Alamat Khureshi @ Alamat Quoarici ... vs State Of West Bengal & Anr
2023 Latest Caselaw 1918 Cal

                IN THE HIGH COURT AT CALCUTTA
                  (CRIMINAL APPELLATE JURISDICTION)


   PRESENT:
   THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY

                                       CRA 337 of 2019

                           ALAMAT KHURESHI @ ALAMAT QUOARICI & ANR.
                                         VS.
                               STATE OF WEST BENGAL & ANR.


For the Appellant No. 1                : Ms. Manaswita Mukherjee, Adv. (Amicus
                                                                         curia)
For the Appellate No. 2                : Mr. Bikash Kumar Roy, Adv.
                                         Mr. Fajlur Rahaman, Adv.

For the State                          : Mr. Ranabir Roy Chowdhury, Adv.
                                         Mr. Mainak Gupta, Adv.
   Mr.




Hearing concluded on                   : 20th February, 2023

Judgement on                           : 23rd March, 2023

Siddhartha Roy Chowdhury, J.:

  1.

This appeal assails the judgement passed by learned Additional

District and Sessions Judge, 3rd Fast Track Court, Barasat North 24

Parganas in S.T. No. 2(7) 2010. By the impugned judgment learned Trial

Court was pleased to hold Amir Hossain @ Khokan Molla and Alamat

Khureshi appellants herein, guilty to the charge under Section 307 of the

Indian Penal Code and sentenced each of them to suffer Rigorous

Imprisonment for seven years and to pay a fine of Rs.10,000/- with a

default clause.

2. Briefly stated that on 22nd April, 2006 at about 21.45 hours one

Sabed Ali Molla informed the Officer-in-charge of Barasat Police Station

in writing about an incident that allegedly took place on that very day at

about 12.10 hours when two persons namely Amir Hossain Molla son of

Amar Ali Molla and Alamat Khureshi assaulted his sister Rupban Bibi

with knife being instigated by one wife of Nazrul. They also had fire arms

with them. It was further disclosed that Khokan was previously arrested

over an incident of arson.

3. As the information disclosed offence cognizable in nature, Barasat

P.S. Case No. 299 dated 22nd April, 2006 was registered under Sections

326/307/34 of the Indian Penal code. Police took up investigation that

culminated into submission of charge sheet against the accused persons

under Sections 326/307/34 of the Indian Penal Code. The accused

persons stood the trial pleading their innocence.

4. On behalf of prosecution 11 witnesses were examined and learned

Trial Court after considering the evidence both oral and documentary,

was pleased to pass the judgment impugned.

5. Impeaching the impugned judgement Mr. Fajlur Rahaman, learned

Counsel representing the convict/appellant Amir Hossain Molla submits

that, the prosecution case cannot be said to have been proved beyond

doubt. There is lack of consistency in the testimony of witnesses.

According to Mr. Rahaman, admittedly the relationship between the

convicts and the victim was not good, rather inimical, therefore, they

were falsely implicated. Drawing my attention to the testimony of the

victim P.W. 1 Mr. Rahaman submits that, P.W. 1 stated that Amir

Hossain assaulted her with 'da' on the right side of her head and also on

the right arm and in the back side and the other person tried to push

her down. She raised alarm, and could manage to come to the road, then

relative of Amir Hossain took her to hospital. For that reason she became

senseless for three days while she was in hospital.

6. Mr. Rahaman submits that P.W. 1 is not getting support from the

testimony of the attending Doctor P.W. 11. The Doctor stated that

patient was conscious and there was active bleeding. This exaggeration

made by the victim strikes at the root of the prosecution case. With full

vigor Mr. Rahaman submits that benefit of doubt ought to have been

extended to the accused persons on this count, following the settled

principle of law that when two views are possible and one that tilts in

favour of the accused person should be accepted and benefit of doubt

should be extended to him. It is further submitted that, the alleged

victim during her cross-examination as P.W. 1 stated that she narrated

the incident to the Police Station on the same day of the incident. Daroga

babu noted down the same and she put her signature. While the F.I.R.

shows that defacto-complainant P.W. 7 set the criminal proceeding into

motion by informing the Police Station in writing.

7. The statement recorded by the Daroga babu of the Police Station

that contained signature of the victim was not produced before the

Court. Had it been produced it would have stated a different story

altogether. The prosecution case according to Rahaman, should be

disbelieved on that score as well. It is further argued that the victim as

P.W. 1 made embellishment while narrating the alleged incident.

