1968 P Cr (PLP)

A. M. SAYEM, J.‑These three appellants, namely, Amjad Fakir alias Amjad Ali, his son Hasan Fakir, and Khurshed Gharami, husband of a first cousin of Amjad Fakir, together with three others named Kasem Ali Fakir, Faizar Fakir and Sekander Ali Gharami, who are also closely related to Amjad Fakir, were placed before the Additional Sessions Judge, 4th Court, Barisal, to face a trial under section 326, P. P. C. read with section 149 of the said Code on the allegation that on the 26th August, 1963, they assaulted P. W.

1. Rajah Ali Howlader, resulting in several injuries on his person, including some fractures of bones. In agreement with the unanimous opinion of four assessors who assisted him in the trial, the learned Additional Sessions Judge convicted and sentenced these three appellants to rigorous imprisonment for 7 years each under section 326 read with section 149 of the Penal Code. He acquitted the remaining three accused on trial giving them benefit of doubt. Briefly stated, the prosecution story is as follows. Com plainant P. W. 1, Rajjab Ali Howlader initiated a proceeding under section 107 of the Criminal Procedure Code against the accused on trial except Sekander Ali Gharami in the Court of the Sub‑Divisional Magistrate, Barisal. The accused were to appear in Court on the 27th August 1963. On the 25th August, 1963, in the evening Tofayel and Abdus Sattar, nephew and brother‑4n‑law respectively of appellant Amjad came to the complainant and requested him to accompany them to Tofayel's house. The complainant refused to leave his house at night. Sattar again came to him in the morning. Complainant then accompanied him to Tofayel's house. Tofayel requested the complainant for compromising the matter in connection with which the proceeding under section 107, P. P. C. was instituted by the complainant. The complainant could not agree with the proposal and left Tofayel's house. As he was passing along the pathway leading to his house situated at a distance of a quarter mile and reached near a deserted homestead, appellant Hasan caught him from behind. This was at about 9 or 9‑30 a.m. The complainant cried for help and struggled to get himself released. Just at that moment appellant Khorshed struck him on his left ankle with an axe. As a result of which he fell down on the ground. One Kader, since murdered, fractured his leg with a lathi. Appellant Amjad fractured his right hand in four places and two fingers of his right hand with his lathi. Acquitted accused Sekander, Faizar and Kasam also caused injuries on him. The complainant having raised alarm his daughter P. W. 2 Shona Baru came, followed by P. Ws. Abdur Rashid, Abdul Jabbar, Budhai Biswas, Aftar Ali, Debendra Nath Howlader and others. Some of them saw the assault on the complainant, while others saw the accused running away and heard the details of the incident from the complainant who was taken at about noon to the police station where he lodged the F. I. R., naming 11 persons as accused. The defence case was that the complainant sustained his injuries not on 26‑8‑63 in the morning, as alleged by him but in the preceding night. The defence further suggested that the complainant was a hardened criminal convicted in several cases, and that he might have been assaulted by the villagers who suffered at his hands in the darkness of night, and further‑ that the accused on trial had been falsely implicated in the case by the complainant who could not recognis a the real assailants. The defence also suggested enmity with most of the witnesses examined by the prosecution. Altogether 11 witnesses were examined by the prosecution and none by the accused. Of the prosecution witnesses, P. W. 8 Md. Harmuz Ali and P. W. 11 Noorur Rahman Khan are police officers. P. Ws. 9 and 10 are two doctors one of whom examined the injuries on the complainant on the very date of occurrence. Apart from the complainant P.W. 1 Rajjab Ali Howlader, P.W. 2 Shona Baru and P. W. 3 Abdul Jabbar deposed as eye‑witnesses. P. W. 4 Budhai Biswas, P. W. 5 Abdur Rashid Howlader and P. W. 6 Aftar Ali Howlader stated that they saw the accused persons running away from near the place of occurrence. They also stated having heard from the complainant that the accused on trial caused the