judge

wrongly did not hold that the police officer motivatedly manufactured the

FIR inspite of the fact that PW 1 categorically stated that she does not

know who wrote the FIR. The learned Judge also failed to appreciate that

PW-10 has deposed that FIR was written as per the dictation of the

police officer. That framing of charge by the Trial Court was improper

and serious miscarriage of justice has been caused by the conviction of

the appellants. The Trial Court erred both in facts and law and the Trial

Judge wrongly relied upon the oral evidence without any corroboration

and that the Trial Court Judge without proper appreciation of evidence

and without considering the materials on record in the proper

perspective wrongly convicted the appellants and as such the judgement

and order under appeal is liable to be set aside.

Mr. Saibal Mondal learned Additional Public Prosecutor

appearing on behalf of the State has submitted that the Trial Judge

rightly appreciated the evidence before it and on considering the

evidence before both oral and documentary and on proper appreciation

rightly convicted the appellants and as such the appeal is liable to be

dismissed.

Evidence on Record.

Prosecution witness no. 1 Gulnahar Bagum is the complainant.

She has corroborated her case as stated in her written complaint. This

witness has admitted that she does not know who scribed the complaint

(Exhibit 1). On being cross-examined, she reiterated her statement as in

her examination in chief.

Prosecution witness no. 2 Faring Sk. heard about the incident

and saw the injured being taken to the hospital (hostile).

Prosecution witness no. 3 Imajuddin Sk. heard about the

incident.

Prosecution witness no. 4 Mozaffar Hossain is one of the

injured.

Prosecution witness no. 5 Abu Bakkar Sk. is the father of the

injured Monihara Begum and Humayun and has deposed about the

dispute between them and the accused person. This witness is also an

injured.

Prosecution witness no. 6 Amanat Sk. has deposed that he

tried to the settle the matter but was attacked by the accused persons.

Prosecution witness no. 7 Beauty Hossain is the wife of one of

the injured. Her in-laws were also allegedly assaulted by the accused

persons.

Prosecution witness no. 8 Nazrul Islam Mondal is one of the

eye witnesses who saw the incident. This witness has stated that she

was also assaulted and was treated in the hospital.

Prosecution witness no. 9 Basiruddin Ahamed and

Prosecution witness no. 10 Arman Ali Sk. (hostile).

Prosecution witness no. 11 Reajul Alam is the Investigating

Officer in this case.

Prosecution witness no. 12 Pankaj Mondal is the Recording

Officer.

Prosecution witness no. 13 is Doctor Sumit Roy Chowdhury.

He has proved the injury report (Exhibit 6).

The written complaint has been marked as Exhibit 1 series.

Formal FIR Exhibit 2, the sketch map-Exhibit 3. Exhibit 4 is the

requisite. Exhibit 5 is discharge certificate. Exhibit 6 is the injury report.

Analysis of Evidence

PW 13 Dr. Sumit Roy Chowdhury who examined the injured

persons on deposing before the Trial Court stated as follows:

"On 17.05.1998 I was posted at Meera P.H.C. on 09.05.1999. I

examined Najul Islam Mondal and found the following injuries:-

He came at Meera P.H.C. with lacerated injury at scalp. He was

treated accordingly and he was referred to Krishnagar/Berhampur/

District Hospital. Although injury was simple but it was severe injury in

nature.

I also examined Mojaffar Hossain, 40 years old, son of Abu

Bakkar Sk. of the same village. He came with swelling at left fore-arm,

left wrist, bruise at left thigh. Abrasion at right deltoid. He was treated

accordingly and later on referred to Orthopaedic,

Krishnagar/Berhampur/District Hospital. The injury was simple in

nature.

I also examined Abu Bakkar Sk., aged 70 years of same village

and found the following injuries:-

He came with lacerated injury on scalp, right fore-arm, left hand.

He was treated accordingly and referred to

Krishnagar/Berhampur/District Hospital. The injury though was

simple but severe.

On that day I examined Kader Ali, 50 years, son of Maharam Sk.

of same village. He came with lacerated injury at scalp. He was treated

accordingly. The injury was simple in nature.

I examined Humayun Kabir, 27 years, son of Abu Bakkar Sk. of

same village and found the following injuries. He came with lacerated

injury on scalp. He was treated accordingly. The injury was simple in

nature.

On that day I examined Fatema Bibi, 60 years wife of Abu

Bakkar Sk. of same village came with swelling of left fore-arm. She was

treated accordingly. The injury was simple in nature.

I examined Amanat Sk., 50 years son of Maharam Sk. He came

with lacerated injury at scalp and at the left fore-arm. He was treated

accordingly. The injury was simple in nature.

The injured persons were not referred by anybody. There is no

note in my injury report as to whether the patient came on foot or they

were brought by patient party. In respect of the patient namely Nazrul

Islam Mondal, Abu Bakkar Sk. Since the injury was severe even death

could have been caused if the treatment could not be properly and timely

done. It might be that the injuries sustained by the injured were caused

by lathi, iron rod etc. I did not find any incised wound i.e. sharp cutting

injury over the injuries sustained by the injured persons. The entire

injury report containing two pages is collectively marked as Exhibit 6."

On being cross-examined, this witness has categorically stated

that the said injuries have been caused by hard substance during fight

and the swelling and abrasion injury and other might be caused by

scuffling and blunt weapon. The Doctor has further stated that if any

person discloses the history of assault, the same is reduced in writing by

the Doctor and it is mandatory (no such history nor any persons name

(accused) has been noted in this case on the injury report). From the oral

evidence as recorded by the Trial Court, it is seen that there was a free-

fight between the parties. Several persons were injured as seen from the

injury report and proved by the Doctor (PW 13). Admittedly there is a

dispute between the parties and altercation took place on the date of

incident as stated. Whoever had gone to see what was happening or had

gone to amicably settle the matter had allegedly also been assaulted.

