Calcutta High Court (Appellete Side)
Safik [email protected] Safiqul Khan vs The State Of West Bengal & Ors on 23 September, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
CRR 419 of 2018
Safik [email protected] Safiqul Khan
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Kallol Mondal
Mr. Krishna Roy
Mr. Sk. Istiaque
Mr. Souvik Das
Mr. Anamitra Banerjee
Mr. Samsher Ansari
For the State : Mr. Prasun kr. Dutta , Ld. APP
: Mr. Subrata Roy
Heard on : 13.09.2022
Judgment on : 23.09.2022
Ajoy Kumar Mukherjee, J.
1. Being aggrieved and dissatisfied with the order No. 42 dated 11.01.2018
passed by the Learned Additional Sessions Judge, Fast Track, 1 st Court,
Sealdha, South 24 Parganas in session Case No. 02(02)13, arising out of
Cossipore police station case No. 183 of 2010 dated 02.12.2010 , Present
application under section 401 read with section 482 of the code of criminal
procedure has been preferred. Petitioner submits that on 02.12.2010 while
petitioner along with his cousin Sk. Mumtaz were returning home at about
11.30/11.45 am, the accused persons attacked them with dangerous weapons.
Sk. Mumtaz somehow managed to escape but the accused persons caught hold
of the petitioner and dealt fatal blow on his head. While trying to save himself
from such blow, the petitioner raised his left hand and sustained fracture
injury on the left hand, followed by bleeding injury on his head. Petitioner
lodged FIR and on the basis of FIR Cossipore Police Station Case No. 183 of
2010 dated 02.12.2010 under sections 147/148/149/307/427 of the Indian
Penal Code, was registered and the investigation started.
2. After conclusion of investigation police submitted charge-sheet against
10 accused persons being petitioner no.-2 to 11 herein under sections
147/148/149/307/427 of the Indian Penal Code. Learned Magistrate after
being satisfied that the offence triable by a court of session, committed the case
to the court of learned Additional Sessions Judge, Fast Track Court, Sealdah,
South 24 Parganas. When the case was committed to the court of learned
Additional Sessions Judge, Fast Track Court, the accused persons /opposite
parties filed an application for framing of charge under sections
147/148/149/324/427 of the Indian Penal Code, and to send the record back
to the learned ACJM for trial.
3. Said application filed by the accused person/opposite parties have been
taken up for hearing by the learned judge on 11.01.2018, and after hearing
learned Additional Sessions Judge passed the impugned order by which he has
been pleased to send back the record of the case to the learned ACJM Sealdah,
directing him to proceed with the case considering the same as a case under
sections 147/148/149/324/427 of the IPC.
4. Mr. Kallol Mondal learned counsel appearing on behalf of the petitioner
submits that the petitioner was brutally assaulted aiming his head and while
the petitioner tried to save his head, had sustained fracture injury on his left
Ulna. He further submits that petitioner initially went to R.G. Kar Hospital for
treatment but due to non availability of bed, hospital authority refused to
admit and subsequently he was admitted to Sterling Hospital which is a private
Hospital wherein his limb had been operated and he remained admitted for 39
days, which is reflected from the injury report. It is also apposite to mention
herein that in course of the operation a steel plate was inserted in the hand of
the petitioner for alignment and repair of the fracture injury and such plate has
not been removed till date from the hand.
5. Mr. Mondal further submits that learned additional Sessions Judge has
failed to consider the injury report of the petitioner in its proper perspective.
The report is absolutely in consonance with the version of the petitioner and
the eye witnesses given before the police under section 161 of Cr.P.C. Materials
available in the record clearly establish the fact of commission of offence under
section 307 of the IPC. The materials show that the fatal blow was aimed at the
head of the petitioner and while he tried to save himself by raising his left arm,
the major blow hit on his hand, for which his Ulna was broken and he also
suffered severe swelling injury on his Parieto-Occipital region. Mr. Mondal
further submits that assault was made with the help of Iron Rod which is a
deadly weapons and in this context he relied upon the judgment of Apex Court
in Bijendar @ Naushad Vs. State reported in (2014) SCC Online Delhi 682.
He further submits that the learned Additional District Judge has acted
unmindful and tried to evaluate the evidences and arbitrarily judged its
relevance with regard to the ingredients of section 307 of the Indian Penal
Code, although the prima facie consideration of the same clearly reveals all
ingredients of section 307 of the IPC, with regard to the alleged offence.
6. Private opposite parties are not represented even after service of copy of
revisional application.
7. Mr. Prasun Kumar Dutta appearing on behalf of the state submits that
materials collected during investigation, as appearing from the case diary,
prima facie discloses offence under section 307 of IPC and as such court below
was not justified in sending the case record before the court of ACJM, holding
section 307 of the code does not attract in the present context.