injuries on him. P. W. 7 Debendra Nath Howlader stated that on hearing of the incident he came to the place of occurrence and heard from the complainant that appellants Khurshed, Amjad and Hasan and also one Kader, who was admittedly murdered a few days after the incident, caused the injuries on him. As already noticed, the complainant was examined by two doctors, P. W. 10 Dr. Abdus Sattar, Medical Officer of Wazirpur Government Thana Dispensary, examined the complainant at 1 p. m. on the very date of occurrence, and found a number of injuries on his person, including a fracture on the left tibia 2' above the left ankle joint, another fracture on the middle of the right forearm and a third fracture on the middle of the index finger of the left hand. According to the doctor the injuries were about four hours old and they might have been caused by a blunt weapon. This doctor further opined that the injuries might be caused by the blunt side of an axe or by lathi. He stated further that the patient's condition was serious and therefore, he was sent to Barisal Sadar Hospital for proper treatment and X‑ray examination. P. W. 9 Dr. H. Khan, Sub‑Assistant Surgeon, Sadar Hospital Barisal, stated that he examined the complainant Rajjab Ali Howlader on 27‑8‑63, i.e., on the day following the incident, and found the following injuries on his person:‑ "(1) One bruise, 3' x 2", on the front of the left log, with fracture of tibia and febula, in the lower third. (2) One lacerated wound, x ' x bone on the lower third of the left leg. (3) One bruise, 2 ' x 1 ', on the lower third, lateral side of the right leg with fracture of fibula. (4) One lacerated wound, ' x 1/3' muscle on the vault of head. (5) One lacerated wound, 1' x " x bone, in the middle of head. (6) One bruise, 3'x 1 " on the middle and postromedial side of the right forearm with fracture of ulna. (7) Fracture of the upper part of index, middle and ring fingers of the left hand with swelling of the fingers. (8) One bruise, 3` x 2` on the postrolateral side of the right arm in the lower third. (9) One bruise of 2 " x 2 ', with abrasions on right chest, part, lateral side. (10) One bruise, 3' x ', on the upper part of the left forearm. (11) One bruise, 3 ' x 1', with abrasion on the lower part of the left arm. (12) One bruise of 3 ' x ", in the middle of back, left side." It will appear from the above quoted evidence of P. W. 9 that he noticed injuries on the complainant involving fractures of tibia and febula in the lower third of the left leg, of fabula on the lateral side of the right leg, of ulna in the right forearm and of upper portions of index, middle and right fingers of the left band. There were also several bruises on the chest and arms and middle of the back, in addition to several lacerations of the head and legs. In this connection, we may quote also the evidence of the complainant as to the effect of the above injuries on him which is as follows:‑ "Both my legs and hands were plastered and after 10 days' detention there, I was sent home with advice to return after 3 months for removing the plaster. I returned there and even now I am unable to do any work myself. I cannot even take my food, attend to call of nature or dress or even move unaided. I am unable to use any of my hand or foot," The above‑quoted evidence of the complainant was not challenged in cross‑examination. It appeared to the learned Additional Sessions Judge that the local witnesses other than P. W. 7 Debendra Nath Howlader were more or less interested in the prosecution. The learned Additional Sessions Judge, therefore, convicted only those of accused persons who were mentioned by P. W. 7 Debendra Nath Howlader as having been named to him by the complainant. This witness stated that upon hearing about the incident he went to the place of occurrence and found the complainant's hand and legs fractured with marks of beating on his head and body. He also stated that he saw some of the injuries bleeding. This witness went to say that the complainant told him that Khorshed, Amjad, Hasan and Kader (who was later murdered) best him. He saw complainant's daughter P. W. Shona Baru there. His attention was drawn by the public prosecutor to his evidence in the Committing Court where he stated "P. W. 1 named

