Calcutta High Court (Appellete Side)
Nizamuddin @ Nizam vs State Of West Bengal on 21 February, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Manojit Mandal
C.R.A. 582 of 2013
Nizamuddin @ Nizam
-Vs-
State of West Bengal
For the Appellant : Ms. Rituparna Ghosh.
For the State : Mr. Ranabir Roy Chowdhury.
Heard on : 21.02.2019
Judgment on : 21.02.2019
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order of conviction dated
28.05.2009 and 29.05.2009 passed by the learned Additional Sessions Judge,
Fast Track Court-II, Howrah in Sessions Trial No. 493 of 2005 convicting the
appellant for commission of offence punishable under Sections 324/302 of the
Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a
fine of Rs.5,000/- in default to suffer further imprisonment of six months for the
offence punishable under Section 302 of the Indian Penal Code and to suffer
rigorous imprisonment for one year and to pay a find of Rs.1,000/- i.e. to further
imprisonment for one month for the offence punishable under Section 324 of the
Indian Penal Code.
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The prosecution case as alleged against the appellant is to the effect that
on 8.1.2005 around 6.30/7.00 P.M., there was an altercation between the
appellant and one Md. Sarif, P.W.12 over sprinkling of mud on his trouser. Over
such issue, the appellant along with Zakir and Jabir attacked one Hasibul Kazi,
Md. Arif (P.W.8) and Habibul Kazi (P.W.9) with a sharp cutting weapon causing
severe injuries on them. The victims were shifted to Howrah General Hospital
where Hasibul was admitted and two others were discharged after treatment.
Unfortunately, Hasibul subsequently succumbed to his injury. In the meantime,
Rabiul Hossain, P.W.1, grand father of the deceased lodged First Information
Report resulting in registration of Golabari P. S. Case No.9 of 2005 dated 8.1.2005
against the appellant and others. Charge sheet was filed in the instant case and
charges were framed under Sections 324/34 of the Indian Penal Code and
Sections 302/34 of the Indian Penal Code against the appellant and one Sk. Zakir
Hossain @ Jakir and Md. Jabir @ Sk. Jabir. In the course of trial prosecution
examined as many as 16 witnesses. Defence of the accused persons was one of
innocence and false implication. In conclusion of trial, the trial judge by
judgement and order dated 28.05.2009 and 29.05.2009 convicted and sentenced
the appellant, as aforesaid.
However, by the self-same judgement and order, co accused persons Sk.
Zakir Hossain @ Jakir and Md. Jabir @ Sk. Jabir were acquitted of the charges
levelled against them. Hence, the present appeal.
At the outset, learned lawyer for the appellant submitted that he was a
juvenile in conflict with law. It appears in the course of arguments before the trial
judge, the appellant relying on a birth certificate took the plea of juvenility which
came to be rejected by the said court on 4.2.2009.
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Thereafter, during the hearing of the bail application in connection with
this appeal, a Co-ordinate Bench of this Court directed further enquiry by holding
ossification test of the appellant. Pursuant to such direction, enquiry was
conducted by the Additional Sessions Judge, Fast Track Court-II, Howrah, which
has been placed before this Court. In the enquiry report, the learned judge
observed as per radiological/ossification test conducted on 26.5.2014, the
Radiologist of Howrah District Hospital opined that the age of the appellant was
above 21 years. Relying on the report it was observed by the trial judge that the
appellant was 12 years of age at the time of occurrence i.e. on 8.1.2005. in view of
such opinion of the trial court it has been argued that the appellant was a juvenile
at the time of occurrence.
We have given anxious consideration to such submission.
During his examination under Section 313 of the Code of Criminal
Procedure held on 8th December, 2008, the appellant had stated that he was 23
years of age. As per such declaration, the appellant would be 19/20 years at the
time of the incident, that is, 8.1.2005. Perusal of the opinion of the said
Radiologist would show that the said Radiologist had not given any firm opinion
with regard to the age of the appellant. He merely stated that the appellant was
above 21 years on the date of examination, that is, 26.5.2014. No upper age limit
was stated by him. He also was not examined on oath by the trial court. Trial
Judge failed to notice such infirmity in the opinion of the Radiologist and
erroneously came to a finding that theappellant was 12 year of age on the date of
occurrence.
As the age disclosed by the appellant during his examination under Section
313 of the Code of Criminal Procedure held on 8.12.2008 was 23 years, we are of
the opinion that the appellant was not a juvenile on the day of occurrence.
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Furthermore, the opinion of the Radiologist is vague, non-specific and a laconic
one. No upper age limit has been prescribed. Hence, it is not worthy of credence.
In Mukarrab vs. State of U.P., (2017) 2 SCC 210, the Apex Court disapproved blind
and mechanical reliance on a belated radiological/ossification report to assess the
age of an accused. It has been argued that a Co-ordinate Bench of this Court while
granting bail to the appellant had relied on the said report. It is trite law that a
finding in a bail order is an interlocutory one and cannot have binding effect at the
time of final hearing of the case. A perusal of the said order would also show that
the finding of the trial judge was accepted on its face value and no reasons had
been given in support thereof.
