Calcutta High Court (Appellete Side)
Golful Seikh & Ors vs The State Of West Bengal on 8 November, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
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In The High Court At Calcutta
Criminal Appellate Jurisdiction
Appellate Side
CRA 402 of 2000
Golful Seikh & Ors.
-Vs.-
The State of West Bengal
Before : The Hon'ble The Chief Justice Thottathil B.
Radhakrishnan
&
The Hon'ble Justice Arijit Banerjee
For the appellants : Mr.Ashis Kumar Sanyal, Sr. Adv.,
Mr. Rajendra Banerjee, Adv.
Mr. Joy Chakraborty, Adv.
For the State : Mr. A.K. Maity, Ld. A. P.P.,
Ms. Kakali Chatterjee, Adv.,
Md. Kutubuddin, Adv.
Heard On : 31.07.2019
CAV on : 31. 07.2019
Judgment On : 08.11.2019
Arijit Banerjee, J.:-
(1) This is an appeal against the judgment and order of conviction
dated 13.11.2000 passed by the learned Assistant Sessions Judge,
Rampurhat, Birbhum in Sessions Trial No. 4 (April)/2000 arising out of
Sessions Case No. 81 of 1993. The case was initiated against four
accused persons namely, Sisful Sheikh, Golful Sheikh, Samad Sheikh and
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Abdul Aziz alias Baber. They were charged for allegedly committing
offence under Section 326 read with Section 34 of the Indian Penal
Code, 1860 (in short, "IPC"). During the trial Sisful died. The learned
Trial Judge found the other three accused persons (who are the
appellants herein) guilty and sentenced them to suffer rigorous
imprisonment for 8 years and to pay a fine of Rs. 1000/-, in default, to
suffer further simple imprisonment for six months.
(2) Now let us advert to the facts of the case as would appear from the
records. Ketabul Sheikh, the de facto complainant, lodged written
complaint before the O.C., Murari Police Station on 14 July, 1992. The
complaint is to the effect that on 14.07.1992 Ketabul's brother Sejabul
Sheikh (the victim) was returning from Mitrapur bus stand to his house
after a shave. Behind the house of one Joy Mukherjee there was a
narrow lane and a truck was unloading goods there. By the side of the
truck, the accused persons, who were armed with dagger and pipe gun
attacked the victim. Sisful shot the victim with a pipe gun. Golful and
Samad had daggers with them. As a result of the attack the victim
sustained severe injury. He lost vision in his right eye and had to remain
admitted in hospital for nearly 40 days.
(3) On the basis of the complaint charge was framed against the
accused persons under Section 326 read with Section 34 of the IPC. The
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accused persons pleaded 'not guilty' and claimed to be tried.
Accordingly, the trial commenced.
(4) The prosecution examined 13 witnesses to prove its case.
Thereafter, three of the accused persons namely, Golful, Samsad and
Abdul were examined under Section 313 of the Code of Criminal
Procedure, 1973, Sisful having died in the meantime. They denied their
involvement in the incident. They also declined to adduce evidence on
their behalf.
(5) Let us now examine the depositions of some of the key witnesses for
the purpose of adjudicating whether or not the impugned judgment and
order of conviction is sustainable.
(6) PW 1 Ketabul Sheikh, the de facto complainant, is the brother of
the victim. According to him his brother was returning home on
14.07.1992after a shave. He was returning from Mitrapur bus stand to his house when near the house of one Joy Mukherjee a truck was unloading goods at about 5:30 p.m. in the evening. The accused persons suddenly appeared and Sisful fired from his pipe gun at his brother. Aziz alias Baber possessed a pipe gun as well and Golful and Samad had daggers with them. On hearing the hue and cry he reached the place of occurrence and found his brother lying in a pool of blood. When he asked him as to what had happened, his brother informed him 4 that Sisful had fired at him from a pipe gun. Then he called a Rikshawala (PW 5) who took his brother to Jangipur Hospital. One Sajjad Hussain (PW 7), a local politician, also accompanied the victim. He further stated that the complaint was not written by him but it was signed by him. He has identified the signature.
(7) PW 2 Sejabul Sheikh is the victim of the case. According to him on 14.7.1992 at about 4:30 in the evening he had gone to Mitrapur bus stand for having a shave. After shaving, at around 5:30 p.m. he was returning home. Near the house of Joy Mukherjee, a truck was unloading some goods. Just then the accused persons appeared and Sisful fired from a pipe gun. Aziz alias Baber was also in possession of a pipe gun. The two other accused persons were in possession of daggers. As a result of the injury that he received on his forehead he lost vision in his right eye. At the time of the incident he was wearing a shirt and a lungi. The same were seized by the police and marked as Exhibit 1. He has identified the same. PW 2 in his cross examination has reaffirmed his stand with regard to the role played by the accused persons. (8) PW 3 Sitaram Rajbanshi was the chaukidar (Guard) of Mitrapur Gram Panchayat. It was he who had informed the police about the occurrence. PW 4 Jogeshwar Das was the Home guard posted at the Murari police station. It was he who wrote the written complaint. PW 5 5 Laltu Shaikh was the rickshaw puller who took the victim from Mitrapur (PO) to Jangipur hospital in his Rickshaw. Nothing significant could be elicited from him and moreover in the course of trial he turned hostile. PW 6 Doctor Satyajit Majumdar was the one who sent the victim to Berhampur hospital for treatment. He was posted at the Jangipur hospital as an eye specialist.
