Calcutta High Court (Appellete Side)
Abdul Malek vs Unknown on 3 April, 2023
03.04.2023 CRA 564 of 2009
S/L. 3 & 4
Court No.12
Suvayan/
In the matter of: Abdul Malek
Sourav ....Appellant.
With
CRA 567 of 2009
In the matter of: Nazrul Haque
....Appellant.
Mr. Milon Mukherjee, Sr. Adv.
Mr. Kazi M. Rahman
Mr. Dattatreya Dutta
...for the appellant.
Mr. Saswata Gopal Mukherjee, PP
Mr. Narayan Prasad Agarwala
Mr. Pratik Bose
...for the State in
CRA 567 of 2009.
Mr. Saswata Gopal Mukherjee, PP
Mr. Pravas Bhattacharya
Mr. M. F. A. Begg
...for the State in
CRA 564 of 2009.
1.
Heard Mr. Milon Mukherjee, learned Senior Counsel
appearing for the appellants and Mr. Pravas Bhattacharya, led by
Mr. Saswata Gopal Mukherjee, learned Public Prosecutor and Mr.
Narayan Prasad Agarwala, led by Mr. Saswata Gopal Mukherjee,
learned Public Prosecutor appearing for the State in CRA 564 of
2009 and CRA 567 of 2009 respectively.
2. Judgment of conviction dated 02.07.2009 and order of
sentence dated 03.07.2009 passed by learned Additional Sessions
Judge, Fast Track, 6th Court, Malda in Sessions Trial No. 24 of 2009
arising out of Sessions Case No. 39 of 2009 is challenged in both the
aforesaid appeals.
3. With consent by learned Counsel for both the parties, both
the appeals are taken up together for disposal by this common
judgment.
4. Altogether, four persons were tried for offence under
Sections 448/323/324/307/304/354/34 IPC. They are Azhar Ali,
Nazrul Haque, Abdul Malek and Lokman Ali. Nazrul Haque, Abdul
Malek and Lokman Ali are the sons of Azhar Ali.
5. The occurrence happened at about 11.00 a.m. on
06.09.2006. Sahabuddin Haque (P.W. 1) is the informant. The gist
of the prosecution case is that Azhar Ali was hurling abuses standing
in front of the house of the informant. The father of informant
protested to such action of Azhar Ali. Azhar Ali threatened the father
of the informant (P.W. 1) to kill him. All of a sudden, three sons of
Azhar Ali, namely, Nazrul Haque, Abdul Malek and Lokman Ali came
over the spot. They started assaulting the father of the informant
(P.W. 1). Moinul Haque (deceased), who happens to be the brother of
P.W. 1 intervened to save his father. Other two brothers of P.W. 1
named, Enamul and Ekramul also intervened to save their father
and brother Moinul (deceased). The accused persons, thereafter,
entered into the house of the informant (P.W. 1) while assaulting
father of P.W. 1 Moinul, Ekramul and Enamul with weapons like 'da'
(sickle), 'lathi' and iron rod. When mother of P.W. 1, named, Hameda
Bibi came to save her husband and sons, she was also kicked by
Abdul Malek and her wearing apparel was torn by him. Wife of P.W.
1, named, Maneza was also assaulted by Nazrul Haque. After a
while, the accused persons left the spot. Thereafter, P.W. 1 and
others took his father and brothers Moinul and Ekramul to
Harishchandrapur Hospital. His brother, Moinul was referred to
Malda Sadar Hospital on the same day. Moinul, subsequently died
in Sadar Hospital at Malda on 09.09.2006.
5.1. The FIR was lodged by P.W. 1 on 09.09.2006. P.W. 3 is
the scribe of the FIR. P.W. 2 is the Inspector of Police who received
the FIR and registered the P.S. Case. P.W. 17 is the I.O. of the case
who took up charge of investigation on 19.09.2006 after death of the
I.O., Sub-Inspector of Police, B. Dasgupta. He examined the
witnesses and after all necessary formalities filed charge-sheet
against the accused persons for offence under Sections
448/323/324/307/304/354/34 IPC.
6. Prosecution has examined 17 witnesses to prove the
charges against the accused persons (including the appellants).
P.W. 1 is the informant. P.W. 3 is the scribe of the FIR. P.W. 2
is the Inspector who received the FIR and lodged the P.S. case.
P.W.s 6 to 14 and P.W. 16 are the eyewitnesses to the occurrence,
out of whom P.W.s 9 and 12 are co-villagers but all other witnesses
are relations of the informant (P.W. 1). P.W. 15 is the Police Officer
who held inquest over the dead body of Moinul Haque (deceased).
P.W. 4 is the Medical Officer who conducted postmortem over the
dead body of the deceased Moinul Haque. P.W. 5 is the Medical
Officer who examined injured Moinul (since deceased), Azad Ali
(father of P.W. 1), Enamul Haque and Ekramul Haque (brothers of
P.W.1) on 06.09.2006. P.W. 17 is the I.O.
