Calcutta High Court (Appellete Side)
Rouson Ali Molla & Ors vs The State Of West Bengal on 23 November, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item no. 553/Aloke/Sanjib&PA
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 226 of 1991
Rouson Ali Molla & Ors.
Versus
The State of West Bengal
AND
C.R.A. 232 of 1991
Nausad Ali Molla & Anr.
Versus
The State of West Bengal
With
Crl. Rev. No. 1146 of 91
For the appellant no.5 : Mr. Ranadeb Sengupta
(in CRA 226 of 1991)
For the State : Mr. Arun Kr. Maiti, Ld. Addl. P.P.
Mr. Anjan Dutta
Heard on : 23.11.2017
Judgement on : 23.11.2017
Joymalya Bagchi, J.:
Mr. Ranadeb Sengupta, learned counsel appears for appellant no.5 Niamat Ali Molla in Criminal Appeal No. 226 of 1991.
It appears from the report submitted by the department that the appellant no. 1 Rouson Ali Molla and appellant no. 2 Islam Ali Molla in C.R.A. No. 226 of 1991 and appellant no. 1, Nausad Ali Molla in C.R.A No. 232 of 1991 are dead.
In view of the aforesaid report, we record that C.R.A. No. 226 of 1991 has abated so far it relates to appellant 1 and 2, that is, Rouson Ali Molla and Islam Ali Molla and C.R.A No. 232 of 1991 has abated so far as it relates to Nausad Ali Molla, appellant no.1 therein.
Mr. Sengupta, learned counsel is requested to act as amicus curiae to assist the disposal of the appeals in respect of the appellants who are unrepresented before this Court.
Both the appeals are taken up together for hearing analogously as they relate to the self-same judgment and order of conviction and sentence dated 29.06.1991 whereby the appellants are convicted for commission of offence punishable under Section 148 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for two years each and also convicted for commission of offence under Section 304 II read with Section 149 of the Indian Penal Code and appellant Nausad Ali Molla is sentenced to suffer rigorous imprisonment for seven years for the offence punishable under section 304(Part II)/149 of IPC while the other appellants are sentenced to suffer rigorous imprisonment for three years and six months for the offence punishable under section 304 (Part II)/149 IPC, both the sentences to run concurrently.
The prosecution case, as alleged, against the appellants is that in the morning of 5.8.85 the appellants being armed with lathis, ballams etc. gathered on the land of Kalo Sk. (defacto-complainant) and forcibly tried to plant a Krishnachura tree thereon. When the brother of Kalo Sk., namely, Akbar Ali Sk. Protested, Nausad Ali hit Akbar on the head with a lathi causing serious injuries. Seeing this, the victim's son, Giasuddin tried to rescue him and all the accused persons assaulted him too. Local people assembled at the place of occurrence whereupon the accused persons fled away. The victims were admitted at Vidyasagar hospital at Behala for treatment.
On the complaint of Kalo Sk, P.W. 2 criminal case being Bishnupur P.S. Case No. 8 dated 05.08.1985 under Sections 148/149/324/325 of the Indian Penal Code was registered for investigation and subsequently upon the death of Akbar in the Hospital, section 304 IPC was added. In conclusion of investigation, charge-sheet was filed and the case was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, Alipore for trial and disposal.
Charges were framed under Section 148 of the Indian Penal Code and Section 302 read with Section 149 of the Indian Penal Code against the accused persons. They pleaded not guilty and claimed to be tried.
In the course of tria, prosecution examined fourteen witnesses and exhibited a number of documents. The defence of the accused persons was one of innocence and false implication.
In conclusion of trial, the trial judge by judgment and order dated 29.06.1991 convicted and sentenced the appellants, as aforesaid. Hence, the present appeals. At the time of admission of C.R.A No. 232 of 1991, this court had issued a rule for enhancement of sentence, which was numbered as Crl.Rev.No.1146 of 1991. The aforesaid rule is also heard along with the present appeals.
Mr. Ranadeb Sengupta, learned counsel appearing for the appellants submits that the principal accused, namely, Nowshed Ali is already dead. The evidence against the other appellants are vague, omnibus and non-specific in nature. It is also submitted that the injured eye witness, P.W. 7 has not attributed any role to the other appellants in the assault of his father Akbar who subsequently died. He accordingly, prayed for acquittal of the other appellants.
Mr. Maiti, learned counsel appearing for the State submits that appellants came being variously armed and had conjointly assaulted the victim, Akbar, and therefore, they were members of an unlawful assembly which had the common object of causing murder of the victim. He accordingly, prayed for dismissal of the appeals.