Though it has been states that some of the injured had been referred to

Shaktinagar hospital. No Doctor from there was examined nor any such

medical papers were produced thus not proved.

Considering the statement of the witnesses before the Court, and

the documentary evidence, it is for the court to see as to how far the

documents have supported the oral evidence. It is seen from the injury

report (Exhibit 6) that Humayun Kabir, Fatema Bibi, Amanat Sk.,

Majaffar Hossain, Abu Bakkar Sk., suffered simple injury only. It has

been noted that Abu Bakkar Sk., 70 years old suffered simple injury but

severe. The nature of severity of injury has not been noted in the

injury report. And such statement appears to be contradictory. As

such, it is clearly seen that the injuries suffered, was simple injury and

it has been proved before the Trial Court by way of oral and documentary

evidence that there was an altercation and many persons suffered simple

injury. The Trial Court accordingly came to its findings to convict the

appellants. The incident occurred on 09.05.1999 (23 years ago). Now,

it for this court to see as to whether the Trial Court considering the

materials on records and the facts and circumstances, rightly sentenced

the convicts and as to whether the sentence was proper, considering the

offence alleged and the evidence before the Court.

One of the Section for which the appellants have been convicted

and sentenced is the charge under Section 325/34 IPC.

Section 325 of the Indian Penal Code lays down as follows:-

"Section 325. Punishment for voluntarily causing grievous hurt.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Ingredients of offence.- The essential ingredients of the offence under Section 325 are as follows:-

(1) Accused voluntarily caused hurt;

(2) Hurt was grievous within the meaning of sec. 320, I.P.C."

In order to constitute an offence under Section 325 of the

Indian Penal Code the hurt caused must be grievous within the

meaning of Section 320 of the Indian Penal Code. Section 320 of the

Indian Penal Code describes the kinds of hurt which are designated

as grievous.

Section 320 of the Indian Penal Code lays down as follows:-

"Section 320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":

First.-- Emasculation.

Secondly. --Permanent privation of the sight of either eye.

Thirdly.-- Permanent privation of the hearing of either ear, Fourthly. --Privation of any member or joint.

               Fifthly. --     Destruction     or   permanent
               impairing of the powers of any member or
               joint.

Sixthly. -- Permanent disfiguration of the head or face.

Seventhly. --Fracture or dislocation of a bone or tooth.

Eighthly. --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

As seen from the injury report (Exhibit 6) and the nature of injury

sustained by the injured there in and the evidence of the Doctors, it is

found that the hurt caused to the injured persons do not come within the

description of 'grievous hurt' as designated under Section 320 of the

Indian Penal Code and as such the ingredient required to constitute the

offence under Section 325 of the Indian Penal Code has not been proved

before the Trial Court beyond all reasonable doubt.

Accordingly the said conviction and sentence in respect of the

charge under Section 325/34 of the Indian Penal Code in respect of all

the appellants is liable to be set aside.

Conclusion

Considering the evidence and materials on record and the

analysis of evidence as discussed, it is seen that the prosecution has

proved the charge against all the appellants under Section 148/34 IPC

and Section 323/34 IPC before the Trial Court beyond reasonable doubt

and the Trial Court rightly convicted the appellants for the said

offence/charge. But considering the fact that the incident took place

about 26 years back and the nature of offence as proved in this case,

this Court is of the view that a slight modification of the sentence shall

meet end of justice.

The appellants have been sentenced as follows:-

     Sl No.            Name              Under        Punishment
                                        Section
    1         Mujibar Sheikh

    2         Mustakin Sheikh           148/34      R.I. for 2 years.

    3         Hafijul Sheikh

    4         Sahabat Sheikh            323/34      R.I. for 1 year.

    5         Khalil Sheikh

    6         Habibur Rahaman           325/34      R.I. for 5 years
                                                    and fine of Rs.
    7         Sarikul Sheikh                        5000     i.d.   to
                                                    suffer     further
    8         Manirul Sheikh                        R.I. for 1 year
                                                    each.
    9         Anaruddin Sheikh

Sentence of the appellants is modified as follows:-

     Sl No.            Name              Under        Punishment
                                        Section
    1         Mujibar Sheikh

    2         Mustakin Sheikh           148/34      To pay a fine of
                                                    Rs. 1,000 each
    3         Hafijul Sheikh                        i.d. R.I. for 3
                                                    months.
    4         Sahabat Sheikh



       5           Khalil Sheikh             323/34     To pay a fine of
                                                        Rs. 1,000 each
       6           Habibur Rahaman                      i.d. R.I. for 3
                                                        months.
       7           Sarikul Sheikh

       8           Manirul Sheikh            325/34     Not proved, thus
                                                        conviction   and
       9           Anaruddin Sheikh                     sentence is set
                                                        aside.

Period of detention, if any, undergone by the appellant during

investigation, enquiry and trial shall be set off against the substantive

sentence in terms of Section 428 Cr.P.C.

All sentences to run concurrently.

Bail bond of the appellants are cancelled. The appellants are

directed to surrender forthwith and serve out the remainder of their

sentence (if any) within one month from date.

In the event they fail to do so, Trial Court shall take appropriate

steps to apprehend them and execute the sentence in accordance with

law.

The appeal is allowed to the aforesaid extent. Conviction is thus

upheld for offence under Section 148/34 IPC and 323/34 IPC, but