AMINUL ISLAM Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appellant has filed the instant appeal assailing the judgment and order of conviction passed by the Trial Court for committing offence under Sec. 324 of the Indian Penal Code and consequence sentence of imprisonment for a term of one year with fine of Rs.1,000.00, in default, to suffer simple imprisonment for further 3 months.

(2.) The Officer-in-Charge, Gazole Police Station in the District of Malda received a written complaint from one Mosiluddin Ahmed on 7/8/2016 alleging, inter alia, that on 6/8/2016 at about 7:45 p.m., his younger brother Serajuddin Ahmed was returning from mosque after observing Namaz. At that time the appellant along with Khatir Mahammad, Nazir Hossain @ Bhaltu, Maijul Rahaman @ Nathua and Mansur Rahaman wrongly restrained him in front of the house of one Jainul @ Buku and assaulted him on his head with iron rod and Hasua with the intention to kill him. As a result of assault, the brother of the de-facto complainant was seriously injured. Hearing hue and cry the villagers rushed to the place of occurrence. The de-facto complainant with his two sons also reached the spot and found Serajuddin lying on the ground in injured condition. He was immediately taken to Gazole Primary Health Centre. The Medical Officer referred him to Malda Medical College & Hospital considering serious nature of assault in the person of Serajuddin. He was admitted to Malda Medical College & Hospital and subsequently to a Nursing Home. It is also stated that the accused persons are habitual offenders. They also assaulted some other people of the village and they were facing trial in G.R. Case No.1069/1991. On the basis of the said complaint, police registered Gazole Police Station Case No.462/2016 dtd. 7/8/2016 and took up the case for investigation. On completion of investigation, police submitted charge-sheet against the accused persons. The Trial Court framed charge against five accused persons including the appellant under Ss. 341/325/307/34 of the Indian Penal Code. As the accused persons pleaded not guilty when the charge was read over and explained to them, trial of the case commenced. On conclusion of trial, the appellant was convicted and sentenced in the manner disclosed above while other accused persons were acquitted from the charge. When the instant appeal came up for hearing, the appellant did not take any step. Therefore, Mr. Dipanjan Dutt, Advocate was requested by this Court to act as Amicus Curiae on behalf of the appellant in the instant appeal. Mr. Dutt, readily accepted the proposal and he has submitted the case of the appellant with all diligence and sincerity. It is submitted by the learned Amicus Curiae that in a criminal trial the prosecution is duty bound to prove at the foremost the date, time and place of occurrence and the manner of the incident constituting the offence before the Trial Court. If there is any deviation in proving the aforesaid facts, the entire prosecution case becomes suspect. He substantiate his argument referring to the written complaint (Exhibit.1). The written complaint was lodged on 7/8/2016 with the Officerin-Charge, Gazole Police Station. In the written complaint it was specifically stated that the incident took place yesterday at about 7:45 p.m. on the road of their village in front of the house of one Jainul @ Buku while his brother Serajuddin was returning from mosque after offering Namaz to his house.

(3.) Mr. Dutt next tekes me to formal FIR. In Column No.3 of the formal FIR, the police officer recorded the date of occurrence as on 6/7/2016. He also refers to the evidence of the de-facto complainant namely Mosiluddin Ahmed who stated on oath in his evidence that the incident took place on 6/7/2016 at about 7:45 p.m.. Therefore, if the oral evidence of the de-facto complainant and the recording of formal FIR are taken into consideration, there is no other alternative but to hold that the FIR was lodged just after one month of the alleged incident. There is no explanation whatsoever regarding delay in lodging the FIR. The learned Trial Judge did not even consider the matter in the impugned judgment. Therefore, there is every reason to hold that concocted story came up before the Court as a result of delayed FIR. Coupled with the delay, according to the Mr. Dutt, admittedly the relation between the de-facto complainant and his brother in one side and the appellant and other acquitted accused persons on the other hand was inimical in view of the fact that admittedly a counter case is pending over the self same incident filed on behalf of the accused persons. In other words, in the alleged incident, admittedly some of the accused persons suffered injury and over the said incident a criminal case was filed against the de-facto complainant, his brother and others by the accused persons. In view of existence of such counter case, false implication of the appellant cannot be ruled out.