Moslem Ali Sheikh v. State of West Bengal

1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 321 of 1984 Moslem Ali Sheikh -Vs- State of West Bengal For the Appellant (Amicus Curiae) For the State : Mr. Soumya Nag : Ms. Faria Hossain Mr. Atulya Sinha Heard on : 15.04.2024, 07.08.2024 Judgment on : 05.11.2024 Ananya Bandyopadhyay, J.:-

This appeal is preferred against the judgment and order of conviction and sentence dated 07th July, 1984 passed by the Learned Sessions Judge, Nadia, in Sessions Case No.6 of January, 1984 corresponding to Sessions Trial No.1 of June, 1984, convicting the accused-appellant under Section 326 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 5 (five) years under Section 326 of the Indian Penal Code.

The prosecution case precisely stated on 28.02.1980 at about 6 p.m., the de-facto complainant/victim, a rickshaw puller, was waiting at Santipur Railway Station with his rickshaw to commute passengers. He was asked to accompany the appellant and another accused person to discuss certain issues. De-facto complainant was told that Keramat Ali 2 Sheikh’s uncle had landed properties to be looked after. De-facto complainant/victim was taken to Raghu Mollar Dighi, at a distance away from the Santipur Railway Station on foot where the appellant and the other accused person disrobed and assaulted the victim/de-facto complainant with a sharp weapon. Immediately after the incident the victim raised a clamour and local people gathered at the spot to whom he narrated the incident. Subsequently, the injured victim was taken to his house wherefrom he shifted to Santipur Hospital and therefrom to Santipur Police Station. Finally, he was admitted to Ranaghat Hospital for treatment.

On the basis of the aforesaid complaint, Ranaghat Police Station Case No. 29 dated 28.02.1980 under Sections 326/307 of the Indian Penal Code was initiated against the present appellant and another co-accused.

Charge was framed against the appellant and another co-accused under Sections 307/34 of the Indian Penal Code, to which the appellant pleaded not guilty and claimed to be tried.

In order to prove its case the prosecution cited 10 witnesses and exhibited certain documents.

The Learned Amicus Curiae representing the appellant submitted as follows:- i. The fact of having sustained grievous injury in the penis of PW- 2 Asgar Ali Sheikh had been negated by the deposition of PW-1 Dr. Amiya Kumar Prodhan. ii. The belated examination of the victim by the Medical Officer for more than five hours would have been fatal if the penis of the victim was injured and the same dilated the prosecution narrative. 3 iii. Not a single uninterested and/or unknown person had been examined who alleged to have assembled at the Santipur Railway Station immediately after the occurrence. iv. The evidence of PW-4 and PW-8 being the most interested witnesses should not have been accepted, in convicting the accused appellant. v. The evidence of PW-9 Dr. Parag Ranjan Ghosh in its power perspective was not considered.

The Learned Advocate for the State submitted the prosecution was able to prove its case based on corroborative evidence of the prosecution witnesses supported by the medical evidence and the appeal shall be dismissed.

A circumspection of the prosecution witnesses revealed as follows:- i. PW-1 Medical Officer deposed to have examined the de-facto complainant (PW-2) at emergency department at 11:15 p.m. on

28.02.1980. PW-1, and on examination, found the following injuries:- a) Skin was excised from the base of penis and prepuce. b) The external urethral meatus was found lacerated. c) Staining of blood was found on lower limbs and clothes. PW-1 stated during his examination in chief that he came to know from the de-facto complainant/PW-2 that he was inebriated when the alleged incident occurred. PW-1 during cross-examination deposed the injuries were not serious. ii. PW-2 the de-facto complainant in his examination in chief could not ascertain the date or time of incident. PW-2 stated the appellant cut 4 off half of his penis with a knife. PW-2 further stated he was not treated in Santipur Hospital as it was closed. PW-2 deposed a day prior to the incident he assaulted his wife, who consequently left him. The appellant and the other accused person namely Keramat Ali Sheikh confronted his act leading to a brawl.

