Osman Sk vs The State Of West Bengal on 24 March, 2026

Calcutta High Court (Appellete Side)

Osman Sk vs The State Of West Bengal on 24 March, 2026

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                     IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL APPELLATE JURISDICTION
                             APPELLATE SIDE


Present:

The Hon'ble Justice Ananya Bandyopadhyay



                             C.R.A. 86 of 2002

                                Osman Sk.
                                   -Vs-
                         The State of West Bengal


For the Appellant            : Mr. Soumyajit Das Mahapatra
                               Ms. Upasana Banerjee

For the State                : Ms. Faria Hossain

Heard on                     : 17.12.2025

Judgment on                  : 24.03.2026



Ananya Bandyopadhyay, J.:-

1.

This appeal is preferred against judgment and order dated 24.01.2002

passed by the Learned Additional Sessions Judge, 2 nd Court, Murshidabad

in Sessions Trial Case No.3/April/2001 (Sessions Case No.49/2000),

convicting the appellant under Section 325 of the Indian Penal Code and

sentenced him to suffer rigorous imprisonment for 2 years and to pay a fine

of Rs.5,000/- in default to suffer further rigorous imprisonment for 6

months under Section 325 of the Indian Penal Code.

2. The prosecution case precisely stated of a dispute between the complainant

and her brothers over the issue of co-sharing of a land. The complaint

narrated of a direction whereby both the parties would refrain from
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participating in cultivation on the disputed land till settlement was achieved

but the accused persons allegedly cultivated the same, which resulted into a

clash with the victim sustaining injuries.

The written complaint also disclosed the accused persons including the

present appellant jointly attacked the house of the complainant with “lathi”,

“hansua”. Allegations of house breaking, outraging the modesty and

snatching of golden necklace were cited coupled with an allegation of

breaking the tiles of the roof.

3. Based on the aforesaid complaint, Bhagwangola P.S. Case No.182/1993

dated 22.11.1993 under Sections 325/326/307/34 of the Indian Penal Code

was initiated against the appellant.

4. On completion of investigation, the police submitted charge-sheet under

Sections 307/34 of the Indian Penal Code against the appellant, who

pleaded not guilty and claimed to be tried.

5. In order to prove its case, the prosecution examined as many as 7 witnesses

and exhibited certain documents.

6. The Learned Advocate representing the appellant argued on the following

points:-

i. Genesis of the criminal case was doubtful:-

a) PW 1 being the complainant in her complaint stated of two

separate incidents on 21.11.1993. While the first incident of assault

upon Goni Mohammad (PW-5) took place purportedly within

disputed cultivating land at about 08:00 a.m., the second one took

place after a short gap at the house of the complainant when the
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accused persons attacked them with lathi, hasua etc. The second

incident referred to outraging modesty of herself and her married

daughter and grabbing gold necklace of a particular weight. The

complainant also alleged the front door and the roof tiles were

broken by the accused persons.

However, neither the PW-1/complainant nor the PW-5/the victim

as well as PW-6/neighbor of the complainant disclosed the same

during their depositions. Such questionable conduct of willful

suppression of an alleged incident; availability of corroborative piece

of evidence of which was extremely high, created serious doubt

about the intention of the complainant with possibility of false

implication. The unexplained silence regarding the second incident

projected in all probability a contrary fact of fleced allegations.

b) The complainant in her complaint stated the appellant was

cultivating a disputed land upon which a conjoint decision was

taken in local panchayet that no one would cultivate the same.

However, the complainant didn’t allege the same while deposing,

rather she stated her son, being the victim/ PW-5 was taking food to

their land. PW-6 being the sole independent witness also didn’t state

the appellant and others were cultivating the land. Moreover, the

PW-1/complainant in her cross examination had stated the assault

took place over share of homestead, which was diagonally opposite

to the cause of dispute as had been portrayed. Under such
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circumstances, the purported initiation of alleged dispute had not

been corroborated.

c) The complainant in her cross-examination deposed he did not

know the content of the complaint and one Lutfar Rahaman/ PW-4

drafted the same. However, the PW-4 in his cross-examination

stated the same had been read over to the complainant and she

admitted the content was correct. If the written complaint being the

very genesis of the criminal case was under shadow, the appellant

might be favoured with an order of acquittal, subject to the

satisfaction of this Hon’ble Court.

