Calcutta High Court (Appellete Side)
Md. Golab Sk. @ Ukil Sk. Ors vs The State Of West Bengal on 27 September, 2024
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH
C.R.A. 583 of 2019
Md. Golab Sk. @ Ukil Sk. Ors.
versus
The State of West Bengal.
For the Appellants : Mr. Ashraf Ali,
For the State : Mr. Joydeep Roy,
Ms. Sujata Das.
Reserved On : 17.09.2024.
Judgement On : 27.09.2024.
Tirthankar Ghosh, J. :
The present appeal has been preferred against the judgment and order of
conviction and sentence dated 27.08.2019 passed by the learned Additional
District & Sessions Judge, Fast Track Court, Rampurhat in Sessions Trial No.
01/ September/2011 arising out of Sessions Case No. 102 of 2011, wherein
the learned Trial Court was pleased to convict the appellants namely, Md.
Golab Sk. @ Ukil Sk., Bodu @ Mohiuddin Sk. and Hebjar @ Hebjan Sk. @
Hebjan Ali for commission of offences under Section 324 of the Indian Penal
Code and sentencing them to suffer Simple Imprisonment for 3 (three) years
and fine of Rs.5,000/- each in default to suffer Simple Imprisonment for 2
(two) months each.
Murarai police Station case no. 239/10 dated 15.11.2010 was registered
for investigation under Section 341/324/326/302/34 of Indian Penal Code on
the basis of the written information/complaint filed by one Niamat Sk.
(complainant) against Md. Golab Sk. @ Ukil Sk., Bodu @ Mohiuddin Sk, Tasdir
@ Ashahad Sk., Sahajahan @ Hodu Sk., Saddam Sk and Hebja Sk @ Hebjan
Ali. The allegations made in the letter of complaint addressed to the Officer-in-
charge, Murarai Police Station were to the effect that:
(i) The complainant's son Sipul Sekh was married to Toklima Begum
one and half years ago. After marriage he started residing at his
in-law's house.
(ii) During his stay at the in-law's house the complainant's son was
often assaulted by Bodu Sk (father of Toklima) and his relatives.
(iii) On 14.11.2010 his son Sipul Sekh was assaulted by the accused
persons during evening hours and being afraid, he came to the
complainant's house and narrated the entire incident.
(iv) After hearing the incident from his son both of them went to
Bablu Sekh a member of Panchayat of the village. However, Bablu
Sekh was not available and when the complainant was returning
to Nimtala More and reached near the door of Bodu Sekh's house,
the accused persons out of grudge started assaulting the
complainant blocking the road in a pre-planned manner.
(v) The complainant on being attacked started screaming when his
nephew rushed to the spot. The accused surrounded all three of
them and inflicted blows with sword, dagger and other sharp-
edged weapons.
(vi) As a result, Dalim Sekh fell down on the ground. The accused
persons thought his son and nephew has died and left the place.
(vii) The local people helped the injured to be shifted at Murarai
Hospital by car and Dalim Sekh died on the way to the hospital,
where doctor declared him dead. After primary treatment
complainant's son was shifted to Rampurhat Hospital where the
doctors advised him to be shifted to Burdwan Hospital. Sipul Sekh
was fighting for his life at the hospital and as such being engaged
with his treatment there was delay in reporting the incident by the
complainant to the police authorities. The complainant therefore
requested the police authorities to take immediate steps and
punish the offenders.
On receipt of the aforesaid complaint Murarai Police Station case no.
239/10 dated 15.11.2010 was registered and the case was endorsed by the
officer-in-charge to Sub-inspector M. Mondal (PW14) for investigation. The
investigating officer on conclusion of investigation submitted charge-sheet
under Sections 341/324/326/302/34 of the Indian Penal Code before the
learned A.C.J.M. Rampurhat. The case being Sessions triable case, the learned
Magistrate after compliance with the relevant provisions of law was pleased to
commit the case to the Court of Sessions before the Learned Additional
Sessions Judge, Rampurhat. The records of the case were finally transmitted
to the learned Additional District and Sessions Judge, Fast Track Court,
Rampurhat for trial and disposal.
