Calcutta High Court (Appellete Side)
Aimuddin Sheikh & Anr vs The State Of West Bengal on 18 February, 2026
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
2026:CHC-AS:286-DB
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Rajasekhar Mantha
And
The Hon'ble Justice Ajay Kumar Gupta
C.R.A. 480 of 2012
Aimuddin Sheikh & Anr.
Versus
The State of West Bengal
For the Appellant : Mr. Arindam Jana,
Mr. Sumanta Das,
Mr. Yuvraj Chatterjee,
Mr. Saikat Guin,
Mr. Akash Sarkar.
For the State : Mrs. Faria Hossain, ld. A.P.P.,
Mr. Anand Keshari.
Hearing concluded on : February 13, 2026.
Judgment on : February 18, 2026.
Rajasekhar Mantha, J.:
1. The subject appeal is directed against judgment and order of
conviction dated 16.07.2012 passed by the Additional District and
Sessions Judge, 2nd Court, Nadia in Sessions Trial No. IX (II) of 2012
arising out of Sessions Case No. 26 (2) of 2012. The appellants were
convicted and sentenced to suffer life imprisonment and to pay a fine of
Rs.10,000/- for offences punishable under Sections 302, 326 read with
Section 34 of the IPC.
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2026:CHC-AS:286-DB
THE PROSECUTION CASE AND THE EVIDENCE ON RECORD
2. The appellants and victims were related to each other as brothers. The
appellants and victims are 4 out of 6 brothers and 2 sisters. Raham
Box Sk was their father. He had divided his properties equally amongst
the 6 brothers. After the brothers received the property by way of
registered instrument from their father, a dispute cropped up between
them as to who would feed their parents.
3. In view of the reluctance and difference of opinion between the
appellants and the victims, a meeting was called by one of the
brothers namely Kalimuddin Sk at the house of the said father. In
course of the meeting, there was a heated exchange between the
appellants and the victims Ainuddin Sk and Shukur Ali Sk. The
appellants are stated to have left the place of occurrence and returned
back within 3 minutes with sharp cutting weapons which included a
Bhojali, Hasua and a rod and a stick mounted with a metal fork. They
assaulted the deceased victim Ainuddin Sk and Kalimuddin Sk.
4. To prevent the assault on the victims, the wife of Ainuddin and his
mother are stated to have intervened. The mother was struck on the
head with a hasua. Upon a hue and cry being raised by the wife of
Ainuddin, PW 2 Hosai Bibi, the local villagers from a nearby mosque
immediately rushed to the place of occurrence.
5. The appellants fled from the scene. Ainuddin and Kalimuddin were
taken to Katwa Hospital where Ainuddin was declared brought dead.
Kalimuddin, however, recovered after a few days.
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6. The police are stated to have received information about the incident2026:CHC-AS:286-DB
late in the night of the fateful day over the telephone. No GD entry
was however recorded by the police on receipt of this information.
7. It is only after Ainuddin died, that PW 1 Mohiruddin Sk,hisfather-in-
law, who came to the place of occurrence on being informed over the
telephone by his daughter Hosai Bibi, filed a formal complaint with
the Kaligunj PS. The complaint was scribed by PW 3 allegedly on the
instructions of PW 1. It is surprising to note that none of family
members from the side of the appellants or the victims lodged any
complaint with the police.
8. Kaligunj PS registered the FIR no. 214 of 2011 dated 13.04.2011 at
about 03:05 PM under Section 326, 307, 302 read with Section 34
against Alimuddin Sk, Asish Sk and Shukur Ali Sk. Shukur was the
son of appellant no. 1 Alimuddin Sk.
9. Charges were framed against Aimuddin Sk and Shukur Ali Sk the two
appellants herein under Section 326, 307 and 302 of the IPC. The
other FIR named accused went absconding even before the charge
sheet was filed.
10. It appears from the deposition of the PW 13, the Investigating
Officer, that the statement of PW 2 under 164 of the CrPC was
recorded two months after the incident. The statement of PW 5 Bakul
Sk, the son of the deceased was not recorded under Section 164 of
the CrPC.
ANALYSIS OF THIS COURT
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11. There are some discrepancies between the witnesses for the2026:CHC-AS:286-DB
prosecution as regards the exact place of occurrence. PW 1 and 3
stated that the PO was the house of the father of the victim. Whereas
PW 2 and 5 stated that the PO was the house of Kalimuddin, the
victim who recovered from injures. The aforesaid discrepancies can
however be discounted since the father’s residence is also treated as
the son’s residence or his children’ residence in general.
