Ash Mohammad and Others vs The State of West Bengal

Joymalya Bagchi, J.—1. Report of the Officer-in-charge, Hariharpara P.S. wherefrom it appears that the Prodhan of Dharampur Gram Panchayat has certified that appellant No. 12 and 16, namely, Jele Rahaman and Chand Mohammad have expired in the meantime. The appeal accordingly abates so far the said appellants are concerned. Their bail bonds stand discharged.

The prosecution case is to the effect on 15.10.1983 at 09.00 hours in village Jamanabad Kahamarmati in Hariharpara police station while Moula Bakash SK (P.W.4) and his brother Noor Islam (P.W.5) were returning on buffalo carts loaded with raw jutes, the appellants along with others being armed with lathi, sword and other deadly weapons attacked and assaulted Moula Baksh Sk and Noor Islam. Moula suffered grievous injuries. The assailants also attacked other persons including Kahabati Sheikh who was also severely injured. Moula and Khabati were taken to Hariharpara Primary Health Centre and then to Berhampore General Hospital. The incident was reported by Jayeda Bibi (P.W.2) and Hariharpara P.S. Case No. 7 dated 18.10.1983 was started and upon investigation charge sheet was filed. The case being a sessions triable one was committed to the Court of Sessions and charges were framed in the instant case against appellants for commission of offence under Sections 148/307/149/307/34, 326/34, & 323/34 of the Indian Penal Code.

The appellants pleaded not guilty and claimed to be tried. The prosecution examined as many as 8 witnesses. P.W.2 Jayeda Bibi is the first informant and she proved her written complaint, which was treated as F.I.R, (Exhibit-1). She stated that the appellants had assaulted Moula Bakash SK and Kahabati SK in her presence and they were medically treated. She attributed the delay in lodging F.I.R. to the condition of health of Moula Bakash SK who was hospitalised.

P.W.3, Unus Ali SK is the scribe of the First Information Report and he has also deposed relating to assault upon Moula Bakash SK and his brother Noor Islam and Kahabati SK. He stated that P.W.4 Molla Bakash SK was injured in the incident. He has identified the appellants and stated that he was assaulted by them along with brother Noor Islam and as a result he was treated in hospital about a month.

P.W.5, Nur Islam was injured and he has supported the case of evidence of P.W.4. In cross-examination he admitted that there was a MARAMARI in the village and accused Janif SK had lodged a complaint case against them over the self-same incident.

P.W.6, Goutam Joardar is the Medical Officer of Hariharpara Public Health Centre. He treated Moula Bakash SK and found the following injuries:--

"1. One sharp cutting injury curved below, over the left eyebrow about 3" long 1/2" wide skin and muscle were cut.

One transverse incised wound over the bridge of the nose -1" long, 1/4" wide -skin was cut.

Multiple transverse incised wounds over the left side of the face- four in number - all are about 1 1/2" long, 1/4" wide skin and muscles were cut.

One stabbed wound over the left side of the chin - dimension 1/2" x 1/2", depth 1/2".

One stabbed wound over the middle of the front of the neck about one inch left lateral to the mid-line - dimension 1/2" x 1/2" - but the depth of the wound could not be explored.

Left two incisor teeth of the lower jaw were broken and dislocated.

Patient vomited once and deeply confused and was referred to Berhampore New General Hospital."

He also treated Kababati SK and found the following injuries:--

"1. One lacerated wound over the vault of the scalp slightly curved on the left side -dimension 4" long and 1/2" wide - while thickness of the skin and muscles were cut.

Stabbed wound over the front of the lateral side of the left elbow - dimension 1" x 1/4" and depth 1/2"

Stabbed wound over the back of the left fore am on the medial sike and 3" above the wrist - dimension 1/2" x 1/2" depth 1/2".

Huge swelling over the back of the chest in between the scapulae, about 4" x 4" size. Weapon used for injury Nos. 1 and 4 heavy hard and blunt and for injury Nos. 2 & 3 -sharp pointed weapons. Duration - a few hours."

In cross-examination he found the following injuries of Janif Mondal, appellant No. 4:--

"i. Deep incised wound over the right side of the back of the chest in the upper part, oblique in direction about 6" long and 3" wide in the middle of the wound and about 3" deep skin, lawyers of muscles and upper part of right scapula were cut.

ii. Incised wound over the dorsum of the left index finger on its proximal part, about 2" long and the proximal phalanx was cut.

Natures: Grievous: Weapon: Heavy and sharp cutting weapon.

Duration: a few hours.

The patient was referred to Berhampore New General Hospital."

He found the following injuries of Hanif SK, appellant No. 5:--

"i. Deep incised wound over the back, obliquely cross the 12 and 13 vertebras, Dimension - 4" long 2" wide and about 1" deep.

The 13 vertebra was probably cut.

The patient was referred to Berhampore General Hospital.

Weapon used: Sharp cutting and heavy.

Duration: a few hours."

He found the following injuries of Nur Islam, appellant No. 3:--

"i. Incised wound over the back, oblique in direction, runs upward from the back of the upper part of right him bone across the L4 vertebra.

Dimension: about 7", 1" wide and about 1" deep.

ii. Incised wound across the lateral side of the left arm 2" about the elbow joint.

Dimension 2" long and 1" wide, Muscles are cut.

Weapon: Sharp and heavy. Duration- a few hours.

Nature- simple. No clinical evidence of fracture was detected."

He found the following injuries of Lukman Sk, appellant No. 2:--

"i. Incised wound over the lateral side of the left shoulder extending to the lateral aspect of the left arm.

