Calcutta High Court
Subrata Barman @ Goga vs State Of West Bengal on 14 May, 2004
Equivalent citations: 2004(3)CHN310, 2004CRILJ3695, 2004 CRI. L. J. 3695, (2004) 24 ALLINDCAS 329 (CAL), 2004 (24) ALLINDCAS 329, (2004) 3 CAL HN 310, (2004) 2 CAL LJ 72, (2004) 3 ALLCRILR 722
JUDGMENT Arun Kumar Bhattacharya, J.
1. The hearing stems from an appeal preferred by convict Subrata Barman @ Goga against the judgment and his order of conviction and sentence passed on 22.09.2003 by Mr. Intaj Ali Shah, ld. Additional Sessions Judge, 3rd Court, Midnapore in Sessions Case No. I/ July/2003 arising out of C.R. Case No. 1392/ 2001.
2. The miniaturised version of the prosecution is that Manas Chaubey, younger son of Ex-leader of C.P.I. and M.P. Narayan Chaubey was murdered in the open day-light on 28.06.1999 by some antisocial elements with the assistance of local mafia B. Rambabu, for which 15 persons along with the said B. Rambabu are facing trial in the Court of ld. Additional Sessions Judge, and B. Rambabu and the people of his group became annoyed with the de facto-complainant's close friend Gautam Chaubey--elder brother of Manas and used to threat him with dire consequences. On 11.09.2001 at about 8/8-30 p.m. as per previous talks with accused Satyen Singh, when the de facto-complainant along with Kamal Kundu, Shib Ranjan Mondal, Biswajit Adhikari, Tultul Chatterjee & Gautam Chaubey reached the den of Satyen Singh at Malancha Road near Parijat Sweetmeat Shop in scooter and motorcycles, Satyen Singh, Pappu Singh, Manu Singh, Luppi Singh & Bijoy Singh stopped them by waving hands. While Gautam asked Satyen as to the reason for calling them, B. Srinibas Rao @ Srinu - brother of B. Rambabu, Ranjit Ghosh, Prasad Tadi, Ashok Tadi, Khokan Das, K. Gopi and 4/5 others appeared there, and Satyen asked Gautam to come down as he had some important matters to discuss. Gautam on alighting from his motorcycle proceeded towards Satyen, when Satyen, Pappu, Manu, Luppi & Bijoy unitedly shouted "Kill Salako" followed by surrounding him by Srinu, Ranjit, Shankar Rao, Prasad Tadi, Ashok Tadi, K. Gopi, Khokan Das and 4/5 others and firing him incessantly by revolvers, gun etc. and his fall on the ground in bleeding condition. Satyen and the above-mentioned persons then shouted in chorus that they had finished Gautam and would now see who looks after the case of Manas Chaubay and gives evidence, and thereafter they left the place with their weapons. Kamal Kundu & Tultul Chattarjee received slight bullet injuries. The de facto-complainant conveyed the news to the victim's house as also Officer-in-Charge of the P.S. with the request to come to the P.O. The police came and took away the dead body of the victim. As there was no male member in the house of the victim and the de facto -complainant was busy in looking after the inmates of the victim's family, Due to common intention and conspiracy of B. Rambabu, accused Satyen Singh, Manu Singh, Pappu Singh, Luppi Singh, Bijoy Singh, B. Srinibas Rao @ Srinu, Ranjit Ghosh, Prasad Tadi, Ashok Tadi, K. Gopi, Shankar Rao & 4/5 others committed murder of Gautam Chaubey. Hence, while the above accused Subrata Barman @ Goga who was a long absconder was charged under Sections 302/120B & 302/34 IPC, 19 accused persons were previously convicted and sentenced and the balance 9 accused are still absconding.
3. The defence case, as suggested to P.Ws. and as contended by the above accused during his examination under Section 313 Cr.PC is that no such incident took place and he and a few other accused persons have been falsely implicated in this case due to provisional animosity and as they could not oblige the O.P.
4. To prove the prosecution case 23 witnesses were examined, whereas none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the ld. Court below found the above accused Subrata Barman @ Goga guilty under Sections 302/120B & 302/34 IPC, convicted him accordingly and sentenced him to suffer imprisonment for life and to pay fine of Rs. 5000/- i.d. to S.I. for three months.
5. Being aggrieved by and dissatisfied with the above order of conviction and sentence, the said accused Subrata Barman @ Goga has preferred the present appeal.