The learned trial Court on consideration of the materials collected by
the investigating agency and after affording opportunity of hearing to both the
parties was pleased to frame charges under Sections 341/324/326/302/34 of
the Indian Penal Code against the six accused persons. The contents of the
charges were read over to the accused persons to which they pleaded not guilty
and claimed to be tried.
Prosecution in order to prove its case relied upon 14 witnesses which
included PW1, Niamat Sk., complainant; PW2, Kaim Sk, relative of daughter-
in-law of the complainant; PW3, Rabiul Sk., local resident and eye-witness;
PW4, Hasibul Sk., local resident; PW5, Sipul Sk., injured and son of the
complainant; PW6, Laddu Sk., eye-witness; PW7, Md. Safiuddin Ahmed, scribe
of the FIR; PW8, Dr. Subhas Poddar, post-mortem doctor; PW9, Niranjan Das,
constable of police who brought the dead body of Dalim Sk. from Murarai
Rural Hospital to Rampurhat Sub-Divisional Hospital; PW10, SI Biswajit
Chowdhury, Officer-in-Charge of Murarari Police Station; PW.11, Dr. Himadri
Halder, medical officer of Rampurhat Sub-divisional Hospital who treated the
injured Sipul Sk.; PW12, SI Brojendra Maity, second investigating officer of the
case; PW13, Dr. Hirak Bandhopadhay, doctor of Murarai Rural Hospital;
PW14, SI M. Mondal, first Investigating officer of the case.
PW1, Niamat Sk, complainant in his deposition before the Court stated
that Sipul Sk was his son who was married to Toklima Bibi daughter of Bodu
Sk. After marriage his son used to reside at his in-law's house and there was
an instance of matrimonial quarrel in between his son and daughter-in-law
along with her relatives when on 27th Kartik about a year ago his son came to
his house and disclosed to him that his in-laws used to assault him time and
again. Thereafter, he along with his son went to the member's house of he said
village and in the midway he asked his son to stand at Nimtala and he alone
went to member's house. Bablu Sk was not present at his home and when he
was returning back in the way he met with Bodu Sk in front of his house.
While speaking with Bodu Sk at that time his elder son assaulted him on his
shoulder with a stick and at that time Ukil Sk, Bodu Sk, Tasdir Sk, Saddam
Hossain, Sahajahan Sk, Hebjar Sk were present on the spot. He identified all
the accused persons in Court and proceeded to state that all these accused
persons were armed with iron rod, knife and lathi. On being assaulted he cried
for help then his son Sipul Sk and his nephew Dalim Sk, Rabiul Sk and others
rushed to the spot. After his son reached at the spot Hebjar Sk stabbed his son
with a knife and Tasdir Sk stabbed with a big knife at the back of Dalim Sk.
Being inflicted with such injuries both Sipul Sk and Dalim Sk fell down and
the accused persons fled away from the spot presuming that both the persons
have died. Thereafter he took his son and nephew towards the police station by
a Tata Sumo vehicle. As he reached near Santoshpur village on the way his
nephew died and he reiterated such incident to the police station who advised
them to take the injured to hospital and the police authorities also followed
them. On examination doctor at the hospital declared his nephew Dalim Sk as
dead. The doctor at Murarai Hospital also told them to take the patient Sipul
Sk to Rampurhat Sub-divisional Hospital for better treatment. Sipul Sk after
an hour was referred from Rampurhat Sub-divisional Hospital to Burdwan
Medical College and Hospital and at about 4.00 am Sipul Sk was shifted to
Burdwan Medical College and Hospital. Inquest on the dead body of Dalim Sk
was held at Murarai hospital in his presence because he did not accompany
his son at Rampurhat hospital or Burdwan Medical College and Hospital and
identified the body of Dalim Sk and signed on the inquest report. He identified
his signature which was admitted in evidence and on the next day he lodged a
complaint with the police station. He identified the written complaint which
was prepared by one Safiuddin as per his instruction. He identified his
signature which was admitted in evidence. In cross-examination he replied
that initially his son and daughter-in-law resided at his house and since one of
the family members of his daughter-in-law created dispute, as such he
informed the matter to the police station where a decision was taken and
thereafter his son and daughter-in-law used to stay at the house of Bodu Sk.
