Sattar Sk., Abdus Sattar Sk. vs State of West Bengal

Rajarshi Bharadwaj, J.

The Appeal is directed against the judgment and order of conviction dated 22nd December, 2008 and 23rd December, 2008 passed by learned

Additional District & Sessions Judge, Fast Track 4th Court, Jangipur, Murshidabad in connection with Sessions Case No. 36/07 (47/06) and Sessions

Trial No. 10th June of 2007 convicting the appellant for commission of offence punishable under sections 326/307 of the Indian Penal Code.

Prosecution case as unfold in the complaint lodged by Hasil Seikh is that on 19th June, 2004 at about 6 a.m. at Babugram a quarrel took place over the

issue of bullock cart and at that time the accused Alimuddin and some other anti-socials armed with lathi, bombs and pistols appeared there and fired

at the wife of the brother of the de facto complainant in front of his house. As a result, she fell down. Besides that, the said persons also assaulted the

de facto complainant Hasil Seikh and his brother. The said persons also assaulted the para people who rushed there to solve the problem. According

to the de facto complainant, the accused Sattar Sk. fired from his pistol and Alimuddin Sk. assaulted with lathi.

Besides that other accused persons, whose names were disclosed by him in the F.I.R., namely Sorful Sk., Abdul Khayer Sk., Mortuza Sk. and

Jahangir Sk., were also present at the place of occurrence. Over the said issue, the de facto complainant submitted written complaint to the Officer-

in-Charge of Sagardighi Police Station, who after receiving the said written complaint started Sagardighi P.S. Case No. 83/94 dated 19th June, 1994

under section 326/307/323/34 of the Indian Penal Code read with section 25/27 of the Arms Act against the accused persons. Thereafter, on

completion of investigation, the Investigating Officer of this case submitted a charge-sheet against the accused persons namely, Sattar Sk., Sorful Sk.,

Abdul Khayer, Mortuza Sk., Alimuddin Sk. and Jahangir Sk. for committing offence under section 326/323/307/34 of the Indian Penal Code showing

the accused Sattar Sk., Sorful Sk., Abdul Khayer and Mortuza Sk. as absconders.

It appears from the lower court record that the absconders accused persons appeared before the lower Court. It also appears from the lower court

record that the lower Court committed this case before the learned Additional Sessions Judge, Jangipur since offence is trialable exclusively by the

learned Sessions Judge. The order no. 7 dated on 30th April, 2007 passed by the learned Additional Sessions Judge shows that the said Court

transferred the case before the Additional Sessions Judge, 4th Fast Track Court, Jangipur, Murshidabad for trial.

Thereafter, the Additional Sessions Judge after perusing the materials in case diary and record and after hearing the learned Counsel of bothsides, has

framed charge against the accused persons for committing of offence under sections 323/326/307/34 of the Indian Penal Code and accordingly

contents of the said charge were read over and explained to them, to which they pleaded not guilty and claimed to be tried. Defence case, as it

appears from the trend of cross-examination and the statement made under section 313 Cr. P. C. was denial of the prosecution case, plea of

innocence and of false implication out of rivalry.

Mr. Phiroze Edulji, learned Advocate appearing on behalf of the appellant has submitted that the Court below had acted illegally by imposing sentence

for the commission of offence punishable under Section 326/307 of the Indian Penal Code on the charge that the appellant fired upon the person of the

complainant, though the police authority did not seize any arms and did not submit charge sheet under Section 25/27 of the Arms Act and as such the

probability of giving sentence on the aforesaid ground is absolute illegal and bad in law.

He has further submitted that the learned Judge acted illegally by disbelieving the statement of P.W.2, P.W.3, P.W.4, P.W.7 and P.W.13, who were

supposed to be the independent witnesses and the independent witnesses categorically described that on 19th June, 2004 a dacoity was committed in

the house of Tasher Sk. by some unknown persons and as a result, the bullet injury was caused upon the person of the complainant. He also submitted

that the learned Judge failed to consider the fact that the injured person namely Rejia Bibi and her persons never stated before the doctor that she

sustained bullet injury caused by the appellant.