(9) PW 7 Sajjad Hussain is a local politician. According to him he was present at the bus stand on that fateful day when he heard a sound and he rushed to the spot. There he found the victim lying on the road. The victim then informed him that due to Sisful's act he received injuries in his right eye. Further Golful and Samad were there with swords in their hands. It was he who took the victim from Jangipur hospital to Berhampur hospital. The victim's clothes were soaked in blood. The lungi and shirt were later seized by the police. His version of the events corroborates that of PW 1 and 2. It was he who signed on the seizure list prepared by the police. In his cross examination he has stood by what he deposed in his examination-in-chief.
(10) PW 8 Kudrat Hussain was a bystander who was having tea at the bus stop on that day. According to him the moment he heard a sound he rushed to the spot and found the victim lying on the road. The victim informed him about the fact that he was shot in his eye by the 6 accused persons. PW 9 Mohammed Ziauddin too was a bystander at the bus stop. His deposition is quite similar to that of PW 8. In the course of trial he turned hostile.
(11) PW 11 Rejina Biwi is the wife of the victim. According to her on the day of the event she was taking her son who was ill to a dispensary. Her husband/ the victim had told her that he was going to the bus stop for a shave. The four accused persons appeared near the house of Joy Mukherjee and they possessed weapons. Sisful and Aziz alias Baber were in possession of pipe guns. The other two accused persons were in possession of swords. Sisful fired from his pipe gun and the victim fell down with an injury in his right eye. Thereafter she cried loudly for help. There are some minor contradictions in her statement especially when we compare it with that of PW 5 but it does not overall affect the case of the prosecution.
(12) PW 12 Dr. Dilip Kumar Mukherjee was posted at Berhampur Hospital. According to him he found bullet injury in the right eye of the victim and the victim's head was also injured with surgical emphysema. According to him there was also an x-ray report which proves the factum of injury.
(13) PW 13 Gour Chatterjee was the OC of Murari police station. It was he who prepared the charge sheet, the seizure list, as well as the sketch 7 map. He also collected the bed head ticket of the victim, the medical report and the discharge certificate. According to him it was PW 5 the witness who turned hostile who had informed him about the incident. PW 9 was also examined by him. He also stated that no one associated with the truck who were present near the place of occurrence (P.O.) were examined.
(14) Before we proceed further it would be appropriate for us to refer to the relevant sections under consideration. Section 326 of the IPC reads as follows:
"326. Voluntarily causing grievous hurt by dangerous weapons or means--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
(15) Further "grievous hurt" has been defined in section 320 IPC as follows:
320. Grievous hurt.-- The following kinds of hurt only are designated as "grievous":--
(First) -- Emasculation.
(Secondly) --Permanent privation of the sight of either eye. (Thirdly) -- Permanent privation of the hearing of either ear, (Fourthly) --Privation of any member or joint.
8(Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face. (Seventhly) --Fracture or dislocation of a bone or tooth. (Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
(16) On a plain reading of the above section it becomes clear that if a person's eye is damaged permanently then the same shall attract the charge under Section 326. In the instant case the victim did lose vision in his right eye and he was bed ridden for nearly 40 days. This has been amply proved by the deposition of two doctors whose testimony we have discussed above. The only question that remains to be decided is whether the three accused persons who have come up by way of this appeal are co-authors of the crime in question.
(17) We have no doubt about the evidence of the victim PW 2 himself. He has cogently narrated about the incident that resulted in permanent impairment of his right eye. His testimony is further corroborated by PWs 1, 5, 8, and 9 and 11. We are not unmindful of the fact that PW 5 and 9 turned hostile as witnesses. But the law is clear that evidence of a hostile witness insofar as it supports the case of the prosecution can be accepted. It does not matter if he himself turns his back on what he has stated. This position has been recently re-affirmed by the Hon'ble Apex Court in Vinod Kumar vs State Of Punjab (2015) 3 SCC 220. The Hon'ble 9 Apex Court has not only summarised the development of law on hostile witness but has also stated in para 31, relying on Bhagwan Singh v. State of Haryana (1976) 1 SCC 389: 1975 SCC (Cri) 7, that even if a witness is characterised as a hostile witness, his evidence is not completely effaced. Such evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence.
