Calcutta High Court (Appellete Side)
Sk. Mabut Alias Sk. Abdul Mabud vs The State Of West Bengal on 12 July, 2016
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
CRA No. 291 of 2008
With
CRAN 1985 of 2016
with
CRA 367 of 2008
Sk. Mabut alias Sk. Abdul Mabud
-Vs.--
The State of West Bengal
Coram : The Hon'ble Justice Rajiv Sharma
The Hon'ble Justice Shivakant Prasad
For the Appellant : Mr. Sabir Ahmed
Mr. Manas Das
Mr. Abdur Rakib
For the State : Mr. Sudip Kumar Ghosh
Mr. Shekhar Barman
Heard on : 14.06.2016
C.A.V. on : 14.06.2016
Judgment on : 12.07.2016
SHIVAKANT PRASAD, J.
This appeal is directed against judgment and order dated 17.04.2008 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Tamluk, Purba Medinipur in Sessions Case No. 39(2) of 2004 vide Sessions Trial No. 2(II) of 2004 which arose out of G. R. Case No. 395 of 2000 corresponding to Tamluk P.S. Case No. 126 of 2000 dated 19th June, 2000 convicting the accused appellant under Section 307 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for eight years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for six months with direction to set off pre-trial detention under gone as per section 428 of the Code of Criminal Procedure.
The brief fact leading to this appeal is that on 19.06.2000 at about 12.00 noon at Chapbasan, all the accused persons namely, Moslem Nayak, Rahim Nayak, Mohiuddin Nayak alias Moinuddin Nayak encroached some portion of the land of Fazlu Nayak and made construction of one Chala. Over that issue quarrel ensued between the accused person named above and the victims of the case resulting in misfight. The accused persons formed unlawful assembly with deadly weapons like knife (Chhura), lathi and sword etc. and attacked the victims as a result thereof all the victims suffered injury for which they were treated in hospital.
On the written complaint of Mantaj Nayek, Tamluk P.S. Case No. 126 of 2000 dated 19th June, 2000 under Sections 148, 149, 325, 326 and 506 of Indian Penal Code was started and on completion of the investigation, I.O. submitted Charge-sheet against the accused persons under Sections 148, 149, 325, 326 and 506 of Indian Penal Code. The case was committed to the Court of Sessions, Purba Medinipur at Tamluk and the same was registered as S.C. No. 38(2)/2004 and the case initiated by this appellant and Sessions Case No. 39(2) of 2004 initiated against the appellant and others and both the cases were transferred to the Court of learned Additional Sessions Judge, 2nd Fast Track Court at Tamluk and registered as Sessions Trial No. 1(II) of 2004 and Sessions Trial No. 2(II) of 2004 respectively. The learned Additional Sessions Judge tried both the cases concurrently and in Session Case No. 38 of 2004 vide Sessions Trial No. 1(II) of 2004 initiated by this appellant, learned Judge framed charges against the accused person under Sections 324, 308 and 506 of IPC whereas in the Sessions Case No. 39(2) of 2004 vide Sessions Trial No. 2(II) of 2004, learned Judge framed charges against the appellant and other accused persons under Sections 323/324/308/506-II of IPC, to which accused persons of both the cases abjured the guilt and claimed a trial.
To substantiate the charge against the accused persons/ appellants, prosecution examined as many as 14 (Fourteen) witnesses and also adduced in evidence documents.
After the prosecution closed its evidence, the accused was examined under Section 313 of the Cr.P.C. but he declined to adduce any defence evidence. The defence case is one of denial of charges which emerges from the trend of cross-examination of prosecution witnesses.
Mr. Sabir Ahmed, learned Counsel for the appellant has contended that the prosecution had failed to establish ingredients of Section 307 of Indian Penal Code against the appellant and that the learned trial Judge should have relied on the testimony of P.W.-1. The statement of P.W.-2 is full of contradiction and did not corroborate the other witnesses.
Mr. Ahmed also contended that the learned Trial Judge should have taken note of fact that P.W.-3 has introduced new facts at the time of deposition different from the statement made before the Investigation Officer under Section 161 of the Code of Criminal Procedure, so no credence can be placed upon her deposition and learned Trial Judge failed to notice the discrepancy in the statement of P.W.-3 and P.W.-4. P.W.-4 stated in his deposition that there was mutual fighting between the appellant and victims.
Mr. Ahmed invites our attention to the testimony of P.W.-7 who examined the injured person which shows that there were no injuries to infer a case of attempt to kill the injured so as to bring home charge under Section 307 of Indian Penal Code in as much as the testimony of medical officer P.W.-8 who examined P.W.-6 taken together with the injury report reflects that he did not suffer any grievous injury, which might result in death to the injured.
It is pointed out that the learned Trial Judge ought to have considered before passing this impugned judgment that there is counter case being Tamluk P.S. Case No. 127 dated 19th June, 2000 against victim also and the complainant filed police case to save their skin from the buckle of the said case.
