Calcutta High Court (Appellete Side)
Sish Mohammad & Anr vs The State Of West Bengal on 15 September, 2023
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 62
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ajay Kumar Gupta
C.R.A. 183 of 2018
(CRAN 3 of 2022)
Sish Mohammad & Anr.
-Vs-
The State of West Bengal
For the Appellants : Mr. Sandip Chakraborty, Adv.
Mr. Sayan Mukherjee, Adv.
Mr. Kaustav Das, Adv.
For the State : Mr. Saibal Bapuli .. ld. A.P.P.
Mr. Bibaswan Bhattacharya, Adv.
Heard on : 13.09.2023 & 15.09.2023
Judgment on : 15.09.2023
Joymalya Bagchi, J. :-
1.Appeal is directed against judgment and order dated 11.12.2017 passed by learned Additional Sessions Judge, 2nd Fast Track Court, Jangipur, Murshidabad in Sessions Trial No. 1(4) of 2012 convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer rigorous 2 imprisonment for life and to pay a fine of Rs.5000/- each, in default, to suffer rigorous imprisonment for six months more. Prosecution case:-
2. Prosecution case as alleged against the appellants is as follows :-
On 23.07.2010 at 7.00 A.M. Sish Mohammad (appellant no.1 herein) came to the residence of Sahabul Sk. and demanded money. There was an altercation and Sish Mohammad chased Sahabul Sk. with a cheni (sharp cutting weapon). Local people intervened and Sish Mohammad fled away. At 2.30 P.M. on the same day, Sish Mohammad along with his son Jabbar Sk. (appellant no.2 herein) came to the house of Sahabul Sk. and dragged him away to a nearby spot. Jabbar Sk. held his hand while Sish Mohammad assaulted Sahabul Sk. with a cheni on the left arm. Sahabul Sk. suffered bleeding injury. He was taken to Anupnagar hospital and thereafter to Jangipur S.D. hospital where he expired at 7.30 P.M.
3. After the burial Sekha Bibi, wife of Sahabul Sk. lodged written complaint at Samserganj Police Station resulting in registration of Samserganj Police Station Case No.201 of 2010 dated 24.07.2010 under Sections 302/34 IPC. In course of investigation, a hansua was seized as the weapon of offence.
4. Charge sheet was filed and charges were framed under Sections 302/34 of the Indian Penal Code. In course of trial, prosecution examined sixteen witnesses and exhibited a number of documents. 3
5. In conclusion of trial, learned trial Judge by the impugned judgment and order dated 11.12.2017 convicted and sentenced the appellants, as aforesaid.
Evidence on record:-
6. PW 1 (Sekha Bewa @ Bibi) is the wife of the deceased and the de-
facto complainant. She stated on the date of the incident a dispute arose over money between her husband and Sish Mohammad. In the morning, Sish Mohammad came to assault her husband with a hansua. Thereafter, he fled away. On the same day at around 2-2.30 P.M. Sish Mohammad and his son Jabbar Sk. came armed with hansua. They dragged her husband from the house. Sish Mohammad assaulted him with a hansua on the left hand. Jabbar Sk. held him. Her husband was shifted to Anupnagar BPHC and thereafter to Jangipur S.D. hospital where he succumbed to his injuries. After his burial she lodged complaint which was scribed by PW 8. She proved her LTI. She identified the hansua which was produced in Court. She signed on the seizure list. During cross-examination, she stated the accused had taken her husband 15-20 yards away on the eastern side of their house.
7. PW 2 (Motiur Rahaman) is the brother and PW 3 (Lal Mohammad) is the father of the deceased. Both the witnesses claimed on 23.07.2010 in the morning Sish Mohammad had come and tried to assault Sahabul Sk. with a hansua. Local people intervened. Sish Mohammad left the spot exhorting he would kill Sahabul Sk. In the afternoon around 2.30 P.M. 4 Sish Mohammad and his son came to the spot. While Jabbar Sk. held the victim, Sish Mohammad assaulted him with a hansua. During cross- examination, PW 3 stated his son Motiur Rahaman (PW 2) was not present in the house. He came subsequently.
