Calcutta High Court (Appellete Side)
Bablu Sardar And Others vs State Of West Bengal on 8 December, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. No.188 of 1994
BABLU SARDAR AND OTHERS
. . .APPELLANTS
VERSUS
STATE OF WEST BENGAL
. . .RESPONDENT
For the Appellants : Mr. Sekhar Kumar Basu, Sr. Adv.
Mr. Kallol Mondal, Adv.
Mr. Krishan Ray, Adv.
Ms. Amrita Chel, Adv.
For the State/Respondent : Mr. Neguive Ahmed, Adv.
Ms. Kakali Chatterjee, Adv.
For the Defacto Complainant: Mr. Subir Ganguly, Adv.
Mr. Sumanta Ganguly, Adv.
Heard on : 14.11.2017
Judgment on : 08.12.2017
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 29.6.1994 and 30.6.1994 passed by learned Additional Sessions Judge, 1st Fast Court, Alipore, South 24 Parganas, in Sessions Trial No.3(6) of 1993 corresponding to Sessions Case No.79(4) of 1993 convicting the appellants herein for the commission of offence punishable under sections 302/149/148/448/149 of the Indian Penal Code. and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.300/- in default to further rigorous imprisonment for one year more for the offence under sections 302/149 of Indian Penal Code, rigorous imprisonment for two years for the offence punishable under section 148 of Indian Penal Code and rigorous imprisonment for one year for the offence under sections 448/149 of Indian Penal Code, all the sentences to run concurrently.
Prosecution case, as alleged, against the appellants is to the effect that on 2.4.1987 at about 12.00-12.30 p.m. the victim Joya Sardar along with his wife Sumitra @ Chali Sardar (P.W.1) was in their house. His brother Gagan (P.W.2) and his wife were also in their house adjoining that of Joya Sardar. At that time the appellant along with others being armed with bombs and other deadly weapons proceeded towards the house of Gagan. Some of them called Gagan from his house and enquired why he was not attending the meeting. Gagan told them that the meeting did not relate to his affairs whereupon Narbindo Sardar (Accused No.13) threw a bomb at Gagan. Gagan turned aside and the bomb hit the wall and exploded. Gagan suffered burn injuries on his hands and chest. Gagan ran away along the narrow passage between his house and that of elder brother, Adhir Sardar. On his way he met a green coconut seller and requested him to take him to the police station where he lodged a general diary. On hearing the sound of explosion, Joya Sardar, the victim, came to the spot and proceeded through the passage between his house and that of his brother, Gagan. At that time Joya asked the appellants, namely, Pora Bablu, Nidhiram and others about the incident. Sumitra (P.W.1), wife of Joya was also standing in the courtyard at that time. The appellant Pora Bablu abused Joya and threw a bomb at him. As a result he sustained bomb injuries on his right leg. Sumitra came to the rescue of her husband. Her husband told her that Pora Bablu had hurled bomb at him. Then Joya Sardar started crawling towards his house and the appellant Nidhiram Sardar attempted to fire at him from a pipegun. Sumitra asked appellant Nidhiram not to do so. Thereupon, Nidhiram held her by her wearing apparel and hit her with the pipe gun. At that moment, the appellant Tarak Sardar was found standing with a bomb in front of Joya's room. The appellant Tarak hurled bomb at Joya and also abused him. Sumitra asked Tarak not to do so. Sumitra took Joya into their room and closed the door and windows of the room. Then the miscreant appellant's hurled bombs at the door and windows of their house and left. After some time they returned and tried to break the door and windows of the house of Joya. Then they again left the spot saying that they were going to the house of Basu. After 8-10 minutes later, the miscreants came back and broke the door of the verandah of Joya's house with an axe. Then the appellants hit the inner door with the axe and entered the room of Joya. Joya and Sumitra took refuge under a cot in order to conceal themselves. The appellant Lamba Bablu @ Bablu Pramanik struck Joya with an axe. The appellant Kalua hit Joya with a sword on his cheek. The appellants dragged Sumitra from beneath the cot. When Sumitra embraced her husband the appellants abused her. Pora Bablu and Nidhiram tried to take her away. The appellant, Tarak fired at Joya with his pipe gun. Thereafter, the miscreants left the place and Joya died at the spot. Police reached the place of occurrence and recorded the statement of Sumitra Sardar