ii. No independent witness examined:-

a) In the instant case the alleged incident occurred in an open field

but no independent witness was produced. The prosecution only

examined one Gias/PW-6 to prove its case who himself admitted in

his cross examination that he had a previous dispute with the

present appellant.

b) The PW-5/victim named two other persons viz. Bari and Mujibar

Rahaman, who were present at the fateful moment with him, but

none of them had been examined by the prosecution. It was further

the case of the prosecution that while the incident progressed

several local people had assembled. However, none of such

witnesses were produced by the prosecution.

iii. Lack of corroboration regarding injuries sustained:-
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a) The prosecution produced two medical officers being PW-2/ second

treating doctor and PW-3/first treating doctor who allegedly treated

the victim/PW-5. PW-2 could not state the age of the injury. He also

admitted that the history of injury had not been mentioned in his

report. PW-3/first treating doctor did not depose about anything

regarding the history of injury, especially who was the assailant,

though his treatment sheet/referral was exhibited. Therefore, form

the medical reports it was dicey that the injuries had been caused

by the present appellant.

b) Moreover, PW-5/victim admitted in his cross examination he did

not disclose to the investigation officer/ PW-7 that he was admitted

into Kanapukpur PHC or he was referred to Berhampore N.G.

Hospital. He further admitted that he did not disclose to the

investigation officer/PW-7 that he was admitted in hospital for 15

days. Such conduct of the victim was quite susceptible in nature as

in one hand, he was proceeding against the appellant and on the

other hand, he himself was shying away from sharing what could

have been the most important piece of evidence.

iv. Identity of the victim is questionable:-

The evidence of PW-6/ Giasuddin Sk is very peculiar in nature as

he referred the victim/ Abdul Gani/ PW-5 as a deceased person.

PW-5/victim and PW-6 were examined on same day, i.e. 14 th

September. 2001 negating the possibility of impersonation.

v. Medical papers could not be looked into:-

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The prosecution had tendered injury reports, bed-head ticket and

discharge certificate as Exhibit 5 series and Exhibit 6 series, but the

same had been done through the Investigation Officer/ PW-7 which

was impermissible. In the present case in hand, although the PW-2

was examined on dock but the exhibit series 5 or exhibit series 6

had never been tendered into evidence while his deposition was

going on.

vi. Previous enmity cannot be ruled out:-

A thorough reading of the depositions disclosed PW-1/complainant,

PW-5/victim and PW-6/neighbour of the victim had previous enmity

with the present appellant. The complaint itself contained such

existence of a previous enmity over the issue of co-sharing which

was incredulous of false implication.

vii. Lack of ingredient of Section 325 of the Indian Penal Code:-

To attract Section 325 of the Indian Penal Code, use of any weapon

was not required. However, in the present case in hand the

prosecution stated the victim had been assaulted with a “pasli” but

the same had not been seized by the Investigating Agency.

Even, the prosecution witnesses couldn’t prove any premeditated

intention to cause such grievous hurt. As per the prosecution story

there was a heated altercation between the victim and the accused

persons in presence of other persons. So, to prove the offence under

Section 325 of the Indian Penal Code it was necessary to recover the

offending weapon from the possession of the accused/ appellant. In
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the present case, both the ingredients of the Section 325 of the

Indian Penal Code have not been fulfilled.

7. The Learned Advocate representing the State submitted as follows:-

i. The conviction of the appellant under Section 325 of the Indian

Penal Code, 1973, stands fully justified as PW-5, Goni Mohammad

clearly deposed that the appellant assaulted him with a ‘pasli’

resulting in grievous hurt and such testimony of the injured person

had strong evidentiary value. Although the complaint also narrated

a subsequent attack on the complainant’s house alleging assault

with lathi and hansua, outraging of modesty, snatching of gold

ornaments, and damage to the door and roof. The core incident of

grievous hurt remains firmly proved through consistent testimony of

eyewitnesses and medical corroboration.

ii. Any attempt to create doubt about the genesis of the complaint was

irrelevant, for even if the second incident was treated as exaggerated

or surplus age, it did not lessen the case of assault resulted in

grievous hurt to the victim in the field, which remained completely

consistent, credible and corroborated by the evidence of PW-1, PW-5

and PW-6.

iii. It was incorrect that there was no one present at the time of

occurrence. PW-6 was an independent eyewitness who accompanied

the injured person to the hospital. The fact that he also had

disputes with the appellant did not make him an “interested

witness”. It was held by the Apex Court that “strained relations do
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not discredit the testimony and that is otherwise natural, consistent

and trustworthy”.

