Calcutta High Court (Appellete Side)

Sk. Sadek Ali @ Kalo vs The State Of West Bengal on 4 October, 2023

                    IN THE HIGH COURT AT CALCUTTA

                     (Criminal Appellate Jurisdiction)

                            APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)

                            CRA 739 of 2016

                           Sk. Sadek Ali @ Kalo

                                    Vs

                        The State of West Bengal



For the Appellant                        : Mr. Sanjay Chakraborti.



For the State                            : Mr. Arijit Ganguly,
                                           Mr. Koushik Kundu.



Hearing Concluded on                     : 08.09.2023

Judgment on                              : 04.10.2023
                                          2


Shampa Dutt (Paul), J.:



1.

THE APPEAL:-

The present appeal has been preferred against the judgment

dated 07.11.2016 passed by the Learned Additional District and Sessions

Judge, Fast Track Court - 1, Howrah in connection with S.T. No. 236 of

2014 convicting appellant under Sections 307/326/34 of Indian Penal

Code and Order on 08.11.2016 sentencing him to suffer rigorous

imprisonment for five years and pay fine of Rs. 5,000/- in default to suffer

rigorous imprisonment for 6 months for the offence under Section 326 of

Indian Punishable/Penal Code and also to suffer rigorous imprisonment

for 5 years and pay fine of Rs. 10,000/-, in default to suffer rigorous

imprisonment for 1 year for the offence punishable under Sections 307/34

of Indian Penal Code, all the sentences being directed to run concurrently.

2. DEFENCE CASE:-

Defence case is that in the facts and circumstances of the case,

the evidence and other materials on record, the conviction and sentence

passed by Learned Trial Court against appellant are unsustainable in

law.

It is submitted that the appellant has been convicted without any

legal basis and just on the basis of some surmise and conjecture and that

the Learned Trial Court wrongly relied on the uncorroborated testimony of

PW/2.

And there was clear omission of important facts in F.I.R.

It is further stated that it was alleged by PW/2 (victim) that he

was assaulted with an iron rod, bhojali and sabol. Bhojali and sabol were

not produced in Court. Iron rod produced before Court had no label and

seal on it, furthermore iron rod was seized on 30.07.2013 while incident

as alleged took place on 11.07.2013. PW/8, Investigating Officer stated in

his cross examination that houses are adjacent to the place of occurrence,

but he did not call any of the neighbours to be witness to seizure list. The

seizure list witnesses are police personnel.

That there is inordinate delay in recording statement of PW/2.

Incident took place on 11.07.2013. PW/2 was admitted in the nursing

home on that day at about 11a.m. and he was admitted there for 4 days

and released on 15.07.2013, but the I.O. examined and took his statement

on 27.08.2013 at home.

Furthermore, the natural conduct of an injured is to disclose the

names of the assailants in the history of assault, before the doctor, when

taken to a hospital for treatment.

PW/7, the doctor of the nursing home who attended PW/2 stated

in his evidence-in-chief,

"The patient told that the people of the local area after

arguments that the patient with iron rod".

In his cross examination PW/7 stated -"the patient did not tell me

who assaulted him". Even this aspect has not been considered by Learned

Trial Court. It is stated in examination-in-chief of PW/7 that PW/2 was

brought to the nursing home by Habib Khan at 11 a.m. But Habib Khan

was not tendered as a witness by the prosecution, for reasons best known

to them.

It is further stated that the Learned Trial Court did not evaluate

and appreciate the evidence of the independent witnesses in the right

perspective nor did it undertake any searching analysis to consider the

qualitative worth of their testimony. PW/3, PW/4, PW/5, PW/6 are

independent hearsay witnesses. All of them stated in unison that they do

not know about the incident as the same did not occur in front of them.

3. PROSECUTION CASE:-

Prosecution case is that one Md. Salim Mallick lodged a

complaint with I/C, Najirganj Police Station stating that on 10.07.2013

at 10 a.m. his nephew Sk. Nooruddin went to the grocery shop of Sunil

Shaw. At that time one Sk. Sadek Ali @ Kalo and Sk. Rajesh started

quarreling with his nephew and suddenly attacked him with bhojali,

sabol and iron rod and assaulted him on his head with iron rod and

chopped on his chest with a Bhojali and also assaulted him on his left

leg with iron rod and broke the leg. His nephew in bleeding condition fell

on the ground. The public rescued him and took him to Indus Nursing

Home.