PW-2 deposed his penis was completely cut off and a portion of the same fell on the ground. iii. PW-2 deposed in his evidence that he knew both the accused persons namely Moslem Sheikh and Keramat Sheikh. Accused Moslem Sk. resided adjacent to the residence of PW-2. Keramat had his residence at Gopalpur which was intervened by one locality from the house of PW-2. The occurrence took place on the 15th/16th Falgoon about four years ago at about 6 p.m. He was waiting with his rickshaw at Santipur Railway Statoin. Moslem requested PW-2 to accompany him to the land of Keramat’s uncle. His rickshaw remained at the Santipur Railway Station. They went to Raghu Mollar Dighi. Appellant Moslem assaulted PW-2 with a stick of “Ahir pulse plant” and both the accused persons threw him on the ground. Moslem disrobed him by stripping of his trousers. Moslem cut off half of his penis with a knife. As he cried aloud the accused persons escaped.

The unknown pedestrians took him to Santipur Railway Station. Nil Kamal @ Nila and Swapan Kumar took him to Santipur Hospital on his own rickshaw, where he could not be treated as it was closed. He was taken home and thereafter, shifted to Santipur Police Station. His statement was written by one Mokshed Ali and he put his left thumb impression thereon at Santipur Police Station. The police officer sent him to Ranaghat Hospital. The doctor 5 examined him and PW-2 was admitted at the hospital. PW-2 was detained in the hospital for 13 days. At the time of the incident, he had trousers on and it was kept at the thana. Before the occurrence, accused Moslem and PW-2 were friends. PW-2’s wife knew accused Moslem. iv. PW-3 was the Officer-in-Charge of Santipur P.S. v. PW-4, sister of de-facto complainant (PW-2). She had seen the appellant at her elder brother’s house and told the wife of PW-2 that “the allotted work is finished” (kaj finish), thereafter the appellant had a conversation with PW-2’s wife and left.

During cross- examination, PW-4 stated that she stayed with her husband at a distance of 3/3 ½ miles away from her elder brother’s wife. vi. PW-5 and PW-6, neighbours of PW-2 the de facto complainant were not declared hostile by the prosecution for not supporting its case. vii. PW-7 the Investigating Officer submitted charge-sheet. viii. PW-8 rickshaw puller was the post occurrence witness. ix. PW-9 doctor, on 28.02.1980 while treating PW-2, found his penis in an injured condition. He noticed auto-partial amputation of penis with loss of skin. x. PW-9, Medical Officer, stated in his evidence that on 28.02.80, he was attached to the Ranaghat Sub-Divisional Officer as a duty officer. On that date, a patient named Asgar Ali Sheikh was admitted to the said hospital. PW-9 found the following injuries on his person: Penis was in an injured condition. PW-9 noticed anto-partial amputation of penis with loss of skin.

PW-9 remembered that the patient was shocked and was bleeding profusely. PW-9 operated the patient on that date and with the help of scrotal fat, the above injury 6 was repaired. At the time of discharge from the hospital on 10.03.80, the operation was found to be successful and the scrotal skin was viable. By viable, PW-9 meant that the circulation of the skin blood was sufficient. During the above period, the patient was under his treatment. On 28.02.80 PW-9 examined the patient with the above injury and at that time, it was not possible for him to undergo sexual intercourse. On 28.02.80, deep dorsal vein of penis was injured and it was a cut injury, which was repaired by him by operation. On

11.03.80 PW-9 removed the stitches and subsequent dressings were done to bring the penis back to its normal condition. The above injury could have been caused by a big knife of a dagger. On

