MUJIBAR SHEIKH Vs. STATE

JUDGEMENT

(1.) This appeal is directed against judgement and order dated February 21, 2005 passed by the Additional Sessions Judge, 4th Court, Nadia, Krishnagar in Sessions Trial No. 5(II) of 2004 convicting the appellants and sentencing them to suffer R.I. for 2 years each for the offence punishable under Sec. 148 and 34 IPC and to suffer R.I. for 1 year each for offence punishable under Sec. 323/34 IPC and further sentenced the appellants to suffer R.I. for 5 years each and also to pay fine of Rs.5,000.00 each i.d. to suffer further one year each for offence punishable u/s. 325/34 IPC. All the sentences to run concurrently.

(2.) Period of detention, if any to be set off as per Sec. 428 Cr.P.C. Prosecution case in short is that a written complaint was made by one Gulnahar Begum, wife of Najrul Islam Mondal to the officer-in- charge, Kaliganj P.S. stating that on 9/5/1999, at about 7 A.M. while her brother Majaffar Hossain was returning home through pucca rasta, at that time near the house of Majaffar accused Hafijul Sheikh abused him in filthy languages and started assaulting with an iron rod. Out of fear Majaffar raised alarm and hearing the same the members of his family rushed to the P.O. and tried to rescue him. On seeing those family members, from the house of Sahabat Sheikh near the P.O. the accused persons namely, Mustakin, Mujibar both sons of Rahamat Sheikh- Anaruddin Sheikh, Hasibur Sheikh, Sahabat Sheikh and his two sons Munirul Sheikh and Sarikul Sheikh attacked Majaffar and his family members being armed with iron rod, lathi, etc. The husband of the defacto complainant sustained grievous hurt on his entire person including head. Majaffar, his father Abu Bakkar Sk. and maternal uncle Amanat also sustained grievous injuries. The local villagers having rushed to the place of occurrence, resisted the accused persons and then fled away. With the help of local people, the injured persons were at first taken to Mira P.H.C. where mother of the defacto complainant and brother Kadar Ali were released after primary treatment and rest injured persons were referred to Shaktinagar Hospital considering gravity of their injuries.

(3.) On the basis of the said complaint Kaliganj P.S. Case No. 96/99 dtd. 9/5/1999 u/s 147/148/149/323/325/326/308 I.P.C. was started. On completion of investigation, charge sheet was filed against all the appellants. The case was committed to the Court of Sessions and charge was framed. On completion of trial, the appellants were convicted and sentenced as above. Mr. Debabrata Roy, learned lawyer for the appellants has submitted that it is the case of the appellants that the learned Trial Court erroneously convicted the appellants inspite of the charge not being proved beyond all reasonable doubt. That the appreciation of evidence by the Trial Court is not proper. That the learned Judge wrongly did not hold that the police officer motivatedly manufactured the FIR inspite of the fact that PW 1 categorically stated that she does not know who wrote the FIR. The learned Judge also failed to appreciate that PW-10 has deposed that FIR was written as per the dictation of the police officer. That framing of charge by the Trial Court was improper and serious miscarriage of justice has been caused by the conviction of the appellants. The Trial Court erred both in facts and law and the Trial Judge wrongly relied upon the oral evidence without any corroboration and that the Trial Court Judge without proper appreciation of evidence and without considering the materials on record in the proper perspective wrongly convicted the appellants and as such the judgement and order under appeal is liable to be set aside.