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Judgment
Rajarshi Bharadwaj, J.
This appeal arose out of a judgement and order dated 7th August, 2008 and 8th August, 2008 passed by the learned AdditionalSessions Judge, 2nd
Fast Track Court, Berhampore, Murshidbad in Sessions Serial no. 846 of 2005 corresponding to Sessions Trial no. 1(8) of 2006, convicting the
appellants for commission of offence under Section 307/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for five
years and to pay a fine of Rs. 2000/- each; in default to suffer rigorous imprisonment for a further period of two months.
The prosecution case in short is that one Imdadul Alam, resident of village Sujapur, Tatlapara lodged a complaint on 30th April, 2003 before the
Officer-in-Charge, Beldanga Police Station alleging that on 29th April, 2003 at about 8 p.m. his brother Rafikul Alam was coming towards his house
from the house of Yunus Sk. of Tatlapara and on the way the accused namely, Yeasnabi Sk, Jalaluddin Sk., Motibur Rahaman, Chatibur Rahaman
and Jillar Rahaman, being armed with firearms, jhaba, lathi and iron rod etc. with a common intention attacked his brother Rafikul as per instruction of
the accused Jalaluddin and Yeasnabi, who uttered “salake peyechhi, prane mere felo†and the accused Matibur, Jillar and Chhatibur started
assaulting Rafikul indiscriminately with iron rod and lathi and his brother cried out. On hearing his crying Imdadul rushed to the place of occurrence
and found the accused persons fleeing away and his brother was lying on the pathway sustaining bleeding injury. Then he himself with the help of
Jaber Ali and Pier Sk. had removed his brother to Beldanga hospital from where he was referred to Berhampore hospital for medical treatment.
He further stated that he was busy with the treatment of his brother and that was the reason of such delay in lodging the complaint. On the basis of
the complaint, a criminal case, being Beldanga P.S. Case no. 58 of 2003 dated 30th April, 2003 was initiated and investigation was started. After
investigation charge sheet was submitted on 6th April, 2004 under Section 341/323/307/34 of the Indian Penal Code against the accused/appellants.
The case was committed before the learned Sessions Judge, Murshidabad and thereafter, the case was transferred to the learned Additional Sessions
Judge, 2nd Fast Track Court, Berhampore. Charges were framed under Section 307/34 of the Indian Penal Code against the accused/appellants and
the charges were read over and explained to the accused persons, who pleaded not guilty and claimed to be tried.
Learned advocate for the appellant submitted that the appellants were falsely implicated in the instant case as there was political and family dispute
between the parties. He further submitted that the alleged incident took place at about 8 p.m. and in the dark night there was no eyewitness of the
alleged incident. The complainant stated that while assaulting the victim, 3 or 4 weapons were used by the appellants, but none of the weapons was
seized. There was a contradictory statement with regard to the loss of sense, as the victim deposed that he lost his sense immediately after receiving
the blow, but P.W.2 deposed that the victim had sense even though he was not in a condition to talk. He also submitted that the Doctor of
Berhampore hospital, P.W.9 stated in his deposition that the injury was simple in nature and the stitch that the victim was carrying on his head, was an
old one and he could not ascertain when the stitching was done. If 3-5 persons attack one person and there is one simple injury, then the ocular
evidence is contrary to the medical evidence. Lastly, he submitted that the name of the accused Chatibur came in the picture for the first time by
P.W.3, which was contrary to the deposition of other prosecution witnesses. There was contradiction between the evidence of the prosecution
witnesses, as P.W.2 stated that the accused Matibur hit the blow, whereas P.W.3 stated that all the accused attacked the victim, where P.W.5 stated
that three accused persons hit the blow. Therefore, the prosecution failed to prove the charge under Section 307 of the Indian Penal Code beyond all
reasonable doubts. Thus, learned advocate for the appellants prayed for setting aside the order of conviction and sentence passed by the learned Trial
Judge.