28.02.80 PW-9 noticed the above injury on the patient and the said injury was sufficient to cause death, if untreated. xi. PW-10 deposed in his evidence that on 28.02.80 he was attached to Santipur Police Station as a Sub-Inspector of Police. On that date, Santipur P.S. Case No.29 dated 28.02.80 was endorsed to him by the Officer-in-Charge of Santipur Police Station for the purpose of holding investigation of that case. As such he took up investigation of that case. On 28.02.80 he examined Asgar Ali Sheikh, the complainant of this case. PW-10 seized the trousers (Exbt.-1) at Santipur Police Station and he prepared the seizure list (Exbt.-2) in presence of witnesses. On 29.02.80 he examined Swapan Sarkar (PW-8). On 07.03.80, he examined the witnesses namely Saleha Bibi, Rajia Bibi (PW-4), Akbar Ali Sheikh (PW-6), Saiyad Ali Sheikh (PW-5) and Aitul Sheikh. PW-10 could not arrest the accused persons till that date despite attempts having been made on that score.

He made several attempts to trace out the accused persons. On 11.02.81 he 7 received the injury report of Asgar Ali Sheikh and he made over the charge of investigation of this case on 09.07.1981 to the Officer-in- Charge, Santipur Police Station as he was transferred from that police station. He received only the injury report but he did not seize the bed head ticket of the injured. PW-5 Saiyad Ali Sheikh was examined by him in course of investigation of this case on 07.03.80 and PW-5 stated to PW-10 as follows:-

Some days ago, Moslem Sheikh and Keramat Sheikh took Asgar Ali to Raghu Mollar Dighi on the pretext of having an urgent talk with him and Keramat pressed him and Moslem assaulted him with a knife and his penis sustained a bleeding injury.

PW-10 examined PW-6 Akbar Ali Sheikh on 07.03.80 and he made the following statement to him in course of investigation of this case ‘Moslem Sheikh and Keramat Sheikh made this injury in the penis of Asgar Ali Sheikh.

Keramat pressed him and Moslem made this cut injury with a knife’. PW-10 seized the trousers (Exbt.-1). PW-10 did not examine the wife of PW-2/de-facto complainant. PW-10 also did not seize bed head ticket. He did not record any subsequent statement of PW-2. He collected injury report from one Dr. A. K. Prodhan who was not examined. PW-10 stated PW-4 did not mention of the presence of the appellant at the house of PW-2. xii. During cross-examination, PW-10 stated that he examined Asgar Ali Sheikh on 28.02.80 at Santipur Police Station around 10:50 P.M. He did not record his statement. It was true that he seized 8 navy blue coloured trousers. He did not send anything to the F.S.L. He collected the injury report from Dr. A. K. Prodhan of the Ranaghat Sub-Divisional Hospital. He did not seize the discharge certificate nor was it produced to him by Asgar Ali Sheikh. He visited the area around Raghu Mollar Dighi in connection with this case but he did not find any blood stain at any place.

He did not examine any person living in that locality around Raghu Mollar Dighi. PW-10 perused the F.I.R. and he did not examine Md. Mahasin, Khaja Ahamded, Tinkari Sadhu Khan and Nil Kamal Debnath. There was no note in his case diary that he had examined Md. Mokshed Ali of Santipur. He did not remember to have examined the above person. He was posted at Santipur Police Station for nearly two years. He knew that Mokshed Ali was an Ex M.L.A. of Santipur. PW-4 Rajia Bibi did not state to PW-10 about Moslem’s presence in their house on that date. PW-8 Swapan Sarkar stated to him that Asgar Ali Sheikh was in a drunken state before the happening of this incident. The trousers were not labelled.

The Hon’ble Apex Court in the case of State of Rajasthan v. Major Singh1 observed the following:-

4. …In our view, considering the medical evidence which corroborates the prosecution version, particularly, of the injured witness, PW 1 Jeet Kaur, there is no reason to disbelieve the evidence of the aforesaid two witnesses….

The Hon’ble Supreme Court in the case of Malkiat Singh v. State of Punjab2 held the following:-