(18) When the evidence of these witnesses are read together it would indubitably appear that the victim was present at the spot and the accused persons were also present at the spot. The victim himself saw Sisful fire from a pipe gun. Aziz alias Baber was also in possession of a pipe gun. The two other accused persons were in possession of daggers. As a result of the injury that the victim received on his forehead he lost vision in his right eye. His injury is corroborated by the evidence of two doctors PW 6 and PW 12. We have no reason to doubt the veracity of the same and on a careful perusal of their evidence we find that they all corroborate each other.
(19) Now the only question that needs to be decided is whether the 3 appellants can be made liable for the offence they are charged with as the main accused Sisful who actually fired from the pipe gun expired 10 during the trial. On this score we would like to quote section 34 of IPC which states as follows:
"34. Acts done by several persons in furtherance of common intention.-- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
(20) The law on vicarious liability has been enunciated by the Privy Council in Barendra Kumar Ghose v. King Emperor AIR 1925 PC 1. In its judgment the Privy Council explicitly stated that where one or more of several persons does something criminal, all acting in furtherance of a common intention, each is punishable for what he has done, as if he had done it himself. The Supreme Court again in Ramaswami Ayenger v State of Madras AIR 1976 SC 2027 stated in para. 12 that in the case of an offence involving physical violence, however, it is essential for the application of s. 34 that the person who instigates or aids the commission of the crime must be physically present at the time of actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, itself tantamounts to actual participation in the 'criminal act'.
11(21) We are of the opinion that the other three appellants who were present at the spot and were armed with deadly weapons are equally liable for the act of Sisful - the accused who fired the gunshot and is no more. His death does not affect the outcome of the case. The guilt of the three accused persons is not washed away. The presence of the accused persons who were armed with deadly weapons makes them perfect partners-in-crime. Their criminal intention can be gauged by their presence at the P.O. with the common object of causing grievously bodily harm to the victim.
(22) From an analysis of the evidence on record we have no doubt in our mind that the accused persons gathered at the place of occurrence armed with deadly weapons with the common intention of causing grievous bodily harm to the victim. While actually one of them i.e. Sisful executed the plan by firing from a pipe gun, the others tacitly supported such act and passively participated in the execution of the premeditated plan to cause grievous harm by dangerous weapons to the victim. Hence, Section 34 is squarely attracted and the appellants are equally responsible for Sisful's act of shooting the victim which resulted in loss of vision of the victim in one of his eye.
(23) We have also carefully considered the judgment impugned before us. The learned Trial Judge has taken care and great pain to record and 12 analyse the evidence adduced by all the witnesses. The defence tried to point out inconsistencies in the prosecution evidence. The learned Judge has considered such arguments of the defence and in our view has rightly held that such inconsistencies are trivial and inconsequential e.g., the evidence was recorded after about 8 years from the date of the incident and it is not possible for a witness to remember which of the accused persons was carrying which weapon and whether two of the accused persons were carrying daggers or swords. The learned Judge has dealt with all the points urged on behalf of the defence and in our opinion, has rightly rejected the same. The learned Judge applied correct principles of law and rightly held the accused persons (appellants herein) guilty of offence under Section 326 read with Section 34 IPC. In this connection, we may note that in the recent case of State of Madhya Pradesh vs. Chhaakki Lal, AIR 2019 SC 381, at paragraph 21 of the reported decision the Hon'ble Supreme Court observed as follows:
"21. The trial Court had the opportunity of seeing and observing the demeanour of the witnesses and the views of the trial Court as to the credibility of the witnesses is entitled to great weight. Unless the appreciation of evidence by the trial Court was vitiated by serious error, the findings recorded by the trial Court ought not to have been interfered by the High Court."13
(24) We find no perversity or gross misappreciation of evidence by the learned Trial Judge in the instant case. We also do not find that in the given fact situation the sentence imposed by the learned Judge on the convicted persons is so excessive or disproportionate as to shock judicial conscience. In our considered view neither the judgment and order of conviction nor the sentence imposed by the learned Trial Judge warrants interference.
(25) In the result the appeal fails and is dismissed. We find from records that an order was passed on 10.01.2001 by a Division Bench of this Court in CRAN 1215/2000 filed in the instant appeal, which reads as follows:
"Having heard the learned advocates appearing for both parties we direct that the petitioners be released on bail subject to furnishing bond of Rs. 5,000/- each to the satisfaction of the learned Trial Court and the appellants shall surrender before the learned Trial Court in case of dismissal of the appeal. The sentence and fine shall remain suspended under Section 389(1) Cr.P.C. during the pendency of the trial."
(26) In view of the aforesaid order and in view of the dismissal of the present appeal we direct the appellants to surrender before the learned Trial Court and we also direct the Officer-in-Charge of the jurisdictional police station to ensure that the appellants are produced before the learned Trial Court at the earliest and in any event within 7 days from 14 date, so that the learned Trial Court can pass appropriate direction for sending the appellants to the concerned correctional home for serving out the sentence imposed by the learned Trial Court and affirmed by us. (27) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree.
(Thottathil B. Radhakrishnan, CJ.) (Arijit Banerjee, J.)