Mr. Ahmed submitted that assuming but not admitting that the victim allegedly raised objection when the accused person along with others had been constructing the tile roof. Thereafter, there were altercations which culminated in mutual fight. So the victims should have been considered as aggressor and not the appellant and for that learned Trial Judge ought to have held that the appellant had the benefit of right of private defence as there was free fight between appellants and victims and the testimonies of P.W.-1, P.W.-2, P.W.-3, P.W.-4, P.W.-5 and P.W.-6 ought to have been discarded, for all of them are related to the victims and should have been treated as interested witnesses and the statement of D.W.-1 and D.W.-2 should have been taken into due consideration before coming to conclusion that the appellant was guilty for charge under Section 307 of the Indian Penal Code.
Lastly, it is submitted by Mr. Ahmed that the punishment inflicted is too severe.
Now, let us critically examine the evidence on record firstly in the context of the ocular testimony of the injured to ascertain with the medical evidence as to the gravity of injury inflicted on the person of injured to find as to whether prosecution has been able to bring home charge punishable under Section 307 IPC.
P.W.-8 Dr. Sraban Ch. Murmu examined the injured Sk. Anwar Nayek son of Sk. Mantaj Nayek and found the following injuries on his person --
1) Incised looking like sharp cutting wound over the upper part of middle of back sized 2″ x ½″.
2) Incised looking wound over the left side of upper chest below clavicle sized 1″ x ½″ x ½″.
3) Sharp cutting wound over right had above wrist joint seized ½″ x ½″ x ¼″.
4) Scalp haematoma behind right ear sized 2″ x ½″ x ½″.
5) Multiple small abrasions over the back along the mid line.
Mr. Ahmed, learned Counsel for the appellant by inviting our attention to the injury report pointed out that the injuries were inflicted by one Rahim Nayak as disclosed by the person who brought the injured to the hospital whereas patient party namely Enayet Nayek P.W.-4 has deposed before the Court that when Anwar went to the place of occurrence and tried to rescue Mumtaj, accused Abdul Mabud assaulted him on his back by a knife.
P.W.-6 injured has also deposed that it was the appellant who caused injury on his person by stabbing with the help of a knife, but the doctor has stated on oath that it was the person who brought the patient, had disclosed to him that one Rahim inflicted injury. This is how the contradiction has been taken by the defence to point out that it was not the appellant who really inflicted the injury on the person of the injured. Accordingly, it is submitted that a contradiction is revealed from the medical evidence with that of ocular evidence.
In this context, it would be apt to take note of the principle laid down by the Hon'ble Supreme Court in Solanki Chimanbhai Ukabhai v. State of Gujarat (1983) 2 SCC 174 : AIR 1983 SCC (Cri) 379: AIR 1983 SC 484, wherein it has been observed thus:
"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
Therefore, we are unable to accept the argument as advanced by Mr. Ahmed that it was not the appellant rather one Rahim who inflicted injury on the person of injured. Evidence depict that admittedly there was a mutual fight in the midst of altercation between the parties and for that counter case was filed on behalf of the appellant party which as per the submission of the learned Counsel for the appellant has ended in acquittal of the prosecution parties of this case. Be that as it may, the fact remains that there was presence of the appellant party including Rahim whose name is reflected in the injury report. It might be that P.W.- 4 disclosed the name of said Rahim as he was at the scene of occurrence to commit assault on the prosecution party.
The appellant has taken ground no. XVI stating that P.W.-1, P.W.-2, P.W.-3, P.W.-4, P.W.-5 and P.W.-6 are all related to the victims and closely connected with each other by relation and as such they are interested witnesses and that the conviction should not be based on the testimony of the ocular witnesses.
In this context, we have appraised the evidence on record as deposed by the prosecution witnesses. Mantaj Nayek P.W.-1 has stated that he tried to resist the accused person from assaulting Fajlu Nayek who happens to be the son of his uncle. Enayet Nayek is one of his uncle. Sofiul Nayek is the son of Fajlu Nayek. Manujan Khatoon is his daughter and Anwar Nayek is his son.
Fajlu Nayek P.W.-2 deposed that he himself and his other brother protested against the accused persons who tried to construct building on his land on the date of occurrence when accused Abdul Mabud assaulted Anwar Nayek by a sword on his back causing serious bleeding injuries and all other accused persons also assaulted him and Sofiul and his mother Sakina Bibi by fists and blows and also by lathi for that Anwar was taken to Tamluk S.D. Hospital. This witness is admittedly related to P.W.-1.
Manujan Bibi P.W.-3 is daughter of Mantaj Nayek who deposed that on the relevant date of incident accused Moslem Nayak, Rahim Nayak, Mohiuddin Nayak alias Moinuddin Nayak were trying to construct a room by the side of the land of her uncle Fajlu Nayek when quarrel cropped up between her uncle Fajlu Nayek and the accused persons and her father went to intervene into the matter and her father was assaulted by them and when her elder brother Anwar went to rescue her father, Abdul Mabud assaulted on his back by a sword and as a result, he sustained bleeding injury on his back. So, this witness is also related to the injured.