4. EVIDENCE:-

The prosecution examined 8 witnesses.

     i)     Exhibit 1 is the Written Complaint

    ii)     Exhibit 2 is the Treatment Sheet

   iii)     Exhibit 3 is the Rough Sketch Map with index

   iv)      Exhibit 4 is the Seizure List.

  Material Exhibit 1 is an iron rod.

PW1 is the Uncle of the victim and the complainant in this case but

not an eyewitness.

P.W.4, 5, 6 are witnesses who heard about the incident.

P.W. 3 is the owner of the shop, where the parties first had an

altercation, when P.W. 3 settled the matter. He later heard about the

incident.

P.W.2 is the injured Victim, the best witness in this case. He

deposed as follows:-

"On 11.07.2013 at 10 a.m. on the first day of Roja. I went to the grocery shop of Sunil Shaw near PMSB Club at Podra Chunabhati Mallick Para to buy some goods. I told the shop keeper to give the goods immediately, then Sadek Ali raise objection regarding this a debate took place with him and me. He went away to his house near the shop room. I was going to my house through the field. Then Sadek came with a rod behind me and assaulted on my head with the rod. I fall down on the ground. Then he and his son Rajesh started assaulting me with iron rod and sabal. They broke my left leg. Sadek Ali assaulted me with a bhojali on my chest and I received bleeding injury. I received a crack on my right hand at the wrist. I shouted. The neighbours came there. They took me with a van to Indus Nursing Home. I admitted there for 4 days. I release on 15.07.2013. I told the fact to my Mama Selim Mallick who came to me at hospital. He lodged a FIR at Sankrail P.S.

Sadek is present in Court (identified).

It is not possible for me to identify this iron rod."

P.W. 7 is the Doctor, who examined and admitted the

victim.

On examination he found the following injuries and

deposed as follows:-

"On 11.07.2013, I was posted at Indus Nursing Home. On that day, I examined one patient Sk. Nuruddin who was admitted under me. He resides at Podra, Chunabhati, Sankrail, Howrah. He was brought by Habib Khan at 11 a.m. He had head injury on the top of the head, it was a cut injury measuring 4.5 inches by half inches. He had other lacerated injuries on both legs and two fractures on left leg and right forearm and he had abressions on chest. The patient told that the people of the local area after arguments beat the patient with iron rod. I treated him referred to orthopedic surgeon Dr. Abhijit Bandhopadhyay. I also treated that.

I have signed in this report. These are my signatures. I know the signature of Dr. Abhijit Bandhopadhyay. These are his signatures.

These are the treatment sheet attested by the administrative Manager of Indus Nursing Home. Marked as Exbt. 2."

The Appellant and his son were the Accuseds in the

present case. The Son, Sk. Rajesh being a Juvenile in Conflict with

law was tried and acquitted by the juvenile Justice Board, Howrah on

02.09.2014.

5. ANALYSIS OF EVIDENCE:-

Though the case of the appellant is that the victim has not

named him before the Doctor, it is seen that he has been named in

the FIR, (written complaint).

The victim, P.W. 2 has clearly stated that the appellant

attacked him with dangerous weapons and caused grievous

injuries, which has duly proved by way of oral and documentary

evidence beyond all reasonable doubt against the appellant. The

acquittal of the son of the appellant by the Juvenile Justice Board

is not relevant.

6. CONCLUSION:-

The judgment dated 07.11.2016 passed by the Learned

Additional District and Sessions Judge, Fast Track Court - 1, Howrah

in connection with S.T. No. 236 of 2014 convicting appellant under

Sections 307/326/34 of Indian Penal Code and Order on 08.11.2016

sentencing him to suffer rigorous imprisonment for five years and pay

fine of Rs. 5,000/- in default to suffer rigorous imprisonment for 6

months for the offence under Section 326 of Indian Punishable/Penal

Code and also to suffer rigorous imprisonment for 5 years and pay fine

of Rs. 10,000/-, in default to suffer rigorous imprisonment for 1 year

for the offence punishable under Sections 307/34 of Indian Penal

Code, all the sentences being directed to run concurrently being in

accordance with law thus requires no interference by this Court

and is affirmed.