Calcutta High Court (Appellete Side)
Hanif Laskar & Anr vs The State Of West Bengal on 24 December, 2008
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Girish Chandra Gupta
AND
The Hon'ble Justice Kishore Kumar Prasad
Hanif Laskar & Anr.
Vs.
The State of West Bengal
Criminal Appeal No. 75 of 1986
Mr. Subir Chowdhury
Mr. Balaram Neogi
Mr. Tapas Kumar
......... ..........For the Appellants
Mr. Subhasish Pachhal.
......... ......... For the State
Heard on : 8.12.2008.
Judgement on : 24.12.2008.
Kishore Kumar Prasad, J. : This appeal is directed against the
judgement dated 31st January , 1986 passed by the ld. Assistant Sessions
Judge, First Court, Alipur in sessions trial No. 3(11) 85 convicting the appellants
namely Hanif Laskar and Golam Nabi Laskar under Section 307 read with
Section 34 of IPC and an order passed on the same date that is on 31.1.1986 by
which the appellants were sentenced to suffer rigorous imprisonment for 8
years each as also to pay fine of Rs. 1,000/- each, in default to suffer further
rigorous imprisonment for a period of three months each. The fine , if realised
had been directed to be paid to the injured Akbar Ali Laskar towards
compensation.
Being aggrieved by the orders of conviction and sentence passed by the ld.
Trial Court, the appellants have preferred the present appeal.
Prosecution version as unfolded during trial in a nutshell is as follows :
On 9.4.85 at about 3.30 P.M., the appellants as a squeal to an earlier incident
obstructing the right to way of the prosecution party, entered into the house of
the informant Yusuf Ali (P.W.1) and started beating the informant with a lathi.
The informant raised alarm whereupon his brother Akbar Ali Laskar (P.W.9) who
is the victim of this case proceeded towards his house. While Akbar Ali arrived at
his house, the appellant Hanif Laskar threw acid on the person of Akabar Ali
causing severe burn injuries on different parts of his body. Being afflicted by
pain, the victim started running and jumped into a nearby pond. The injured
thereafter, was taken to Diamond Harbour Hospital where he was admitted for
51 days. The informant (P.W. 1) stayed at the hospital for the entire night to look
after his brother and lodged complaint at Police Station (Ext. 1) on the following
day in the afternoon.
On basis of said complaint, Diamond Harbour Police Station case No. 11,
dated 10.4.85 was registered against the appellants under Section 326 of IPC and
subsequently on the prayer of the Investigation Officer, the ld. Committing
magistrate passed an order for adding Sections 307/34 of IPC in the relevant
column of the F.I.R.
Investigating Agency took up investigation. The injury report and discharge
certificate of the victim were collected from the hospital in course of
investigation. In the usual course after completion of investigation, charge-sheet
under Sections 326/307/34 of IPC was submitted against the appellants. The
case was committed to the Court of sessions.
In the Trial Court charge under Section 307 read with Section 34 of IPC was
framed against the appellants. The appellants pleaded not guilty to the charge
and claimed to be tried.
In the Trial Court as many as 12 witnesses were examined on behalf of the
prosecution. Apart from leading oral evidence, the prosecution also tendered
and proved large number of exhibits which were marked as exhibits 1,2 and 3.
Though the appellants were examined under Section 313 of the Cr.P.C., yet there
was no adduction of evidence by the appellants. From the trend of cross-
examination of PWs and suggestion thrown to the witness, the defence version
was that the prosecution party took aggressive role being armed with lathi and
the injured Akbar Ali Laskar sustained burn injury during scuffle while he was
holding a glass in his own hand.
Learned Counsel for the appellants first tried to assail the conviction of the
appellants on the merits but realising that there was insurmountable and
trustworthy evidence against the appellant Hanif Laskar, he confined his
argument only towards the nature of the offence allegedly made against him. It
was contended by the learned Counsel there was no intention on the part of the
appellant Hanif for the purpose of constituting an attempt to murder the
injured and from the evidence produced by the prosecution the appellant Hanif
Laskar can at best, be convicted for the offence punishable under Section 326 of
IPC.
Regarding the appellant Golam Nabi Laskar it was contended that there is no
tangible evidence on record to show that this appellant shared his intention along
with the appellant Hanif Laskar to cause grievous injury to the injured by
throwing acid and the evidence on record in respect of this appellant is totally
unworthy of credence for holding this appellant guilty of any vicarious liability for
the appellant/Hanif's act upon the injured. Learned Counsel accordingly, prayed
for an order of acquittal from this Court in respect of appellant Golam Nabi
Laskar after setting aside the order of conviction passed by the ld. Trial Court.
