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2022 Supreme(Cal) 575
IN THE HIGH COURT OF CALCUTTA
Shampa Dutt Paul, J.
Hassem Mia And Others - Appellant
Versus
State Of West Bengal - Respondent
CRA 19 of 2003
Decided On : 08-07-2022
Mr. Prabir Majumder, Mr. Sukumar Ghosh, Ms. Moumita Ghosh, Mr. Snehansu Majumder, for the Appellant; Mr. Narayan Prasad Agarwal, Mr. Md. Kutubuddin, for the Respondent
The judgment underscores the requirement for substantive evidence and fair investigation to prove a charge beyond reasonable doubt.
Headnote:
Indian Penal Code - Conviction under Section 324/34 - Summary
Fact of the Case:
The case involved an appeal against an order of conviction and sentence under Section 324/34 of the Indian Penal Code. The prosecution's case was that the appellants assaulted the victim with deadly weapons, resulting in serious injuries. The defense claimed false implication due to pending cases and enmity between the parties.
Finding of the Court:
The court found that the prosecution failed to prove the charge beyond reasonable doubt. It noted discrepancies in the evidence, lack of corroborative evidence, and faulty investigation. The court concluded that the conviction and sentence of the appellants were liable to be set aside.
Issues: The key issues included the credibility of the victim's testimony, lack of corroborative evidence, and the motive behind the crime.
Ratio Decidendi: The court emphasized the importance of fair investigation and the need for substantive oral or documentary evidence to support the prosecution's case. It highlighted the lack of corroboration and discrepancies in the evidence as grounds for setting aside the conviction.
Final Decision: The appeal was allowed, and the appellants were discharged from their respective bail bonds. The lower court records were to be sent for necessary compliance.
JUDGMENT
Shampa Dutt (Paul), J. - The appeal is against an order of conviction and sentence dated 27th September, 2002 passed by the Ld. Additional Sessions Judge, 4th Court, Nadia in Sessions Case no. 18 of 1996 convicting the appellants for commission of offence punishable under Section 324/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2000 in default to suffer rigorous imprisonment for further period of three months each.
2. The criminal appeal 19 of 2003 is accordingly taken up for hearing and disposal on merits. Prosecution case against appellants is as follows:
3. On 19.11.1993 at about 6.35 P.M. when the complainant Golam Hossain of village Thansara under P.S. Haringhata along with his brother Musa Ali Mondal was returning home on a cycle from the Hat of Bhanderkhola, they saw the accused persons in front of the house of Abdul Hakim along with many others who had wrapped themselves with 'chaddar'. When the complainant crossed them, he heard his brother Musa Ali shouting 'Babago, Mago'. On lighting a torch the complainant found that all the accused persons had 'gheraoed' Musa Ali, armed with sharp cutting Hensua and on seeing the complainant they also chased him. Musa fled away but the accused persons caught and took him to the other side of 'Suknamati Khal'. Musa fell on the ground and the accused persons chopped him at random. Batul Sardar and Subal Bag of the locality collected the local people on hearing the shouting of Musa and chased the accused persons away. They then took Musa to Habra Hospital. His son Saidul Islam, brother Mahammad Ali also accompanied him Musa was seriously injured and his tongue was also cut away and he was fighting with death. The said incident was as a result of a dispute between the parties regarding some landed property.
4. Written complaint was filed with Haringhata P.S. being no. 19.11.1993 for offence punishable under Section 147/148/149/326/307 IPC. On completion of investigation, chargesheet was submitted against the accused persons/appellants. Considering the materials on record charge was framed for offence punishable under Section 307/34 IPC against all the accused persons. All the accused pleaded not guilty and claimed to be tried. In course of trial the prosecution examined 11 witnesses and exhibited 4 documents. The defence of all the appellants (7) was of innocence and false implication.
5. On conclusion of trial, the Trial Judge by the impugned judgment and order dated 27th September, 2002 convicted and sentenced the appellants, as aforesaid.
6. Mr. Prabir Mazumdar, Ld. Advocate for the appellants submits that on the night of incident there was a 'Yatra' in village Narayanpur and the victim abused female members of the audience, as such he was assaulted by the villagers. It is further defence of the accused persons that there are cases pending between the parties and there is also enmity between them for a long period. It is for such reasons that this false case has been filed against the accused persons.
7. Further case of the defence is that the defacto complainant could not recognized the persons who assaulted his brother Musa nor could victim Musa recognize any of the persons who allegedly assaulted him. PW 8 Mohammed Ali Mia, another brother of the victim has stated that he knows about the incident but he did not see the same. He heard about the incident from Musa and other persons. It is seen from the materials on record, admittedly Musa's son Saidul (PW 7) had enticed away Arjina Khatoon daughter of Yusuf and after a 'Salishi', matter was settled at the local P.S. and talaque was given to Arjina and her custody was given to her father. It has also been proved before the Trial Court that there are several cases pending between the parties and there is long standing enmity between the parties. It is further submitted that no independent witness supported the prosecution case and though PW 5 Subal Bag and P