Whatever she stated before the Court regarding the manner she was

allegedly assaulted, she had not said the same to the Investigating

Officer. She did not tell the Investigating Officer that she was assaulted

with 'da' by Amir Hossain Molla on the right side of her head and on the

back side. The inconsistent statement of the victim is perilous so far the

prosecution case is concerned and for such inconsistent testimony, P.W.

1 should not be considered to be a witness who has faith in truth.

8. Relying upon the judgement of Hon'ble Apex Court pronounced in

Sunil Kumar Sambhudayal Gupta (Dr.) and others Vs. State of

Maharashtra reported in (2010) 13 SCC 657. Mr. Rahaman submits

that, where the witness in his statement under Section 161 Cr.P.C. has

not disclosed certain facts but meets the prosecution case first time

before the Court, such version lacks credence and is liable to be

discarded.

9. It is further argued that recovery of weapon is doubtful therefore

prosecution case cannot be said to have been proved beyond doubt.

Drawing my attention to the testimony of P.W. 5 in contradistinction to

the testimony of the P.W. 10, Mr. Rahaman argues that Riajur Rahaman

Molla made an embellishment to support the case of prosecution and

thus his testimony should not be taken into consideration. According to

Mr. Rahaman, when witness makes two inconsistent statements in the

evidence either at one stage or at two stages, testimony of such witness

becomes unreliable and unworthy of credence and no conviction can be

based on the evidence of such witness.

10. Mr. Rahaman, learned Counsel, in order to buttress his point

relies upon judgement of Hon'ble Apex Court pronounced in the case of

Suraj Mal Vs. State of Delhi reported in Laws (SC) 1979 2 69; Hari

Om @ Hero Vs. State of Uttar Pradesh reported in (2021) 4 SCC 345;

Ram Kumar Pandey Vs. State of Madhya Pradesh reported in (1975)

3 SCC 815.

11. I have perused the impugned judgements as aforesaid. It is the

settled principle of law that prosecution is to prove the case beyond

reasonable doubt but same rigor is not required to prove the case as far

as defence is concerned.

12. It is also settled principle of law of precedent that in order to use a

judgment as a precedent the fact of the case decided and the fact of the

case at hand must be in pari materia. In this regard we can rely upon

the judgement of Hon'ble Apex Court pronounced in Padmausundara

Rao (Dead) & Ors vs. State of Tamil Nadu & Ors. reported in AIR

2002 SC 1334.

13. Sunil Kumar Sambhudayal (supra) was decided in the backdrop of

an incident which resulted into registering a case under Sections

498A/306/34 of the I.P.C. The judgment pronounced in Ram Kumar

Prasad (Supra) is based on the principle that in case of appeal against

the acquittal the order of Appeal Court should not interfere with the

acquittal merely because it can take one of the two reasonable possible

views which favours the conviction.

14. In Hariom (Supra) Hon'ble Apex Court was pleased to decide the

issue that springs from the provision of Section 118 of the Evidence Act

read with Section 396 of the Code of Criminal Procedure, the expert's

opinion, test identification parades etc. which is factually different from

the case at hand. Therefore, the aforesaid judgments are of no help to

Mr. Rahaman, learned Counsel for the appellant no. 2.

15. Ms. Manaswita Mukherjee, learned counsel for the convict Alamat

Khureshi submits that prosecution has failed to prove beyond doubt any

overt act committed by the appellant Alamat Khureshi. Drawing my

attention to the written information that led to recording of F.I.R. Ms.

Mukherjee submits that in the written information the defacto

complainant stated that Alamat Khureshi together with Amir Hossain

Molla assaulted his sister Rupban Bibi @ Rubi with a knife and fled away

while the victim as P.W. 1 stated that she was assaulted by Amir

Hossain Molla with a 'da' on the right side of her head, cheek and on the

right arm and also on the back side and the other person tried to push

her down on the earth. P.W. 2 Tanjura Bibi did not say anything about

Alamat Khureshi. According to P.W. 5 the convicts while running down

the road, armed with pistol threatened him with dire consequences. P.W.

6 Sahanara Khatun stated that it was Amir Hossain who showed her a

pistol but she did not make any whisper about Alamat Khureshi. Sabed

Ali Molla was a post occurrence witness who could not say anything

about the role played by Alamat Khureshi. P.W. 8 Tajuddin Molla stated

that both the accused persons assaulted Rukban Bibi with chopper.

