Calcutta High Court
Goutam Das vs State Of West Bengal on 11 March, 2006
Equivalent citations: 2006CRILJ2534
Author: Pranab Kumar Deb
Bench: Pranab Kumar Deb
JUDGMENT Alok Kumar Basu, J.
1. Nine per sons in all including the appellants stood before the learned Sessions Judge, Birbhum to face trial in connection with Sessions Trial No. 1 of September, 1995 corresponding to Sessions Case No. 53 of 1994 on the basis of Bolpur P. S. Case No. 208 dated 6th October, 1992 initiated by de-facto complainant Pulak Chakraborty.
2. After conclusion of trial, the learned Sessions Judge convicted Gautam Das, Joy alias Joydeb Das, Madhab Mitra, Naba-kumar Hazra, Bapi Hazra and Ajay Badyakar under Sections 148, 302/149 of the IPC and also under Sections 304/34 of the IPC and all of them were sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- each in default to rigorous imprisonment for six months under Section 148 of the IPC and they were also sentenced to suffer imprisonment for life and also to pay a fine of Rs. 2,000/- each in default to suffer rigorous imprisonment for one year more under Section 302/149 of the IPC.
3. Challenging the order of conviction and sentence, Gautam Das preferred C.R.A. No. 203 of 1996, Joy Das and others preferred C.R.A. 204 of 1996 while Madhab Mitra and another preferred C.R.A. 205 of 1996. As all the appeals arose out of the same judgment and order, they were taken together for disposal by a common judgment and order.
4. Pulak Chakraborty, the de-facto complainant of this case in his first information report dated 6th October, 1992 disclosed that on that day at about 9 to 9.30 p.m. when he along with his younger brother Saugata alias Babu, Toton alias Adinath Mondal, Tapas Mondal and Babu alias Ashim Ghosh were returning home after witnessing the idol of Goddess Durga at Nayekpara, at the third point crossing near the house of one Jahar Mookherjee within the township of Bolpur, they noticed the appellants along with one Gautam Roy since deceased and some others being armed with various deadly weapons to proceed towards them. As Saugata alias Babu was ahead of them, appellant Joy, Madhab and Nabakumar catching hold of Saugata twisted his hand from the back and appellant Gautam Das pierced his knife on the right side of Saugata's chest. When Pulak Chakraborty and his companions tried to rescue Saugata they were chased by other accused persons and a bomb was also hurled by the miscreants. The miscreants took away Saugata from the spot where he was assaulted by dragging and he was left by the side of a tube-well. Two local people namely Nisith Banerjee and Hari Taran Bhattacharya at that time reached the spot and thereafter seeing all those persons, the miscreants fled away from the spot leaving Saugata behind them. Saugata was thereafter taken to primary health center where he was pronounced dead by the attending doctor. Pulak Chakraborty thereafter coming to Bolpur P. S. submitted the first information report disclosing the name of the appellants.
5. O. C. Bolpur P. S. himself took up the investigation on the basis of written complaint of Pulak Chakraborty and in course of investigation witnesses were examined post mortem report was collected and after completion of investigation, charge sheet was submitted against nine persons in all including the appellants under Section 148/302/149" of the IPC alternatively under Section 302/34 of the IPC.
6. The prosecution side during trial examined 17 witnesses including the de facto complainant, some eye-witnesses of the occurrence, two doctors, witnesses who signed on the inquest report and seizure lists and also the I.O. who completed the investigation and submitted charge sheet.
7. The learned Sessions Judge, having regard to the statement of de facto complainant PW-2 and the eye-witnesses PW-5, PW-6, PW-8 and PW-9 and after considering the post mortem report and the statement of PW-14 who conducted the post mortem examination, came to the conclusion that on 6th October, 1992 which was Bijaya Dashami day at about 9 to 9.30 p.m. the appellants formed an unlawful assembly and being armed with different deadly weapons like pistol, dagger, ballam, tangi, bomb etc., they had the common object of killing Saugata alias Babu and the learned Sessions Judge, after scanning the prosecution evidence also came to his finding that the appellants shared a common intention while killing Saugata alias Babu on that fateful date, thus, the learned Sessions Judge recorded his order of conviction against all the appellants.