which was treated as First Information Report being Tiljala P.S. case No.1 dated 2.4.1987 under sections 148/149/448/427/326/307/302 of Indian Penal Code, under sections 25/27 of Arms Act and under section 9B(II) of Indian Explosive Act against the appellants and other accused persons. Police sent the dead body of Joya Sardar for postmortem and seized various articles from the place of occurrence. Upon completion of investigation charge-sheet was submitted against the appellants and other accused persons. The case being a sessions triable case which was committed to the Court of Sessions and transferred to the Additional Sessions Judge, 1st Court, Alipore, South 24 Parganas, for trial and disposal. Charges were framed under sections 148, 302/149, 307/149, 448/149 and 427/149 of Indian Penal Code. against the appellants and other accused persons. They pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined nineteen witnesses and exhibited a number of documents. In conclusion of trial, the trial Court convicted and sentenced the appellants, as aforesaid. However, the other accused persons were acquitted of all the charges levelled against them. The appellants were also acquitted of the charges under sections 307/149 and 427/149 of Indian Penal Code.
Mr. Basu, learned senior counsel appearing for the appellants submitted that the prosecution case is founded on the evidence of the sole eyewitness, P.W.1. Evidence of P.W.2 suffers from various infirmities and contradictions. The manner and course of the incident as narrated by P.W.1 in the First Information Report is at variance with her deposition in Court. Allegation of firing at the victim is not supported by medical evidence. P.W.1 was present at the time of inquest but the names of the assailants did not transpire in the inquest report. Presence of P.W.1 is highly unlikely as she did not suffer any injury on her person. Hence, P.W.1 is a wholly unreliable witness. Injuries on the victim as noted in the inquest report are at variance with the findings in the post mortem report and, therefore, prosecution case cannot be said to have been proved beyond reasonable doubt. Injuries on P.W.1 have not been proved affecting the genesis of the prosecution case. Evidence of P.W.s 8 and 9, the post-occurrence witnesses, also suffer from contradictions and/or embellishments when compared with their earlier statements to the police. There are defects in the investigation and seized articles have not been produced in the course of trial. It is also submitted that the First Information Report in the instant case was preceded by an earlier information and, therefore, is hit by section 162 Cr.P.C. He also submitted that the trial judge had put jumbled up questions during examination of the appellants under Section 313 of CrPC which had prejudiced them and resulted in a mistrial. He relied on various authorities in support of his contentions.
On the other hand, Mr. Ahmed for the State submitted that P.W.1, the wife of the deceased is the most natural and trustworthy witness in the instant case. There may be some minor variations in her evidence which is natural keeping in mind that she had deposed after seven years of the incident. However, kernel of the evidence of P.W.2 is trustworthy and reliable and is supported by the medical witness. Absence of gunshot injury as noted by postmortem doctor is possible as the bullet fired by the appellant Tarak in the milieu may have missed its target although P.W.2 may have under an erroneous impression that her husband had been shot. It is also argued that the general diary lodged by P.W.2 discloses the names of the appellants as members of the unlawful assembly who had attacked the house of P.W.2 and then had proceeded to attack the house of the victim. These introductory facts probabilise and corroborate the evidence of P.W.2, the eyewitness and lends credence to her version. P.W.s 8 and 9 had also seen the appellants soon going away from the place of occurrence in a body after the incident. This circumstances also corroborates and supports the prosecution case and, therefore, minor contradictions are/or embellishment in the version of P.W.2 ought not be a ground to disbelieve her version. Seized articles had been sent for F.S.L. examination and the non-production of such articles in Court due to lapse of time cannot be a reason to disbelieve the ocular version of the witnesses, which is substantially supported by the medical evidence.