12. The appellants and victims received immovable properties from
their father just few days before the incident. The house where the
crime took place was one of such immovable properties. There is no
evidence on record to suggest that the appellant and victims had any
self-acquired properties, or the PO was a self-acquired property of the
appellant and the victims. The obvious inference therefore is that on
that fateful day, the appellants and victim assembled for a settlement
at the house which once belonged to their father. It was thus natural
for the prosecution’s witnesses to have a difference of opinion on who
should be called the owner of the house, where the crime took place.
13. The evidence of PW 1 is rather curious, in that he chose to
participate in inquest and post mortem of the victim who was is his
son-in-law before lodging of the complaint.
14. PW 2 and PW 5 are the star witnesses of the prosecution.
15. PW 2 Hosai Bibi was present when the assault occurred. She
stated under Section 164 before the Magistrate that she went to the
place of occurrence along with her husband. She also stated that she
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was standing next to her husband when the appellants suddenly2026:CHC-AS:286-DB
assaulted the victims including her deceased husband.
16. However in course of her examination during trial, she deposed
that the accused persons upon failure of the talks of settlement as
regards who would feed their parents went out from the place of
occurrence and came back within 3 minutes and committed the
murderous assault on the victims. Her statement under Section 164
of the CrPC does not mention the factum of the appellants leaving the
place of occurrence and coming back within 3 minutes with weapons.
17. Apart from the aforesaid inconsistency, the rest of her evidence in
course of trial is consistent with her statement recorded under
Section 164 of the CrPC. She clearly deposed that appellant Aimuddin
Sk assaulted the deceased victim with a hasua as did Ashish Sk and
Shukur Ali Sk, sons of the appellant no.1, with a hasua and bhojali
respectively. Alimuddin is also stated to have assaulted the victim
deceased and taken his life with a bhujali. The rest of her evidence is
consistent with the prosecution case.
18. PW 3 was Khokon Sk, the scribe of the complaint to the Kaligunj
PS. He was the uncle of the appellants. He was clearly therefore trying
to shield and safeguard the appellants. He turned hostile. He denied
that he had written the complaint on the instructions of PW 1. He
further stated that the deceased victim was pushed by PW 9,
Kalimuddin the injured witness, and the deceased victim fell on a boti
(an instrument is used in all kitchens in India for cutting vegetables)
and sustained injuries on his body.
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19. PW 5 Bakul Sk, parroted the evidence of PW 2 in verbatim. He has2026:CHC-AS:286-DB
deposed that he was present at the place and time of occurrence. His
presence is confirmed by the statement of PW 2 under Section 164 of
the CrPC. There is however no mention of the presence of PW 5 at the
place and time of occurrence by PW 2 in course of his deposition in
the trial.
20. PW 7 was Dr. Bhaskar Jyoti Barman who examined both the
victims at Katwa Hospital. He also performed postmortem on the
deceased victim.
21. The injuries on the deceased victim noted by the PW 7 are as
follows:
‘1. Cut injury 2″ x ½” on the left side neck.
2. Blunt trauma injury along 3rd rib measuring about 2″ x
6″ on the right Side of chest.
3. Cut injury measuring 2″ x 1″ over the scalp.
4. Lacerated injury on the right lung beneath the blunt
trauma.’
22. Curiously none of the weapons allegedly seized by the IO were
produced before the medical officer for opinion or before the Trial Court.
23. PW 8 was Dr. Tapas Sarkar who examined the surviving victim
Kalimuddin Sk PW 9. The bed head tickets of either the deceased victim
or Kalimuddin were not produced by the IO in course of trial nor
collected in course of investigation.
24. PW 9 Kalimuddin, the injured witness could have been the star
witness of the prosecution very strangely turned hostile. He however
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confirmed the incident in some detail in course of cross-examination by2026:CHC-AS:286-DB
the prosecution under Section 154 of the CrPC.
25. PW 13 was Ratan Chakraborty, the IO. He denied that any of the
witnesses that he examined under Section 161 had ever narrated the
events or named the accused in course of his investigation. The entire
evidence of PW 2 and PW 5 therefore came out for the first time in course
of the trial.
26. Despite the aforesaid discrepancies referred to hereinabove and the
lapses on the part of the IO, this Court based on the medical evidence
and the evidence of PW 2 is of the clear view that the incident of assault
by the appellant on the deceased victim and PW 9 has in fact occurred at
the date and time mentioned.