6.1. Defence plea is one of complete denial and false
implication.
7. Learned Trial Court having relied on eyewitness accounts of
the aforesaid witnesses as introduced (Supra) and the corroborative
evidence of the Medical Officers, P.W.s 4 and 5 acquitted Azhar Ali
and Lokman Ali of all the charges and Nazrul Haque and Abdul
Malek of charges under Sections 448/323/324/354/34 IPC.
Learned Trial Court however convicted Nazrul Haque under Section
304(Part-I) IPC and sentenced him to suffer imprisonment for life and
to pay fine of Rs. 35,000/- in default to suffer S.I. for one year more.
Learned Trial Court further convicted Abdul Malek under Section
307 IPC and sentenced him to suffer R.I. for 7 years and to pay fine
of Rs. 5,000/- in default to suffer S.I. for six months more. Hence,
both the aforesaid appeals, one by Nazrul Haque, i.e., CRA 564 of
2009 and another by Abdul Malek, i.e., CRA 567 of 2009.
8. Mr. Mukherjee, learned Senior Counsel appearing for the
appellants submits that there has been delay in lodging of the F.I.R.
and receipt of FIR by the Magistrate and according to him, the FIR
has been antedated and antetimed. In view of such fact, it is
submitted by Mr. Mukherjee, that entire prosecution case is put to
doubt regarding the place and time of occurrence and manner of
assault etc. Mr. Mukherjee, relies on the case of Mehraj Singh Vs.
State of U.P. (1994) 5 SCC 188, and Thanedar Singh Vs. State of
M.P. (2002) 1 SCC 487 to substantiate his contentions on the
aforesaid points. It is further submitted by Mr. Mukherjee that the
Medical Officer P.W. 5 referred deceased Moinul to District
Headquarter Hospital, Malda at about 2:00 p.m. on 06.09.2006, but
he was admitted in the District Headquarter Hospital, Malda on
08.06.2006 at 2:00 p.m. but there is no explanation as to where he
was for the two days of interregnum period. Such a fact raises grave
doubt regarding the cause of death of the deceased as a result of
assault by Nazrul Haque (appellant). Mr. Mukherjee, also draws our
attention to material contradictions in the evidence of eyewitnesses
and submits that in view of such material contradictions, those
witnesses cannot be believed. It is submitted by Mr. Mukherjee, that
all the witnesses being related they have tried to rope in entire family
of Azhar Ali (since acquitted) but the learned Trial Court having
acquitted two of the accused persons namely, Azhar and Lokman on
the self-same set of evidence, it could not have recorded the
judgment of conviction taking a different view so far as Nazrul Haque
and Abdul Malek are concerned. It is also submitted by Mr.
Mukherjee that in absence of proof of bed-headed ticket specifying
the nature of injuries of injured Ekramul, the appellant namely,
Abdul Malek could not have been convicted for offence under Section
307 IPC.
Per Contra, Mr. Pravas Bhattacharya and Mr. Narayan Prasad
Agarwala, learned Counsels for the State support the impugned
Judgement and submits that the finding recorded by the learned
Trial Court is justified in view of the nature of clinching evidence of
the eyewitnesses and the appeals filed by the appellants be
dismissed.
9. Coming to the question of complicity of the appellants in
the offence under consideration, we propose to take up first the
evidence adduced on record before the Trial Court so far as
complicity of Nazrul Haque in offence under Section 304(Part-I) IPC
is concerned.
9.1. So far as the aforesaid question is concerned, we find from
the inquest report (Ext. 5/1) that P.W. 15, the Police Officer who
conducted inquest over the dead body of Moinul Haque could not
find any external injury on the dead body of the deceased so also the
witnesses who have signed the inquest report. The Medical Officer
(P.W. 5) who examined Moinul Haque (deceased) at the first instance,
on 06.09.2006 at about 2.20 p.m. only found a small bruise over his
head. He has further testified that he did not find any large external
injury, but patient was unable to stand and there was retention of
urine; he was restless and in semi-conscious condition. He was
referred to District Headquarter Hospital, Malda for better treatment.
9.2. From the evidence of P.W. 4, the Medical Officer who
conducted postmortem, it is found that Moinul (deceased) was
admitted to Malda District Hospital at 2.20 p.m. on 08.09.2006 and
died at 10.55 p.m. on 09.09.2006.