8. At the beginning the relevant portion of the impugned order No. 42
dated 11.01.2018 may be reproduced below:-
"Considering the submissions of both the parties, and on perusal of
the case diary, F.I.R., injury report and the statement of the
witnesses recorded u/s. 161 Cr.P.C.,it appears that in between the
parties there is case and counter case over the self same incident.
From the injury it appears that the injured Soufiq Khan was
medically treated at R.G. Kar medical College and Hospital on
02.12.2010. It further reveals from the injury report that the Soufiq
Khan sustained swelling injury over auxiparital region. There is
nothing in the report that the injured was at the hospital for his
treatment.
Having considered the submissions of both the sides, I find that
there is no materials u/s. 307 of I.P.C. but there is ingredient of Sec.
324 of I.P.C. which is triable by the ld. Court of Magistrate.
Accordingly, the record be sent back to the ld. ACJM, Sealdah to
proceed with the case considering the same as a case u/s. 147,
148,149, 324, and 427 I.P.C. and the Ld. Court is also requested to
proceed with the case against all the accd persons after framing of
charge."
9. From the aforesaid observation it is clear that according to the court
below, there appeared case and counter case between the parties and the
injury report reveals that victim Soufiq Khan sustained swelling injury over
Parieto-Occipital region and there is nothing in the report that the injured was
at Hospital for his treatment and on the basis of this learned court below came
to the conclusion that there is no material under section 307 of the IPC in the
present case, for which it can be tried by a sessions Court.
10. On perusal of the case diary it appears that during investigation police
has collected injury report from R.G. Kar Hospital which clearly shows swelling
over Parieto-Occipital region and also fracture injury over left Ulna. The victim
was also treated in Sterling Hospital where he was admitted on 02.12.2020
and injury report shows that patient got injury to head (Parietal region) and
fracture Ulna (left) and he was found in the hospital in a state of critically ill
condition and according to the victim he was admitted in the said Hospital and
was treated therein for a considerable period of time. From the statement of the
witnesses as recorded under section 161 of Cr.P.C., it appears that the
witnesses have stated that the attack was made upon the victim with the help
of Iron Rod, with the intention to kill him. Now the question is whether the
learned trial court was justified in holding that section 307 does not attract in
the present context.
11. Needless to say that in order to justify a conviction under section 307 it
is not essential that fatal injury capable of causing death should have been
inflicted. What is important to justify a conviction under section 307 is whether
there appears an intention coupled with overt act in execution thereof. The
court has to see whether the act, irrespective of it's result was done with the
intention or knowledge and under circumstances mentioned in the section.
12. Learned court below only on the basis of the finding that the victim only
sustained swelling injury on his Parieto-Occipital region and that there is
nothing in the report that the injured was at the Hospital for treatment, hastly
came to the conclusion that section 307 does not attract in the present context.
Whether there was intention to kill in the minds of the accused persons or
knowledge that death will be caused, are question of facts and depends on the
facts of the case. The nature of weapon used, manner in which it is used,
motive for the crime, severity of the blow, the part of the body where the injury
is inflicted are some of the factors that may be taken into consideration to
determine the 'intention' during trial.
13. The circumstances that the victim only sustained swelling injury in
Parieto-Occipital region and/or that he sustained fracture injury in his left
Ulna, will not by itself rule out application of section 307 of IPC. The
determining question is the intention or knowledge and under circumstances
which has to be gathered from the evidence during trial and not on the basis of
the nature of injury as reflected in the injury report. The nature of injury
caused may be given some assistance in coming to a finding as to intention of
accused, but such intention may also be deduced from other circumstances
and may be ascertained in some cases without reference to actual wounds. In
this context reliance has also been placed upon Apex Court judgment in
State of Madhya Pradesh Vs. Kashiram & others, reported in (2009) 4
SCC 26.
14. In view of above I find that the learned court below was not justified in
passing the impugned order by which he has sent back the case record to the
learned ACJM, Sealdah, South 24 Parganas with a direction to proceed with
the case considering the same as the case under sections
147/148/149/324/427 of the IPC.
15. Accordingly CRR 419 of 2018 is allowed. The impugned order No. 42
dated 11.01.2018 passed by learned Additional Sessions Judge, FTC-1,
Sealdah, South 24 Parganas is hereby set aside. Learned Additional Sessions
Judge FTC-1 Sealdah, South 24 Parganas is directed to call for the case record
immediately and to proceed with the case in accordance with law and to
conclude the entire proceeding preferably within a period of one year from the
date of communication of the order.
However there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the
parties upon compliance of all requisite formalities.
(AJOY KUMAR MUKHERJEE, J.)
