Calcutta High Court (Appellete Side)
Tonic @ Lutfar Rahaman vs The State Of West Bengal on 20 February, 2015
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Samapti Chatterjee
CRA 796 of 2009
Tonic @ Lutfar Rahaman
... Appellant
vs.
The State of West Bengal
... Respondent
With
CRA 47 of 2010
Khorsad Sk. & Others
... Appellants
vs.
The State of West Bengal
... Respondent
For the Appellant in CRA 796 of 2009 : Mr. Sandipan Ganguly
Mr. U. A. Dewan
Mr. Arup Sarkar
For the Appellants in CRA 47 of 2010 : Mr. Abhijit Basu
Mr. Kishore Mukherjee
Mr. Sankha Subhra Roy
For the State in both the Appeals : Mr. Shataroop Purakayastha
Heard on : 28.11.2014, 02.12.2014
Judgment on : 20.02.2015
Nishita Mhatre, J.:
1. This is a case which reflects how a religious celebration held in public can go away because of the sheer madness of some persons giving vent to their urge for violence.
2. The Durgapuja festival was celebrated as in the previous years in October, 2007 in the village Rudranagar. The deity was to be immersed on October 11, 2007. According to the prosecution the appellants, all armed with deadly weapons like hasua, crowbar, tangi and lathis, led by Tonic @ Lutfar Rahaman, the appellant in Criminal Appeal No.796 of 2009, entered the Durgapuja mandap in the village. They broke the idol. One Bhabesh Bhuimali tried to resist them and confronted the appellants. He was assaulted mercilessly. Other persons at the mandap fled away in fear. The accused, hailing from the village Suryapara, ransacked the houses of many of the villagers and assaulted them. Provat Rajbangshi, Tulshi Rajbangshi, Sablu Konai, Pinku Rajbangshi, Binod Bhuimali, Subhas Konai were all severely injured. These persons and Bhabesh Bhuimali were admitted into the hospital. Bhabesh expired later in the hospital. An inquest was conducted and the FIR was lodged at 1.05 a.m. on 23rd October, 2007. The appellants in both the appeals have been in custody from 23rd October, 2007. Khorsad Sk., the Appellant No.1 in Criminal Appeal No.47 of 2007 died while in custody, after completion of the trial. The appellants were charged for having committed offences under Sections 302 read with Section 149, 324, 153A(2), 427 read with Section 149 and 148 of the IPC. They were tried by the Additional Sessions Judge, Fast Track, Third Court, Rampurhat, Birbhum. The appellants have all been sentenced to suffer imprisonment for life and to pay a fine of `10,000/- each having been found guilty under Section 302 read with Section 149 of the IPC. They have further been found guilty under Section 148 of the IPC and sentenced to suffer 3 years rigorous imprisonment and to pay a fine of `1000/- each and in default, to suffer a further period of 6 months of rigorous imprisonment. They have been similarly sentenced for commission of the offence punishable under Section 324 read with Section 149 of the IPC. The appellants have been found guilty of the offence under Section 153A(2) read with Section 149 of the IPC and have been sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of `3000/- and in default of payment of which they have been directed to suffer rigorous imprisonment for a further period of 1 year. Besides this, all the appellants have been sentenced to suffer rigorous imprisonment for 2 years and to pay a fine of `3000/- for having committed an offence under Section 427 read with Section 149 of the IPC.
3. The prosecution examined 23 witnesses to prove the charges framed against 10 accused persons, although 15 persons were shown as the accused in the charge-sheet. The trial was conducted against 10 of them as remaining 5, i.e., Hasib Sk, Sentu Sk, Haksad Sk, Basir Sk and Nurem Sk were absconding.
4. After drawing our attention to the evidence led before the trial Court in detail, Mr. Abhijit Basu, the learned Advocate appearing for the appellants in Criminal Appeal No.47 of 2010, submitted that as the trial Court had acquitted the appellants in respect of the charge framed under Section 307 of the IPC, there was much less an object to murder Bhabesh. He further submitted that since the prosecution had not specified the common object of the accused, grave prejudice had been caused to them at the trial. According to the learned Counsel there were several separate groups, therefore only the group connected with the death of Bhabesh could be found guilty if at all for murdering him. He submitted that several groups or persons were not involved and therefore, those groups would not be clubbed together with the group which had murdered Bhabesh. The learned Counsel then drew our attention to the fact that the weapons used by the assailants were not recovered. He further drew our attention to the fact that the prosecution had not been able to establish that there was any motive on the part of the appellants to murder Bhabesh and therefore, according to him, the death of Bhabesh could be said to be a culpable homicide not amounting to murder.
