Abdul Gani Sk. @ Abdul Gani Sk.& Anr vs State Of West Bengal
2023 Latest Caselaw 3858 Cal

                                  1


              IN THE HIGH COURT AT CALCUTTA
                 Criminal Revisional Jurisdiction
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                     C.R.A. No. - 147 of 1990
                       IN THE MATTER OF

                Abdul Gani Sk. @ Abdul Gani Sk.& Anr.
                               Vs.
                   State of West Bengal.

For the Appellants          : Mr. Achin Jana, Adv.,
                              Mr. Suman Chakraborty, Adv.,
                              Mr. Prosenjit Ghosh, Adv.


For the State               : Mr. Narayan Prasad Agarwala, Adv.,
                              Mr. Pratick Bose, Adv.




Judgment on                   :       14.06.2023



Subhendu Samanta, J.

The instant appeal is directed against the judgment and

order of conviction and sentence dated 21.03.1990 passed by

the Learned sessions Court Nadia in sessions trial no. 1 (iv) 89

corresponding to Sessions Case no 7(7) 89 finding the present

appellants guilty u/s 304 part II of IPC and convicting and

sentencing the appellants to suffer rigorous imprisonment for 5

years each and to pay a fine of Rs. 100 each i/d to further RI

for 15 days.

The brief fact of the prosecution case is that one Sahel Ali

Mandal (PW 1) lodged a written complaint with IC Katwali

Police station, Krishnanagar, Nadia contending inter alia that

present appellants along with three others on 10.05.1987 in

the morning had an altercation between father of the

complainant Janab Ali Mandal and at the intervention of the

other villagers the matter was set at rest. The

appellant/accused persons threatened that they would

murdered Janab. Thereafter, at 8: 30 P.M. on that date, while

the complainant and his brother Babar Ali Mandol were

engaged in stacking straw in the Khamar, their father Janab

Ali was proceeding though that place towards the Mosque to

offer namaj, at the time the appellants/accused persons

jumped upon him and assaulted indiscriminately. The

appellant/accused persons were armed with Lathi shabal etc.

The appellants failed the victim on the ground and throttled

him and assaulted with a brick on his chest and pressed his

testicles and caused his death. While complainant tried to

resist the appellants/accused persons, they assaulted him on

his head with Shabal and caused bleeding injuries, his younger

brother Babar Ali raised alarm and people assembled there at

the time appellants/accused persons fled away.

Police case was ended in charge sheet.

The present appellants including other three accused persons

were sent up for trial. Charge was framed against all the

accused persons u/s 148/149/325/307/302 of IPC. all the

accused/ appellants pleaded not guilty and claimed to be tried.

During the trial prosecution has examined 14 witnesses to

prove its case but the defence examined none.

It is the case of the defence that while the deceased was

going to Mosque through khamar he fell down and received

injury and expired.

After conclusion of the trial and hearing of the

prosecution and the defence Learned sessions Judge though

found not guilty of charges made against all 05 accused

persons but found guilty the present appellants for the offence

punishable u/s 304 part II IPC.

Being aggrieved by and dissatisfied with the impugned

judgment and sentencing the instant appeal has been

preferred.

Learned advocate for the appellants submitted before this

court that the impugned order of conviction and sentenced

passed by the Learned Sessions Judge is palpably illegal in the

eye of law. The prosecution has failed to bring home the charge

against the accused persons thus they need be acquitted from

the case. The Learned sessions Judge has committed error in

convicting the present appellants u/s 304 part II of the IPC,

though no charge has been framed. The witnesses of the

prosecution are not supported the case of the prosecution at

all, most of them are declared hostile and some of them though

did not support the prosecution case are not declared hostile

by the prosecution; thus the Learned Sessions Judge has

committed an error by passed the impugned order of conviction

and sentence against the present appellants.

Learned Advocate for the appellant further argued that

the PW 1 who is the complainant sustained injury but only to

falsely implicate the appellants he stated that appellants

assaulted him on P.O. PW 3 is the family member of deceased,

subsequently reached to the spot so his evidence cannot be

believed. PW 1 though stated before the court that he

sustained injury by the assault of the accused persons but no

medical document was adduced or produced by the

prosecution to prove the fact. PW 4 and PW 5 were declared

hostile, PW 6 is the doctor and the injury located by the doctor

are head injuries not sufficient to cause the death of the

deceased by the hit of a brick, more over the offending brick

also not seized by the prosecution. It is the argument of the

Learned advocate for the appellant that the Sessions Judge has

passed the order of conviction only on the basis of the evidence

of PW 2 who is a child witness. There are several discrepancies

in the evidences of prosecution so at this juncture the order of

conviction passed by the Learned sessions Judge need be set

aside.

