BAJJEL HAQUE CHOUDHURY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) These two matters namely, Criminal Appeal bearing No. 43 of 1982 and Criminal Revision bearing No. 835 of 1982 have arisen out of a. judgment delivered on 22-1-1982 by the Additional Sessions Judge, 3rd court, Murshidabad in Sessions Trial No. 1 of December, 1981. In all 5 persons namely (1) Bajjel Haque Choudhury, (2) Amjad Sk., (3) Gora Mal, (4) Tamej Chowdhury and (5) Nurul Sk. figured as accused in that trial. The gravament of charge as against these 5 persons was that on or about 17th day of May, 1979 the accused persons assembled together as members of an unlawful assembly, being armed with deadly weapons and in furtherence of their common intention assaulted one Niamat Mirza at Janshi Bus Stand, P.S. Sagardighi so much so that Niamat expired on the next morning at the local Hospital. Charges under section 148 I.P.C., under section 149/302 I.P.C. and 34/302 I.P.C. were framed as against all these accused persons. The prosecution case briefly put stood as follows.

(2.) The deceased Niamat Mirza was enjoying a cup of tea at Anjins Tea Stall situate at Jamhi Bus Stand on 17/5/1979 at about 5 p.m. The aforesaid 5 accused persons entered into the Tea Stall, dragged Niamat outside the Stall and in front of the Tea Stall they all assaulted him with iron rods, lathi and cycle chains so much so Niamat fell flat on the Kancha portion of the road. Seeing the incident witnesses flocked to that place and Niamat was taken to Jangipur Hospital where in presence of the attending Dr. SN. Bhakat, P.W. 5, Niamat disclosed the names of his assailants. This disclosure was made at about 7.30 p.m. On the next morning, Niamat expired. At about 4.30 a.m. on the same morning, P.W. 1 Kazi Kadam Rasul, a resident of village Sitalpara, P.S. Sagardighi lodged a FIR. with Sagardighi P.S. On the basis of the FIR. (Ext. 1), the 1.0. of the Police Station started Sagardighi P.S. Case No. 12 dated 18/5/1979 against the accused persons. In course of the investigation the 1.0. visited the P.O. in the same morning, prepared a sketch map (Ext. 2) seized the blood stained lungi of the deceased as per seizure list, (Ext. 3) and examined the witnesses under section 161 Cr. P.C. Thereafter, in due course of the investigation the accused persons were committed to the Court of Session at Murshidabad to stand their trial. In all 12 P.Ws. including Police Officers and Doctor were examined before the learned Additional Sessions Judge, Murshidabad. The learned Additional Sessions Judge found that no deadly weapon was used, that there was no assault on any vital portion of the body of the deceased, that the accused persons had no common intention whatsoever to put an end to the life of Niamat. The learned Additional Sessions Judge also found that before the Hospital Doctor names of only 3 accused persons, namely, (1) Gora Mal, (2) Bajjel Haque Choudhury and (3) Amjad Sk. were given out by the deceased. The residual two accused persons, namely, Tamej Choudhury and Nurul Sk. were acquitted of all the charges. The three accused, namely, Bajjel, Amjad Sk. and Coral Mal were, however found guilty of the offence under section 304, Part II read with section 34 I.P.C. and each of these three accused was sentenced to three years RI. Being aggrieved by the aforesaid judgment of conviction and sentence, the three accused Bajjel, Amjad and Gora have preferred the present appeal. The father of the deceased being dissatisfied with the judgment of acquittal of the accused Tamej and Nurul has filed the revisional application. We have heard both these matters together.

(3.) Mr. S. P. Talukdar appearing for the appellants has taken us through the evidence of the so-called eye-witnesses of the incident. The alleged eye-witnesses are P.W. 1, Khairul Alam, P.W. 2, Sadrul Alam, PW. 3. Saharab and P.W. 4 Kazi Kadam Rasul. P.Ws. 3 and 4, it appears did not see the accused persons dragging Niamat from the tea stall. They heard about this part of the occurrence from P.W. 2, Sadrul. The learned Additional Sessions Judge disbelieved the evidence adduced by the P.Ws. 3 and 4. P.W. 1 Khairul Alam who claimed to have seen the occurrence was also disbelieved by the learned trial court seeing that he was related to the victims father Saharab, P.W. 3. P.W. 2, Sadrul, however, was fully relied upon by the trial court. The learned trial court also believed the testimony of P.W. 8, Mayez Ali who was, however, declared hostile by the prosecution. The attending hospital Doctor, P.W 5, 5. N. Bhakat was also believed by the learned trial court when the former gave out before him that the deceased had disclosed the names of the three assailants, namely, (1) Gora Mal, (2) Amjad Sk. and (3) Bajjel Haque Choudhury in his presence. The order of conviction of the three accused as aforesaid was thus based on the testimony of P.W. 2, P.W. 5 and P.W. 8. Mr. S.P. Talukdar has, therefore, made strainuous effort to assail the evidence of these three witnesses Mr. Talukdar has contended very vehemently that the learned trial court ought not to have relied upon the testimony of these three witnesses. Mr. Talukdar is right in his submission for the reasons given hereunder.