5. Mr. Basu then submitted that Bhabesh died because of his resistance to the damage of the idol. He then submitted that in order to prove the common object of the parties the prosecution should have been able to identify that object. According to the learned Counsel there was no intention on the part of the appellants to kill Bhabesh which is obvious from the fact that his vital organs had not been touched. The learned Counsel raised several other issues in respect of the nature of investigation and the injuries sustained which we will examine a little later.
6. Mr. Sandipan Ganguly, the learned Counsel appearing for Tonic Sk, the appellant in Criminal Appeal No.796 of 2009, sought to draw a distinction in the role played by Tonic when compared with the other accused persons. He then pointed out that although the FIR contains the name of Tonic, PW 1 who had lodged the FIR has not named him in his evidence. The learned Counsel then submitted that the inquest which was held prior to the FIR being lodged does not mention the name of Tonic nor do the PWs 10 and 12 mention his name. The learned Counsel submitted that the name of Tonic appears for the first time in the testimony of PW 4. He then pointed out that the credibility of the prosecution witnesses is in doubt as many of them had not mentioned the name of Tonic in their deposition before the Court or in the statements which were recorded only a month after the incident.
7. Mr. Shataroop Purakayastha, the learned Counsel for the State, submitted that it was only because of the alertness of the police that the incident did not conflagrate into communal violence. According to him all the accused had arrived at the scene of offence to cause premeditated damage to the idol. It was their common object to disturb the celebration and destroy the idol. He submitted that there was only one group of assailants and not multiple groups, as claimed by the defence. The learned Counsel further submitted that the prosecution witnesses had truthfully mentioned the names of those who had participated in the mindless violence and had not in any manner embellished their versions or mentioned the names of all and sundry.
8. Both the learned Counsel have referred to several decisions of the Supreme Court as well as this Court which we will refer to later.
9. We have scanned the evidence led before the Trial Court. PWs 7, 8, 9, 10, 11 and 12 were injured by the assailants including the appellants. Each of them has mentioned the names of the persons who attacked them. PW 7 has spoken about being injured by Basir Sk, Hasib Sk and Dilip Sk (appellant No.5). PW 8 has mentioned that he was assaulted by Hasib and Basir besides Kudrat (appellant No.6). PW 9 has stated that he was attacked by Basir Sk, Kudrat Sk and Billy Sk (appellant No.7). PW 10 has spoken of being assaulted by Hasib Sk and Kudrat Sk. PW 11 has stated that besides Basir, Hasib and Kudrat, Sobrati Sk (appellant No.2) was also an assailant. PW 12 has been assaulted by Hasib, Basir and Sobrati. PWs 7 to 12 were injured in the melee and had witnessed the assault on the deceased. Each of them has mentioned that the appellants arrived suddenly at the spot and started damaging the Durga idol. When Bhabesh Bhuimali, the deceased tried to resist them, he was assaulted mercilessly with lathis, crowbars and other dangerous weapons.
10. PW 1 who lodged the FIR claimed to be an eye-witness; however he could not identify any of the assailants. PW 2 is an eye witness to the incident and the son of the deceased. He has stated that he informed his mother and sister the names of the assailants of his father. He was also injured in the fracas. Thus considering the evidence of the eye-witness, it is apparent that Kudrat Sk has been mentioned as the assailant of the deceased as well as the injured witnesses by four witnesses. Tonic Sk has been named by three witnesses, Billy Sk by two witnesses and Sobrati Sk by three witnesses.
11. The Trial Court has considered the evidence of eye-witnesses and has found that the deceased had died due to the injuries sustained by him after the appellants assaulted him.
12. PW 18 is the doctor who examined the injured persons in the hospital. He had also examined the deceased who was admitted after sustaining severe injuries. The victim died in the hospital on 23rd October, 2007 at 12.20 a.m. PW 18 has spoken about the nature of injuries sustained by PWs 7 to 12. Each injury described by him is severe, although the witness has admitted that there were no fractures. From the injuries it is apparent that the assailants had aimed at the head of the injured persons and they had suffered either cut injuries or scalp injuries. However, he admitted that none of the injured persons mentioned the names of their assailants when they were admitted to hospital for treatment.