Let me consider the evidence on record in the light of the aforesaid submissions.
P.W. 1 is one of the sons of the victim. He stated he was not present at the time of assault. He only deposed that police seized blood stained dhoti under a seizure list.
P.W. 2 is the brother of the victim and the de facto complainant in the instant case. He deposed that about five years back in the morning there was a quarrel over the planting of Krishnachura tree in the land of Akbar. The quarrel took place between himself and Nausad. Thereafter, at 6/6.30 a.m. he heard a hue and cry and saw Nausad hitting Akbar on his head with lathi and other appellants were also present. They were armed with lathis, ballams etc. As a result of assault, Akbar fell down. Akbar's son Giasuddin was also injured due to assault by them. Thereafter the appellants fled away. He narrated the incident at Bishnupur P.S. Darogababu wrote his statement. He put his L.T.I. thereon. From Bishnupur P.S. he went to Vidyasagar Hospital along with Akbar and Giasuddin. Akbar was sent to P.G. Hospital where he was admitted and on the next day at about 3 p.m., Akbar died. Akbar wore a dhoti at the time of occurrence and Amir Sk. deposited the said dhoti at the police station. In cross-examination, he stated that the place of transplantation is 150 cubits from his house. He also stated that he had poor eye sight.
P.W.3 was the record keeper of S.S.K.M. Hospital. He produced a bed-head ticket of Akbar to the police during investigation. He proved his signature on the seizure list marked as exbt. 2/1. He proved bed-head ticket marked as exbt. 3.
P.W. 4 was a sub Inspector of Police attached to Bhowbanipur P.S. at the time of the incident. He conducted inquest over the dead body of Akbar on 07.08.1985. He proved the inquest report marked as exbt. 4.
P.W. 5 deposed that police seized lathi in his presence. He signed on the seizure list.
P.W. 6 Akkas Ali Mistri deposed that he is a local villager. Five and half years ago he was going to the house of Amir Sk. He saw the appellants assaulted Akbar Ali Sk. with lathi, bamboo and wood. He raised alarm and accused persons fled away. He along with Kalo Sk. took the injured Akbar to Bishnupur P.S. and thereafter to Vidyasagar Hospital. Police seized lathi, bamboo and wood under a seizure list. He put his signature thereon marked as exbt. 5/1. He made statement before Magistrate. In cross-examination he stated that his house is at a seven minutes walking distance from the place of occurrence.
P.W. 7 Giasuddin is the injured witness who is also the son of the victim. He deposed that his father Akbar was murdered by the appellants. On 05.08.1985 the accused persons assaulted him with lathi and his father died at P.G. Hospital on 06.05.1985. The appellants had planted a Krishnachura tree on the side of a khal adjoining the path. His father opposed such act and the appellants assaulted him. He was present at the time of occurrence. The appellants assaulted him on his head with a lathi causing incised wound. He lost unconscious and was medically treated at Vidyasagar Hospital. He made statement before a Magistrate. He proved his signature on the statement.
P.W. 8, Abdul Hai Molla, deposed that on 5th August, 1985 between 6 AM and 6.30 AM he had gone to see his business and on his return he noticed that the appellants being armed with lathi were assaulting Akbar Ali on the village path near a bridge. He protested. Giasuddin Sk., the youngest son of Akbar Ali rushed to the spot. The accused Niamat also assaulted Giasuddin on the head. Number of people gathered at the spot. Local people sent Akbar and Giasuddin to Bishnupur Police Station. Kalo Sk, Dulal Sk. And Akkas Mistry accompanied with them to the police station. Police seized five lathis made of bamboo, one lathi made of Tal tree, another lathi made of wood. Four of those lathies were seized from the house of Asmat and remaining three were seized from the resident of Nousad. He signed the seizure list. He gave a statement before the Magistrate.
P.W. 9 was an employee of P.G. Hospital. He deposed that police seized one bed-head ticket of Akbar Ali from the Hospital. He signed on the seizure list.
P.W. 10 was an ASI attached to Bishnupur Police Station. On 05-08-1985 he recorded the complaint of Kalo Sk., P.W. 1. He drew up the formal FIR (Ext. 7).
P.W. 11, Prabir Narayan Sen, a doctor, was attached to the Vidyasagar Hospital at the point of time. On 05-08-1985 he examined Akbar Ali Sk. and Giasuddin Sk. He proved the injury reports (Ext. 8 and 8/1).
P.W. 12, Paritosh Chakraborty, was a constable attached to Bhowanipore P.S. He took the dead body of Akbar Ali from SSKM Hospital to the Morgue and identified the dead body to the doctor.
