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CALCUTTA HIGH COURT
JOYMALYA BAGCHI, J.
Bazler Rahaman Munsi and Ors. – Appellants
Vs.
State of West Bengal – Respondent
C. R. A. No. 642 of 2011
Decided On : 05/09/2014
ATTEMPT TO COMMIT CULPABLE HOMICIDE - SECTION 308 OF THE INDIAN PENAL CODE - EVIDENCE ACT, 1872 - SECTION 134 - SECTION 323 AND 324 OF THE INDIAN PENAL CODE - INFERENCE FROM EVIDENCE - CONVICTION AND SENTENCE - SEVERITY OF PUNISHMENT.
Fact of the Case:
The appellants were convicted for commission of offence punishable under section 308/323/324 of the Indian Penal Code. The prosecution alleged that the appellants assaulted the victim with a sharp-edged weapon causing multiple injuries.
Finding of the Court:
The court found that the prosecution had proved beyond reasonable doubt that the appellant No. 1 had assaulted the victim with a sharp-edged weapon causing multiple injuries. However, the court acquitted the appellant Nos. 2, 3 and 4 as there was no evidence that they had shared a common intention with the appellant No. 1 to assault the victim.
Issues: Whether the prosecution had proved beyond reasonable doubt that the appellants had committed the offence punishable under section 308/323/324 of the Indian Penal Code.
Ratio Decidendi: The court held that the evidence of the injured witness was corroborated by other witnesses and medical evidence. The court also held that the non-seizure of the weapon of assault and other aspects of remissness of investigation would not affect the credible version of the injured witness when it is supported by medical evidence.
Final Decision: The court allowed the appeal in part. The appellant Nos. 2, 3 and 4 were acquitted of all the charges levelled against them. The conviction of appellant No. 1 was upheld, but the sentence was reduced.
The appeal is directed against the judgement and order dated 22/23.11.2011 passed by the learned Additional Sessions Judge, Fast Tract Court No. 5, Barasat (North) 24 Parganas convicting the appellants for commission of offence punishable under section 308/323/324 of the Indian Penal Code and directing them to suffer rigorous imprisonment for seven years with fine of Rs. 5,000/- each, in default to suffer further imprisonment for six months for the offence punishable under section 308 of the Indian Penal Code, to suffer rigorous imprisonment for six months for the offence punishable under section 323 of the Indian Penal Code and to suffer rigorous imprisonment for one year for offence punishable under section 324 of the Indian Penal Code, all the sentences to run concurrently.
2. The prosecution case, as alleged, against the appellants is as follows :
On 17.10.1996 one Md. Raijul Islam (P.W. 1) lodged a complaint alleging that on the selfsame date at about 4/4.30 p.m. when his brother-in-law Md. Khatib Munshi (P.W. 2) was ploughing his land at Uttar Math some radish plants in the adjoining land of appellant No. 1 were allegedly destroyed by his cattle. Over this issue, there was an altercation and the appellants assaulted him and appellant No. 1 assaulted the victim Md. Khatib Munshi by a da causing incised injuries on his hand, throat and other parts of the body. The victim was taken to hospital and treated. On the basis of such complaint, first information report being Barasat P.S. Case No. 590 dated 17.10.1996 under section 326 of the Indian Penal Code was registered for investigation. In conclusion of investigation charge- sheet was filed against the appellants under section 326/308/34 of the Indian Penal Code.
3. The case being a sessions triable one was committed to the Court of Session, North 24-Parganas and transferred to the Court of the Additional Sessions Court, Fast Tract Court, Barasat, North 24-Parganas for trial and disposal.
4. Charges were framed against the appellants under section 323/324/308/34 of the Indian Penal Code. The appellants pleaded ' not guilty- and claimed to be tried.
5. In course of trial, prosecution examined as many as 10 witnesses and exhibited a number of documents. In conclusion of trial, learned Additional Sessions Judge, Fast Tract Court No. 5, Barasat (North) 24 Parganas by judgment and order dated 22/23.11.2011 convicted the appellants for commission of offence punishable under section 308/323/324 of the Indian Penal Code and directed them to suffer rigorous imprisonment for seven years with fine of Rs. 5,000/- each, in default to suffer further imprisonment for six months for the offence punishable under section 308 of the Indian Penal Code, to suffer rigorous imprisonment for six months for the offence punishable under section 323 of the Indian Penal Code and to suffer rigorous imprisonment for one year for offence punishable under section 324 of the Indian Penal Code, all the sentences to run concurrently. Hence, the present appeal.
6. Mr. Tapan Dutta Gupta and Mr. Kamalesh Chandra Saha learned counsels appearing for the appellants submitted that there was absolutely no evidence as to any overt act committed by appellant Nos. 2, 3 and 4. It was further submitted that there was no seizure of weapon of assault, namely, da. It was also submitted that there was no seizure of wearing apparels and no chemical examination of bloodstained earth seized from the place of occurrence. No sketch map of the place of occurrence was prepared during investigation and the hospital records of Barasat Hospital were not seized. It was also submitted that P.W. 7 stated that he has deposed for the first time in Court.
7. Mr. Amartya Ghosh, learned junior standing counsel appearing for the State submitted that the appellants in a body had assaulted the victim P.W. 2 and there was multiple injuries on the victim which is proved by medical evidence. Hence, the appellants have been rightly convicted and
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