Learned advocate for the State submitted that on scrutiny of the evidence it appears that P.W.5, P.W.6 and P.W.7 stated the same fact that on 29th
April, 2003 at about 7-30 or 8 p.m. when Rafikul was coming back to his house, on the way, he was attacked by the appellants and as per order of the
accused Jalaluddin and Yasnabi, the accused Matibur, Jillar and Chatibur hit blows of iron rod/crowbar on the head of Rafikul and on other parts of his
body. The de facto complainant with the help of Pier Ali and Jabed removed Rafikul to Beldanga hospital and considering the seriousness of the
wounds, Rafikul was taken to Berhampore hospital. He further submitted that P.W.7 Pier Ali, being an independent witness, claimed that he had seen
the incident of assault caused by the accused
persons on the victim. It is proved from the evidence of P.W. 9 that the victim was examined and admitted at Beldanga hospital and on the next day
he was referred to Berhampore hospital for medical treatment. He also submitted that the accused persons had a common intention to cause assault
on Rafikul with crowbar, lathi etc. and hit blows on the head of the victim that would cause death of the victim and therefore, the acts and activities of
the accused persons obviously come within the purview of Section 307 of the Indian Penal Code and the prosecution has been able to prove the case
beyond all reasonable doubts. Thus, learned advocate for the State prayed for dismissal of the appeal.
The prosecution examined as many as 10 witnesses. P.W.1 Rafikul Alam, victim of this case deposed in his evidence that on 29th April, 2003
between 7.30 and 8 p.m. he was coming back towards his house from the house of Yunus Sk and on the way he was attacked by the accused
persons. He stated that Yasnabi and Jalal ordered his sons namely Motibur Rahaman and Jillar Rahaman to assault him saying “Ai salake marâ€.
Then Matibur hit the blows of crowbar on his head, Jillar and Matibur assaulted him indiscriminately with the help of lathis. Due to such assault he
received fracture injuries on his head and he fell down on the earth and he lost his sense. Then he was removed to Beldanga hospital for medical
treatment, afterwards he was taken to Berhampore hospital for better medical treatment and he was admitted there for 12 days. The accused
persons, who assaulted him, were present in Court and identified.
During cross-examination he stated and when he was coming back to his house through the pathway, all on a sudden Yasnabi and Jalal uttered “Ai
salake marâ€. Immediately after such uttering, he received the blow of crowbar hit on his head and he also received the blows of lathis on his back.
Immediately after receiving such assault, he fell down on the pathway and lost his sense. He regained his sense at the hospital. He could not say what
happened between the period from loosing his sense till regaining the sense at the hospital. He stated that he did not have any political colour.
P.W.2, Safikul Alam, brother of the victim deposed that on 29th April, 2003 in the evening between 7.30 p.m. and 8 p.m. his elder brother Rafikul was
coming back towards his house from the house of Yunus Sk., at that time Yasnabi, Jalal, Matibur and Jillar being armed with lathi, crowbar etc.
attacked his elder brother Rafikul. Matibur hit the blows of iron rod on the head of his elder brother and then Rafikul started to shout. Immediate after
arrival at the place of occurrence on hearing such shout of his elder brother, the accused persons fled away. He found that his elder brother was lying
on the pathway and he had removed to Beldanga hospital for medical treatment, thereafter he was removed to Berhampore hospital for better medical
treatment.
During cross-examination P.W. 2 stated that his house was situated at the little distance from the house of his elder brother intervening by the house
of Yasnabi. When he arrived at the place of occurrence he found the accused persons already assaulting his elder brother and he had seen the
incident from his house. On seeing the incident immediately he rushed to the place of occurrence. When he arrived at the place of occurrence he
found his elder brother Rafikul had the sense but he was not in a position to talk. At the time of shouting he arrived at the place of occurrence. He did
not have any political colour. Yunush, Jabed and others had assembled at the place of occurrence, but he did not notice the name of others. He was
examined by the Investigating Officer and he made statement to the Investigating Officer. He did not state to the I.O. that there was altercation
between his brother Imdadul and Matibur, son of Yasnabi.
