Halim Hanif Sk. vs State Of West Bengal & Ors.

Joymalya Bagchi, J.

At the time of admission of appeal a rule of enhancement of sentence was issued. Hence, the appeal along with rule is taken up for hearing

analogously. The appeal is directed against the judgment and order dated 30.01.2013 passed by the learned Additional Sessions Judge, 2nd Court,

Murshidabad at Berhampore in Sessions Serial no. 411/2006 (Sessions Trial No. 04 of September, 2010) convicting the appellant for commission of

offence punishable under Sections 307 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 10 years and to pay a fine of

Rs.3,000/-, in default to suffer further rigorous imprisonment for three years more.

The prosecution case, as alleged, against the appellant is to the effect that on 19.8.1991 around 5 p.m. the appellant along with Md. Ayub Sk and Md.

Ismadi Sk. upon instruction of their father Tahajuddin Sk. assaulted the victim Md. Aitul Sk. on different parts of the body with hansua out of old

grudge and as a result his abdomen was split open and his intestine came out. His condition was very serious and he was shifted to hospital. On the

written complaint of his brother Wadul Sk. (P.W. 2) FIR was registered against the appellant and other accused persons being Rejinagar P.S. case

no. 99 dated 19.8.91 under section 326/34 IPC. In conclusion of investigation, charge-sheet was filed against he appellant and three other accused

persons under sections 326/307/34 IPC. The case being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of

Additional Sessions Judge, 2nd Court, Murshidabad for trial and disposal.

Charges was framed against the appellant and other accused persons under sections 307/34 IPC. The appellant and the co-accused persons pleaded

not guilty and claimed to be tried. In course of trial, prosecution examined 14 witnesses and exhibited a number of documents. Defence of the

appellant and co-accused persons was one of innocence and false implication. In conclusion of trial, learned trial judge by judgment and order dated

30.01.2013 convicted and sentenced the appellant as aforesaid. However, by the self same judgment and order, the other co-accused persons were

acquitted of the charge levelled against them.

Mr. Chakraborty appearing with Mr. Purkayasta for the appellant submitted that while version of the prosecution witnesses were believed qua the

appellant, the trial judge disbelieved them with regard to the roles of the other accused persons and acquitted them. Such stance of the trial Court was

impermissible both in fact and in law. It is also submitted that the doctor before whom the victim was first treated has not been examined in court. He

also argued that there was a quarrel between the parties and it cannot be said that the appellant had intended to kill the victim. He, accordingly, prayed

for acquittal.

On the other hand, Mr. Ganguly along with Mr. Ghatak appearing for the State submitted that the evidence of the witnesses including the injured

(P.W. 8) was clear, convincing and consistent. It cannot be said that the appellant stood on the same footing with the co-accused persons who have

been acquitted. Evidence of the prosecution witnesses is corroborated by medical evidence. Hence, the prosecution case has been able to prove

beyond reasonable doubt. They, accordingly, prayed for dismissal of the appeal and enhancement of sentence.

P.W. 8 Aitul Sk. is the injured witness in the instant case. He deposed that on the fateful day around 4.35 p.m. he came out from his house after

taking meal. On the road near a Bakul tree he found Ayub along with others standing near the shop of Helal (P.W. 1). When he reached near them,

Tahajuddin asked the other accused persons to kill him. Halim gave a blow on the upper portion of his right arm with hasua. He wanted to know the

reason why he assaulted him. Without giving any reply, Halim again gave a blow on the back of his neck. He tied to resist with his left hand and he

received the blow on his left palm. As a result his left thumb was cut off. Thereafter, Halim gave another blow on the back of his neck.

Halim also gave a blow of hasua on the left side of his waist near the abdomen. He fell down. His viscera along with undigested food came out of his

abdomen. Thereafter, on hearing the hue and cry the local people came and the miscreants fled away. Abul Kasem, Wadul, Najrul, and others came

there. Local people took him under the Bakul tree. The tree is situated at a distance about 20/30 yards from the place of occurrence. He was

removed to Beldanga hospital in a matador. The doctor referred him to Berhampore hospital. He was taken to Berhampore hospital. He stayed at

Berhampore hospital for one month for medical treatment. On the next night the doctor asked him whether he was in a position to say anything. He

narrated the entire incident to the doctor. The doctor recorded his statement.