8. PW 5 (Malik Sk.), PW 6 (Setab Ali) & PW 7 (Sabid Sk.) are local villagers. They corroborated the aforesaid witnesses.
9. PW 4 (Sakibul Sk.) is another villager. Though he was declared hostile, he stated Sish Mohammad had assaulted Sahabul Sk. resulting in his death.
10. PWs 12 and 13 are the medical witnesses.
11. PW 12 (Dr. Kakoli Sarkar) treated the victim at Anupnagar BPHC. She found a lacerated wound involving muscle and fracture of bone of left forearm with severe bleeding and the patient was in a state of shock. She stated that the left forearm was amputated previously from the wrist. She referred the patient to Jangipur S.D. hospital. She proved the injury report (Ext.7). During cross-examination, she stated that the chances of survival or recovery in such type of injury depends on the intensity of shock. Though hand is not a vital part of the body, profuse bleeding may make the case serious.
12. PW 13 (Dr. Shyamal Chatterjee) is the post-mortem doctor. He found the following injuries :-
"I found incised wound of size approximately 8" x 5" x 5" on the left forearm extending from elbow to remaining part of forearm, skin, muscle, blood vessels and bone are cut down."5
He opined the cause of death is due to severe haemorrhage and shock because of the incised wound of the left forearm involving skin, muscle, blood vessels and bone. Death was ante mortem, injuries were due to strike by a heavy sharp cutting weapon, homicidal in nature. He proved the post mortem report (Ext.8). During cross-examination, he stated hansua is a curved and lightweight sharp cutting weapon. But if hit with force it may give the same result as a heavy sharp cutting weapon.
13. PW 14 (ASI Biplab Kumar Sen) conducted inquest over the body of the deceased. He proved the inquest report (Ext.2).
14. PW 11 (SI Subodh Roy) is the Investigating Officer. He went to the place of occurrence and drew rough sketch map with index. He seized controlled earth and blood stained earth. He seized weapon in presence of witnesses. He seized the hansua (Ext.5). He seized wearing apparels of the deceased.
Findings of the Court:-
15. Mr. Sandip Chakraborty, learned Advocate for the appellants submits the prosecution case has not been proved. Hansua seized is not the weapon of offence. Inhabitants in and around the place of occurrence have not been examined. Evidence on record particularly that of PWs 1 and 3 corroborated by independent witnesses viz. PWs. 5, 6 & 7 clearly prove in the morning of the incident Sish Mohammad had come to the house of Sahabul Sk. demanding money. A dispute broke out and he tried to attack him. Due to intervention by local people he left. 6
16. In the afternoon he again came with his son. He was armed with a hansua. They dragged Sahabul Sk. from the house to a spot 15-16 yards away. There Sish Mohammad struck him on his left hand. Left hand of Sahabul Sk. was amputated earlier from the wrist. Jabbar Sk. had held the victim. These ocular evidence on record is corroborated by medical witnesses. PW 12 found lacerated wound involving muscle, fracture of bone with severe bleeding from the left forearm. Post mortem doctor also noted incised wound approximately 8" x 5" x 5" on the left forearm. He opined death was due to haemorrhage and shock from the aforesaid injury ante mortem, homicidal and caused by heavy cutting weapon. During cross-examination, he clarified hansua, though a lightweight sharp cutting weapon, may cause injury if struck with sufficient force like a heavy sharp cutting weapon. Evidence of the post-mortem doctor establishes injury on the left forearm of the deceased could have been caused by hansua. In the FIR, PW 1 had described the weapon as cheni. Cheni is also a sharp cutting weapon. Minor variation in the description of the weapon used by Sish Mohammad to commit the crime does not affect the credibility of the prosecution case which is established through the evidence of the eyewitnesses and the medical evidence.