Mr. Ganguly, learned counsel for the defacto complainant supports the contentions of the State.
Let me discuss the rival submissions of the learned counsels appearing on behalf of the parties, in the light of the evidence recorded.
P.W.1, Sumitra Sardar @ Chali Sardar, wife of deceased Joya Sardar is the most vital witness in the instant case. She deposed that she lived at Arupata under Tiljala Police Station with her husband Joya Sardar, the deceased. The incident took place on 18th Chaitra, 1393 B.S. at about 12.00 - 12.30 p.m. in their house. At that time her husband, Joya was in the house and she found some persons were shouting and proceeding towards the house of her husband's brother, Gagan. She further heard the sound of explosion of bombs. Thereafter, her husband proceeded towards the narrow passage between their house and that of her husband's elder brother and enquired from the appellants, Pora Bablu, Nidhiram Sardar and others as to what had happened. At that time, she was standing in the courtyard and found that Pora Bablu abused her husband and threw a bomb at him. Her husband suffered bomb injury on his right leg and fell down. When she went to rescue her husband, who was crawling toward their house, Pora Bablu hurled bomb at him. She also found Nidhiram attempting to fire at her husband, Joya from his pipe gun. She requested him not to do so. Thereafter, Nidhiram held her by her wearing apparel and hit her with the pipe gun. As she dragged her husband towards their home, she found Tarak Sardar standing in front of their room with bomb in his hand. Tarak hurled abuses at her husband. She took her husband to their room and closed the doors and windows of their house. They hurled bombs at the windows and doors of their house. Then the miscreants left for a while and after some time they came back and tried to break the doors and windows of their house. One of the windows towards south of the house was broken and someone opened fire and the bullets hit the inside wall of their room. The accused persons left the place saying that they were going to the house of Basu. After 8-10 minutes they returned again and broke the door on the verandah and also the inner door with an axe. Pora Bablu, Tarak Sardar, Lamba Bablu Pramanik, Nidhiram Sardar, Kalua Halder entered the room. She along with her husband, Joya took shelter under the cot to conceal themselves. The accused Lamba Bablu hacked her husband with an axe. The accused Kalua hit her husband on his cheek with a sword. The accused persons tried to drag her out of the cot. She embraced her husband. The accused persons were abusing her. Accused Pora Bablu and Nidhiram were also trying to drag her. The accused Tarak Sardar fired at her husband from his pipe gun. Thereafter, the accused persons left the place. Her husband, Joya had died at the spot. The police officer came to the spot. She reported the incident to the police officer who recorded her statement. Police took the dead body of her husband to the police station. The police seized her saree, her husband's lungee, the door bar, the broken door and broken tile. The police also seized one unexploded bomb. She identified her saree produced by the police in Court (Mat. Exbt. I). In cross-examination, she denied the suggestion that she and Gagan were living together in the house at Matpukur as husband and wife. She deposed that her statement was recorded by police at around 4.00-4.30 p.m. on the date of incident at their house. The police seized her saree and lungee in the evening. Police seized lungee from the dead body of her husband, Joya. The underwear was from the person of her husband. The lungee of her husband, the door bar, the broken door, unexploded bomb and broken tile were not found in Court. Her room is about 30/40 cubits away from the particular spot on the narrow passage where bomb was hurled at her husband. She further deposed that she found one bullet fired from the pipe gun had hit her husband.