27. Indeed, it is true that the prosecution could have examined the
villagers who took the victims on a motor rickshaw van to the Katwa
Hospital and the mother of the victim who was allegedly injured in the
course of the assault. The evidence of PW 2 and the medical evidence
indicate the participation of the 4 accused persons in the murderous
assault on the victims.
28. The evidence of PW 5 however cannot be entirely believed since the
IO had stated he was informed by PW 5 in course of the investigation
that the latter was returning from the mosque after attending a feast
thrown by a villager. PW 5 however has denied having attended any
such feast.Apart from the statement of PW2 under Section 164 of the
CrPC there is no other evidence to suggest that PW 5 was present at the
time of the place of occurrence.
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29. As already stated hereinabove the evidence of PW 2 and the PW 7,2026:CHC-AS:286-DB
the post mortem doctor, established the occurrence of the assault by the
4 accused persons on the 2 victims one of whom has died.
30. The evidence on record has clearly established that the appellants
and victims assembled on that fateful day at the house, which originally
belonged to their father, and was subsequently transferred either to the
deceased victim or the surviving victim. They assembled to decide as to
who will feed their parents. They could not arrive at a common
arrangement. Settlement talks failed, hence ensued an assault on the
said victims by the appellants.
WHETHER THE PRESENT CASE FALLS UNDER SECTION 300 OR 304 OF THE
IPC.
31. The question that comes for consideration before this Court as to
whether the crime that has occurred resulting in the death of
Ainuddin and grievous injuries to PW 9 Kalimuddin his brother,
would fall under Section 302.
32. The intention of the appellants has to be ascertained in the
backdrop of the event that made them assemble together on that
fateful day. The appellants and the victim were to decide who would
feed their parents. The appellants proposed that all of them should
feed their parents by turns. The victims disagreed with the said
proposal. This was the trigger for the said incident.
33. The appellants left the PO. They, however, came back just within 3
minutes. In this regard, PW 2 has stated before the Magistrate that
the appellants assaulted the victims just after the failure of settlement
talks.
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34. The appellants were not carrying weapons when they arrived at the2026:CHC-AS:286-DB
PO to take part in the settlement talks. The weapons allegedly used by
the appellants are normally found in every rural Indian house-hold.
They by their very nature are not murderous. Thus, any
premeditation on part of the appellants stands clearly ruled out.
35. The prosecution has not run the case there was premeditation
between the appellants to kill the victims. That is why the surviving
victim, PW 9, did not die. He subsequently recovered. In Narayan
Yadav Versus State Of Chhattisgarh reported in 2025 INSC 927
it was held as follows:-
40. Exception 4 to Section 300 of the IPC applies in the
absence of any premeditation. This is very clear from the
words used in the provision itself.It contemplates that
the sudden fight must occur in the heat of passion, or
upon a sudden quarrel….
36. The provocation for the assault was the demand of the
appellants from the victims that the latter shall relinquish the
property received from their father, if the victims are not willing
feed their parents by turn or at all. This was undoubtedly the
trigger for the enragement of the accused persons including the
appellants. In Narayan Yadav(supra), it was held as follows:-
41. A “sudden fight” implies mutual provocation and the
exchange of blows on both sides. In such cases, the homicide
committed is clearly not attributable to unilateral provocation,
nor can the entire blame be placed on one side….. There is no
prior deliberation or intention to fight; the fight breaks out
suddenly, and both parties are more or less to blame. One
party may have initiated it, but had the other not aggravated
the situation by their own conduct, it may not have escalated
to such a serious level. In such scenarios, there is mutual
provocation and aggravation, making it difficult to determine
the precise share of blame attributable to each participant.
The protection of Exception 4 may be invoked if death is
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caused: (a) without premeditation; (b) in a sudden fight; (c) 2026:CHC-AS:286-DB
without the offender having taken undue advantage or
acted in a cruel or unusual manner; and (d) the fight must
have been with the deceased.
37. The 3 minute time gap between the departure of the appellants
and their arrival at the PO is not enough for cooling down the nerves.