17. Finally, Mr. Chakraborty argues Sish Mohammad had struck a single blow on the left forearm, a non-vital part of the body. Sish Mohammad did not intend to murder the victim. Medical officers did not depose the injury was sufficient in the ordinary course of nature to cause 7 death. Hence, offence of murder has not been proved. He also argues Jabbar Sk. was unarmed and had not assaulted the victim. He cannot be said to have shared common intention to commit murder.
18. On the other hand, Mr. Saibal Bapuli, learned Additional Public Prosecutor submits Sish Mohammad had exhorted in the morning that he would kill Sahabul Sk. He struck the left arm of the deceased with great force. As a result, flesh and bone were cut. Victim died due to profuse bleeding and shock.
19. I have given anxious considerations to the aforesaid submissions. Exhortation made by Sish Mohammad in the morning that he would kill Sahabul Sk. is not reflected either in the FIR nor supported by his wife (PW 1). Admittedly, PW 1 was in the house when Sish Mohammad had come in the morning. She did not support the exhortation by Sish Mohammad. The other witnesses subsequently developed the prosecution case that Sish Mohammad had exhorted to kill the victim. Hence, I am not inclined to give credence to this aspect of the prosecution case. Thereafter, incident occurred in the afternoon. Evidence shows Sish Mohammad and his son Jabbar Sk. dragged the victim from his house to a nearby place. While Jabbar Sk. held the victim, Sish Mohammad had struck a single blow on his left arm. Sish Mohammad had hit the victim on the arm i.e. a non-vital part of the body. Had he intended to murder, he would have struck the victim on a vital part of the body like head, chest or abdomen. He had not done so.
8
20. Moreover, he had struck a single blow. It is true the blow was struck with considerable force and had caused extensive injuries i.e. cutting of skin, flesh and bone. It also caused profuse bleeding, shock and ultimate death. During cross-examination, PW 12 opined if the blow on the hand, a non-vital part of the body, is struck with considerable force, the case will be serious. But the medical officer did not opine the injury was sufficient in the ordinary course of nature to cause death.
21. In these circumstances, it cannot be said the case would fall within either the first clause or third clause of Section 300 IPC punishable under Section 302 IPC.
22. On the other hand, evidence on record shows Sish Mohammad being enraged by Sahabul Sk. for not returning money had intended to cause bodily injury and struck single blow on his hand. He had not struck on any vital part of the body nor did he strike repeatedly. These circumstances persuade me to modify the conviction of Sish Mohammad from murder to culpable homicide not amounting to death.
23. With regard to the role of Jabbar Sk., I note Jabbar Sk. was unarmed and had merely accompanied his father. Even if one accepts he had held Sahabul Sk. when his father struck a single blow on the left hand, these circumstances at its height would lead to the inference that Jabbar Sk. may have shared the common intention to cause grievous injury but not murder. No exhortation had been made in his presence nor 9 the said appellant had knowledge of the intensity with which the co- accused would strike.
24. Hence, I am inclined to acquit Jabbar Sk. of the charge under Sections 302/34 IPC.
25. In the light of the aforesaid discussions, I convert the conviction of Sish Mohammad from Section 302 IPC to Section 304 Part-I of the Indian Penal Code and direct that he shall suffer rigorous imprisonment for ten years and pay a fine of Rs.5000/- each, in default, to suffer rigorous imprisonment for six months more.
26. Jabbar Sk. is directed to be forthwith released from custody, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure.
27. Period of detention suffered by the appellant viz. Sish Mohammad during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure.
28. Appeal is partly allowed.
29. In view of disposal of the appeal, connected application being CRAN 3 of 2022 is also disposed of.
30. Lower court records along with a copy of this judgment be sent down at once to the learned trial Court for necessary action. 10
31. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. I agree.
(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.) akd/as/PA