P.W.2, Gagan Sardar is the brother of the deceased Joya Sardar. He deposed that on the fateful day at about 12.00-12.30 p.m. while he was combing his hair after having bath the accuseds Pora Bablu @ Bablu Sardar, Harabinda Sardar, Kalua Halder @ Suparna Halder, Nidhiram Sardar and Lamba Bablu Pramanik called him. He went outside. Pora Bablu and Harabinda asked him why he did not attend the meeting. He replied that the meeting did not relate to his affairs. Thereafter, Pora Bablu exhorted others to hit Gagan. Harabinda hurled a bomb at him. Gagan turned aside and the bomb did not hit him but hit the wall and exploded. Due to explosion he suffered burn injuries on his hands and chest. He ran away along the narrow passage between his house and that of his elder brother, Adhir Sardar. The accused Tarak and Lakmi Sardar chased him. At that time he noticed his elder brother near a tea stall and asked him to flee. Then he met a green coconut seller, and requested him to take him to the police station. He went to the police station by cycle. He reported the matter to the police. He was removed to Chittaranjan hospital in a police van. The doctor treated him. He remained in the said hospital for twenty-one days. He further deposed that he stated to the doctor that his co-villagers hurled bomb at him. In cross-examination, he stated that he was working as Durwan in a lime factory. The factory was 3 minutes' walking distance from his house at Arupata. He was also cross-examined in respect of his earlier statement to the police.
P.W.3, Basanti Sardar is the wife of Gagan Sardar (P.W.2). She deposed that on the fateful day around 12.00-12.30 p.m. while she was making arrangements for serving meal to her husband while the latter was combing his hair, the accused persons, namely, Kalua, Harabinda, Nillu and Lamba Bablu, Pora Bablu and Ganesh called her husband. Her husband went outside. The said accused persons asked her husband why he did not attend the meeting. Thereafter, Pora Bablu exhorted others to hit her husband whereupon Harabinda Sardar hurled bomb at her husband. Her husband turned aside and the bomb hit the wall. Her husband sustained burn injuries. He cried out for help and his elder brother, Joya Sardar came out. Joya stood in the narrow passage between their house and that of his another elder brother. Joya enquired of the accused persons what they were doing whereupon the accused Pora Bablu abused him and then hurled bomb at him. Owing to smoke there was darkness and she entered the house out of fear. Two-three bombs were hurled at their house. Some of the accused persons trespassed into their house and damaged articles and burnt the scooter. Joya had died. Soon after, she found his dead body lying in front of their house. In cross-examination, she stated that she came to the Court with her husband (P.W.2). She had been living with her husband (P.W.2) for the last sixteen years and they had three children. She was examined by the police after the incident. Joya is one of the elder brothers of her husband.
P.W.4, Sulata Sardar is another wife of Gagan (P.W.2). She deposed that on 18th Chaitra, 1393 B.S. at around 12.00 p.m. the incident took place. Basanti (P.W.3) was making arrangements for serving lunch and her husband, Gagan (P.W.2) was combing his hair. The accused persons, namely, Harabinda, Pora Bablu, Lamba Bablu, Ganesh, Nidhiram and Kalua came to their house. One of the accused persons, namely, Pora Bablu asked her husband why he did not attend the meeting. The accused, Harabinda hurled bomb at her husband. The bomb hit the wall and exploded. Due to the explosion her husband sustained bomb injuries on his hands and chest. Her husband ran away from the place of occurrence. Joya Sardar came out and was standing on the passage between their house and that of one elder brother of her husband, Gagan (P.W.2). The accused Pora Bablu abused her husband and hurled bomb at Joya Sardar. Bombs were also hurled on their tiled shed. The accused, Anath, Mohan, Sambhu, Mantu, Uttam, Ashoke, Balo and Mathur ransacked their house and left the place of occurrence. Her husband's elder brother, Joya died subsequently. She was examined by police.
P.W.5, Maharani Mondal is the daughter of P.W.2, Gagan Sardar. She deposed that her marriage was solemnised two years ago. She used to reside at the house of Gagan. The incident occurred on 18th Chaitra, 1393 B.S. at about 12.00 - 12.30p.m. At that time her father was combing hair in the room after having bath and her mother, Basanti Sardar (P.W.3) was busy with the arrangement for providing meal. The accused persons, namely, Pora Bablu, Harabinda, Nidhiram, Ganesh, Lamba Bablu and Kalua came to their courtyard and enquired her father why he did not go to attend the meeting. The latter replied that the meeting did not relate to him. The accused, Pora Bablu exhorted others and another accused Harabinda hurled bomb at her father. The bomb struck against the wall and exploded as a result her father suffered bomb blast injuries on his hands and chests. Thereafter, her father ran away crying for help. Her father's elder brother Joya Sardar came out and stood in the narrow passage. The accused Pora Bablu abused him. She did not notice what happened to Joya Sardar. She further deposed that the accused persons, namely, Pora Bablu Harabinda and Nidhiram hurled bombs on the tiled shed of their house. Joya Sardar had died subsequently. She stated that she had been examined by police.