P.W. 9 Ajijur Rahaman Molla did not say anything about the role played

by Alamat Khureshi. P.W. 10 Investigating Officer was not an eye

witness to the occurrence and the attending Doctor P.W. 11 was not told

by the victim about the specific role played by Alamat Khureshi.

16. According to Ms. Mukherjee when prosecution fails to give a

coherent narrative as to the role played by Alamat Khureshi, learned

Trial Court ought to have extended benefit of doubt to record an order of

acquittal so far as the convict appellant Alamat Khureshi is concerned.

17. It is trite law to say that law does not require the establishment of

an overt act to allow Section 34 of the I.P.C. to operate in as much as the

section gets attracted when the criminal act is done by several persons

in furtherance of their common intention. Therefore prosecution is under

obligation to establish that both the accused persons/appellants had

shared a common intention and they acted in furtherance of such

common intention.

18. In this regard we can gainfully rely upon the judgment of Hon'ble

Apex Court pronounced in the case of SURENDRA CHAUHAN V. STATE

OF M.P. reported in (2000) 4 SCC 110, Hon'ble Apex Court held that

apart from the fact that there should be two or more accused, two factors

must be established - (i) common intention; and (ii) participation of the

accused in the commission of the offence. If a common intention is

proved but no overt act is attributed to the individual accused, Section

34 will be attracted as essentially it involves vicarious liability. Referring

to its earlier judgment this Court held:-

"11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous

consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them.

(Ramaswami Ayyangar v. State of T.N. (1976) 3 SCC 779) The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. (Rajesh Govind Jagesha v. State of Maharashtra (1999) 8 SCC 428). To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established" (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case."

19. In GIRIJA SHANKAR V. STATE OF U.P. reported in (2004) 3 SCC

793, Hon'ble Apex Court held:-

"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done

in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same is if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision."

20. Mr. Ranabir Roy Chowdhury, learned Counsel representing the

State submits that, the testimony of P.W. 1 undoubtedly suffers from

exaggeration but after careful consideration of the same there would be

no difficulty in finding a ring of truth around the statement made by the

victim on oath before thee learned Trial Court. The exaggeration per se

cannot be said to have the potential to raze the entire prosecution case

to the ground. Drawing my attention to the testimony of P.W. 1 Mr. Roy

Chowdhury, learned Counsel further submits that admittedly the

incident took place on 22nd April, 2006 around 12.00 noon inside the

room of the victim. After being assaulted by the convicts the victim was

taken to hospital by the relative of appellant Amir Hossain Molla. She

was attended by the Doctor at 12.30 P.M. and the Doctor was told by the

victim that she was physically assaulted with chopper by Alamat Molla,

Khokan Molla and others. The Doctor found multiple gaping sharp cut

wounds on the right side of scalp and face measuring about 4" X 1" and

3" X 1" and the patient was conscious with active bleeding. The F.I.R.

was registered on that very date but at about 21.45 hours, long after the

victim was taken to hospital, attended by Doctor and advised for

admission in female surgical ward.

21. The proximity between the incident of assault and statement of

victim P.W. 1 before the doctor P.W. 11 rules out the possibility of

contamination of any kind. The narrative of P.W. 1 that she was

assaulted by the appellant no. 2 when getting support from the

testimony of P.W. 11, learned Trial Court was absolutely justified in

recording the order of conviction. According to Mr. Roy Chowdhury, the

testimony of witnesses other than P.W. 1 and P.W. 11 may be ignored for

the simple reason that none of them witnessed the incident.

22. Perused the evidence on record. The victim of this case is the sole

witness to the occurrence and there is exaggeration in her testimony.

But the question that calls for consideration is whether such

exaggeration is on material particular, making the testimony of P.W. 1

utterly absurd or not. People love to romanticize and it is the inherent

nature of every human being. The victim of the case is no exception. The

Court while appreciating the evidence should not lose sight of realities of

life and cannot afford to take a stand ignoring the same. Some

discrepancy is bound to be there in every criminal trial, which should

not weigh with the Court so long it does not materially affect the

prosecution case.