In view of the aforesaid facts, we are not persuaded to accept the finding of
the trial judge with regard to the juvenility of the appellant and we hold that the
appellant was not a juvenile at the time of the incident. Hence, the appeal is taken
up for hearing on merits.
Ms. Ghosh, learned counsel appearing for the appellant submitted that the
genesis of the prosecution has not been proved beyond doubt. She submitted that
there is a departure in the unfolding of the prosecution case as narrated by the
witness in court when compared to the allegations in the FIR. She argued that the
assault on the deceased and P.W 8 and 9 cannot be linked with the earlier
incident which occurred between the appellant and Md. Sarif (P.W 12). It is also
argued that there are contradictions in the ocular versions of the witnesses and
the medical evidence. It is submitted that the opinion of P.W 5 with regard to
nature of injuries is not proved beyond doubt. Alleged seizure of wearing apparels
have not been proved reasonable doubt.
On the other hand, Mr. Roy Chowdhury appearing for the State submitted
that the evidence of injured witnesses P.W 8 and 9 have been corroborated by the
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medical witnesses, namely P.Ws 4, 5 and 13. It is also submitted that the name of
the appellant as the assailant was disclosed by P.W 11 at the earliest opportunity
before the medical officers. Hence, the prosecution case has been proved beyond
doubt.
P.Ws.8 and 9 are the injured and most vital witnesses in the instant case.
P.W.8 (Md. Arif) deposed that on 8.1.2005 at 7 p.m. there was a quarrel
between the appellant on one hand and Hasibul, Habibul and himself over
throwing of mud on the trouser of the appellant. Local people intervened in the
matter. At 8.30 p.m. when they were playing at Karbala math the appellant came
with a razor. He strucked Hasibul on the throat and abdomen causing bleeding
injuries. He and Habibul intervened and were also assaulted resulting in bleeding
injuries. They took Hasibul to Howrah District Hospital where he was admitted.
On the next morning Hasibul expired.
P.W 9 (Habibul Kazi) is the other injured witness. He deposed in the same
line.
P.W 10 (Md. Moinuddin) is another eye-witness to the incident. He was also
playing along with Md. Arif, Habibur Rahaman and Hasibul Rahaman at karbala
math when the incident occurred. He corroborated the evidences of P.Ws 8 and 9.
P.W 11 (Md. Tariq) is a post occurrence witness. In cross examination he
stated that he was a tailor. The place of occurrence was about five minutes from
his place of work. Upon hearing the incident he went to the hospital at 9 p.m. He
deposed that Hasibul had been admitted to the hospital while Habibul and Arif
were released from the hospital after treatment. Hasibul died while he was being
shifted to P.G hospital in an ambulance. P.W 1 is the grand father of the
deceased. He lodged the FIR. He, however, was not an eye witness to the incident.
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P.W 12 (Md. Sarif) was a boy with whom the appellant had a dispute over
sprinkling of mud on his trouser prior to the incident. He had corroborated the
prosecution case.
P.W 14 (Hafizul Kazi) is the father of the victim. He deposed that on
8.1.2005 a disturbance occurred between the appellant and Md. Arif over
sprinkling of mud. Local people intervened. At 8.30 p.m. he was informed that his
eldest son, Hasibul was stabbed with a razor at karbala field. Md. Arif and
Habibur informed him about the incident. He went to Howrah Hospital. He found
Hasibul had been stabbed on the throat. Hasibul was admitted in the hospital and
later shifted to P.G hospital but the doctor of P.G Hospital declared him dead.
Habibur and Md. Arif also suffered injuries in the course of said incident.
P.Ws 4, 5 and 13 are the medical witnesses.
P.W.5 (Dr. Pamela Ghosh) was posted at Howrah District Hospital as
medical officer. On 8.1.2005 she was posted at emergency medical officer in the
said hospital. One Hasibul Kazi was brought to the hospital. She examined the
patient at about 8.50 p.m. As per statement of Md. Tarique (P.W.11) the patient
was assaulted by Nijam with knife. The patient was unconscious with cut throat
injury and chest injury. He was admitted under Dr. A. K. Ghosh. She proved
injury report (Ext 4). She also examined Md. Arif. As per statement of Md. Tarique
he was assaulted by Nijam with knife. Md. Arif was conscious and mentally alert.
One incised wound measuring about 1" x ½" on the left side upper lip was found.
She proved injury report (Ext 5). She also examined Habibul Kazi (P.W 9). As per
his statement he had been assaulted by Nijam with a knife. She found one incised
wound measuring about ½" x ½" on elbow joint. She proved injury report (Ext 6).
All the injuries were incised wounds and could have been caused by sharp cutting
weapon like knife or razor. In her opinion cut throat injury of Hasibul Kazi was
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sufficient in ordinary course of nature to cause death. She was extensively cross-
examined. She deposed that the age of injury had not been mentioned. The exact
place of the wound in the neck of Hasibul had not been mentioned in Ext. 4.
Instead of word 'incised' the word 'cut' has been used. She corroborated that there
are two kinds of incised wounds, namely slash and stab. In case of slash injury,
death may or may not be caused.