He denied of any knowledge regarding the livelihood of his son during his stay
at his in-law's house as to whether his son used to reside separately or not. He
also replied in cross-examination that he informed the police as to which
accused was carrying what arms. He reiterated the incident in cross-
examination as was earlier narrated in his examination-in-chief.
PW2, Kaim Sk is a relative of daughter-in-law of the complainant but
denied of being examined by the police and was declared hostile.
PW3 is Rabiul Sk. a local resident who deposed that he knew Dalim Sk
who died on 14.11.2010 and he also knew Sipul Sk. On the relevant date at
about 7.00 pm when he was passing by the road at that time he saw all the
accused were talking when he asked them about the assembly, at that time
the accused persons replied that there was a dispute with Sipul Sk. He
identified all the accused persons in Court. When he was at a distance of half
km from the place of occurrence he saw that the accused persons were
running and on hearing the clamour and outcry he came back and saw Dalim
Sk was lying on the road with two stab injuries at his back side. He also saw
that a person was holding Sipul Sk who was severely injured and there was
one stab injury on the lower portion of his abdomen. The witness thereafter
proceeded to state that he along with other local people took Sipul and Dalim
Sk to Murarai police station. Dalim Sk stated to them in the vehicle when he
was brought to the police station that Tasdir Sk stabbed him. On the way to
Murarai police station Dalim Sk died and as such when they reached the
police station, police personnel requested them to take the injured at hospital
first. In the hospital Dalim Sk was declared dead. He signed on the inquest
report, his signature was admitted in evidence. In cross-examination he replied
that he heard noise from half km distance from the spot but he did not inform
the police authorities that Dalim Sk told him that Tasdir Sk stabbed him.
PW4, Hasibul Sk is a local resident who deposed that he knew Sipul Sk
and he had no knowledge regarding the incident and was also not examined by
the police. He was declared hostile by the prosecution.
PW5, Sipul Sk who was injured and an eye-witness to the incident as
also son of the complainant. The witness deposed that he married Toklima and
after marriage he resided at his in-law's house. He alleged that his in-laws
used to assault him regularly and on 27th Kartik about 14 months ago at
about 7.00/7.30 pm he reported to his father that he was assaulted by his
father-in-law and brother-in-law, when his father asked him to go to the
Member. He was accompanied by his father who asked him to wait at Nimtala
and proceeded to the Bablu Sk's house who is the Member. As Bablu was not
at his residence his father had to return and at that time Tajdu, Ukil, Bodu,
Hebja, Sahjahan and Saddam restrained his father. The accused persons were
armed with tangi, hasua, talwar/knife and lathi and restrained his father in
front of the house of Bodu. He identified all the accused persons in Court and
proceeded to state that the accused persons were assaulting his father and on
seeing such incident he rushed towards him for saving his father when Hebja
stabbed him with a knife on right side of lower portion of his abdomen and on
the side of the rib, Ukil assaulted him on his leg by hasua and his father-in-
law Bodu assaulted him with a stick on his head. At the same time other
accused persons also assaulted him with sticks and stone on other parts of his
body and when Dalim rushed to the spot at that time Tasdir stabbed on his
back twice, as a result both of them fell down on the spot. Rabiul, Lader,
Hasibul and other persons came to the spot and took both of them by a Tata
Sumo vehicle to Murarai Police Station and from there they were taken to
hospital. Dalim died on the way and the doctor at the hospital declared him
dead. He was referred to Rampurhat hospital after primary treatment and from
Rampurhat he was referred to Burdwan Medical College and Hospital where he
was treated. In cross-examination he deposed that he did not tell to police that
he went to his house at 8.00 pm to inform about the incident of assault by his
father-in-law and other members of the in-laws house. He also in cross-
examination accepted the fact that he did not tell the police authorities that
Ukil assaulted on his leg with hansua and his father-in-law assaulted on his
head with a stick and it is for the first time he is narrating the same in Court.
Further he replied that he had stated to the police as to what arms/weapons
were carried by which accused. He denied the suggestion on behalf of the
defence that no incident occurred on the relevant date between him along with
his family members of his in-laws house.