P.W 2, Wadul Sk. is the brother of the victim and informant in the instant case. He deposed that on the date of the incident around 5 p.m. he was

gossiping with Gani (P.W. 9), Nazrul (P.W. 5) and Manu under a bakul tree. The appellant, his brother Ayub and Imamuddin came there with hasuas

in their hands. At that time his brother Aitul was coming from his house after taking meal. The appellant gave a blow on the abdomen of his brother as

well as on both his arms with hasua. Right thumb of the victim was cut off. They raised hue and cry and the miscreants fled away. Due to the blow

viscera of the victim had come out. They lifted the victim and took him to Berhampore New General Hospital in a matador. His youngest brother

Kasem Sk. accompanied them to the hospital. He asked Kasem to make arrangement for admission of his injured brother and came to the P.S. by bus

and narrated the incident. Daroga Babu recorded the complaint as per his narration.

He put his LTI on the complaint. Thereafter Darogababu came to the place of occurrence at about 8.30 p.m. He seized blood stained earth from the

place of occurrence under a seizure list. He put his LTI on the seizure list. On the next morning at about 11 a.m. he went to see his brother at

Berhampore New General Hospital. Darogababu came to the hospital. He seized the blood stained wearing apparels of his brother under seizure list.

His brother stayed for 15 days in the hospital for medical treatment. Evidence of P.W 2 is corroborated by Nazrul (P.W. 5) and Gani (P.W. 9) who

were present with him, at the spot. His evidence is also corroborated by P.W. 7, Abul Kashem an independent witness and P.W.11, Gulnehar Bibi, the

sister of the victim. Helal (P.W. 1) was, however, declared hostile. P.W. 14, Dr. Debashis Bhattacharjee deposed that on 19.8.1991 one Aitul Sk. was

admitted under him. He was referred from Beldanga B.P.H.C. He proved the emergency ticket of Aitul Sk. (Ext.6). He was admitted with abdominal

injury and chest injury. From the O.T. notes he found the following injuries:-

(1) one 8†long transverse incised wound over abdomen just 1†below umbilicus dividing anterior-wall of full stomach to about 8 to 9†which was

sutured and the wound closed;

(2) one 6½â€​ long incised wound just above left iliac crest dividing the muscles and exposing the peritoneum which was repaired;

(3) left thumb was almost separated from the base of proximal phalanx and as such it was removed;

(4) there was a sliced off injury on left fore-arm with division of a vein which was sutured and

(5) incised wound about 7â€​ x 2â€​ x muscle deep over right deltoid region that was also sutured.

The injuries were grievous. Such type of injuries can be life threatening. General condition of the patient was poor. The patient recovered and was

discharged on 19.9.91. He proved the O.T. notes (Ext.8 series). He also proved emergency ticket (Ext.9). The patient told him while he was going to

Dadpur the appellant assaulted him at the command of his father with hansua and stabbed him repeatedly. From the evidence on record, it appears

that the version of assault as narrated by the injured witness, P.W.8, is not only corroborated by his relations, P.W.2 and P.W.11 but also by other

independent witnesses, namely, P.W.5, 7 and 9. The ocular evidence of the said witnesses find corroboration from the medical evidence of P.W.14

who found injury on the abdomen as well as on the chest of the victim.

The genesis of the assault upon P.W.8 by the appellant is, thus, wholly established in the facts of the case. It has been argued that while other

accused persons were acquitted on the selfsame evidence the appellant had been convicted. I have examined the evidence of the witnesses. Version

of the witnesses with regard to complicity of the other accused persons including the father Tajuddin Sk. appears to lack consistency whereas there is

no doubt that their versions unequivocally put responsibility of the assault on the appellant alone. Hence, the appellant does not stand on the same

footing as the co-accused persons who have been acquitted in the instant case and his conviction cannot be faulted on such score. Learned counsel

appearing for the appellant has strenuously contended that the doctor who treated the victim at Beldanga Hospital has not been examined. Failure to

examine the said witness, in my considered opinion does not affect the unfolding of the prosecution case which is squarely founded on the deposition

of the injured victim (P.W. 8) corroborated by other eyewitnesses and the medical evidence of P.W.14, who treated the victim.

In the light of the aforesaid discussion, I upheld the conviction of the appellant. With regard to the sentence imposed on him, I find that the incident

occurred due to a long standing quarrel. The appellant does not have criminal antecedent. In the backdrop of the aforesaid facts, I am loathe to

enhance the sentence imposed on the appellant which in my opinion is proportionate and justified. Thus, sentence imposed by the trial Court is upheld.

Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in

terms of 428 of the Code of Criminal Procedure. Accordingly, the appeal is dismissed. Rule is discharged. Copy of the judgment along with L.C.R. be

sent down to the trial court at once. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all

necessary legal formalities.