13. PW 13 is the doctor who performed the post mortem examination of the deceased. The injuries sustained by the victim are as follows:
1. All the lids of both eyes are swollen with bluish discolouration on dissection shows extravasation of blood 3"x2" diffused over both eye lids of both eyes.
2. Both ankles are swollen. On dissection extravasation of blood diffused all round the ankle joints.
3. Both the testies are swollen. On dissection extravasation of blood diffused over both testies.
4. Haematoma 10" long 3" wide covering the whole exterior aspect of right upper limb up to wrist joint from elbow.
5. Haematome measuring 8"x3" wide covering the extension aspects of left forearm from elbow joint to wrist joint.
6. Two parallel cylindrical bruise mark over left side of chest wall starting from int.
angle of left scalula extend downward and forward upto ant. Axillary line each measuring 6"x1".
7. One cylindrical bruise mark measuring 4"x1" placed over left gluteal region.
8. One heamatoma measuring 4"x2"x bone deep placed obliquely on right fronto parietal region. On dissection extravasation of blood 4"x2"x bone deep placed obliquly on right fronto parietal region. On dissection extravasation of blood 4"x2"x bone deep over right fronto parietal region.
9. One crack (lineor) fracture over right side of frontal bone in oblique direction measuring 3" long with subdural haemorrhage with blood clots all over the both cerebral hemisphere.
10. Fracture of 3rd rib on left side of chest wall with rupture of left lung.
11. Abrasion over front of chest 4"x4".
He has opined that the death was due to the effects of the aforesaid injuries which were ante mortem and homicidal in nature. The doctor has admitted that there were no incised wounds or slash injuries over the body of the deceased.
14. Considering the nature of the injuries sustained by the victim, we are unable to agree with the submission of the learned Counsel for the appellants that there was no intention on the part appellants to kill Bhabesh Bhuimali.
15. The submission of Mr. Basu, the learned Counsel for the appellants in CRA 47 of 2010 was that as the deceased had not sustained any injuries on his vital parts, it was obvious that the appellants had no intention to kill him. This submission is unacceptable and the Trial Court has, in our opinion, rightly taken into account the injuries sustained by the victim and has concluded that they were sufficient to cause death in view of the opinion of PW 13.
16. The submission of Mr. Basu that the failure of the prosecution to examine the mother and the sister of the deceased reflects poorly on the case the prosecution is not tenable. Merely because they have not been examined, it does not lead us to the conclusion that the appellants were not guilty.
17. The learned Counsel has then submitted that the weapons of assault were not recovered by the investigation agency nor was blood- stained earth seized from the place of the incident. Therefore, according to him, the investigation is faulty and the appellants cannot be convicted on the basis of such investigation.
18. There can be no doubt that the investigation in the present case is not up to the mark. However, a shoddy investigation cannot lead to the conclusion that the accused were not guilty of the crime which they have committed. There is sufficient evidence on record to prove that they were the assailants and that their sustained assault on the deceased had fatally wounded him. The evidence also suggests that PWs 7 to 12 were injured mercilessly by the appellants.
19. As mentioned earlier it has been argued on behalf of the respondents that there was no common object specified in the charge framed against them and therefore, the Trial Court had committed a mistake by concluding that Section 149 of the IPC was attracted in this case. The submission of Mr. Basu is that because the trial Court had concluded that there was no common object to commit an offence under Section 307 of the IPC, the appellants could not be charged for having a common object to murder the deceased. This argument is tenuous. The common object was not to merely attempt to murder the deceased, but was in fact to kill him.
20. Mr. Basu has then argued that the common object if any was to disturb the immersion of Durga idol and not to kill the deceased. Therefore, according to him, the appellant could not be found guilty of having murdered the deceased or indeed injuring PWs 7 to 12. This submission, in our opinion, is unsustainable. Besides disturbing the immersion of the Durga idol the appellants certainly had the intention to kill Bhabesh Bhuimali because he tried to resist their attack on the Durga idol. The evidence on record indicates that there was a premeditated attack on the deceased. The appellants all armed with dangerous weapons had arrived at the spot. They damaged the Durga idol and when the deceased tried to stop them from causing further harm, they decided to get rid of him as he was an obstacle in their path and therefore brutally assaulted him.
21. By relying on the judgment of the Supreme Court in the case of Bhudeo Mandal and Ors. v. State of Bihar reported in AIR 1981 SC 1219 Mr. Basu submitted that there must be a clear finding of the Trial Court that there was a common object of the assembly and that the finding of the common object was unlawful while convicting a person with the aid of Section 149 of the IPC.
