HABIB SK Vs. THE STATE

JUDGEMENT

(1.) The appellant, Habib Sk, along with six others, were tried by the learned Additional Sessions Judge, Birbhum, on the charges under sections 307/34 of the Indian Penal Code and 395 of the Indian Penal Code in Sessions Trial No. 3 of July, 1976. The appellant and another accused were also tried under section 324 of the Indian Penal Code. The learned Judge convicted the appellant under section 324 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year. The appellant was acquitted of the other charges. Other accused persons were acquitted of all the charges.

(2.) In this appeal, the appellant has challenged the said conviction and sentence. While admitting the appeal, this Court issued a Rule calling upon the appellant to show cause why he should not be convicted and sentenced under section 307 of the Indian Penal Code or such other or further orders made as to this Court may deem fit and proper. The appeal and the Rule were heard together.

(3.) The prosecution case is that on Sept. 18, 1973, corresponding to 1st Aswm, 1380 B.S., P. W. 1, Musud Sk. was returning home from Rampurhat town by rickshaw, driven by P. W. 2, Alam Sk. P. W. 1 had a bag of atta with him and he had also a sum of Rs. 200.00 At about 9 P.M., P. W. 1 reached the eastern bank of the canal near his village, Ekdala. At that time the appellant and others who accompanied him wrongfully restrained P. W. 1 on his way. The appellant assaulted P. W. 1 with a tangi causing severe bleeding injuries. An associate of the appellant also assaulted P. W. 1 by bhojali. P. W. 1, Musud recognised the appellant and he took away the tangi from him and, thereafter, became senseless. On hearing the alarm raised by P. W. 1 his wife Tarikjan Bibi, P. W. 4 along with Khalique, P. W. 5 hurriedly came to the place of occurrence. P. W- 4 also saw the appellant striking her husband with the tangi. P. W. 4 found P. W. 1 lying unconscious with injuries and a tangi was also lying by the side of P. W. I. Rickshaw puller, P. W. 2, Alam Sheikh, who witnessed the occurrence fled away towards the village and came there again with P. W. 3, Asanur Sk. The injured was taken to Rampurhat Hospital and he was examined by P. W. 8, Dr. H. C. Dey, who found some injuries on his person. P. W. 1 was admitted to the Hospital on Sept. 18, 1973 at 10.15 P.M. P. W. 4 went to the thana, made a statement which was recorded by P. W. 10, Swapan Kumar Dey, as G. D. Entry, Ext. 3, on Sept. 19, 1973 at 12.50 A.M. P. W. 9, Sambhu Nath Roy, was the Officer-in-Charge of Rampurhat Police Station at the relevant time. On Sept. 19, 1973 at about 11.45 A.M. he received an injury report of P. W. 1 from the Medical Officer, Rampurhat Hospital. On perusal of the G. D. Entry, he drew up a formal first information report, Ext. 4, and started Rampurhat Police Station Case No. 21 dated Sept. 19, 1973. P.W. 11, Sub-Inspector, Dipak Kumar Ghosh took up investigation of the case. He went to village, Ekdala on Sept. 19, 1973 at 1.30 P.M. He seized tangi and blood stained clothes. After investigation, he submitted charge-sheet.