JUDGMENT :

Ananya Bandyopadhyay, J.

1. This instant criminal appeal is preferred against an Order and Judgment dated 30.10.2009 passed by Additional Sessions Judge, Fast Track Court No. 3, Barrackpore, 24-Parganas (North), convicting the appellant under Sections 326 /307 of the INDIAN PENAL CODE and sentencing the appellant under Section 326 of the INDIAN PENAL CODE to suffer rigorous imprisonment for five years and to pay fine of Rs.2000/- in default to suffer rigorous imprisonment for four months and sentencing the appellant under Section 307 of the INDIAN PENAL CODE to suffer rigorous imprisonment for seven years and to pay fine of Rs.4000/- in default to suffer rigorous imprisonment for eight months and all the sentences would run concurrently in ST 13 (4) 2006, SC 26 (3) 2005.

2. The prosecution case emanated from the complaint filed by the de-facto complainant Prosanta Mondal, precisely stating to be a rickshaw puller by profession plying from Dunlop to Bandel C. Road in the district of Hooghly, that on 05.07.2005 at about 1:30 P.M. he came to Naihati from Dunlop Ghat by a rickshaw boarding a person along with his associate female co-passenger. At about 12:30 P.M. the said passengers got down at the Maruti Stand near Naihati Godown. The person booked a Maruti Van for going to Sodepur. At that time the victim girl wanted to say something. Being unable to understand her speech, he called her and when the said girl approached him, the said person followed her with a bag in his hand. He forbade the said person to accompany the victim, but disregarding his instruction the said person continued following the victim and when the said girl came near him the said person took out the dagger from his bag and wounded the girl at her head. Then the said girl shouted by saying save me. The said person again attempted to injure her, and the de-facto complainant caught his right hand along with dagger and immediately the local by-standers rushed to the spot and caught the said person tightly. The girl was injured having been smeared with blood behind her head on the right side and also at her neck. Then the girl was brought to the Naihati Hospital by his auto with the assistance of the local persons. He came to know that the name of the girl as Tapashi Das residing at Bansberia, Khamarpara, Beltala and the girl disclosed the name of the accused as Ramgopal Sikdar residing at Sodepur. The said girl was admitted in the hospital. If not resisted the said person would have murdered the girl. Therefore, the de-facto complainant requested to take legal steps against the person who caused such injury.

3. Based on the aforesaid written complaint, Naihati P.S. Case No. 125/5 dated 5.7.05 under Sections 326 /307 of the INDIAN PENAL CODE was instituted. Investigation ensued culminating in submission of charge-sheet. Charges were framed against the appellant under Sections 326 /307 of the INDIAN PENAL CODE to which he pleaded not guilty and claimed to be tried.

4. The prosecution in order to prove its case exhibited 11 witnesses and exhibited certain documents. The defence had examined one witness.

5. The Learned Advocate on behalf of the appellant submitted that –

i. The cross-examination of the investigating officer (PW 11) would unequivocally point to the fact that at the time of the incident, the appellant was an employee of the Indian Armed Forces, i.e. he was employed with the Indian Air Force. Records of the Learned Trial Court would further indicate that the appellant was in active service of the Indian Air Force and such fact was clearly mentioned in the forwarding report presented before the jurisdictional Magistrate at the time of first production of the present appellant. Being a member of the armed forces would consequentially entail application of military laws instead of general criminal law relating to trial of an accused. Section 475 of the Code of Criminal Procedure, 1973 may be profitably referred to in this regard. The same reads as