Enayet Nayek P.W.-4 is younger uncle of Mantaj Nayek who has stated on oath that accused Abdul Mabud the appellant herein assaulted Anwar on his back by a knife. He admitted in his cross- examination that Abdul Mabud also filed a case against them on allegation of offence of assault by katari, knife, lathi etc. which case was pending at the time of his deposition on 15.12.2004.
Safiul Nayek P.W.-5 is the son of Fajlu and is undoubtedly related to the injured who stated on oath that Abdul Mabud assaulted Anwar by dragger on his back, as a result of mutual fight between the prosecution party and the accused party.
Anwar Nayek P.W.-6 is the injured who has deposed in clear crystal term that Abdul Mabud assaulted him by knife on his back as a result, he sustained bleeding injury. He was taken to hospital by his grand-father Enayet Nayek and one Narayan Bhoumik and was admitted for treatment as indoor patient for about 10-11 days.
According to him, on hearing shouting of Fajlu he went near the house of Fajlu and found that accused Moslem Nayak, Rahim Nayak, Mohiuddin Nayak alias Moinuddin Nayak were assaulting Fajlu and his father Mantaj Nayek and when he was trying to rescue his father by pulling him out from place, the appellant accused Abdul Mabud assaulted him. Obviously, this witness too happens to be related to the aforesaid prosecution witnesses.
We are of the view that notwithstanding, the prosecution witnesses related to the injured, are necessarily interested witnesses. It is a clenched position of law that merely because the eye witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness the same has to be established. Mere statement that being relatives of the deceased are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relation is not a factor to affect credibility of a witness. It is merely often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Evidence has to be laid if a plea of false implication is made. In such cases the Court has to adopt a careful approach in the light of evidence to find out whether it is cogent and credible. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person.
We have critically examined the evidence-on-record which in our considered opinion instil confidence in judicial mind inasmuch as the admitted fact is that there was a misfight and a counter case was also registered but as per the submission of Mr. Ahmed counter case filed on behalf of the accused party has been disposed of acquitting complainant parties who were arraigned as the accused persons.
Bestowing upon an anxious consideration to the evidence as discussed above we find no ground to interfere into the finding of guilt of the appellant for having inflicted injuries on the Injured but keeping in view the nature of the injuries inflicted in the facts and circumstances of the case, prognosis being not unfavourable at the time of treatment of the injured for 10 to 11 days as indoor patient in S.D. hospital, Tamluk as reflected from injury report, offence cannot be said to be one covered by Section 307 IPC as the intention to kill was not writ large which in our considered view falls within the purview of offence punishable under Section 324 IPC.
It would be profitable to reproduce the provision of Section 307 IPC which reads thus:
"Attempt to murder-- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
It is true that to justify a conviction under Section 307 if there is present an intent coupled with some overtact in execution thereof, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal intent need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
We have taken into consideration the facts and circumstances of the case in respect of the incident which occurred in the midst of altercation which resulted in mutual fight between the complainant parties and appellant parties and also considering the defence document of the counter case pressed in service by the learned Counsel for the appellant being the injuries reports on the person of the accused parties, although the appellant was not injured in the incident, we are of the view that intention to kill the injured was not writ large. Therefore, bearing in mind the principle that to justify conviction under Section 307 IPC if there is present an intent coupled with some overtact in execution thereof attempt to commit murder then only the offence punishable under Section 307 IPC is attracted. It is true that the injuries caused to the injured was behind the back below clavicle above the chest which was not found to be fatal as per the doctor's evidence. The doctor has mentioned in the report that the injuries on the person of the injured was not unfavourable. Therefore, we reiterate that the intention to kill to warrant conviction under Section 307 IPC was not present in the facts and circumstances of the case. In the context of the above discussion, we are pleased to alter the conviction and sentence awarded against the appellant Abdul Mabud to an offence under section 324 IPC from the charge under Section 307 IPC.
Section 324 IPC provides for punishment as under -
"324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as 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 in- hale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
We find from the order of sentence awarded against the appellant by the learned Trial Court that the appellant accused was sentenced to suffer Rigorous Imprisonment for 8 years. In the mitigating circumstances and for the reasons recorded herein above, we are pleased to alter the sentence to a term of 3 years Rigorous Imprisonment for the offence punishable under Section 324 IPC but without altering the sentence to pay fine with default clause. Entire fine amount be remitted to the Injured if realised under the provision of section 357 of the Code of Criminal Procedure to compensate for the injuries suffered by him.
Ergo, the Appeal is partly allowed.
The aforesaid appeal being CRA No. 367 of 2008 preferred by Rahim Nayak & Others is stands dismissed, in view of our decision in CRA No. 291 of 2008.
CRAN No. 1985 of 2016 whereby the appellant Sk. Mabut @ Sk. Abdul Mabud prayed for continuing on the same bail is rejected and dismissed.
Let the Lower Court Record together with a copy of this Judgment be sent down to the learned Trial Court and to the Superintendent, Correctional Home for necessary action and compliance. .
Let a copy of this judgment be given to the convict free of cost.
Urgent Photostat certified copy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
I agree.
(RAJIV SHARMA, J.) (RAJIV SHARMA, J.) (SHIVAKANT PRASAD, J.)