iv. The question of personal grudge and enmity was a double edged

sword which cut both ways. The incident as proved by the

prosecution narrated that said enmity between the parties.

v. The medical evidence substantially corroborates the assault. PW-3,

the first doctor who treated the victim PW-5 proved the referral

papers and confirmed the presence of grievous hurt and Injury. The

non-mention of the injury history by PW-2 in no manner erodes the

present case, as the medical findings clearly align with and reinforce

the eyewitness’s account of assault. Lastly, the nature and severity

of the injuries of PW-5 leaves no scope for doubt.

vi. The contention was that the medical documents were improperly

exhibited was completely devoid of merit. When the doctor who

examined victim PW-5 had deposed and supported the injury, the

absence of a formal exhibit could not override substantive evidence.

It was therefore, a settled principle that procedural or technical

lapses could not be permitted, particularly when the oral evidence of

the medical officer and the injured witness stood clear and

consistent. In various judgment’s it had been held that “insistence

on rigid technicalities could not override credible, direct evidence

which establishes the offence beyond reasonable doubt”.

vii. The alleged confusion regarding PW-5 was deceased or alive was

clearly a linguistic error as PW-5 was examined in Court who
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identified his signature on the complaint narrating his injury. The

appellant never raised any kind of objection during the trial.

Therefore such arguments had been an afterthought.

viii. The absence of seizure of the weapon (pasli) was immaterial. For

conviction under the Section 325 of Indian Penal Code, 1973 the

recovery of the weapon was not mandatorily required as the nature

of injury itself proved the offence committed by the accused. Also

the Hon’ble Supreme Court had held in one of the judgements that

“non-recovery of the weapon is not fatal when there is a direct

eyewitness testimony supported by medical evidence”.

ix. The Learned Trial Court had meticulously appreciated the evidences

and there was no perversity and legal infirmity. Therefore, the

appellant could not claim benefit under the “Probation of Offenders

Act” as the assault was deliberate, targeted and over a land dispute

resulted in grievous hurt and injury and this offence reflects serious

violence.

8. The Learned Advocate representing the State further submitted the

circumstances as mentioned above the prosecution had been able to prove

its case beyond all reasonable doubts and hence, the instant appeal should

be dismissed.

9. A circumspection of evidence of the prosecution witnesses revealed as

follows:-

i. PW-1, being the father of the injured victim, Goni Mohammad,

unfolded the genesis of the occurrence against the backdrop of a
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long-standing and festering dispute over landed property between

the parties. He deposed his son had gone to the field to take food. In

the meantime, the accused persons, namely, Kasimuddin, Soleman,

Nobi, Amjad, and others launched a concerted and violent assault

upon him. PW-1 was present at his residence alerted by the

commotion, rushed to the place of occurrence. He found his son had

been brutally attacked with sharp-edged weapons resulting in

grievous injuries including severe wounds to the ear, nose, and

other parts of the body. The victim was initially taken for medical

attention and upon meeting him later in the evening. PW-1 noticed

the extent and brutality of the injuries. Thereafter, he proceeded to

the police station and lodged a formal complaint. In his cross-

examination, he admitted the accused persons were related to him

as nephews and reiterated that the dispute over the paternal

property, arising from denial of his rightful share, constituted the

underlying motive for the assault.

ii. PW-2, a medical officer attached to Berhampore New General

Hospital as an ENT surgeon, deposed with clinical precision that on

21.11.1993 at about 1:40 PM, he examined the injured Goni

Mohammad, who had been referred from Kanapukur Primary Health

Centre. Upon examination, he found the left ear had been

amputated. Additionally, he recorded multiple incised injuries on

the anterior chest and neck. He described three distinct injuries

with specific measurements, one measuring approximately
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2″/1″x1½ on the neck, another measuring 2″x1″x2″, and a third

measuring 3″x1″x2″. In his medical opinion, such injuries could

have been caused by sharp cutting instruments, including weapons

and a sword. However, in cross-examination, he acknowledged

certain omissions in his report, viz., the absence of any note

regarding the age of the injuries or the history furnished by the

patient, thereby limiting his ability to opine on the temporal aspect

of the injuries.

iii. PW-3, another medical officer posted at Kanapukur BPHC under

Bhagwangola Police Station deposed the patient identified as Goni

Mohammad of village Ramchandmati was brought to the said Health

Centre in an emergent condition with amputation of the left ear.