Learned Counsel appearing on behalf of the State-respondent supported the
judgement of conviction and sentence passed by the ld. Trial Court in respect of the appellant Hanif Laskar. Learned Counsel for the State respondent was fair enough to concede the submission advanced by the learned Counsel in respect of the appellants Golam Nabi Laskar.
Before entering into the discussion of the evidence on record, we may point out some uncontrovertible facts.
The appellants are the sons of the uncle of the informant including the injured , Akbar Ali Laskar. The prosecution party and the appellants were admittedly on inimical terms. On an earlier occasion that is 4/5 days prior to the incident of this case, there arose a quarrel in between the parties over putting a fencing by the appellants in the courtyard of the informant.
Though the injured Akbar Ali Laskar (P.W. 9) was not the author of F.I.R., he did assert in his evidence that it was the appellant, Hanif Laskar who threw acid on the front portion of his body causing burn injury on his chest and other parts of the body. He also asserted that he was admitted in hospital for 51 days for the treatment of his burn injury and he has lost of his power of hearing in the right ear after the incident. He further asserted that he could not erect his body properly on account of burn injury.
The F.I.R was lodged by Yusuf Ali (P.W. 1), the brother of the injured. He also asserted in his evidence that it was the appellant Hanif Laskar who threw acid which came in contact with the abdomen of his brother Akbar Ali Laskar causing burn injury. He also asserted that his brother Akbar Ali (P.W. 9) was admitted in hospital for 51 days.
P.W. 3, Ambia Bibi is the wife of the injured. She also asserted in her evidence that it was appellant Hanif who threw acid on the peson of her husband.
P.W. 6, Regia Bibi is the wife of the informant. She asserted clearly in her evidence that it was the appellant Hanif who threw acid on the person of Akbar Ali causing burn injury.
P.W. 7, Monchhra Bibi is the mother of the injured. She also asserted in her evidence that it was the appellant Hanif who threw acid on the person of her son Akbar Ali.
P.W. 8, Dr. B. N. Das is the then Medical Officer, Diamond Harbour Hospital who clinically examined the injured on 9.4. 84 at about 6.30 P.M. in the emergency room of the hospital and before whom the injured disclosed the name of the appellant Hanif as the person who caused burn injury upon him by throwing acid. He asserted in his evidence that he found chemical burn all over the several parts of lower limbs (excepting the lower part of the fore arms and wrist), trunk and upper part of the upper limb of the injured.
P. W. 10, Dr. Probal Roy is the then E.N.T. Surgeon of Diamond Harbour Hospital who on 4.6.85 examined the injured and detected one pericondrities in the right ear of the injured. He further asserted that the injured was discharged from the hospital on 30.5.85.
In the backdrop of the above direct and cogent evidence of eye witnesses and medical evidence on record we have come to a definite conclusion that the appellant Hanif Laskar was responsible for the occurrence which took place on the courtyard of the house of Hanif situated at Village Sat-manisha within the limits of Diamond Harbour Police Station wherein the injured Akbar Ali had sustained grievous injury on his person as a result of throwing acid by the appellant Hanif Laskar and in consequence thereof he was admitted to hospital for 51 days for his treatment and lost his power of hearing in his right ear.
Now we shall consider the submission advanced by the learned Counsel in respect of appellant Golam Nabi Laskar.
Learned Counsel urged that this appellant cannot be held to have entertained any common intention of causing grievous hurt to the injured Akbar Ali in view of the evidence on record.
After going through the evidence on record, we find merit in the contention of the learned Counsel.