The learned counsel points to the theory of “Causa Causans†which literally means primary cause or the originator of action. It is the foundation

of all causes. It refers to the immediate cause that resulted in the damage. According to him, the prosecution had not been able to prove that the house

of P.W. 10 was damaged by the right wheel of the bullock cart of the accused Alimuddin or that a scuffle took place subsequent to the said damage.

If the cause for shooting was disbelieved, then the consequent acts attributed to the appellant must and shall fail.

He has prayed for setting aside the order of conviction and sentence and for acquittal of the appellant. On the other hand, Mr. Abhra Mukherjee,

learned advocate appearing for the state submitted that the prosecution has established the charge against the accused persons beyond shadow of

doubt as the prosecution witnesses, who were declared hostile witnesses, gave evidence in support of the prosecution case. Thus, the

accused/appellant should be convicted for commission of alleged offence. He has prayed for dismissal of the appeal. It appears from the record that

the prosecution has examined as many as 16 witnesses and also proved several documents which have been marked as exhibit 1 to exhibit 5/1, in

order to prove it’s alleged charge against the accused persons.

P.W. 1, Hasil Sk./defacto complainant of this case has categorically stated in his evidence that quarrel took place between his elder brother, Hasan

Sk. @ Kalu (PW. 10) and accused Alimuddin Sk. over the issue of damaging his mud wall by the bullock cart of the accused and on hearing chaos, he

along with his younger brother Taser Sk. (P.W. 9) and his wife Rajia Bibi (P.W. 11) came out from the house. At that time his younger brother Taser

Sk. tried to push him and his wife Rajia Bibi inside his house and at that time the accused Sattar fired from his pistol attempting at his younger brother

but Rajia Bibi sustained the said gun shot in her abdomen.

The accused Mortuza also hurled bomb. On arrival of public, the accused persons fled away by hurling bombs. Then they removed Rajia Bibi at

hospital for treatment, where from she was referred to Berhampore District Hospital. Thereafter, he along with Kutubuddin had been at Sagardighi

P.S. and submitted written complaint, which has been marked as exhibit-1. During cross-examination, P.W.1 has admitted that Rajia Bibi sustained

bleeding injury and fell down on the road. He has denied as the suggestion put by the defence counsel that Rajia Bibi did not sustain bullet injury fired

by the accused Sattar and also denied no incident took place as alleged.

The evidence of P.W. 2, P.W. 3, P.W. 4, P.W. 7 and P.W. 10, shows that they did not support the prosecution case and thus they are declared hostile

witnesses by the Additional Sessions Judge on the prayer of the prosecution and accordingly they were cross-examined by the prosecution.

The evidence of P.W. 5, Nur Md. Sk. goes to show that he has strengthened the prosecution case by giving consistent evidence regarding

occurrence. According to him, on 19th June, 1994, at about 6 a.m. after hearing chaos, he started proceeding towards the spot and found scuffling

between Kalu Sk. and the accused Alimuddin and at that time Din Mohammad, Taser Sk. and his wife were trying to separate them and subsequently,

other accused persons appeared there with bomb, pistol and other weapons. Then, the accused Mortuza hurled bomb and accused Sattar fired from

his pistol at the direction of the accused Mortuza causing injury on the person of Rajia Bibi and on hearing hue and cry when para people started

coming to the spot, the accused persons started leaving by hurling bombs. Thereafter, injured Rajia Bibi was removed at Jangipur S.D. Hospital for

treatment. He has identified the accused persons in open court.

During cross-examination, he admitted that a Criminal Case was pending against his son before the court of law and also disclosed that there was pool

of blood at the place of occurrence as Rajia sustained bullet injury on her person. The evidence of P.W. 6, Abdul Kasem shows that on 19th June,

1994 at about 6 a.m. after hearing hue and cry and sound of bomb blast he went to the spot and found the accused Mortuza having a bag containing

bombs and Sattar with a pistol in his hand and were leaving the spot. He also found Rajia was lying with a pool of blood on the road, who

subsequently, removed at Jangipur Hospital. From the evidence of P.W.6 it is clear that he was not present at the spot when occurrence was going on

but after occurrence he rushed to the place of occurrence and found Rajia in injured condition lying on the road.