6. All that now requires to be considered is whether the ld. Court below was justified in passing the above order of conviction and sentence.
7. Out of the above witnesses, P.Ws. 1, 2, 5 to 9 being eye-witnesses, P.W. 20 (autopsy surgeon) and P.W. 21 (I.O.) are vital, and the balance are formal or post-occurrence witnesses.
8. To start with, the name of the above accused Subrata does not find place in the FIR, and only during examination of P. W. 1 by P.W. 21 (I. O.) for the second time after about 14/15 days of the alleged incident the name of the above accused transpired. Similarly, P.W. 2 did not mention the name of the above accused and part played by him during his examination by I. O. twice even after a period of 15716 days. P.W. 5 was examined by I. O. on 14.09.2001 i.e. after about 3 days. Mr. Sekhar Basu on referring 3 decisions , contended that when an eye-witness did not disclose the name of the offender for a day and half, the testimony of such witness is untrustworthy, and unexplained long delay on the part of I. O. in recording the statements of material eye-witnesses will render evidence of such witnesses unreliable. The first and third decisions above being distinguishable may not have application in the present facts and circumstances, but belated examination of the eye-witnesses specially, by I. O. is a circumstance which may be taken into account to consider if the evidence given by them can be relied on or not, as was held in the cases & .
9. According to the evidence of P.W. 1 (de facto-complainant), on 11.09.2001 at about 878-30 p.m. on receipt of a telephonic call, the victim Gautam Chaubey being accompanied by him and 5/6 others had been to the P.O. at Malancha Road near Parijat Sweetmeat Shop in motorcycles and scooter. Due to waving of hands by Satyen, Pappu, Luppi and others, they stopped their motorcycles and scooter, and Gautam proceeded towards Satyen and others when B, Srinu, Ashok Tadi and others fired on him incessantly resulting in his fall on the ground. Accused Kamal Jain, Abdul Rouf, Kaushik, Arunangshu, Subrata Barman @ Goga and some others rushed to the P.O. and exhorted "Gautamko Janse Mar Dalo". Ranjit Ghosh assaulted Gautam with a bhojali on his head and neck and thereafter the said miscreants fled away in different directions. The P.O. as deposed by P.W. 13 (victim's mother) on being informed by P.W. 1 & P.W. 8 is Malancha near Chatterjee Building which is quite inconsistent with the prosecution case. Similarly, the P.O. as stated by P.W. 8 (Kamal Kundu) to P.W. 11 (doctor) during his medical examination is on the way to Malancha which too is not in consonance with the prosecution story. Nevertheless, the above evidence of P.W. 1 is supported by P.Ws. 2, 5 to 9 barring that the exhortation "Mar Salake" made by accused Subrata @ Goga, as deposed by P.W. 2, is not only quite inconsistent with the evidence of other witnesses but also is different in meaning and effect from the other exhortation "Jan Se Mar Dalo" as deposed by others. Moreover, it is his (P.W. 2) specific evidence that when Gautam fell down on the ground, he fled away out of fear. If that be so, the question of his witnessing accused Subrata and others to rush to the P.O. from a little distance and make the said exhortation does not stand. Furtherance, as there is no such earlier statement on the part of P.W. 2, P.W. 6 and P. W. 9 under Section 161 Cr. PC, as is evinced from the evidence of I. 0. (P.W. 21), the same may be excluded from consideration on account of contradiction due to omission. Besides, as per prosecution case, the victim Gautam along with Biswajit Adhikari etc. had been to the P.O. But the said Biswajit (P.W. 7) was simply tendered for cross-examination. So, there is no evidence on his part regarding the alleged role played by accused Subrata which thus contradicts the testimony of P.Ws. 1, 5, 7 & 8.