PW6, Laddu Sk is an eye-witness. He deposed that he knew both Sipul
and Dalim and according to him Dalim died on 27th Kartik, 1417 B.S. at about
7.00 to 8.00 pm in front of the house of Bodu Sk. He proceeded to narrate that
at the relevant time he was passing in front of the house of Bodu Sk and saw
that Hebjan was assaulting Sipul by knife and Dalim Sk was assaulted by
Tasdir by knife on his backside on the above portion of his hip on both sides of
spinal cord and other accused also were assaulting them with sticks. Both
Sipul and Dalim fell down on the ground, as a result of such assault he along
with others took them to Murarai Hospital by vehicle where doctor declared
Dalim as dead, Sipul was referred to Rampurhat Hospital. Police conducted
inquest over the dead body of Dalim and he signed on the inquest report as
witness. He identified his signature on the inquest report which was admitted
in evidence. He further stated that Sipul was married with the daughter of
Bodu and family members of Bodu used to misbehave with Sipul. Similarly, in
cross-examination he replied that Dalim and Sipul's house was situated at
Danga Para and Nimtala Para in different areas. He further replied that he
signed the inquest report after he made statement before the police. He also
replied that he had stated the names of the accused persons who assaulted by
tangi and sword and injured Dalim and Sipul.
PW7 is Md. Sofiuddin Ahamed, scribe of the FIR who deposed in Court
that at per instructions of Niamat Sk (PW1) he drafted the FIR which was read
over and explained to him and then Niamat Sk signed on it. He also signed in
the FIR as a scribe and identified his signature and the contents of the FIR in
Court. The FIR as such was admitted in evidence.
PW8 is Dr. Subhas Podder, post-mortem doctor who deposed that he
conducted the post-mortem examination of dead body of Dalim Sk in
connection with Murarai P.S. U/D case no. 37/10 dated 14.11.2010 and the
body of the deceased was identified by Constable Niranjan Das. On
examination he found:
"(1) one in sized (read incised), penetrated injury measuring 2" x 1"
wide at the centre into chest cavity deep. Elliptical in shape with
everted Margins, placed (Sic) obliquely, over left lateral side of the
chest wall over posterior Auxiliary line and 4" below auxiliary pit. On
dissection and pressing the tract it is seen to have pierced skin, soft
tissue, Mussels, vessels and nerves at that corresponding level to pass
through and through at left 5th intercostals space with a direction to
inwards, forwards and medially to pierce pleura to enter into chest
cavity and finally it terminated by causing a penetrated injury
measuring 1" × ¼" x ½" over lower lobe of left lungs.
(2) One elliptical shaped in signed (read incised) wound measuring 2" x
½" 3" deep plagued slightly oblique over vertebral column at the level
of 7 thoracic vertebra. On dissection and tracing the track it has seen
to pierce the skin soft tissue, mussels, nerve vessels at that
corresponding level and finally terminated by piercing fractured of 7
thoracic vertebra and spinal code (read cord).
(3) Chest cavity fool of blood and blood clots. No other injury could
have detected."
He also opined that death was due to effect of the noted injury which are
ante-mortem and homicidal in nature. He identified the post-mortem report
which was filled up and signed by him with his seal. The same was admitted in
evidence. In cross-examination he replied that he did not give any opinion
about nature of weapons and opined if he received the FSL report he could
have gave further opinion.
PW9 is Niranjan Das, constable of police who brought the dead body of
Dalim Sk from Murarai Rural Hospital to Rampurhat Sub-divisional Hospital.
He identified his signature in the carbon copy of the dead body challan which
was admitted in evidence.
PW10, Biswajit Chowdhury, Officer-in-charge of Murarai Police Station
who deposed that on 15.11.10 he received a written complaint from Niamat Sk
and after receipt of such complaint he started Murarai Police Station case no.
239/10 dated 15.11.2010 under Sections 341/324/326/302/34 of the Indian
Penal Code. He also filled up the formal FIR, identified the same along with his
signature, as such the formal FIR was admitted in evidence. He thereafter
stated that the investigation was assigned to Sub-inspector M. Mondal, he also
identified his signature and hand writing in respect of endorsement which was
also admitted in evidence. In cross-examination he replied that he do not have
any personal knowledge regarding the case.