The evidence of P.W. 8, Din Mohammad Sk., shows that he has also strengthened the prosecution case by giving details evidence as to occurrence,

involvement of the accused person and causing injury on the person of Rajia by the accused Sattar by firing from his pistol. According to him, on 19th

June, 1994, at about 6 a.m. when he was going to the field to attend his nature’s call, he found that the accused Alimuddin was taking paddy in his

bullock cart through the road and at that time wheel of the said bullock cart damaged the mud wall of the Kalu. Thus, Kalu restrained the said bullock

cart asking the accused Alimuddin to pay compensation for causing damage of his mud wall otherwise he would not allow him to go.

Thus, scuffling started between them and then he tried to separate them and suddenly the accused Alimuddin hit on his head by small piece of lathi

and thereafter on hearing chaos, the accused Soriful, Jahangir rushed to the spot to solve the dispute and by that time, the accused Mortuza, having a

bag containing bombs and the accused Sattar having a pistol in his hand, appeared at the spot and started shouting, saying “Dhar Salake, Mar

Salake†and then and there the accused Mortuza hurled bombs and the accused Sattar fired from his pistol targeting Kalu and Taser but

unfortunately Rajia Bibi, who was standing there, received the said bullet injury on right side of her waist and on hearing the sound of explosion of

bombs, para people started coming towards the spot and on seeing the para people, the accused started leaving the spot by hurling bombs. Thereafter,

he and Hasil Sk. took injured Rajia Bibi to Jangipur Hospital for treatment, where Rajia got admission and he and Hasil Sk. were discharged after

getting first aid. Thereafter, he along with Hasil Sk. and Kutubuddin went to the Sagardighi P.S. for lodging complaint, where Hasil Sk (P.W.1)

submitted the same to the duty officer. He identified the accused persons in the open court. He has also disclosed that subsequently, he came to know

that Rajia Bibi was transferred to Berhampore Sadar hospital from Jangipur hospital as her condition was critical.

During cross-examination, he admitted that there was pending Sessions Case against him before the Additional Sessions Judge, Jangipur. He also

admitted that he identified the place of bomb blast to the Investigating Officer during investigation and also incriminating articles of bomb. He has

denied that he deposed falsely against the accused. The evidence of Tashir Sk.(P.W.9), younger brother of the de facto complainant shows that he

gave details in his evidence as to occurrence, involvement of the accused persons and causing injury on the person of Rabia Bibi by firing by the

accused Sattar.

According to his evidence, it is found that after hearing hue and cry, he along with his elder brother and his wife came out from the house at about 6

a.m. about 10-11 years back and found scuffling was going on between his elder brother Kalu Sk. and the accused Alimuddin Sk. over the issue of

causing damage of mud wall of house of his elder brother by the bullock cart of the accused Alimuddin Sk. Thus, they tried to separate them and by

that time, the accused Mortuza having a bag, containing bombs and the accused Sattar armed with pistol in his hand, appeared at the spot and

suddenly the accused Mortuza charged bomb and the accused Sattar opened fire targeting his elder brother Kalu Sk. but unfortunately his wife Rajia

Bibi, who was standing there, received the said bullet injury on her right side of waist. Thus, she fell down. Thereafter, he, along with other para

people removed his wife at Jangipur Hospital for treatment but considering her critical condition, the Jangipur Hospital authority referred her to

Berhampore Sadar Hospital, where she was under treatment for many days.

During cross-examination he admitted that he was an accused in G.R. Case No. 207/07. He also admitted in cross-examination that the accused

Mortuza Sk. charged bomb in open place in order to create panic and not to make any injury to any person in gathering. He further admitted that his

wife Rajia Bibi sustained bullet injury during occurrence. He denied the suggestion of the defence that what he deposed in evidence in chief, were not

correct and he deposed falsely.