The said short time gap cannot impute the appellants with the motive
to kill the victim. The said period is too short for a cold-blooded
decision to murder a person. The said time is not adequate for a
decision making process to start on and formation of a premeditation
to commit the murder. In Narayan Yadav (Supra), it was held as
follows:-
42. To bring a case within Exception 4, all the ingredients
mentioned therein must be satisfied. It is important to note that the
term “fight” occurring in Exception 4 to Section 300 of the IPC is
not defined in the IPC. A fight necessarily involves two parties –
it takes two to make a fight. The heat of passion requires that
there must be no time for the passions to cool, and in such
case, the parties may have worked themselves into a fury due
to a prior verbal altercation. A fight is a combat between two
and more persons, whether with or without weapons. It is not
possible to enunciate any general rule as to what constitutes
a “sudden quarrel”. This is a question of fact, and whether a
quarrel is sudden or not must necessarily depend upon the
proved facts of each case. For the application of Exception 4,
it is not enough to show that there was a sudden quarrel and
no premeditation. It must also be shown that the offender did not
take undue advantage or act in a cruel or unusual manner. The
expression “undue advantage” as used in the provision means
“unfair advantage”
38. The location of the injuries on the person of the victim is relevant
to ascertain the intention of the accused. In Kunhimuhammed@
Kunheethu … Versus The State Of Kerala, reported in 2024 INSC
937, it was held as follows:-
25.8 ….However, intent can be inferred from the circumstances surrounding the
act, including the nature and location of the injuries inflicted, the weapon used,
11and the actions of the appellant during the incident. The injuries were2026:CHC-AS:286-DB
concentrated on the vital parts of the deceased’s body, such as the chest and
ribs, which house critical organs like the heart and lungs. The deliberate
targeting of these areas indicates a clear intent to cause harm that could lead to
death…………The decision to carry and use such a weapon during the scuffle
reflects a readiness to escalate violence beyond a mere physical altercation….
39. The deceased victim has suffered 4 injuries on his person. The
injuries were, inter alia, to the organs of some importance namely
scalp and right lung. The intensity of the said injuries was, however
not murderous in view of PW 7, the post mortem doctor, having
deposed that the deceased victim may have survived if he had been
brought to the hospital early.
40. Each accused including the appellants inflicted one assault each
resulting in 4 injuries suffered by the deceased victim. The surviving
victim also faced the said assault. He, however, survived.
41. The Prosecution was duty bound to establish the distinguishing
feature in the assault mounted against the surviving victim as
opposed to the deceased victim. The surviving and deceased victim
found themselves in the similar situation. However, while the former
survived, the latter died. Both suffered injuries; the latter succumbed
to them but not the former.
42. Clearly therefore, the deceased victim and surviving victim did not
receive similar injuries. The said dissimilar treatment could not be
pre-mediated since both the victims were assaulted at once. The said
dissimilarity creates a doubt in mind of this Court as to whether the
appellants at all intended to kill the victims.
43. The intention of the appellants could not have been to kill one and
injure the other. The Prosecution was, therefore, specifically required
12
to prove that the appellants intended to kill only the deceased victim2026:CHC-AS:286-DB
and leave the surviving one.
44. This Court is therefore of the view that the crime committed by the
accused persons including the appellants would fall under the first
part of Section 304 of the IPC. The punishment therefore is prescribed
as ranging between 10 years and life imprisonment.
45. Admittedly the appellants and the victims are blood brothers. The
dispute was within the family. The issue was whether the appellant’s
victims would feed their parents for the days on which their turn
would come amongst the 6 siblings. The injured and surviving victim,
one of the brothers of the appellants, turned hostile.
Conclusion
46. Having regard to the fact that the dispute in question was between
brothers and not premeditated, this Court is of the view that the
appellants must be sentenced to the extent of the incarceration
already suffered by them, i.e. 14 years. The appellants are thus held
convicted under Section 304‘ part I for a period of 14 years and/or to
the extent that they have already suffered incarceration.
47. The appellants are hereby held convicted under Section 304‘s part
I for a period of 14 years and/or to the extent that they have already
suffered incarceration. The fine imposed on the appellants shall also
stand set aside.
48. The conviction of the appellants under Section 302 and other
sections shall stand set aside. The appellants shall now be set at
liberty unless they wanted in connection with any other offense and
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upon execution of a bond upon execution of a bond to the satisfaction2026:CHC-AS:286-DB
of the Learned Trial Court, which shall remain in force for a period of
six months under Section 437A of the Code of Criminal Procedure
corresponding to Section 481 of the BNSS, 2023.
49. CRA 480 of 2012 is, therefore, is allowed in part and disposed of.
50. There shall be no order as to costs.
51. Let a copy of this judgment be sent down to the Court below for
information and necessary action
52. Let the T.C.R. be returned to the Court below at once.
53. Urgent photostat certified copy of this judgment, if applied for, be
supplied to the parties as early as possible upon completion of all
requisite formalities.
(Rajasekhar Mantha, J.)
I agree.
(Ajay Kumar Gupta, J.)
