Abdus Samad and Others vs State of West Bengal

Tapash Mookherjee, J.

The present appeal is directed against the judgment of conviction and order of sentence dated 14.04.2011 and 13.04.2011 respectively, passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Jangipur, Murshidabad in case No. S.T.- 3 of November, 2007 (S.C. No. 53/2007). By the said order the appellants were convicted of the offences punishable under Sections 448/307/34 I.P.C. and sentenced to suffer Rigorous Imprisonment for five years each for the offence under Section 307/34 I.P.C. and to suffer Rigorous Imprisonment for one year each for the offence under Section 448/34 I.P.C. The appellants were also sentenced to pay fine of Rs. 1,000.00 (rupees one thousand only) each with default clause.

The facts leading to the present appeal in short, are as follows:--

In the night of 28.10.2000 the appellants trespassed in the house of one Samsuddin Ahamed at village Khosalpur under P.S. Farakka and shot at Samsuddin Ahamed from firearms causing thereby injuries in his person. The said victim, Samsuddin Ahamed lodged a written complaint alleging all the aforesaid facts to the Farakka Police Station on the basis of which Farakka P.S. Case No. 122/2000 dated 29.10.2000 under Sections 448/326/307/34 I.P.C. and under Sections 25/27 of the Arms Act was started against the three F.I.R. named accused persons. After completion of investigation police submitted charge-sheet under Sections 448/326/307/34 I.P.C. against the present appellants and one Mojamal Haque who died during the pendency of the trial.

After submission of the charge-sheet the case had been committed to the Court of Sessions in due course and ultimately the case had been transferred to the Court of learned Additional Sessions Judge, 3rd Fast Track Court, Jangipur, Murshidabad, for trial. Considering the materials collected during investigation charges under Sections 448/326/307/34 I.P.C. had been framed against the appellants. The appellants denied the charges and claimed their innocence all along.

Prosecution examined as many as ten witnesses and proved some documents as well. Defence also examined two witnesses. Considering the evidence thus produced on record learned Trial Judge, found the appellants guilty of the offences under Sections 448/307/34 I.P.C. and sentenced the appellants to suffer Rigorous Imprisonment for five years each for the offence under Section 307/34 I.P.C. and to suffer Rigorous Imprisonment for one year each for the offence under Section 448/34 I.P.C. The appellants were also sentenced to pay fine of Rs. 1,000.00 (rupees one thousand only) each with default clause.

Being aggrieved by and dissatisfied with such judgment of conviction and order of sentence the accused persons, namely, Abdul Samad and Firdos Hossain filed the present appeal.

Learned Counsel Mr. Mukherjee, argued that the appellants have been convicted without any legal basis and just on the basis of some surmise and conjecture.

P.W. - 1 t o P.W. - 5 were neighbours of the complainant. But they had no knowledge about the facts in issue as claimed by them.

Samsuddin Ahamed (P.W.-7) was the de facto complainant, as well as the only direct witness for the prosecution. He stated that on 28.10.2000 at about 7.30 p.m. the present appellants along with the other accused (died during the trial) entered his house with firearms in their hands and appellant Abdul Samad fired a shot at him from the firearms in his hand, which hit on his chest. He stated further that the other appellant also shot at him but the shot missed. He also stated that due to fear of further assault he took shelter in the house of one of his neighbours and subsequently he went at first to Farakka Barrage Sadar Hospital and thereafter to Malda Sadar Hospital for treatment. The written complainant submitted by P.W.- 7 was proved and marked Exhibit-3.

The appellants and the de facto complainant are close relations and they have property disputes between them as admitted by the de facto complainant himself.

P.W.-7 was the only direct witness for the prosecution as mentioned earlier.

Dr. Sunil Chaudhury (P.W.-8) treated the victim on 29.10.2000 at Farakka Barrage Project Hospital and on examination he found one penetrating wound on the right chest of the victim with swelling and tenderness (injury report is marked Exhibit-4). Dr. Chaudhury stated that he was in doubt whether the injury had been caused by any gunshot, or not, and hence he advised X-ray.

Dr. Debajyoti Bose (P.W.-9) examined P.W.-7 at Malda Sadar Hospital on the day following the day of the incident. According to Dr. Bose, the injury on the body of the P.W.-7 was a ''gunshot injury'' as recorded in discharge report. But he himself stated that the discharge report prepared by him had been prepared on the basis of the bed-head tickets which had not been produced in the case. Dr. Bose in his cross examination opined that in case of a ''gunshot injury'' there should be one entry point and one exit point. However, if a bullet is stuck inside the body then there may not be any exit point. In such a case X-ray is necessary to ascertain the nature of the injury. Dr. Chaudhury (P.W.-8) advised X-ray for such reason. But no X-ray report has been produced. In fact, it is not known on what basis Dr. Bose opined that the injury on the body of P.W.-7 was a ''gunshot injury''. It should be noted here that P.W.-8 described the injury as a ''penetrating wound'' and according to him such an injury can be caused by fall on any sharp bamboo stick.

In the F.I.R., P.W.-7 stated that after the appellants had left the place he went in a hide out to save himself from further assaults by the appellants. In his cross examination P.W.-7 described that place of his hide out to be the house of his neighbour Abul Kalam. But Abul Kalam, examined as a defence witness (D.W.-1), stated that he had no knowledge about any such incident as described by P.W.-7. So, there is no material to corroborate the claim o f the P.W.- 7 that P.W.- 7 was shot at by any of the appellants. Corroboration is required in this case as P.W.-7 admitted his disputes with the appellants in connection with their properties.

The most interesting part of the case is that the de facto complainant''s son Naser Ahammed, has been examined as a defence witness (D.W.-2) and he stated that no incident happened inside their house on 28.10.2008 and that his father sustained injuries while making bamboo fencing due to which his father had gone to the local Hospital for medical treatments.

So, from what has been discussed above, it is clear that the learned Trial Judge wrongly relied on the uncorroborated testimony of P.W.-7 and the major discrepancies, inconsistencies etc. in the prosecution''s case escaped his attention. So, the judgment of conviction and order of sentence are both bad in law. The appeal is, therefore, allowed. The judgment of conviction dated 12.04.2011 and the order of sentence dated 13.04.2011 passed in this case are both set aside. Both the appellants are found not guilty of the charges under Sections 448/307/34 I.P.C. and they are accordingly acquitted. The bail bond furnished by the appellants stand discharged.

The L.C. Rs. be returned to the Trial Court along with a copy of this judgment and order.

Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.