P.W.3, Yunush Sk. deposed in his evidence that he knew the incident which took place between Rafikul and the accused persons. On 29th April, 2003
at about 7/7.30 p.m. Rafikul was coming back from his house, on the way nearby the house of Rafikul and Yasnabi, as per instruction of Yasnabi,
Matibur, Jhilli, Satibur attacked Rafikul and hit blows of crowbar on his head and as a result Rafikul received fracture injury on his head and blood was
oozing out from the said wound. Thereafter, Javed, Piar, Imdadul removed the injured Rafikul to Beldanga hospital and then Rafikul was taken to
Berhampore hospital for medical treatment.
During cross-examination, P.W. 3 stated that his house was about 80 metres away from the house of Rafikul. Then there was house of Yasnabi, the
house of Ajmal and there was the house of Mohid Sk. towards his house. The distance between his house and the house of Mohid was 50 metres.
P.W.4, Jahangir Sk. deposed in evidence that he knew about the incident between Rafikul and the accused persons but he was not present at the
place of occurrence at that time. In cross-examination he stated that Matibur was the son of Yasnabi and daughter of Yasnabi was the wife of Saheb,
brother of Rafikul. After the marriage between the daughter of Yasnabi and Saheb, their marital relation was not good and therefore, Saheb was not
providing any maintenance to his wife and for that reason, daughter of Yasnabi was residing at her paternal house.
P.W.5, Jabed Ali deposed that he knew the incident which occurred on Rafikul about 3 years back in the night at about 8 p.m. in front of the house of
Rafikul. On hearing such incident he went to the place of occurrence and found Rafikul lying on the pathway in front of his house sustaining bleeding
injuries all over his body. On being asked Piar and Imdadul, they stated him that as per order of Yasnabi and Jalal, Matibur, Jhilli and Chhatibur hit
blows of iron rod on Rafikul. Then he himself, Imdadul and Piar removed Rafikul to Beldanga hospital by a Van Rikshaw. Thereafter, Rafikul was
removed to Berhampore hospital for medical treatment.
P.W.6, Imdadul Alam, de facto complainant of this case deposed that Rafikul was his elder brother. Three years back in the night at about 8 p.m. his
elder brother Rafikul was coming towards his house from the house of Yunus and at that time he was standing in front of the house of Rafikul. When
Rafikul was on the way to his house, Jalal cried out by saying “Mar salakey†and immediately thereafter Chatibur, Matibur, Jhilli hit blows of iron
rod on the head of his elder brother Rafikul and also on other parts of his body. Rafikul received bleeding injuries on his head, fell down on the ground
and lost his
sense on the pathway. On seeing assault on his elder brother he shouted for help to save Rafikul from the accused persons. Then the accused persons
fled away. Thereafter, the de facto complainant, Pier Ali and Javed removed his brother Rafikul to Beldanga hospital and considering his serious
condition Rafikul was removed to Berhampore hospital, where he was admitted for 11 days. On the next day he lodged a complaint before the
Officer-in-Charge of Beldanga Police Station. Since he was engaged with the medical treatment of his elder brother Rafikul, he could not lodge
complaint on the relevant night.
P.W.6 stated in the complaint that at the time of the incident he was standing in front of the house of Rafikul. He stated in the F.I.R. that when he
cried out soliciting help of others to save his brother from the clutches of the accused persons on hearing his cries Jaber and Piar came to the spot. He
stated that on hearing the cries of his elder brother Rafikul, he went to the place of occurrence. It is admitted that when he reached to the place of
occurrence, he found his elder brother Rafikul was lying on the pathway sustaining injuries.
P.W.7, Piar Ali corroborated the evidence of P.W.5 and P.W.6. During cross-examination P.W.7 stated that when he arrived at the place of
occurrence, he found one or two person already there but he could not recollect their names. On hearing the shouts when he had been to the place of
occurrence, he found that a “marpit†had already started and due to such “marpit†Rafikul received injuries on his person.