8. We find from record that on earlier occasion this appeal was dismissed after hearing both the sides and against that order of dismissal, the present appellants preferred a special leave petition and the Hon'ble Supreme Court while disposing of that special leave petition remanded back the appeal for fresh consideration on merit after hearing the parties.
9. Mr. Ashim Roy while addressing us challenging the order of conviction and sentence has made threefold submissions and those are:
There is practically no merit in the prosecution case and prosecution did not succeed in bringing home the charges framed against the appellants beyond reasonable doubt, the order of conviction recorded by the learned trial Court with the aid of Section 149 of the IPC cannot be supported either in fact or in law so far prosecution evidence is concerned and finally, the learned trial Court out of misappreciation of fact and law convicted Joy Das and others with the aid of Section 34 of the IPC.
10. Regarding his first point of attack, Mr. Roy has contended that in the FIR there is no whisper regarding the role of other appellants behind the murder of the victim and only name of appellant Gautam Das was specifically mentioned. Mr. Roy submits that although the alleged incident took place near the house of one Jahar Mukherjee that Jahar Mukherjee was never examined during investigation and there is no explanation also regarding such vital omission.
11. Mr. Roy contends that when no specific role of other appellants except Gautam Das was mentioned in the FIR and when there was subsequent improvement in the prosecution case during examination of the witnesses, there are reasons to hold that prosecution case as narrated through FIR was not correct story and the appellants were falsely implicated under political pressure.
12. Mr. Roy contends that it is very difficult to believe why soon after the occurrence no information was sent to Bolpur P. S. which was not far away from the place of occurrence and also why no disclosure regarding the name of assailants was made before the attending doctor at the primary health center and these omissions on the part of the prosecution seriously affect the veracity of the prosecution case.
13. Mr. Roy submits that the sketch map prepared by the investigating officer was totally confusing and, that apart, no trail of blood was noticed by the investigating officer near the place of occurrence and the story of dragging of the victim by the appellants found no support from the medical report as the doctor conducting post mortem examination did not notice any abrasion on any part of the victim's body.
14. Mr. Roy contends that no FSL report was produced in this case and when the sketch map itself was confusing it can be stated firmly that prosecution misled the Court about the actual place of occurrence and considering this respect it can be stated further that PW-5 and PW-6 had no occasion to see the occurrence as allegedly stated by them.
15. On the second point of his attack, Mr. Roy has submitted that although according to prosecution case other appellants including Gautam were armed with weapons, none of them except Gautam used any of the weapons against the victim. Mr. Roy contends that save and except an isolated statement of a single witness, there is no evidence that Ajoy Badyakar and Bapi Hazra chased the de-facto complainant and his companions and there is also no convincing evidence that the appellants dragged the victim soon after he was assaulted. Mr. Roy contends that the alleged prosecution case regarding dragging of the victim was also not supported by medical report. Mr. Roy submits that before convicting a person under Section 148 of the IPC independently and under Section 302 of the IPC with the aid of Section 149 of the IPC, Court must be satisfied from the factual position that the ingredients of Section 141 of the IPC were very much present and from the conduct, nature of participation and subsequent event it was shown beyond reasonable doubt that all the persons shared the common object, otherwise, no conviction can be recorded. Mr. Roy contends that in this particular case after close scrutiny of the statement of PW-2, PW-5, PW-6, PW-8 and PW-9 prosecution cannot be said to have established its case against the appellants either under Section 148 of the IPC or under Section 302/149 of the IPC.
16. As regards his third point, Mr. Roy contends that the law relating to Section 34 of the IPC has been well clarified by the Hon'ble Supreme Court in different decisions and what we gather from those decisions is that mere presence of a person cannot rope him with the aid of Section 34 of the IPC unless it is established from evidence that he shared the plan of commission of the offence and by his presence and action he actually facilitated the execution of the offence. Mr. Roy contends that even if we accept the prosecution case on its face value, we find that Joy Das and others simply caught hold of the victim, but, in spite of possessing the arms as they did not assault the victims and since it is the consistent prosecution evidence as available from record, in such a situation, the learned Judge was not justified in recording the conviction order under Section 302/34 of the 1PC against the appellants.