PW11, Dr. Himadri Halder is medical officer of Rampurhat Sub-
divisional Hospital who treated Sipul Sk. He deposed that on that day he
treated Sipul Sk who was admitted with history of physical assault with the
following injuries:
"(1) One penetrating wound lower part of chest wall of right side in the
wide (sic) circular (sic) line measuring 6 C.M. x 3 C.M. x 5 C.M.
(2) One laterated (sic) wound in the mid line on the scalp over the right
parital area measuring 7 C.M. x 3 C.M. x 2 C.M.
(3) One infiged (sic) (read incised) wound are right leg measuring 5 C.M. x
2 C.M. x 2 C.M."
He further narrated that the patient was admitted at Rampurhat Sub-
divisional hospital from 14.11.2010 to 15.11.2010 and thereafter he was
referred to Burdwan Medical College. He produced the medical reports of the
patient/Sipul Sk which was admitted in evidence. In cross-examination he
replied that the patient was first treated by Murarai Rural Hospital and on a
specific query answered that two linear edged will be from starting to end in
case of assault by sharp cutting weapon and proceeded to state that since he
has recorded in his report that the wound is 5 C.M. x 2 C.M. x 2 C.M. from
this fact it would be evident that the wound was incised wound.
PW12 is Brojendra Maity, Sub-inspector of Police and second
investigating officer of the case who deposed that on 20.01.2011 he was posted
at Murarai Police Station and he received a Case Diary for further investigation
from the then Officer-in-charge. He collected injury report, arrested the
accused persons and thereafter submitted charge-sheet under Sections
341/324/326/302/34 of the Indian Penal Code and later supplementary
charge-sheet was submitted under Section 307 of the Indian Penal Code.
PW13 is Dr. Hirak Bandhaypadhay attached to Murarai Rural Hospital.
He deposed that on 14.11.2010 he examined Sipul Sk and recorded the history
from a person who accompanied him and reported that Sipul Sk was hit with
some sharp instrument and sustained injury on his back and right side of his
abdomen. So the right side of the abdomen was tied with one cloth and blood
was coming out from the said portion. The patient was in a critical condition
and as such he was sent to Rampurhat S.D. Hospital for better treatment
without writing injury report. He further deposed that he sent the patient to
Rampurhat Sub-divisional Hospital after administering first aid to him for
which the injury report and treatment-sheet was written by him and the same
contained his signature. He identified the same and as such it was admitted in
evidence. In cross-examination he admitted that name of the appellant is not
reflected in the report neither the manner of incident and place of incident in
the report.
PW14 is M. Mondal, the investigating officer of the case who deposed
that on 15.11.2010 he was posted at Murarai Police Station and was endorsed
by the then Officer-in-charge to investigate Murarai PS case no. 239/10 dated
15.11.2010. He deposed that during investigation he visited the place of
occurrence, prepared sketch map with index, examined witnesses and
recorded their statements under Section 161 of the Code of Criminal
Procedure, held inquest over the dead body of Dalim Sk, prepared the dead
body challan. He also prepared seizure list on 15.11.2010 in presence of two
witnesses, arrested two of the accused persons, collected bed head ticket from
Burdwan Medical College and Hospital and collected the post-mortem report
from Rampurhat Sub-divisional Hospital. In cross-examination he replied in
respect of some of the witnesses as follows:
"Niyamat told me during investigation that Tasadir stabbed his
nephew by dagger (Chora) and Hevja stabbed his son by chaku
(Knife). Sipur Sk. did not tell me that he went to rescue his father at
Nimtala because his father was confined/restrained at Nimtala and
also did not tell me that accused Okil injured him on his legs by big
Hasua and his father in law assault him on his head by a Lathi. He
mentioned date 14.11.2010 before me during investigation. He also
did not tell me that he saw the incident in moon lit night."
Mr. Ashraf Ali, learned advocate appearing on behalf of the appellants
submitted that the prosecution version in the present case is full of
embellishment and the witnesses have improved their cases to such an extent
that it would be difficult to believe the version of each of the witnesses.