1. Khorshed,

2. Kader,

3. Amjad

4. Hasan and other names which were indistinct." It appears, therefore, that on this point there is no actual dis crepancy between his evidence in the Committing Court and of Sessions. In the Committing Court, however, he appears to have stated that he heard certain names from the daughter of the complainant, Shona Baru also. But we agree with the learned Additional Sessions Judge that much importance should not be given to this discrepancy which might be due to lapse of memory. Before us also the learned Advocate for the appellants made one point out of this and conceded that P. W. 7 Debendra Nath Howlader was a wholly disinterested witness. The criticism levelled against the evidence of this witness however was that his evidence had only a corroborative value and that if the primary evidence which came from the complainant could not be believed the evidence of P. W. 7 could be of no assistance to the prosecution. But P. W. 7 came immediately after occurrence. The occurrence took place, according to this witness, as according to the other witnesses, in broad‑day light on a pathway. There can be no reason therefore to think that the complainant could not recognise his assailants. He gave out the names then and there. Apart from this evidence there is the evidence of P. W. 2 Shona Baru, complainant's daughter, who claimed to have rushed to the place of occurrence upon hearing the cries of her father and claimed to have seen appellant Khorshed striking at her father with an axe and other accused persons beating him with lathis. Further she stated that she raised cries whereupon P. Ws. Rashid, Jabbar, Aftar, Budhai and others came and heard the complainant giving out the names of persons who assaulted him. She stated in cross‑examination that when she arrived at the place of occurrence the accused persons only were there. It was suggested to her that she did not see the assault and that when she arrived at the place of occurrence the complainant was senseless. It was also suggested to her that the occurrence did not take place during day time and that it was out of enmity that she falsely named the accused persons. She denied these suggestions. It was put to her that she had told the Investigating Officer that she heard about the occurrence from the complainant after he regained his senses. She denied this suggestion also. The Investigating Officer, however, stated that this witness had told him that after her father, i.e., complainant regained senses she learnt all about the occurrence from him. The learned Advocate for the appellants contended that this indicated that when P. W. 2 Shona Baru reached the place of occurrence the complainant was senseless and that after he got back his senses he told her of the occurrence, so that Shona Baru's evidence that she saw the occurrence with her own eyes should be rejected. We find no substance in this contention, since what this witness told the Investigating Officer was that she learned `all about' the occurrence, that is, details of the occurrence. Besides, the evidence of police officer is not substantive evidence and even at could be said that at one stage Shona Baru's case was that her father was senseless that would not amount to saying that he was wholly unconscious. P. W. 2 Shona Baru stated in her evidence in Court that her father was in his senses and that she did not see him senseless. P. W. 7 Debendra Nath Howlader, who is admittedly a disinterested witness and who came immediately after the occurrence, stated that the complainant disclosed to him names of his assailants. This witness did not say that he found the complainant senseless. The other witnesses, namely, P. Ws. 4, 5 and 6 also did not say that they found the complainant Rajjab Ali senseless, nor the other eye‑witness (P. W. 3). P. Ws. 4, 5 and 6 stated that they saw the appellants running away‑appellant Khorshed with an axe in his hand and others with lathis, and further that the complainant had given out to them the names of his assailants, including those of the appel lants. P. W. 3 Abdur Jabbar, whose father is a cousin of the complainant, claimed also having seen the actual assault on Rajjab Ali. He stated that he saw appellant Khorshed striking at Rajjab with an axe and the other accused with lathis. He named the present appellants and also the murdered Kader and acquitted accused Kasem. The prosecution obtained from this witness that one of the appellants, namely, Khorshed was his father's paternal cousin. It is true that appellant deposed against him as also against appellant Amjad but he is a natural and competent witness, being an occupant of the house of the com plainant. In any event in view of the evidence of almost disinterested witness, namely, P. W. 7 Debendra Nath Howlader to whom the complainant gave out the names of the appellants immediately after the occurrence, we find no reason not to agree with the learned Additional Sessions Judge that the prosecution had satisfactorily proved these three petitioners' participation in the occurrence. The learned Advocate for the appellants contended that since there is no evidence that the complainant was in the hospital under treatment for more than 20 days they could not be convicted under section 326, though read with section 149 of the Penal Code. We find no substance in this contention, in view of the fact that the medical evidence is clear as to fractures of bones. Besides, it has not been disputed that both the legs of the complainant and also his hands were plastered and that after 10 days' detention in the hospital he was sent home with the advice to return after three months for removing of the' plasters. This may be considered to be a treatment continued over 3 months. It is also the complainant's unchallenged evidence that even till the date he was deposing in Court he was unable to do any work himself. It was next contended by the learned Advocate that although some witnesses said that the accused were running towards the south, others stated that they were running towards the west. P. W. 1, the complainant, and his daughter, P. W. 2 are silent on the point. It appears that P. Ws. 3 and 5 stated that the accused were fleeing towards the south. It is not the evidence, however, that these witnesses saw the accused fleeing from the same spot and at the same time. It was quite material for the accused to change the direction of the flight after going over a distance. This is no discrepancy, in our opinion, which can affect the merits of the prosecution case. Lastly, it was contended that it was appellant Khorshed alone who was identified on the dock by P. W. 2 Shona Baru, and that from the recorded evidence it did not appear that the other witnesses actually identified individual accused persons on the dock during the trial. It was claimed before us that because of the failure of proper identification of the accused persons in Court their convictions were liable to be set aside. It is true that there is nothing in writing in the deposition sheets indicat ing that the accused on the dock were individually identified by the witnesses while being examined, except in the case of appellant Khorshed and that also only by P. W. 2 Shona Baru. But the complainant P. W. 1, it appears, always named the assailants such as accused Hasan caught hold of him, 'accused' Khorshed Gharami struck .him with an axe 'accused' Kader fractured his right leg, 'accused' Amjad fractured his right hand and the leg, and so on. The other witnesses, of course, did not use the prefix `accused' before the names of the accused. We do not think, however, that this is a point to which any importance can be given. The question of identity of the accused was not in dispute at the trial. It was not the defence case that the witnesses did not know the accused. It was not disputed before us also that all the local witnesses, including the complainant, viz., P. Ws. 1 to 7 knew all the accused on dock. The witnesses and the accused persons admittedly belong to the same village viz., Hanua. The defence did not suggest even to the female witness, P. W. 2 Shona Baru, that any of the accused was not known to her. Both sides proceeded on the basis that persons on the dock were being named by the witnesses. There is thus no question involved also of any prejudice to the accused. In our opinion, non -identification of the accused on dock cannot be fatal, except when their identity is challenged, i.e., when the defence claims that the accused are not known to the witnesses. While parting with this point, we would like to add a note of caution that trial Courts should record the evidence in a manner which may not give rise to contentions like the one just repelled. We cannot also accept the learned Advocate's contentions that the sentence imposed on the appellants is severe. In view of the medical evidence cited above and the unchallenged evidence of the complainant above quoted we do not think sentence imposed on the appellants errs on the side of severity. The appeal is accordingly dismissed. The order convicting and sentencing the appellants is confirmed. Appellant Hasan Fakir, who is on bail, is directed to surrender to his bail forthwith and serve out the remainders of his sentence. ABDUL MOUDUD, J.‑I agree. Appeal dismissed.