17. Mr. Roy after conclusion of his submission has referred to six decisions of the Hon'ble Supreme Court given below to substantiate his points and these are:
Bharosi v. State of M.P. reported in 2002 SCC (Criminal) 1686 : 2002 Cri LJ 4322 Ramashish Yadav v. State of Bihar Ram Kumar v. State of M.P. Lakshmi Singh v. State of Bihar Karunakaran v. State of Tamil Nadu and Khima Vikamshi v. State of Gujarat reported in 2003 SCC (Criminal) 1825 : 2003 Cri LJ 2025.
18. Mr. Roy, therefore, submits that the prosecution case was not proved beyond reasonable doubt against any of the appellants and the learned Judge was also not justified relying on the prosecution evidence to convict the appellants under Section 302/149 or in the alternative by Section 32/34 of the IPC. He, therefore, prays for acquittal of all the appellants.
19. Mr. Safiullah appearing for the State respondent has strongly challenged all the points taken by Mr. Roy on behalf of the appellants. Mr. Safiullah contends that FIR cannot be considered an encyclopaedia for the prosecution case and further, Court must examine carefully under what circumstances the FIR was lodged and whether having regard to the factual position of a particular case, it was reasonably expected that FIR would contain a full narration regarding the commission of the offence with full details of the role of every assailant. Mr. Safiullah contends that young brother of the de facto complainant was brutally murdered on a Bijaya Dashami day and after knowing the death of his brother the de facto comlainant without killing any time rushed to the P. S. and mentioned the name of all the assailants who were present on the place of occurrence and who actively participated in the commission of the crime and naturally, having regard to the fact and circumstances of the case, there was nothing unreasonable in not giving the minute detail regarding commission of the crime and the role played by each of the appellants.
20. Mr. Safiullah contends that in this particular case want of trail of blood on the place of occurrence or lack of clarity in the sketch map of the I.O. regarding the place of occurrence had little significance in view of the fact and evidence on record that as many as five witnesses in most convincing and uniform manner stated before the trial Court how the victim was killed.
21. Mr. Safiullah contends that de facto complainant as PW-2 along with PW-8 and PW-9 were with the victim at the relevant time and at the place of occurrence where all the appellants were found being armed with weapons and it was the specific statement to all the three witnesses that Joy Das, Madhab Mitra and Nabakumar Hazra caught hold of the victim and twisted his hands and statement of all the witnesses got full corroboration from the inquest report, from the statement of the doctor PW13 who attended the victim at the primary health centre and also from the post mortem report as well as from the statement of PW-14 who conducted the post mortem examination. Mr. Safiullah contends that in view of this overwhelming ocular and medical evidence further being corroborated by PW-5 and PW-6, the points taken by Mr. Roy that since no trail of blood was noticed by I.O. and since no FSL report was produced, the prosecution case cannot be believed has no merit at all and Mr. Safiullah in this context has distinguished the ratio of decisions delivered in the case of Ram Kumar (supra), Lakshmi Singh (supra), Karunakaran (supra) and Khima Vikamshi (supra) which was relied on by Mr. Roy during his submission.
22. Mr. Safiullah contends that all the witnesses of the prosecution stated in one voice that the appellants were armed with weapons and they were all physically present when Gautam Das assaulted the victim with dagger and it is the further statement of the witnesses that after assaulting the victim his body was dragged by the appellants from the place of attack to a nearby place and appellant Bapi Hazra and Ajoy Badyakar chased the de-facto complainant and his companions by hurling of bomb and naturally, from this evidence it is well established that appellants were members of unlawful assembly, they were armed with deadly weapons and they had the common object of killing the victim and hence, the learned Judge rightly convicted the appellants under Section 148 of IPC as also under Section 302/149 of the IPC.