Learned advocate in order to substantiate his argument submitted that in the
letter of complaint it was only referred that Bodu Sk and his relatives attacked
and at the bottom of the written complaint 6 persons were named in the FIR. It
was further pointed out that the medical report did not contain any name
which was disclosed before the medical officer in respect of any of the accused
persons having physically assaulted or inflicting injuries with knife both in
respect of the deceased Dalim Sk and injured Sipul Sk. It was further stated
that the investigating officer in his cross-examination categorically replied that
Sipul Sk did not state the names of Ukil Sk and Bodu Sk to him and Niamat
Sk told the IO that Hebjar stabbed his son Sipul with knife. By drawing the
attention of the Court to the evidence of PW5, it was pointed out that the
injured witness Sipul Sk himself admitted that he did not state regarding Ukil
Sk assaulting him with hansua on his leg and his father-in-law Bodu Sk
assaulting him on his head with a stick or that others inflicted injuries on him
with stick and stone and it was for the first time before the Court he stated
regarding the role of Ukil and Bodu. Learned Advocate emphasised that the
prosecution witnesses after a long lapse of time resorted to improve their cases
with the mala fide object of putting them behind the bars in respect of each
and every person whose name appeared in the FIR and the same was
irrespective of the fact as to whether those persons were present at the time of
incident. It was lastly submitted having regard to the manner in which the
prosecution evidence has surfaced it would not be fit and proper to convict the
appellants as the evidence is full of contradictions, improvements and
inconsistent. The learned advocate for the appellants, thus, prayed for setting
aside the order of judgment and order of conviction and sentence so passed by
the learned trial Court.
Mr. Joydeep Roy, learned advocate appearing for the State refuted the
contentions as advanced by the learned advocate on behalf of the appellant
and submitted that in a ghastly incident where number of persons are present
and one person has died within a close proximity of time and others seriously
injured to such an extent that one of them was referred from one hospital to
another, then it may not be possible for the person who was present at the
spot to specifically point out each of the persons and their complicity in
commission of the offence. Learned advocate, thereafter proceeded to draw the
attention of the Court to the injuries which were inflicted upon the injured
PW5 and submitted that from the medical report it would reveal that there
were four serious injuries on the person of the injured PW5, which included
injury on the head, abdomen as well as the leg. The written complaint which
was signed in close proximity of time and was treated to be the FIR may not be
an encyclopaedia of facts containing all the details relating to the incident but
the documentary evidence goes to show that PW5, Sipul Sk was injured at
three parts of the body and this evidence has been corroborated by way of the
medical records. So far as the complainant, PW1 is concerned he only
restricted himself to the severe injuries which were inflicted with the aid of
knife/sword at the right side abdomen of PW5. However, it was stated that the
accused persons assaulted Sipul Sk on every part of the body. According to the
State this has been clarified by PW5, the injured eye-witness and regarding the
role of each of the accused persons, an injured witness being the best witness
to clarify the injuries inflicted by each persons do not dilute the prosecution
case at all, as in this case the version of injuries at least are corroborated by
medical evidence. Learned advocate for the State therefore submits that there
is no scope for interference with the judgment and order of conviction and
sentence so passed by the learned trial Court and as such all the appellants
should be convicted and the learned trial Court's verdict be affirmed.
Before dealing with the evidence which has appeared in course of the
trial, another issue which requires consideration as three witnesses were
tendered by the defence after examination of the accused persons under
Section 313 of the Code of Criminal Procedure. By tendering such defence
witness the accused persons intended to establish the juvenility in respect of
some of the accused persons. Records reflect that the learned trial Court by its
order dated 11.07.2019 after appreciating the documentary evidence placed by
the defence was pleased to hold that the accused Ashahad Sk @ Tasdir Sk was
a student of Gopalpur Sishu Sikhshya Kendra and his date of birth according
to the Admission Register of the school is on 11.11.1995, as such on the date
of the incident he was 15 years 10 months old and was a minor. Consequently,
so far as Tasdir Sk is concerned his case was referred to the Juvenile Justice
Board. Needless to state that the consistent version of the witnesses were to
the extent that it was Tasdir Sk who inflicted the vital blows on Dalim Sk with
a sharp edged weapon resulting in the death of Dalim Sk.