P.W. 13, Ram Chandra Bera deposed that 5/5½ year back at 6.00 AM he was brushing his teeth on the wooden bridge when he heard a scream close to the bridge. He found that the appellants were assaulting Akbar Ali with lathi. Thereafter he escaped through the bamboo bridge and crossed the khal. In cross- examination, he stated that he was examined after 2/3 days after the offence. He also stated that the cases are pending against him for firing at the police.
P.W. 14, Salil Kr. Ghosh, was the investigating officer in the instant case. He went to the place of occurrence and prepared a sketch map with index (Ext.
9). He seized a blood stained red-bordered Dhoti produced by Kalo Sk under a seizure list. He proved the seizure list (Ext. 1). He seized the bed head ticket of Akbar Ali Sk. at SSKM Hospital under a seizure list (Ext. 2). He collected injury report of Akbar Ali Sk and Giasuddin Sk. He collected post mortem report and submitted charge sheet.
From the aforesaid evidence on record, it appears that P.W 2 Kalo Sk., P.W. 6 Akkas Ali Mistri, P.W. 7 Giasuddin Sk., P.W. 8 Abdul Hai Molla and P.W. 13 Ram Chandra Bera are the eye witnesses in the instant case. Out of them, Giasuddin Sk. is also an injured witness. The witnesses stated that there was a dispute over planting of Krishnachura tree on the date of the incident and over the incident the appellants assaulted the victim Akbar Ali Sk. with lathi and when his son, Giasuddin, came to his rescue he was also assaulted. Both of them were admitted at Vidyasagar Hospital and thereafter Akbar was transferred to SSKM Hospital where he breathed his last. I find that the presence of all the appellants being armed with lathi and other weapons has been consistently deposed by the said witnesses. However, apart from Nausad Ali there is no specific overt act attributed to the appellants with regard to the assault on both Akbar Ali Sk and Giasuddin. The witnesses have deposed that Nausad hit Akbar Ali Sk on the head and as a result he fell down and when Giasuddin tried to save his father, he was also assaulted by Nausad. Although, there are omnibus allegations against the other appellants, no specific overt act is consistently attributed to them. An analysis of the evidence, therefore, shows that Nausad (since deceased) caused the injuries on the victim and the injured witness (PW7) and as a result of such injury the victim died on the next date. Hence, Nausad is responsible for the injury on the victim which caused his death and is liable for commission of offence punishable under section 304 Part II of the Indian Penal Code. In the aforesaid factual background, when the other appellants were only present at the place of occurrence with arms and no specific overt act is consistently attributed to them, it is difficult to uphold their conviction under section 304 Part II read with section 149 of the Indian Penal Code. However, I uphold the conviction of appellants Asmat Ali Molla, Anamat Ali Molla, Niamat Ali Molla and Md. Ali Molla for commission of offence under section 148 of IPC. In view of the alteration of conviction of the said appellants and keeping in mind that they do not have any criminal antecedents and the incident occurred three decades ago, I direct that the appellant Niamat Ali Molla may be released on probation upon executing a bond of peace and good behaviour for a period of two years with two sureties to the satisfaction of learned Chief Judicial Magistrate, South 24 Parganas at Alipore. I find that appellants, Asmat Ali Molla, Anamat Ali Molla and Md. Ali Molla have not been arrested and are absconding. In the event, they appear before the learned Chief Judicial Magistrate, South 24 Parganas at Alipore within a month and they shall be released on probation on execution of a bond of peace and good behaviour for a period of two years with two sureties to the satisfaction of learned Chief Judicial Magistrate, South 24 Parganas at Alipore, failing which they shall suffer sentence of rigorous imprisonment for two years each and pay fine of Rs.10,000/- each in default to suffer simple imprisonment for one month more.
Period of detention, if any, undergone by the appellants, Asmat Ali Molla, Anamat Ali Molla and Md. Ali Molla during investigation, inquiry and trial shall be set off against the substantive sentence, if imposed on them, under Section 428 Cr.P.C.
It is directed that the appellant, Niamat Ali Molla shall be released from custody forthwith upon execution of bond, as aforesaid, if he is not wanted in any other case.
Learned Chief Judicial Magistrate, South 24 Parganas at Alipore shall take all necessary steps to ensure the attendance of the aforesaid appellants and execution of bond and/or sentences, as the case may be, in accordance with law. Suo moto rule of enhancement of sentence is discharged.
The appeals are thus disposed of.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) Item no. 553 Aloke/Sanjib&PA