P.W. 1, the informant has improved his case in respect of the appellant Golam Nabi Laskar in stages. In his evidence before the Court he has asserted that as per instigation of this appellant, Hanif threw acid which came in contact with the abdomen of his brother Akbar Ali. But in the F.I.R. lodged by him he has nowhere stated the said facts. That apart, this part of his evidence introduced for the first time in his evidence before Court gets no support from the evidence of P.W. 3 ( the wife of the injured), P.W. 6 (wife of the informant), P.W. 7 ( mother of the injured ) and P.W, 9 (the injured). The aforesaid witnesses have nowhere whispered in their evidence that the appellant Golam Nabi Laskar instigated the appellant Hanif to throw acid upon the injured and pursuant to the said instigation Hanif threw acid upon the injured. Over and above, the injured Akbar Ali came to his house after hearing the cry of his brother from the place where he was cutting the earth of a tank. Appellant Golam Nabi may not have known that the injured Akbar Ali was likely to come to his house and intervened in the quarrel. Moreover, this appellant did not participate in the assault upon injured. Thus on the face of the totality of the surrounding facts and circumstances including the evidence which we have discussed earlier, the appellant Golam Nabi cannot be held to have entertained any common intention of causing grievous hurt to Akbar Ali and he should not have been convicted under Section 307 read with Section 34 of I.P.C.
For the aforesaid reasons, in our view, the ld. Trial Judge was not justified in convicting this appellant under Section 307 read with Section 34 of I.P.C. Consequently, we set aside the conviction and sentence of the appellant Golam Nabi Laskar as awarded by the ld. Trial Judge. The appellant Golam Nabi Laskar is acquitted from the charge under Section 307 read with Section 34 of I.P.C. It appears from the record that this appellant is now on bail to which he need not surrender. His bail/surety bonds shall stand discharged.
There remains consideration of this aspect of the matter as to what offence the appellant Hanif Laskar committed in causing grievous hurt to the injured in the manner indicated above. It is apparent from the evidence on record that prior to the incident, a quarrel ensued between this appellant and the informant and on hearing cry of the informant while the injured came to the place of occurrence, this appellant threw acid which came in contact with the abdomen of the injured causing burn injury. The incident took place in broad day light and from the evidence it seems that the injured was probably attacked by this appellant owing to quarrel as alleged by the appellant rather than as a result of any pre-concerted plan.
On the analysis of the medical evidence and the circumstances appearing in the case, the proper and legal reasonable inference to be drawn from all circumstances is that the act of this appellant was not done with the intention of causing death of Akbar Ali or that with the intention of causing such bodily injury as the appellant knew to be likely to cause death or sufficient in the ordinary course of nature to cause death of Akbar Ali but by his act he caused grievous injury to the injured for which he was compelled to undergone treatment at hospital for a period of 51 days and ultimately lost his power of hearing in the right ear.
For the reasons aforesaid, the act of this appellant does not seem to fall within Section 307 of I.P.C. but falls under Section 326 of I.P.C. as contemplated within the third, forth and eighth clauses of Section 320 of I.P.C.
In this view of the matter, the appellant Hanif Laskar is to be held guilty under Section 326 of I.P.C.
The only question which survived is what should be the quantum of sentence to be awarded to the appellant Hanif Laskar.
We find that the incident had occurred 23½ years ago, the appellant Hanif Laskar was then aged below 20 years and within the passage of time his socio- economic condition must have undergone radical change during this long interval. Looking to these facts and having regard to the circumstances in which the crime was committed, the nature of injuries, the antecedent of the appellant etc. it would not be reasonable to award severe punishment to the appellant Hanif Laskar and in our opinion, the ends of justice would sufficiently be met if the appellant is sentenced to suffer R.I. for 5 years and to pay fine or Rs. 2,000/-, in default to suffer further R.I. for a period of six months for the offence punishable under Section 326 of I.P.C. The amount of fine if realised, shall be paid to the injured Akbar Ali laskar/legal heirs ( in case of his death) towards compensation. The appellant shall get the benefit of set off in terms of Section 428 of the Cr.P.C. out of the period of imprisonment already undergone.
The appellant Hanif Laskar was enlarged on bail by an order of Division Bench of this Court on 10 March, 1986. His bail bond is cancelled. He is directed to surrender forthwith before the ld. Trial Court to serve out the remainder part of his sentence subject to alteration of conviction and sentences as indicated above.
In the result, the appeal preferred by the appellant Golam Nabi is allowed and the appeal preferred by the appellant Hanif Laskar is partly allowed.
The Ld. Lower Court is directed to issue necessary revised jail warrant as required by the Rules in respect of appellant Hanif Laskar.
Lower Court records with a copy of this judgement to go down forthwith to the Court of ld. Trial Judge for information and necessary action. Urgent xeros copy of this judgement, if applied for, be supplied to the learned Counsel for the parties upon compliance of all formalities.
I agree. ( Girish Chandra Gupta, J.)
( Kishore Kumar Prasad, J.)