I have considered the submissions advanced on behalf of the
prosecution as well as that of the appellants and I find that there was a
relation existing between the accused persons as well as the de facto
complainant which was the genesis leading to the incident of 14.11.2010. The
appellants before this Court are Md. Gulab Sk @ Ukil Sk, Hebjar @ Hebjan Sk
@ Hebjan Ali and Bodu @ Mohiuddin Sk. The witness so cited by the
prosecution which are relevant for the purposes of dealing with the complicity
of the three appellants are PW1, Niamat Sk; PW5, Sipul Sk and PW6, Laddu
Sk.. PW1, Niamat Sk was an eye-witness and in the FIR he did not assign any
specific role to any of the accused persons but it was stated that when he
reached near Bodu Sk's house he was attacked and on hearing hue and cry
his son Sipul Sk and nephew Dalim Sk rushed to save him, when Bodu Sk and
his relatives surrounded them with deadly weapons and Sipul Sk and Dalim
Sk fell down on the spot as they were injured by Bodu Sk and his relatives at
different parts of their bodies. None of the accused persons were named before
the doctors and the same story was narrated when the inquest was conducted
by the Sub-inspector of police and inquest report was signed by
PW1/complainant/Niamat Sk. In his deposition before the Court PW1, Niamat
Sk repeated the incident as narrated in the FIR however, he stated his son
Sipul Sk was stabbed by Hebjar Sk and Tasdir Sk stabbed Dalim Sk. PW5 in
his evidence deposed before the Court that Hebjar Sk stabbed him with knife
on right side lower portion of his abdomen and on the side of the rib, Ukil Sk
assaulted him in his leg with hansua and his father-in-law assaulted him with
a stick on his head. However, he deposed that he did not name Ukil Sk and
Bodu Sk before the investigating officer who recorded his statement that Ukil
Sk assaulted him on his leg with hansua and his father-in-law Bodu Sk
assaulted on his head with a stick and it was for the first time he narrated the
incident in Court. PW6, Laddu Sk who was an eye-witness he deposed that
Hebjar Sk assaulted Sipul Sk with a knife and Tasdir Sk assaulted Dalim Sk
with a knife at the backside, when Sipul and Dalim fell down on the ground.
The investigating officer PW14 in cross-examination admitted that Niamat Sk
during his examination stated that Hebjar stabbed his son by knife and Tasdir
stabbed his nephew with a dagger. In cross-examination PW14 also stated that
PW5, Sipul Sk did not tell him that Ukil Sk injured on his leg by a hansua and
his father-in-law Bodu Sk assaulted him on his head with a stick.
Having considered that the specific role of Ukil Sk and Bodu Sk in
respect of assaulting or inflicting injuries upon Sipul Sk for the first time
appeared in evidence before the Court and were not stated earlier and the
name of Hebjar Sk and his participation in the commission of offence having
been consistently stated before the investigating officer as well as in Court and
is corroborated by three witnesses including the injured witness, I am of the
view that the finding of guilt and conviction in respect of Ukil Sk and Bodu Sk
do not inspire any confidence as such the judgment and order of conviction
and sentence dated 27.08.2019 under Section 324 of IPC passed by the
learned Additional District & Sessions Judge, Fast Track Court, in Sessions
Case No. 01/September/2011 is hereby set aside.
So far as the judgment and order of conviction and sentence so imposed
upon the appellant Hebjar Sk is concerned as held by the learned Additional
District and Sessions Judge, Fast Track Court, in Sessions Case no.
01/September/2011 corresponding to Murarai Police Station case no. 239/10
dated 15.11.2010 do not call for any interference, the same is hereby affirmed
and he is directed to serve out rest of the sentence, so imposed by the learned
trial Court.
Accordingly, it is directed that as the appellants Ukil Sk and Bodu Sk
are on bail they may be discharged from their bail bonds.
So far as Hebjar Sk is concerned as he has been convicted and is on bail
his bail bond stands cancelled and he is directed to surrender before the
learned trial Court for serving out rest of the sentence.
Thus, Criminal Appeal no. 583 of 2019 is partly allowed.
Pending connected applications, if any, are also disposed of.
Department is directed to send back the Trial Court Records
immediately. A copy of the judgment be forwarded to the learned Trial court
immediately for compliance regarding the directions given above.
All parties shall act on the server copy of this judgment duly
downloaded from the official website of this Court.
Urgent photostat certified copy of this judgment, if applied for, be
supplied to the parties upon compliance of all requisite formalities.
(Tirthankar Ghosh, J.)