Dimension - 5" long, 1" wide, the sckin and deep fascia were cut.

ii. Incised wound over the upper part of the front of the left forearm on its lateral side.

Dimension -4" long & 1 1/2" wide.

Nature: Simple. Weapon - Heavy and sharp cutting.

Duration - a few hours."

He also found the following injuries of Ajit Sak, appellant No. 6:--

"i. Incised wound over the vaulty of the scalp, longitudinal in direction, 1" right lateral to the mid line.

Dimension: 3" long, 1/4 wide.

Whole thickness of the skin was cut.

No clinical evidence of fracture was detected.

Nature : Simple, weapon : sharp cutting weapon.

Duration : a few hours

The injuries on the persons of the patient Janif Sak, Hanif Sak and Nur Islam were caused by sharp cutting weapon like sword etc."

P.W.7, Debnarayan Samanta is another Medical Officer attached to Berhampore General Hospital who treated kahabati Sk and Moula Bakash SK and deposed with regard to such treatment.

P.W.8 Ranajit Chakraborty, Investigating Officer of this case investigated the case and submitted charge sheet.

It was the specific defence of the appellants that they were assaulted by the prosecution witness and had suffered grievous injuries which has not been explained by the prosecution. Counter case was lodged by them against the prosecution witnesses transpired in the course of evidence. The First Information Repot in the counter case was exhibited as Exit. A.

Learned Trial Judge upon considering the evidence on record came to a finding of guilt against the appellants and convicted them for commission of offence punishable under Section 148 I.P.C. and the offence punishable under Section 307/149 I.P.C. and sentencing them to suffer rigorous imprisonment for one year for the offence under Section 148 I.P.C. and to suffer rigorous imprisonment for seven years and pay a fine of Rs. 1000/- each in default to suffer rigorous imprisonment for one year more for the offence punishable under Section 307/449 I.P.C., both the sections to run concurrently.

Learned counsel for the appellants submits that the evidence on record is unreliable in as much as of the witnesses are related to each other. Independent witnesses have not been examined. It is further submitted that the prosecution witnesses have not narrated the incident in the manner in which it occurred and the injuries on the accused persons have not been explained. Accordingly, prosecution case is liable to be rejected and the appellants are entitled to the benefit of doubt.

Mrs. Ghosh, learned counsel appearing for the State submits that the evidence of the injured witnesses are convincing and supported by medical evidence. Accordingly the conviction and sentence does not call for any interference.

I have perused the evidence on record in the light of the aforesaid submissions. I find that P.W.2, P.W.3, P.W.4 (injured witness) and has deposed P.W.5 that the appellants had attacked P.W.4, P.W.5 and Kahabati SK, and caused grievous injuries on P.W.4 and Kahabati Sk. Medical evidence of P.W.6 and 7 also corroborates such fact. However, evidence has come on record that a counter case was lodged by the appellants over self-same incident against the prosecution witnesses. Evidence of P.W.6 also shows that some of the appellants had suffered serious injuries. If serious injuries were suffered by the accused persons in the course of the same transaction it was incumbent for the prosecution to explain such injuries. Failure to do so casts a doubt on the prosecution version. In the instant case the prosecution witnesses are wholly silent as to the manner and circumstances in which the injuries were caused upon the appellants. Bare perusal of the evidence of P.W.6 would show that the injuries on the appellants cannot be brushed aside as minor or inconsequential in nature. From such evidence on record it appears that there was a free fight between the parties and both the parties had suffered serious injuries in the melee.

As injuries were caused in a free fight it is not possible to hold that the appellants had formed an unlawful assembly to commit rioting as argued by the prosecution. Accordingly I am not inclined to hold the appellants guilty of the charge under Section 148 of I.P.C. Hence, they are acquitted of the said charge.

However, it cannot be denied that the appellants had caused grievous injuries of P.W.4 and Kahabati SK in course of the aforesaid fight. It may be that the appellants were subjected to sudden and grave provocation and accordingly caused such grievous injuries.

Under such circumstances I am of the opinion that the appellants are liable to be convicted under Section 335/34 of the Indian Penal Code instead of the offence under Section 307/149 I.P.C. The injuries were caused by the appellants in a melee where they also suffered serious injuries and it cannot be said with certainty that they intended to kill the victims. Accordingly I alter the conviction of the appellants to section 335/34 of the I.P.C. instead of Section 307/149 I.P.C.

Coming to the issue of sentence I find some of the appellants had suffered serious injuries in the course of the transaction and they do not have criminal antecedents. The incident also occurred three decades ago and two of the appellants have died in the meantime. Injuries were caused during a free fight and the appellants do not act with extreme cruelty or depravity of the instant case.

Accordingly I am of the opinion that further custodial sentence is not necessary in the instant case. The appellants had already suffered incarceration for more than a month during the investigation and trial of the case. Hence, I modify sentence of appellants (except appellant No. 12 and 16), namely, Jela Rahaman, Chand Mahammad to imprisonment already undergone and direct them to pay a fine of Rs. 5,000/- each in default, to suffer imprisonment for 15 days more. Fine, if deposited, shall be paid to P.W.4 or his legal heirs. The period of imprisonment suffered by the appellants shall be set off against substitute sentence under Section 428 Cr.P.C.

Accordingly, the appeal is allowed to the above extent.

Let copy of the judgment along with LCR be sent down to the trial Court at once for compliance and execution of the sentence in accordance with law.

The bail bonds of the appellants (except appellants No. 12 & 16) and cancelled and they are directed to surrender before the trial Court and pay the fine, as aforesaid, within a month from date.

Urgent certified photocopy of this order, if applied for, be delivered to the learned advocate for the petitioner, upon compliance of all formalities.