P.W 4 is the medical officer attached to SSKM Hospital. On 9.1.2005 she
was discharging duty as emergency medical officer. One Hasibul Kazi was referred
to the hospital from Howrah General Hospital. The patient had stabbed injury on
the neck by a sharp cutting instrument caused by Nijamuddin. The patient was
brought dead. She proved her report (Ext 3).
P.W 13 (Dr. Tapan Kanti Roy) is the post mortem doctor who held post
mortem over the dead body of Hasibul and found the following injuries :
1.There were two incised wounds on left side of neck, obliquely placed directed downwards medially from the left side
2. There was a wound placed at the anterior abdominal wall at the lower end of costal margin over the last rib
3. The wound was stitched with five stitches. The dimension of the wound was 3 ½ "long and ½" deep
4. There were abrasion at the back measuring 10" x 2".
He opined that the death was due to effect of injuries as noted above to the blood vessels, trachea etc. which were ante mortem and homicidal in nature. Injuries were caused by sharp cutting weapon. The injuries were sufficient to cause death of a person. He proved the medial report (Ext. 9).
P.Ws 15 and 16 are the investigating officers in the instant case. P.W 15 (S.I. Biswanath Datta) is the first investigating officer. He went to the place of 8 occurrence and drew up sketch map (Ext. 10). He arrested the appellant. He seized blood stained apparels from the appellant under a seizure list (Ext 2). P.W 3 witnessed the said seizure and signed on the seizure list. He collected injury report from the hospital. He obtained post mortem report. He made over charge of investigation to O/C upon transfer.
P.W 16 (S.I. Shyamal Chakraborty) is the second investigating officer. He sent the seized wearing apparels for FSL examination. He collected FSL report (Ext
12). He submitted charge sheet.
P.Ws 8 and 9 are the injured eye witnesses. They deposed they were playing at karbala math around 8.30 p.m. At that time, appellant came and assaulted Hasibul on throat and abdominal cavity with a razor. He suffered serious injuries, appellant also assaulted P.W 8 on the left lip and P.W 9 on the elbow. The witnesses took Hasibul to Howrah District Hospital where he was admitted. The said witnesses were also treated in the said hospital. Hearing about the incident P.Ws 11 and 14 rushed to the hospital. History of assault was narrated by P.W.s 9 and 11. P.W 5, medical officer treated the victim and the injured witnesses, P.W.s 8 and 9. She found injuries on the throat and chest of the deceased. She opined that the injury on the throat was sufficient in ordinary course of nature to cause death. Victim was referred to SSKM Hospital. P.W 14 is the father of the victim took the victim to SSKM hospital where P.W 5 declared him dead. P.W 13 conducted post mortem on the victim and found the incised injuries on the left side of neck and abdominal wall. He opined that the death was due to effect of injuries which were ante mortem and homicidal in nature. He corroborated the version of P.W 5 and deposed the injury in ordinary course of nature was sufficient to cause death.
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Ms. Ghosh has disputed the prosecution case on the ground that the seizure of blood stained wearing apparels at the behest of the appellant has not been proved. In the face of the consistent narration of the injured eye-witnesses P.W 8 and 9 implicating the appellant as the assailant of deceased and the said witnesses, we are of the opinion any irregularity in the by seizure of wearing apparels would not erode the credibility of the said witnesses. It is also important to note that the ocular versions of the injured witnesses are corroborated by the medical evidence on record. P.W 5 medical officer who treated the deceased and P.W 8 and 9 at Howrah District Hospital found injuries on the neck and chest of the victim deceased, Hasibul. P.W 13 (post-mortem doctor) also found injuries on the neck as well as abdominal cavity of the victim which, according to him, was sufficient to cause death.
In view of the aforesaid medical evidence on record corroborating the ocular version of the injured witnesses, I am unable to accept the contention of the learned advocate appearing for the appellant that the appellant did not have any intention to commit murder. Initially there was a dispute between the appellant and one of the relations of the deceased namely Md. Sarif (PW 12). Local people intervened in the matter. Thereafter, the appellant attacked the deceased and his brothers, Md. Arif and Habibul (P.W.s 8 and 9), at Karbala Math around 8.30 p.m. in the evening. He dealt repeated blows on the vital parts of the deceased, namely neck and abdominal cavity. Injuries were noted by P.W.5 (treating doctor) and P.W.13 (post-mortem doctor) on the neck and abdominal cavity of the deceased. The medical witnesses opined that the injury was sufficient in ordinary course of nature to cause death. Hypothetical argument that the injury might have been a slash injury, is of little relevance in the face of the consistent medical opinion with regard to the gravity of the injuries which, as per the Medical Officers, were 10 sufficient to cause death. The conduct of the appellant in repeatedly attacking the victim on the neck and abdominal cavity with a sharp cutting weapon reinforces my conclusion that the appellant had intended to murder the victim.
In the light of the aforesaid discussion, I uphold the conviction and sentence imposed on the appellant.
Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
Bail bond of the appellant, if furnished, be cancelled and he shall surrender forthwith before the trial court if on bail and serve out the sentence in accordance with law failing which trial court shall take appropriate steps to execute the sentence in accordance with law.
The appeal is dismissed.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.)