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
3accused 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
7the 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
8not 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
9identified 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
10long-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
112″/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.)