9.3. From the evidence of P.W.s. 4 and 5, it is clear that P.W. 5
referred Moinul (deceased) for better treatment to District
Headquarter Hospital, Malda at about 2.20 p.m. on 06.09.2006 but
he took admission in District Headquarter Hospital, Malda as an
indoor patient at 2.20 p.m. on 08.09.2006 (after about 48 hours of
the referral). None of the witness has whispered a word as to where
Moinul Haque was there during the interregnum period from 2:20
p.m. on 06.09.2006 to 2.20 p.m. on 08.09.2006. Such a gap in
admission of Moinul (deceased) in the District Headquarter Hospital,
to which he was referred, create a grave doubt in our mind in view of
silence by the witnesses as to what happened to him (deceased
Mainul) during the interregnum period or whether he had received
the fatal injury during that period (gap of 48 hours).
9.4. The postmortem report vide Ext. 2 and the evidence of
P.W. 4 (the Medical Officer who conducted the postmortem) shows
that he (P.W. 4) did not find any external injury but in course of
internal examination, however, he found bruise over side back and
mid portion of scalp, fracture of parietal and frontal bone, Meningial
and brain hemorrhage were detected.
9.5. In the post mortem report the cause of death is opined to
be effect of the head injury which is ante-mortem in nature. But in
course of examination before the Court, P.W. 4 has testified that the
injuries were homicidal in nature (though such opinion is absent in
post mortem report). According to P.W. 4, the injury might have been
caused by hard and blunt substance.
10. Coming to the next suspicious feature in the prosecution
case is the delay in receipt of FIR by the competent Magistrate. From
the record of the case, it is found that the FIR was lodged on
09.09.2006 which was a Saturday but the FIR was received by the
Magistrate on 11.09.2006 as found from the record from the
signature put by the Magistrate.
10.1. The occurrence having happened on 06.09.2006, the FIR
was lodged after three days and explanation was given by P.W. 1 in
his evidence to the effect that they were busy in treatment of Moinul
(deceased) and others. Such an explanation by the informant (P.W. 1)
does not commend to us and cannot be countenanced by logic
inasmuch as whereabouts of Moinul for two days is not known
though he was stated to be serious and P.W. 1 has not elaborated as
to what treatment they were giving to Moinul Haque till his
admission in District Headquarter Hospital, Malda on 08.09.2006.
Further Azad Ali (father of P.W.1), Enamul and Ekramul (brothers of
P.W.1) had not sustained serious injuries demanding time of P.W.1
to look after them.
10.2. Though there was delay in lodging of the FIR and delay
in sending the FIR to competent Court, we find that 09.09.2006 was
a Saturday and the FIR has been received by the competent
Magistrate on 11.09.2006. There is no cross-examination of the I.O.
(P.W. 17), on this aspect as to how the delay was caused. It is
argued by Mr. Mukherjee, learned Senior Counsel for the appellants
that the I.O. who had sent the FIR to the Magistrate having died and
he having not been examined in Court, it was not possible for the
defence to put such question to the I.O. Such an explanation by the
defence is quite acceptable in view of the fact that P.W. 17 took
charge of investigation only from 19.09.2006 and P.W. 2 only
received the FIR and registered the P.S. Case.
10.3. Taking into consideration all the aforesaid aspects, we
are constrained to hold that there is not only delay in lodging of
F.I.R. but there is also delay in sending the FIR to the competent
Magistrate, which cast a doubt on the veracity of the evidence of the
witnesses regarding the place and time of occurrence and the
prosecution narratives as unfolded in their evidence. We are also
substantiated in our aforesaid view inasmuch as learned Trial Court
has acquitted all the accused persons so far as offence under Section
448/323/324/354/34 IPC is concerned. The place of occurrence
according to the prosecution witnesses is the house of the informant
(P.W. 1) where the appellants and other accused persons are alleged
to have barged in running after father of P.W. 1 and the occurrence
is alleged to have happened.
11. Coming to the evidence of the witnesses, we find that
P.W.s 1, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 16 out of whom P.W. 12
has been declared hostile are the occurrence witnesses. According to
P.W. 7, the neighbouring witnesses named Motiur Rahaman, Mojid,
Masoor, Altaf, Nausad and Joinal were present near the spot at the
time of occurrence, but none of them though non-interested
witnesses has been examined. All the aforesaid witnesses i.e. P.W.1,
P.W.s 6 to 11, 13 and 14 and P.W. 16 with variations regarding the
assault have testified that it was Nazrul Haque who assaulted
deceased Moinul on his head with an iron rod. When the evidence of
the aforesaid witnesses is read in conjunction with the evidence of
the I.O. (P.W. 17), it is found that Enamul Haque (P.W. 6) had not
stated before the I.O. (P.W.17) that Abdul Malek assaulted him with
a 'da' on his head and further he did not tell that the appellant
Nazrul Haque assaulted Moinul with iron rod. Samsul Hoque (P.W.
7) did not tell before the I.O. (P.W. 17) that the accused persons
assaulted the victims. He (P.W.7) also did not tell before the I.O.
(P.W.17) regarding the weapons used by individual accused persons.