Finding the facilities at the centre inadequate for such grievous

trauma, he promptly referred the patient to Berhampore Hospital for

specialised treatment.

iv. PW-4, who acted as a scribe of the written complaint, stated he was

acquainted with Noor Banu Bibi, the wife of Abdus Samad. On her

request, he reduced her complaint into writing and read it over to

her, where she put her left thumb impression, the document being

marked as Exhibit 2/1. Nonetheless, in cross-examination, he

considered there was no endorsement to indicate that he had tested

the thumb impression of the complainant. He further admitted he

had not appended his signature as a scribe or there was any explicit
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note that the complaint had been written under the instructions of

Noor Banu Bibi, thereby formality of the document was ostensible.

v. PW-5, a witness to the occurrence provided a vivid account of the

incident. He deposed on 21.11.1993 in the midst of an on-going

dispute over land possession, he visited the field and found the

accused persons, Kasimuddin, Osman Soleman, Amjad and Nabirul

engaged in cultivating the disputed land. Upon his protest,

Kasimuddin exhorted others to finish him. Therefore, Osman

inflicted grievous injuries upon him with a ‘pasli’ striking the vital

parts, such as a ear, neck and chest. The assault was so severe that

his left ear was completely severed. Though he fell to the ground, he

remained conscious, but was unable to speak. Subsequently,

localites arrived and facilitated his removal to Kanapukur PHC,

wherefrom he was referred to Berhampore Hospital. He was

immediately taken to the operation theatre, where surgical

intervention was undertaken, including stitching of the severed ear.

He remained hospitalised for an extended duration of one month

and 15 days. He unequivocally asserted that the accused persons

had acted with the intention to kill him. In cross-examination,

however, he stated he was not interrogated by police, a statement

which assumed significance in assessing the investigative

thoroughness.

vi. PW-6 deposed he was acquainted with Abdul Goni of village

Ramchandmati and was present on his field on the relevant day. He
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corroborated the occurrence to the extent that Osman struck Goni

Mohammad with a ‘pasli’. However, in cross-examination, he

admitted when the injured was taken to Kanapukur PHC he was

examined by the police, thereby introducing a nuance to the earlier

assertion of non-interrogation.

vii. PW-7, the Investigating Officer and the Officer-In-Charge of

Bhagwangola Police Station deposed, on 22.11.1993, he received the

written complaint lodged by Noor Banu Bibi. He formally registered

Bhagwangola PS Case No.182/93 dated 22.11.1993 and initiated

the investigation. He endorsed on the body of the FIR in his own

handwriting, visited the place of occurrence at Ramchandmati field

and prepared a rough sketch map with index marked collectively as

Exhibit-4. He recorded statements of several witnesses under

Section 161 of the Code of Criminal Procedure including Ananda,

Mujibar Rahaman, Bajen Mondal, Abdul Gani, Sajjad Sk. and Gias

Sk. He arrested the accused persons and collected the injury report

of Goni Mohammad from Berhampore Hospital, which was marked

for identification as “X”. The bed-head tickets and discharge

certificate were exhibited as Exhibit-5 Series and Exhibit-6

respectively. Upon completion of investigation, he submitted charge-

sheet No.57 dated 30.03.1994 against the accused persons

indicating one individual as absconding.

viii. In his cross-examination, PW-7 admitted certain material omissions

in the statements recorded during investigation. He stated the
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witness had not disclosed to him that he was present in his land at

the time of occurrence nor stated Osman Shaikh assaulted

Mohammed with a ‘pasli’ or that the injured was taken to

Kanapukur PHC by him. He further conceded there was no record

indicating from whom he had received the injury report of the victim

and that he had no acquaintance with the hospital office, thereby

exposing certain lacunae in the chain of documentary collection.

10. Thus, the cumulative evidence revealed a consistent narrative; a land

dispute acting as a motive; a brutal assault with sharp edge weapons,

resulting in grievous injuries, including amputation of the ear; prompt

medical intervention, corroborated by professional medical testimony and

investigation which substantively supportive of the prosecution case is not

free from procedural imperfections and omissions.

11. The evidentiary facts of the prosecution case must be tested on the

qualitative standard, coherence, credibility, and legal sufficiency, particularly

when the conviction is to be sustained under Section 325 of the Indian Penal

Code.

