NAWSAD SHEIKH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The instant appeal has been preferred against the judgment and order passed by the Learned Additional Sessions Judge, 3rd Court Murshidabad in Sessions Trial No. 4th of April 1986 convicting the appellant of an offence u/s 307 of IPC and sentencing him to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.500.00 in default to suffer further rigorous imprisonment for 6 months.

(2.) The brief fact of the prosecution case is that on 20nd day of May 1983 about 7: 00 to 7: 30 p.m. PW 1 was Wajed Sk. was taking meal at his house. Suddenly, accused Nawsad Sk. came there and dragged him out of the room and began to assault with fists and blows. Wajed Sk. raised alarm. Hearing his alarm his two brothers Ajid and Kauser who were at Lichubagan nearby, came to rescue Wajed Sk. While Ajid and Kauser were trying to pacify Nawsad, suddenly Nawsad dealt a blow with Pashni (a sharp cutting weapon) to Kauser on his abdomen, near the shoulder as well as near his eyes causing bleeding injuries. As a result of the pashni blow the intestine of Kauser protruded and he became senseless. His abdomen was tied up with a piece of cloth and the injured senseless Kauser was removed to Lalbag hospital; therefrom forwarded to Behrampur General Hospital. Earlier Alima Bibi, wife of accused Nawsed being an altercation with brother's wife of Wajed Sk. This incident is of sequel to the earlier episode. Wajed went to the police station and lodged an FIR. On the basis of the said information the police case was started, accused persons were put under arrest and sent up for trial.

(3.) Learned Advocate for the appellant submitted before this court that the impugned order passed by the Learned Sessions Judge is bad in law and is liable to be set aside. He further argued that learned Sessions Judge, has failed to appreciate the facts and circumstances of this case and came to an erroneous finding. It is the further argument on behalf of the appellant that there are vital discrepancies in the evidences of PWs for which the statement of eye witnesses cannot be believed, the alleged sharp cutting weapon i.e. pashni did not produce in court during trial and no blood stain earth or control earth was seized by the investigating officer during the course of investigation, thus, the investigation of the I.O. is perfunctory. The piece of cloth which was used to tie the abdomen of the injured was also not seized during the investigation. Thus, the conviction on the basis of such investigation is baseless. He further pointed out that there are 25 houses nearby to the place of occurrence, but no villagers or neighbours were cited as witness in this case. All P.Ws are interested witnesses, so their evidences cannot be relied. He again argued that it was alleged in the prosecution case that initially the appellant started assaulting PW 1 Wajed Sk., but it appears that the appellant did not dealt with a blow of Pashni to the PW 1. The statement of relatives of injured cannot be believed. The statement of Dr. is also not supporting the prosecution case as he could not mentioned in his report whether the injury was fresh or not. It is the fact of the prosecution that initially the injured was admitted to Lalbag Hospital, but no doctor of Lalbag Hospital was examined. He further argued that in this case it would be revealed that the appellant had no intention to commit murder to the injured, only influenced by grave and sudden provocation the alleged Pashni was used and the injured sustained injury. Thus, the conviction u/s 307 IPC is not proper, at best the conviction can be maintainable u/s 326 IPC.