Maniza Bibi (P.W. 8) did not tell before the I.O. (P.W. 17) that Abdul
Malek assaulted her father-in-law with 'da', she did not tell before
the I.O. (P.W.17) that Nazrul assaulted Moinul with a crowbar on his
head. Kamrujjaman (P.W. 9) did not tell before the I.O. (P.W.17) that
he went to the house of the informant to collect money and he did
not tell him that he found 'da' in the hands of the accused persons.
This witness P.W. 9 is a chance witness as he has justified his
presence at the scene of occurrence by saying that he had gone to
the house of the informant to collect money. That part of the
evidence of P.W.9 having been contradicted, this witness cannot be
believed so far as the other part is concerned. Azad Ali (P.W. 11),
father of the deceased has not stated before the I.O. (P.W.17) that
Abdul Malek assaulted Enamul, Ekramul and Hameda and he has
also not stated that Nazrul assaulted deceased Moinul with iron rod.
12. If we take all the aforesaid contradictions into account
which are admissible under Section 145 of Evidence Act read with
explanation to Section 162 Cr.P.C., we find that there is exaggeration
on the part of the witnesses so far as the assault on deceased Moinul
is concerned. Even if we accept the gist of the prosecution case to
the extent that Nazrul assaulted the deceased Moinul with an iron
rod on his head, in view of gap of two days in admission of Moinul in
the District Headquarter Hospital, Malda after his referral by P.W. 5,
delay in lodging of the FIR without any cogent explanation and delay
in receipt of FIR by the competent Magistrate, the entire prosecution
case becomes doubtful. Further there is no evidence to show that
where the deceased Moinul was there for two days though he had
sustained injury on his head as testified by the witnesses. It might
have so happened that during those two days, he might have fallen
down somewhere and received the injury which the Medical Officer,
P.W. 4 has opined to be the cause of his death. We are constrained to
reach such a finding especially because no external injury was found
on the dead body of Moinul either by the witnesses or the police
officer during inquest and also by the Medical Officer (P.W.5) who
happened to examine Moinul (deceased) in injured condition at the
first instance.
13. Taking into consideration the aforesaid facts, we are
unable to accept the evidence as adduced by the prosecution and we
are constrained to hold that the evidence so adduced by the
prosecution does not inspire confidence in us. Accordingly, it is held
that appellant Nazrul Haque is entitled to be acquitted of the charge
under Section 304(Part-I) IPC on the ground of benefit of doubt.
14. Coming to the case of Abdul Malek for offence under
Section 307 IPC, we do not want to repeat the evidence as discussed
(Supra). The prosecution witnesses have testified that Abdul
assaulted Enamul, Ekramul (both injured) and Azad Ali in the
transaction. P.W. 5 examined Enamul and Ekramul on the same
day of the occurrence at about 2.20 p.m. P.W. 5 found an injury of
1/8" over head of Enamul and so far as Azad Ali is concerned, he
found cut injury of 3"x1/4" on his head, and swelling on his left
elbow. So far as Ekramul is concerned, there is no injury report in
respect of him though he is also alleged to have sustained injury.
The medical officer (P.W. 5) has not opined regarding the nature of
injury sustained by the aforesaid victims. There is also some
overwriting regarding time of admission of the patients in the injury
report. The weapon of offence used in the crime was not produced
before P.W. 5 by the police. The x-ray in respect of the aforesaid
injured persons have not been proved and P.W. 5 candidly has
testified that he has also not seen x-ray report after attending the
patient on 06.09.2006.
15. In view of our discussion (Supra) regarding the suspicious
features in the prosecution case and in absence of any opinion of the
medical officer regarding the nature of injury sustained by Azad and
Enamul, we are of the view that appellant Abdul Malek (in CRA 567
of 2009) is also entitled to be acquitted so far as charge under
Section 307 IPC is concerned on the ground of benefit of doubt.
16. Taking into consideration all the aforesaid facts and
submissions, in fine, we hold that Nazrul Haque and Abdul Malek be
acquitted of the respective charge.
17. Appellant Nazrul Haque (appellant in CRA 564 of 2009)
is acquitted of charge under Section 304(Part-I) IPC and Abdul
Malek (appellant in CRA 567 of 2009) is acquitted of charge under
Section 307 IPC.
18. Consequently, the impugned judgment and order of
sentence are set aside.
19. The appellants who are stated to be on bail, be discharged
of the bail bond.
20. The L.C.R. be sent down to the concerned Trial Court
along with a copy of this judgment.
21. Accordingly, the appeals being CRA 564 of 2009 and CRA
567 of 2009 are allowed.
22. Urgent xerox certified copy of this order, if applied for, be
given to the parties, upon compliance of necessary formalities.
(Chitta Ranjan Dash, J.)
(Partha Sarathi Sen, J.)