The Learned Advocate appearing on behalf of the state

submitted before this court that the Learned sessions Judge

has passed the order after assessing and scanning the

evidences on record. The evidence of PW 2 cannot be discarded

as he is an eye witness. The presence of PW 2 in the place of

occurrence was mentioned in the FIR as well as by the PW 1.

The PW 2 has specifically stated before the Learned Court that

present appellants have actually assaulted the deceased. The

evidence of PW2 did not altered during the cross examination.

There is no illegality in the judgment of the Learned Sessions

on the strength of the evidence of PW 2. So he prayed for

dismissal of the appeal.

Heard the Learned Advocates, perused the LCR, and

statement of PWs. Though there are 14 PWs, the Learned

sessions Judge has only believed the evidence of PW 2 as eye

witness corroborated by the evidence of Dr. PW 6. The

appellant argued that the judgment and conviction passed by

the Learned sessions on the basis of sole testimony of PW 2 is

illegal the appellant also pointed out several discrepancies in

the evidence of other witnesses.

This is a case of murder of a 60years old person. It has

been alleged by the prosecution that the present appellant

along with some other accused persons assaulted the deceased

by brick, throttled him and after he fail down pressed her

testicles and caused death. The statement of PW 1, who is one

of the eye witnesses, stated that he was assaulted by the other

accused persons but the fact was not at all proved categorically

thus his testimony was not believed. The defence case is that

the 60 years old man fell down on the Khamar and sustained

injury over his head and died. The statement of PW 6, that is

the doctor, indicated several injuries over the entire area of the

head of the deceased. If a person fell down he will suffer only a

single injury may be over head but in this case the PW 6 is of

opinion that the death was due to subdual hematoma and

extensive cerebral laceration and traumatic cerebral

haemorrhage from head injury. This type of injury cannot be

caused to any person if he fell down over khamar.

Let me consider whether the statement of PW 2, who is

one of the son of the deceased, is at all believable in the

attending facts and circumstances of this case. It is also to be

looked into that whether the statement of single witness PW 2

is sufficient to justify the impugned judgment and sentence.

The PW 2 stated the name of the present appellant who

caughthold his father and assaulted him with the brick. He

also stated the overtact committed by the appellants such as

throttling and put pressure at testicles. During the cross-

examination the credibility of PW 2 was tried to be shakened by

the defence but it appears that the PW 2 was successful in his

statement uttered at the time of examination in chief.

A fact need be proved before this court, the value and

weigh of evidence need be looked into in every criminal trial. It

is not necessary that a fact has to be proved by more than one

witnesses. If it appears that a single witness is telling the truth

truthful to the other circumstances of this case which is

otherwise corroborating the attending scenario of commission

of offence, such single witness is trustworthy and the order of

conviction on the basis of this single witness is sustainable. To

consider the given fact to be true, the court has to looked into

the oral and documentary evidences including circumstances

thereon.

In this particular case the PW 2 being the son of the

deceased was present at the PO at the time of alleged

commission of offence. His presence in the PO was never

denied by the defence by putting any question or denial during

his cross- examination. The PW 2 stated the presence of

accused persons including the appellant on the place of

occurrence however, he stated correctly that though the

accused persons/ appellants were armed with Lathi, Iron rod

(Shabal) etc. but assaulted the deceased only by the brick. The

assault as inflicted upon by the deceased was proved by

evidence PW 6 (Dr.). Thus it appears to me that the Learned

Sessions Judge has rightfully believed the statement of PW 2 to

be an eye witness. The credibility of PW 2 being an eye

witnesses was challenged by the defence but PW 2 was

successful. Considering the same I think the Learned sessions

Judge has rightfully come to the conclusion that the evidence

of PW 2 can be believed to pass an order of conviction against

the present appellants. I find no infirmity in the impugned

order of conviction and sentence. In result thereof the instant

appeal being merit less is hereby dismissed.

The impugned order of conviction and sentence passed

by the Learned Sessions Judge against the present appellants

is sustained and affirmed.

The present appellants are on bail. The present

appellants are directed to appear before the Learned sessions

Judge on or before 30th June 2023 to serve out the remaining

part of sentence, failing which, the Learned Sessions Judge to

issue warrant of arrest against the appellants/convicts for

compliance of this order.

Criminal appeal is disposed of.

Any order of stay/ suspension of sentence passed by

this court during the continuation of the instant appeal is

hereby set aside.

Parties to act upon the server copy and urgent certified

copy of the judgment be received from the concerned Dept. on

usual terms and conditions.

(Subhendu Samanta, J.)