P.W. 11, Rajia Bibi wife of Taser Sk., the victim of this case deposed before this court that the alleged incident took place at about 6 a.m., 12-13

years back in front of the house of her Bhasur, namely, Kalu Sk. and on hearing hue and cry, she along with her husband Taser Sk. and her Bhasur

(P.W. 1) came out from house and found scuffling was going on between her Bhasur Kalu Sk. and Alimuddin Sk. and the accused persons namely

Jahangir, Sorful were trying to separate them and by that time the accused Mortuza having a bag containing bombs and the accused Sattar with a

pistol in his hand appeared there and started shouting, saying, “Dhar Salake, Mar Salakeâ€. Then the accused Mortuza charged one bomb at the

spot and accused Sattar fired from his pistol, targeting his Bhasur Kalu Sk. However, he could escape but she sustained the said bullet injury at her

right side of waist with bleeding. As a result, she fell down. Thereafter, she was taken at Jangipur Hospital for her treatment by her husband, Din

Mohammad and Kutubuddin and since her condition was critical she was referred to Berhampore Sadar Hospital, where she was under treatment for

many days.

During cross-examination, she admitted that she saw the incident about 20-30 cubits away from the place of occurrence. She had denied that she did

not sustain bullet injury during occurrence. She had also denied that she sustained the bullet injury on the previous night of the alleged incident during

dacoity, which took place in their house. She had further denied that she was a tutor witness and deposed falsely. The evidence of P.W. 12, Enamul

Haque shows that he gave detailed evidence in support of the prosecution case. According to him, about 12-13 years back at 6 a.m. on hearing hue

and cry, he came near the house of Kalu Sk. and found scuffling was going on between Kalu Sk. and Alimuddin Sk. over the issue of bullock cart of

the accused Alimuddin Sk. and at that time Din Mohammad, Jahangir, Sorful, Taser and Hasil Sk. were trying to separate them and at that time, Rajia

Bibi was standing near the place of occurrence and by that time, the accused Mortuza and Sattar came out from the village towards the spot, having a

bag containing bombs and pistol and started shouting, saying, “Dhar Salake, Mar Salakeâ€, and then the accused Mortuza charged in one bomb and

the accused Sattar opened fire from his pistol targeting Kalu Sk. but Rajia Bibi who was standing there, sustained the said bullet injury on her person

resulting her falling down on the road. Thereafter, Din Mohammad, Kutubuddin and other persons removed Rajia Bibi at Jangipur Hospital for

treatment. Subsequently, he came to know that Rajia Bibi was transferred to Behrampore Hospital as her condition was critical. He has identified the

accused persons in open court.

During cross-examination, he admitted that there were two criminal cases pending against him before the learned A.C.J.M., Jangipur. He had also

stated that he identified the place of occurrence to the investigating officer. He had denied in cross-examination that he deposed falsely against the

accused persons as they raised protest against his illegal activities. The evidence of P.W. 13, Samsuddin Sk., shows that occurrence took place in

front of the house of Taser Sk., 12-13 years back. Besides that, he disclosed nothing about this case.

The evidence of P.W. 14, Dr. Asamuddin Biswas goes to show that on 19th June, 1994, he examined one Rajia Bibi aged at about 30 years, wife of

Taser Sk. of village Babugram and considering her critical condition, he referred the said patient to Berhampore New General Hospital for better

treatment on the same date. He had proved the said referral letter, written and signed by him, marked as exhibit 2. From the exhibit 2, it is found that

the said patient Rajia Bibi sustained bullet injury.

The evidence of P.W. 15, Dr. Nirmal Kr. Saha, shows that on 19th June, 1994, he was posted at Behrampore New General Hospital as surgeon. On

that date, one patient namely Rajia Bibi aged about 30 years, wife of Taser Sk. of village Babugram, was admitted under his care, referred by the

Jangipur S.D. Hospital. He also stated that the patient had the history of gunshot injury on the morning. On examination he found the wound of entry

over the right flank, size 4cm X 2cm. The wound was lacerated, the margin was rough and there was tattoo mark around the entry of wound. The

wound was muscle deep and the ascending colon was perforated. According to him, the said wound was grievous in nature and was caused by

gunshot. On the same date, the wound was operated in the operation theatre. A capsule of the bullet and multiple small pellets were extracted out. He

handed over the said articles to O.T. sisters. He repaired the colon and thereafter he treated the patient carefully and gradually the patient improved

and ultimately discharged on 7th July, 1994. He had also disclosed that on radiological investigation, a small pellet was found on the right lumber region

and pelvis region of the patient. He has proved the injury report-cum-bed head ticket cum operation theatre ticket, counting page nos. 37-42, which

was marked as exhibit 3 series.