P.W.8, Mahimamul Haque, Sub-Inspector of Beldanga Police Station deposed in his evidence that he received a written complaint from one Imdadul
Alam and on perusal of the complaint, he initiated Beldanga P.S. Case no. 58 of 2003 dated 30th April, 2003 under Section 341/325/307/34 of the
Indian Penal Code against the accused persons. He filled up the formal F.I.R., which was marked as Ext. 1 /2. Then he endorsed the case to
Assistant Sub-Inspector, Biswanath Majumder for investigation.
P.W.9, Dr. S.K. Sen deposed that on 30th April, 2003 he was posted at N.G. Hospital, Berhampore. On that date at 12-05 hours he examined one
Rafikul Alam and on examination he found injury over his scalp, which was already stitched and the injury was simple in nature. He stated that since
the injury was already stitched, it was difficult for him to ascertain whether the said injury was sharp cutting or not. The patient was discharged from
the hospital on 9th May, 2003. The discharged certificate was marked as Ext.2.
P.W.10, Biswanath Majumder, Assistant Sub-Inspector of Beldanga Police Station deposed that on 30th April, 2003 he was endorsed Beldanga P.S.
Case no. 58 of 2003 under Section 341/323/307/34 for investigation against the accused persons. During investigation he visited the place of
occurrence and arrested the accused persons and forwarded them to the learned Sub-Divisional Judicial Magistrate, Berhampore. He collected the
injury report and drew up a sketch map of the place of occurrence with index, which was marked as Ext.4. He submitted the charge sheet against the
FIR named five accused persons under Section 341/323/307/34 of the Indian Penal Code.
On perusal of the evidence on record, it appears that there was political rivalry between the parties and also there was marital dispute between the
victim’s brother Saheb and daughter of the accused Yasnabi. The appellants in furtherance of common intention with each other being armed with
lathi, iron rod, crowbar etc. had chosen the darkness of the evening and attacked the victim Rafikul and started assaulting him with crowbar and lathi,
when no public was made available nearby the place of occurrence and when the victim was alone proceeding towards his house from the house of
Yunus. Even there was intention of the accused persons that they would eliminate Rafikul from the land of living and accordingly, they hit the blows of
crowbar on the scalp of the victim. It appears from the unequivocal evidence of P.W.9, the doctor who treated the victim for 10 days at N.G.
Hospital, Berhampore that the injury was on the victim’s scalp. Rafikul Alam, P.W.1, the victim categorically noted in his evidence on record that
the appellants had attacked him and hit the blow on his head on that fateful night and therefore, I am of the opinion that there is no conflict between
the ocular version and the medical version, as aforesaid in the instant case.
Coming to the ocular evidence, it was strongly argued that P.W.2, P.W.3, P.W.6 and P.W.7 ought not to be relied upon as all the above eyewitnesses
are relations of the victim and there was an enmity between the parties. But the evidence of the victim P.W.1 is clear and convincing and is also
supported by the evidences of P.W.2, P.W.3, P.W.6 and P.W.7, which remained unshaken in cross-examination and they explained the incident
vividly as all the appellants and the eyewitnesses are relatives and known to each other. The corroboration of P.W.1 and that of other witnesses
namely, P.W.2, P.W.3, P.W.6 and P.W.7 lend credence to the victim’s evidence and in the light of such corroboration on record, I do not have
any doubt as to the truthfulness of P.W.1, the victim in the instant case.
Accordingly, I uphold the conviction and sentence imposed on the appellants. In the event, the appellants are not in custody, their bail bonds shall be
cancelled and they shall be taken into custody to serve out their remaining sentences in accordance with law. The appeal, being CRA 582 of 2008, is
dismissed. Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed
upon them in terms of Section 428 of the Code of Criminal Procedure. Copy of the judgment along with LCR 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.