23. Mr. Safiullah contends that the scope of Section 34 and manner of its application have been lucidly clarified by the Hon'ble Supreme Court in the case Israr v. State of U.P. and their Lordships after discussing a good number of earlier decisions on the subject at paras 21 to 28, discussed the manner of application of Section 34 and following the decision of their Lordships It is found that in the present case when Joy Das, Madhab Mltra and Nabakumar Hazra caught hold of the victim to facilitate his assault by Gautam Das and the other two assailants namely Bapi Hazra and Ajoy Badyakar chased the de facto complainant and his companions only in order to facilitate the murder of the victim, all of them were rightly convicted in the alternative under Sections 302/34 of the IPC. Mr. Safiullah has distinguished the factual scenario reported in the case of Ramashish Jadav (supra) from the factual position of the present case and submits firmly that the ratio of decision of Ramashish Jadav (supra) has got no application in the present case.
24. We have carefully perused the entire evidence on record both oral and documentary. From the FIR we have come to learn that appellant-Gautam Das assaulted the victim with a dagger at the right chest and, in fact, the dagger pierced through his right chest and it is evident from the post-mortem report and also from the statement of the doctor P.W. 14 that the assault inflicted by Gautam Das was sufficient in ordinary course to cause the death of the victim. This part of the FIR has been sufficiently corroborated by the I.O. in his inquest report and also by all the eye-witnesses namely P.W. 2, P.W. 5, P.W. 6, P.W. 8 and P.W. 9.
25. Thus, so far appellant-Gautam Das is concerned, his case under Section 302 of the IPC appears to be well established beyond reasonable doubt so far prosecution evi dence both ocular and medical are concerned.
26. We find from record that with utmost promptitude de facto complainant reported the incident at Bolpur P.S. and the Investigating Officer already getting information of assault was present at the place of occurrence and on the place of occurrence he received the FIR from the P.S. and started investigation and on the same night in course of investigation, he recorded the statement of all the eye-witnesses.
27. We are in total agreement with Mr. Safiullah that so far statements of eye-witnesses are concerned in this particular case absence of trail of blood at the P.O. or absence of FSL report cannot have any adverse impact on the veracity of the prosecution case.
28. Having regard to the points taken by Mr. Ashim Roy and countered by Mr. Safiullah we are now to consider whether the learned Judge was justified in recording the conviction order against all the appellants under Sections 302/149 of the I.P.C.
29. The learned Judge relying on the statement of the prosecution witnesses namely P.W. 2, P.W. 5, P.W. 6, P.W. 8 and P.W. 9 came to the conclusion that when all the appellants were found on the place of occurrence being armed with weapons and subsequently the victim was assaulted by one of them namely Gautam Das, prosecution succeeded in proving the case under Section 148 of the IPC and also under Sections 302/149 of the IPC.
30. It is needless to say that to prove a case under Section 148 against the appellants and also to sustain an order of conviction under Sections 302/149 of the IPC, the prosecution must prove, first of all, that there were elements from prosecution evidence to support a case under Section 141 of the IPC and this has been the ratio of decision in the case of Bharosi 2002 Cri LJ 4322 (supra). This position of law is undisputed and in the light of that position of law, we are to scan the evidence and to examine whether prosecution actually succeeded that there were ingredients to satisfy Section 141 of the IPC.
31. We have carefully considered the statements of de facto complainant along with his FIR and we have also considered the statements of P.W. 5, P.W. 6, P.W. 8 and P.W. 9 and from their statements and also from the FIR we find that all the appellants were present being armed with weapon, but, none of them except Gautam Das used the weapon either against the victim or against any of the companions of the victim. We also do not get any convincing evidence to indicate that any of them dragged the victim or they chased the companions or hurled any bomb towards them. In such a factual position even if it is accepted that they were present at the place of occurrence being armed with weapons, when from ocular evidence as well as from medical evidence we find that none of them assaulted the victim, we are really in great doubt whether it would be justiciable and proper on our part to lend support tot he order of conviction recorded against these appellants either under Section 148 or under Sections 302/149 of the IPC.
32. Now, we come to the next question as to whether all the appellants could have been convicted under Sections 302/34 of the IPC. We have stated earlier that Gautam Das was named in the FIR as the person who pierced his dagger through the right chest of the victim and all the eye-witnesses in one voice supported this part of the FIR and the medical evidence also lent support to this position.