12. At the very threshold, it is imperative to note that the cornerstone of the

prosecution case rest upon a consistent and interwoven narrative emerging

from the injured PW-5, the ocular corroboration furnished by the evidence of

PW-1, PW-6, and the medical evidence adduced by PW-2 and PW-3.

Cardinally the testimony of an injured with this carries a high and evident

value as his presence at the scene of occurrence stands fortified by the

injury sustained. Unless compelling circumstances are demonstrated to
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discredit such testimony, the Court would be at fault to discarding it. The

testimony of PW-5 described the occurrence in an unambiguous and

consistent manner attributing specific role to the accused Osman Sk., who

inflicted blows by means of a sharp-edged instrument on vital parts of his

body. The assault resulted in the severance of his left ear and injuries to the

neck and chest, the account so rendered is straightforward free from

exaggeration and aligned with the natural course of events. The evidence

furnished is direct, unembellished and bears intrinsic reliability.

13. The law accords a distinct degree of probative value to the testimony of an

injured witness. Such testimony stands on a higher pedestal, depicting

inbuilt assurance of truth unless demonstrated otherwise by prevarications,

contradictions or inherent improbabilities. In the present case, the core of

the version put forth by PW5 remains intact, despite cross-examination and

no circumstance has emerged, which will justify its rejection.

14. The ocular account receives corroboration from PW-6, who has supported

the prosecution version to the extent of witnessing the assault and

identifying Osman Sk. though not an eye witness to the entire occurrence

however rendered support to the immediate aftermath and the condition of

the victim, thereby reinforcing the continuity of events.

15. The medical evidence lends substantial assurance to the ocular version. PW-

2 had recorded the left ear of the victim was amputated and there were

multiple incised injuries on the neck and chest. The nature and dimensions

of these injuries are consistent with the use of a sharp-cutting weapon. The

loss of ear clearly constitutes grievous hurt within the meaning of Section
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325 of the Indian Penal Code being a case of permanent privation of a

member of the body. The evidence of PW-3 further indicated the condition of

the victim was sufficiently serious to warrant immediate referral to a higher

medical centre for specialised treatment.

16. Thus, the convergence between ocular and medical evidence is complete and

leaves no doubt as regards the factor of grievous hurt having been caused.

17. However, certain deficiencies in the investigation surfaced during cross-

examination. PW-7 had acknowledged omissions in recording specific

statements of witnesses and had been unable to indicate the precise source

from which the injury reports were obtained. PW-2 also admitted the

absence of details relating to the age of injuries and the history provided by

the patient. These aspects, though not insignificant, do not strike at the root

of the prosecution case, but they do require the Court to approach the

analysis with circumspection while determining the exact degree of

capability.

18. The crucial question, therefore, is not whether grievous hurt was caused

which stands established, but whether the circumstances disclose an

intention or knowledge of such a nature as will warrant conviction under a

more aggravated provision. The materials and record do not univocally

established such heightened mens rea. The incident appears to have arisen

out of a dispute and the assault was undoubtedly severe. The evidence falls

short of demonstrating beyond reasonable doubt, the intention necessary to

attract a greater charge.

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19. In the circumstance, the act of the accused clearly falls within the ambit of

voluntarily causing grievous hurt. The ingredients of Section 125 of the

Indian Penal Code stand satisfied inasmuch as the injury was grievous, the

act was voluntary and the participation of the accused stands established

through reliable evidence.

20. The inconsistencies and omissions brought on record remain peripheral in

nature and do not create a reasonable doubt regarding the involvement of

the accused. The testimony of the injured witness supported by medical

evidence provides a firm basis for sustaining the conviction.

21. Under the facts and circumstances, the finding of the guilt under Section of

325 of the Indian Penal Code is affirmed being founded upon credible

testimony and consistent medical co-operation.

22. In view of the observations as cited above, since the incident related to the

year 1993, the appellant to be taken into custody to serve out the sentence

would not be expedient in the interest of justice after a lapse of nearly 33

years. The sentence is modified to the extent of custody to have been served

by the appellant. However, the appellant is directed to pay a fine of

Rs.25,000/- (Twenty Five Thousand) instead of Rs.5,000/- within 60 days

from the passing of this order.

23. Accordingly, the instant criminal appeal is dismissed.

24. There is no order as to costs.

25. Learned Trial Court records along with a copy of this judgment be sent down

at once to the Learned Trial Court for necessary action.
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26. Photostat certified copy of this order, if applied for, be given to the parties on

priority basis on compliance of all formalities.

(Ananya Bandyopadhyay, J.)