IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

APPELLATE SIDE

Present:-

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

CRA 135 OF 2012

KITAB SK

VS

STATE OF WEST BENGAL

For the Appellant : Mr. Kusal Kumar Mukherjee, Adv.

For the State : Ms. Z.N. Khan, Adv.

Ms. Sudeshna Das, Adv.

Last heard on : 19.06.2025 Judgement on : 08.08.2025

CHAITALI CHATTERJEE DAS, J. :-

1. This criminal appeal is filed under Section 374 (2) of Code of Criminal

Procedure against an order of conviction passed by the Learned Court the Court of Additional Session Judge, Fast Track 3rd Court, Krishnanagar, Nadia

under Section 307 I.P.C against the appellant.

Brief resume of the case

2. The case of the prosecution was initiated on the basis of a complaint lodged before the O.C. Chapra Police Station, Nadia on September 13, 1988 by one Patal Sk. alleging inter alia that on September 8, 1988 at about 7 A.M his brother Sonaruddin Sk, S/O Lt. Almin Ersad Gharami S/O Oayachhed Gharami and while going towards Purbapara at that point of time 1) Babar Ali Mondal, 2)

Ambar Khan, 3) Doulat Mondal, 4) Nasir Sk., ,5) Mosaraf Sk. , 6) Asraf Sk. 7) Akkel Mohalder, 8) Kitab Sk. (present appellant) 9) Barkat Gharami, Romjan Kuhe,10) Dhulo Sk. and many others attacked them with pipe-gun, Hand bomb, Ramdaa and other deadly weapon with an intention to kill them and Baburali,Kitab fired and he sustained gun-shot injury on the thai(upper part) of left leg near to his genitals and it also touched the lip of Ersad Gharami. After that his brother Sonaruddin was admitted in the Shaktinagar Hospital with serious condition with bleeding injuries. On the basis of the said complaint the Chapra P.S. case no 8 dated 8.9.88 under Section 147/148/149/326/307 IPC started against the accused persons including the present appellant.On completion of the investigation the I.O. submitted the charge-sheet and the matter was committed to the Learned Court of Session Judge, Nadia and from there sent to the Court of Additional Session Judge, Fast Track 3rd court , Krishnanagar, Nadia where the charge was framed against 14 accused persons under Section 147/148/149/326/307 IPC.The content of the said charge was read over to the accused persons to which they pleaded not guilty and claimed to be tried, hence the trial commenced on 23.08.07.

3. The Learned Court after assessing the evidences and the exhibited documents including medical papers and after hearing both the learned advocates and on examining the accused persons under Section 313 Cr.Pc, acquitted the 13 accused persons and convicted the present appellant Kitab Sk. for the offence punishable under Section 307 IPC against which the instant appeal has been filed.

Submissions

4. The grounds taken by the appellant in order to maintain the appeal are non-

application of judicial mind to consider that no other independent prosecution witnesses supported the case of the de-facto complainant, no name of the assailant found mentioned before the Doctor while the injured was medically examined. Furthermore the Learned Judge did not consider the vital aspect of the case and the basic criteria of Section 307 IPC “Actus non facit reum, nisi mens sit rea’ and only relying upon the testimony of the injured which is full of inconsistencies, passed the order of conviction against the accused person.

5. The Learned advocate appearing on behalf of the appellant submitted that on

8^th of September, 1988 alleged incident took place when the complaint was lodged on September 13, 1988 and no explanation came forward regarding this in-ordinate delay in lodging such FIR. Excepting the injured victim the other brother who was alleged to have accompanying him at the time of incident did not support the prosecution case that the appellant shot the injured rather mentioned about the accidental injury sustained by his brother. The place of occurrence as mentioned in the FIR has not been proved as per the sketch map and P.W. 8 contradicted the evidence of the I.O, in this regard. No offendin