10. Let us consider how far the alleged exhortation by accused Subrata can be railed upon and whether it constitutes an offence. P.W. 20 who held P.M. Examination over the dead body of the victim Gautam on 12.09.2001, found 21 injuries on his body, extracted two bullets therefrom and opined that all the injuries are sufficient to cause instantaneous death in the ordinary course of nature. There is also nothing to suggest in the evidence of any of the witnesses that after fall on account of incessant firing Gautam was still alive. So, when the victim on being fired fell down on the ground and there was instantaneous death due to the said injuries, accused Subrata and others who were at a bit distance after rushing to the P.O., will still exhort saying "Mar Salake" or "Gautamko Janse Mar Dalo" is not worthy of belief since a person who had already expired the question of further assaulting or killing him does not stand. All the said P.Ws. 1, 2, 5 to 9 have stated that Ranjit Ghosh assaulted Gautam with a bhojali on his head and neck which does not find place in the FIR nor is buttressed by medical evidence as P.W. 20 did not find any injury on neck. The P.M. Report (Ext. 10) inter alia reveals one long horizontal abrasion mark ecchymosis on left side of forehead and multiple small abrasion marks on left side of forehead. In case of assault with bhojali on head, as alleged, incised wound will be caused and not abrasion unless there be hit with the handle of bhojali, about which there is no evidence. As such, the story of alleged assault by Ranjit being a subsequent improvement does not stand. Even assuming arguendo that accused Ranjit assaulted Gautam with a bhojali it did not constitute any offence since there cannot be any murder of a dead person.
11. To attract the provision of Section 34 IPC, two ingredients are necessary viz. (1) there must be common intention to commit criminal act and (2) there must be participation by all the persons in doing such act in furtherance of that intention. The necessary conditions for the application of Section 34 of the Code, as observed in Gurdattamal's case , are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention. If these two ingredients are established all the accused would be liable for the said offence. Once it is found that a criminal act was done in furtherance of the common intention of all, each of such persons is liable for the criminal act as if it were done by him alone. It does not refer to case where several persons intend to do an act and someone or more of them do an entirely different act. It is the essence of Section 34 that the persons must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed . Mere distance of the scene of crime cannot exclude culpability under Section 34 which lays down a rule of evidence to infer joint responsibility for criminal act performed by a plurality of persons. Criminal sharing, overt or covert, by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of the section. There must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused . Common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating fact. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack . It is not enough to have the same intention independently of each other (AIR 1998 SC 40). As held by the Apex Court in , an act, whether overt or covert is indispensable to be done. The accused who is to be fastened with liability on the strength of Section 34 should have done some act which has nexus with the offence. In a case where the allegation against an accused is that he participated in the crime by oral exhortation or by guarding the scene the Court has to evaluate whether that person had really done any such act. P.W. 9 in one place deposed that he found 15/16 contractors including accused Subrata to come to the house of B. Rambabu in motorcycles and scooters, and Srinu (brother of accused B. Rambabu) and B. Manju (wife of accused B. Rambabu) to take them away to their house followed by their coming out which is totally absent in the testimony of other witnesses and so no reliance can be placed upon the said uncorroborated testimony. Criminal conspiracy within the meaning of Section 120B IPC postulates an agreement between two or more persons to do, or cause to be done an illegal act or an act which is not illegal, by illegal means. It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. A conspiracy from its very nature is generally hatched in secret. Like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed in most, cases, proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances, and antecedent and subsequent conduct, among other factors, constitute relevant material . It is difficult to conclude that a person merely because he was present near the scene, without doing anything , without even carrying a weapon and without even marching along with the other assailants could also be convicted with the aid of Section 34 for the offence committed by the other accused. When there is absence of evidence of association of a particular accused with the alleged conspiracy, charge against him must fail. In this connection, the decision may well be referred to. Regarding the story of alleged exhortation by accused Subrata along with others, there is clear discrepancy. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is often a tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abatement can be recorded against the person alleged to have exhorted the actual assailant . The evidence adduced at the trial in respect of the part alleged to have been played by the appellant is contradictory and far from convincing. No prior concert of mind before the alleged attack nor the story of alleged criminal conspiracy has been established nor the accused Subrata can be roped with the alleged offence of murder in view of the discussion made above.
12. Accordingly, accused Subrata Barman @ Goga is found not guilty.
13. In the premises, the appeal be allowed on contest. Accused Subrata Barman @ Goga be acquitted of the charge under Sections 302/120B & 302/34 IPC and he be set at liberty at once. The said accused be released forthwith from custody.
14. No order of disposal of alamats is passed since the case is pending against other accused persons.
15. In this connection, it may be made clear that this judgment will not be a precedent in respect of the cases arising out of the same incident pending before the ld. Court/Courts below,
16. Let a copy of this judgment along with the L. C. R. be sent down at once to the ld. Court below with a direction for communication of the order to the authorities of the Correctional Home concerned for release of the said accused at once.
Nure Alam Chowdhury, J.
17. I agree.