33. From the statement of de-facto complainant as P.W. 2 and also from the statements of P.W. 5, P.W. 6, P.W. 8 and P.W. 9 we find that appellants-Joy Das, Madhab Mitra and Nabakumar Hazra caught hold of the victim and twisted his hands and only thereafter Gautam Das gave the fatal blow to the victim.
34. From the statement of doctor P.W. 14 we find it clearly that by catching hold of the victim the three persons named above amply facilitated the piercing of the dagger through his right chest and thus, having regard to the ratio of decision in the case Israr v. State of U.P. (supra), we are of firm opinion that the ratio of decision given in the case of Rarnashish Yadav (supra) and relied on by Mr. Roy is clearly distinguishable and relying on the ratio of decision in the case of Israr v. State of U.P. (supra) and having regard to the specific prosecution evidence both oral and documentary, we are of the view that Joy Das, Madhab Mitra and Nabakumar Hazra shared the common intention with Gautam Das in murdering the victim.
35. We once again reiterate that although prosecution witnesses deposed about physical presence of appellant-Bapi Hazra and Ajoy Badyakar, but, we do not get anything from the statement of the prosecution witnesses that these two appellants had any role behind murder of the victim, nor they assaulted the victim nor they did anything to help Gautam Das to assault the victim like Joy Das, Madhab Mitra and Nabakumar Hazra.
36. Thus, having regard to the prosecution evidence, both oral and documentary, and having regard to the ratio of the decisions cited at the Bar, we are of the considered view that prosecution did not succeed in proving its case against all the appellants under Sections 148/302/149 of the IPC. We are, however, of the opinion having regard to the prosecution evidence that prosecution succeeded in establishing its case beyond all shadow of doubt that Gautam Das along with Joy Das, Madhab Mitra and Nabakumar Hazra in furtherance of their common intention caused the murder of Saugata alias Babu at the night of 6th October, 1992. But, appellant-Bapi Hazra and Ajoy Badyakar although present on the spot shared no common intention by any manner in the matter of murder of the victim.
37. In view of our above discussion and finding we dispose of these appeals in the following manner:
38. C.R.A. 203 of 1996 preferred by Gautam Das is dismissed so far his conviction under Sections 302/34 is concerned.
39. C.R.A. 204 of 1996 is allowed in part, the conviction of the appellant-Joy Das under Sections 302/34 of the IPC is confirmed and the conviction of appellant-Bapi Hazra and Ajoy Badyakar under Sections 148, 302/149 in the alternative Sections 302/34 of the IPC are set aside.
40. C.R.A. 205 of 1996 preferred by Madhab Mitra and Nabakumar Hazra is dismissed and their conviction under Sections 302/34 of the IPC is confirmed.
41. The conviction orders of all the appellants under Section 148 of the IPC and under Sections 302/149 of the IPC are hereby set aside.
42. Appellant-Gautam Das, Joy Das, Madhab Mitra and Nabakumar Hazra shall suffer imprisonment for life and shall also pay a fine of Rs. 2,000/- each in default suffer rigorous imprisonment for further one year each under Sections 302/34 of the IPC.
43. Appellant-Bapi Hazra and Ajoy Badyakar stand acquitted of all the charges and since they are in correctional home they are to be released from this case immediately if not wanted in connection with any other case.
44. Send a copy of this judgment to the Superintendent of the correctional home where Bapi Hazra and Ajoy Badyakar are detained for their release immediately if not wanted in connection with any other case.
45. Send a copy of this judgment along with LCR to the trial Court with a direction to issue modified jail warrant against Gautam Das, Joy alias Joydeb Das, Madhab Mitra and Nabakumar Hazra convicting and sentencing them under Sections 302/34 of the IPC.
46. Xerox certified copy of this judgment/order be supplied after complying with all legal formalities free of cost to the learned advocates appearing for Gautam Das, Joy Das and Madhab Mitra and Nabakumar Hazra.
Pranab Kumar Deb, J.
47. I agree.