23. The proximity between the time of incident and examination of the

injuries sustained by victim with history of assault by the doctor P.W. 11

undoubtedly guarantees the existence of truth in what was stated by

victim. Exaggeration or omission, as pointed out by Mr. Rahaman is of

no consequence. The injured witness cannot be thrown overboard

because of the exaggeration, she made. Testimony of P.W. 1 inspires

confidence. It is correct that statement of victim before the Investigating

Officer differs from her testimony before the Court. But coherent with the

statement she made to doctor, which was her maiden statement

regarding the incident.

24. Hon'ble Apex Court in ALAMGIR VS. STATE reported in AIR 2003

SC 282 held:-

".....The second limb pertains to the statement under Section 161 Cr.P.C. Admittedly, this piece of evidence was not available in the statement of the witness under Section 161 Cr.P.C., but does it take away the nature and character of the evidence in the event, there is some omission on the part of the police official. Would that be taken recourse to as amounting to rejection of an otherwise creditworthy and acceptable evidence the answer, in our view, cannot but be in the negative."

25. It is true she stated that she was unconscious for 72 hours while

in hospital. But Doctor found her conscious. Does that affect the case of

prosecution? In my opinion, the answer would be no. Exaggeration per

se do not render the evidence brittle. It can always be one of the factors

to test the credibility of the prosecution version, when the entire evidence

is put in a crucible for being tested on the touch stone of credibility. I do

not find any discrepancy in the testimony of P.W. 1 and P.W. 11 on

material particulars. P.W.1 did not say anything that runs counter to

what she stated against the assailant. Therefore, I do not find any merit

in the submission that benefit of doubt should be given as there are two

views.

26. Thus, I do not find any reason to impeach the judgment passed by

Learned Trial Court so far the appellant convict Amir Hossain Molla is

concerned.

27. In this case the incident took place at 12 noon of 22nd April 2006.

P.W. 1 was taken to hospital immediately thereafter and she was

attended by the Medical Officer on duty at 12.30 P.M. P.W. 11 Doctor

stated that the patient was conscious with active bleeding. She narrated

the names of the assailant. She was advised admission in Female

Surgical Ward. Almost after 9 hours, police case was registered and

while adducing evidence, P.W. 7 the defacto complainant stated to have

lent his signature on blank paper. Thus content of the information given

to police after 9 hours does not deserve much importance.

28. However, considering the incoherent statement made by

prosecution witnesses in their narrative as to the role played by convict

Alamat Khureshi, I am inclined to hold that prosecution has failed to

prove beyond doubt that Alamat Khureshi acted in furtherance of

common intention that he shared with the appellant no. 2 Amir Hosaain.

Such failure shrouds the case of prosecution with veil of doubt so far the

culpability of Alamat Khureshi is concerned. Therefore, extending benefit

of doubt I record an order of acquittal as against Alamat Khureshi.

29. However, considering the nature of injury sustained by the victim,

I am of the view that the accused Amir Hosaain should be held guilty for

committing offence within the meaning of Section 324 of the I.P.C. and

not under Section 307 of the I.P.C. The convict cannot be said to have

any intention to cause murder of the victim, he had ample opportunity to

commit such crime and he could have landed blow on the vital part of

the body of the victim instead of landing the blow on the arm or scalp or

face. I am of the view that the convict Amir Hosaain should be held to

have committed offence within the meaning of Section 324 of the I.P.C.

and not under Section 307 of the I.P.C. in absence of any evidence to

justify the provision of Section 320 of the Indian Penal Code.

30. Under such circumstances, I am inclined to modify the sentence

imposed upon the convict by learned Trial Court. Instead of serving out

sentence for seven years, I am inclined to direct that the appellant Amir

Hosaain @ Khokan Molla to suffer rigorous imprisonment for three years

for committing offence under Section 324 of the I.P.C. and to pay fine of

Rs. 15000/-, in default to suffer further imprisonment for six months,

subject to the provision of Section 428 of the Code of Criminal

Procedure. Consequently the appeal succeeds but in part.

31. The order of conviction imposed against Amir Hossain Molla

appellant no. 2 stands modified and the order of conviction passed

against Alamat Khureshi is reversed and he is acquitted. He be set at

liberty and discharged from bail bond subject to execution of a bail bond

under Section 437A of Cr.P.C. for six months.

32. Let a copy of the judgement along with the Lower Court Record be

sent to the learned Trial Court for information and necessary action.

33. Urgent photostat certified copy of this judgement, if applied

therefor, should be made available to the parties upon compliance with

the requisite formalities.

(SIDDHARTHA ROY CHOWDHURY, J.)