22. Mr. Purakayastha, the learned Counsel appearing for the State in both the appeals, also relied on the judgment of Lalji and Ors. v. State of U.P. reported in (1989) 1 SCC 437 where the essential ingredients of Section 149 of the IPC have been mentioned by the Supreme Court. They are (i) commission of an offence by any member of an unlawful assembly and (ii) such offence should have been committed while prosecuting the common object of that assembly or must be such as the members of that assembly knew was likely to be committed. The Court observed that while an overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149 of the IPC. The prosecution is not obliged to prove a specific overt act done by the accused if he was a member of an unlawful assembly. The Supreme Court observed that the question to be examined by the Trial Court is not whether there was enough corroboration for individual participation of the accused in the commission of the offence but whether the accused persons were members of an unlawful assembly at the relevant time.
23. Considering this proposition of law, in our opinion, the Trial Court has rightly found that the prosecution had established that the appellants had a common object to damage the Durga idol as well as to kill any person who resisted them in their endeavour.
24. The evidence on record does not substantiate the claim of Mr. Basu that there were several groups quarrelling and the material on record did not specify which group fatally attacked the deceased. The evidence indicates that all the appellants were together when they arrived at the scene of offence. They were resisted by the deceased in their attempt to damage the Durga idol. Therefore, the Trial Court has rightly not accepted the submission that there were several groups quarrelling and involved in the attack on the idol.
25. The submission of Mr. Ganguly that PW 1 has not named Tonic and therefore, the FIR should be disregarded is unsustainable. It is true that the name of Tonic Sk. does not figure either in the FIR or in the deposition of PW 1. In fact the witness has categorically denied seeing him. However, there is sufficient material on record which implicates Tonic Sk as the other eye-witnesses have named him. In fact, PW 1 has truthfully stated that Sarafat Sk who was one of the accused persons was not present when the miscreants came in a mob. Sarafat Sk has therefore been acquitted by the Trial Court.
26. Mr. Ganguly has submitted that the witnesses to the inquest also do not speak of Tonic being involved in the assault. He has pointed out that PWs 2 and 3 have not spoken about the presence of Tonic at the scene of offence. According to him, there was a delay in recording the statements of the injured witnesses. They had named Tonic in their depositions in court for the first time. Mr. Ganguly therefore submitted that the credibility of these witnesses is at stake.
27. Mr. Ganguli has relied on the judgment of the Supreme Court in the case of State of Orissa v. Mr. Brahmananda Nanda reported in AIR 1976 SC 2488. In this judgment the Supreme Court held that when persons claiming to be eye-witnesses do not disclose the name of the assailants for a day and a half after the incident and no explanation is offered for the disclosure of the name, it amounts to a serious infirmity which destroys the credibility of the evidence of the prosecution. The record shows that there was no delay in recording the statements under Section 161 of the Cr.P.C. Had the injured witnesses wanted to conjure a story against the appellants including Tonic Sk, they would have named all the accused. However, each witness has named only those persons who assaulted them. Their evidence is credible and believable.
28. The presence of Tonic Sk at the scene of offence cannot be doubted. Although PWs 1, 2, and 3 have not spoken about his presence other witnesses have implicated him. We are not inclined to accept the submission of Mr. Ganguli that the witnesses were untrustworthy. There was no motive of PWs 7 to 12 (the injured persons) to falsely implicate Tonic Sk. Once we have concluded that all the appellants had a common object to damage the Durga idol and to decimate any person who resisted them, then it matters little whether Tonic Sk personally assaulted any of the injured persons or the deceased personally.
29. Mr. Basu, the learned Counsel for all the appellants except Tonic Sk, has submitted that since there was no violence, Section 153A of the IPC is not attracted. After perusing the Trial Court's judgment, in our opinion, there is no doubt that the Trial Court has considered this aspect of the matter in accordance with law. The evidence on record establishes mens rea of the appellants to commit an act which is prejudicial to the maintenance of harmony between different religious groups which was likely to disturb the public tranquillity. In such circumstances, in our opinion, Section 153A is correctly attracted.
30. The Trial Court has marshalled the evidence on record correctly. It has appreciated the evidence in accordance with law. We do not find any reason to interfere with the judgment. The judgment of the Trial Court is confirmed. Accordingly the appeals are dismissed.
31. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.
(Samapti Chatterjee, J.) (Nishita Mhatre, J.)