During cross-examination he admitted that he did not disclose the names. The recovered capsule and pellets of the gunshot were not seen by him

inside the court room. He also admitted that tattoo mark around the entry of wound suggests that it was fired within 2-3 cubits. The evidence of P.W.

16, Kalipada Biswas, Investigating Officer of this case shows what he had done in course of investigation. According to him, one Serajul Islam Khan,

the then O.C. of Sagardighi P.S., received written complaint from Hasil Sk., and started Sagardighi P.S. Case No. 83/94, dated 19th June, 1994 under

sections 326/307/323/34 of the Indian Penal Code, read with section 25/27 of Arms Act and accordingly he filled up formal F.I.R. and endorsed this

case to him for investigation. He knew his handwriting and he proved the receiving endorsement of O.C. on F.I.R. and the formal F.I.R., filled up by

him marked as exhibit 1/1 and exhibit 4 respectively.

He had also disclosed that during investigation, he visited the place of occurrence, prepared its sketch map with index, marked as exhibit 5 and exhibit

5/1 respectively, examined the witnesses, held raid and nabbed 2 accused persons and forwarded them before the learned court, collected injury report

of Rajia Bibi from Jangipur S.D.Hospital and Behrampore N.G. Hospital but could not collect and/or recover pellets/bullet from the ward master of

Berhampore Hospital and after completion of investigation he submitted charge-sheet vide charge-sheet No. 21/95, dated 16th March, 1995 under

sections 323/326/307/34 of the Indian Penal Code against the accused persons showing the accused Sattar Sk., Sorful Sk., Abdul Khayer Sk. and

Mortuza Sk. as absconders. He denied that he did not hold investigation properly.

The evidence on records particularly P.W.8, P.W.9 and the victim lady P.W.11 clearly shows that the bullet injury on the waist of the victim was

caused by the appellant. Cross-examination of P.W.11 could not create any doubt in her evidence. Analysis of the evidence of P.W.8 & P.W.9

clearly shows that they were present at the time of incident and they were not post-occurrence witnesses. P.W. 5 has also corroborated such version.

Moreover, during cross-examination P.W.16, Kalipada Biswas, Investigating Officer stated that he could not collect the bullets from the ward master

of the hospital and failed to seize the arms from the appellant. That apart, the evidence of the victim, P.W.11 is not only corroborated by other

witnesses but also is in consonance with the findings and depositions of both the doctors, who examined her with regard to the nature of injury. Hence,

in my view, the acquittal of the co-accused cannot be the ground to disbelieve the prosecution case against the appellant, which was based on cogent

and convincing evidence.

Reliance has been placed in the case of State of Uttar Pradesh â€"vs- Krishna Gopal reported in AIR 1988 SC 2154, wherein the Apex Court held

that “a reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow

out of the evidence in the case.â€​

Reliance has also been placed in the case of Prithi â€"vs- State of Haryana reported in (2010) AIR SCW 5259, wherein the Apex Court on an

appreciation of testimony of evidence held that the presence and involvement of the accused in the incident appeared to be doubtful. However, in this

case consistent version of the eyewitnesses reflects the active role of the appellant in the assault on the victim. This substantial distinguishing feature

clearly renders the aforesaid decisions inapplicable to the fact of this case.

In view of the aforesaid fact, the appeal is dismissed. Bail bond of the appellant is cancelled. The appellant is directed to forthwith surrender before

the Trial Court and serve out his sentence in accordance with law, failing which the Trial Court shall take appropriate coercive measures to apprehend

the appellant and execute the sentence in accordance with law.

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

in terms of Section 428 of the Code of Criminal Procedure. Copy of the judgment along with Lower Court Records be sent down to the trial court at

once for necessary compliance. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all

necessary legal formalities.