P.W.6, Jharna Sardar is the wife of Paban Sardar, another brother of Gagan (P.W.2). They stayed at the same house with Gagan but in separate mess. She has corroborated the evidence of P.W.2 to P.W.5 and had further deposed that when she proceeded towards the victim Joya the accused Nidhiram chased her. She called the wife of Joya and ran to her husband to report the matter.
P.W.7, Rashmoni Sardar is the daughter of the victim, Joya Sardar. He deposed that on 18th Chaitra, 1393 B.S. at around 12.00 - 12.30p.m. when she was returning home after having bath from the pond in front of their house she noticed that the accused persons, namely, Harabinda, Kalua, Pora Bablu, Ganesh Sardar and Nidhiram Sardar stood in their courtyard. They enquired of Gagan (P.W.2) why he did not inform them with regarding his absence in the meeting. Then the accused, Harabinda abused Gagan and hurled bomb at him as a result Gagan suffered bomb blast injuries on his hands and chest. Gagan ran away crying for help. Her father stood on the narrow passage between the houses and asked the accused as to why they were doing such things. The accused Pora Bablu hurled bombs. Her father was hit by one bomb which exploded on his right leg and fell down. Her mother came out and requested Nidhiram not to hit his father. The accused Nidhiram abused my mother and hit her with a pipe gun on her left hand. Then her mother dragged his father towards the house. The accused Tarak Sardar came to their home with two bombs in his hands. Her mother closed the doors and windows of the house. Tarak hurled bombs on the door of the verandah. She further deposed that she escaped through the narrow passage out of fear. Her father had died subsequently. In cross-examination, she stated that she escaped in the house of Bhoghu Naskar out of fear. The pond where she took bath was situated to the adjacent East of their house.
P.W.8, Basudeb Sardar is the neighbour of the victim, Joya Sardar. He deposed that the occurrence took place on 18th Chaitra, 1393 B.S. (2.4.1987) at about 12.00 - 12.30p.m. While he was having meal, he heard the sound of explosion of bombs and saw smoke coming out from the house of Joya and Gagan (P.W.2). When he went out on his cycle he found a group of persons proceeding towards him. The accused, Pora Bablu abused and threatened him. Other accused persons, namely, Lamba Bablu and Kalua were present with Pora Bablu. The cashier of Arupata Shitala asked them to let him go. He also saw the arrival of police van. He went to the house of Joya who was found dead in his house. In cross-examination, he stated that he worked as a night guard. He fled away from Arupata village 2-3 days after the incident and had not yet returned to the village. He was examined by police on 2.4.1987.
P.W.9, Ganesh Naskar is another neighbour of the victim, Joya Sardar. He deposed that he was going to take bath at the time of occurrence when heard the sound of explosion from the house of Joya Sardar. He found smoke coming out from the house. He also heard cries coming from that side. When he reached near Shitala Sangha he found the accused persons, namely, Pora Bablu, Tarak, Lamba Bablu, Lakmi, Balo Pramanick, Nidhiram, Mathur and others going towards east. He tried to conceal himself but failed to do so. They told him that they had committed the murder of Joya and asked him to go and see. Thereafter, the accused persons went away. He went to the house of Joya and found his dead body. In cross-examination, he stated that he did not flee away from the village after the incident. He further stated that he stayed in the house of the victim, Joya for half an hour. He was examined by police in the house of the victim, Joya Sardar on the date of occurrence.
P.W.10, Khokan Sardar and P.W.12, Kena Sardar are co-villagers and were declared hostile and were cross-examined.
P.W.11, Paban Sardar is a brother of victim, Joya Sardar. He signed on the inquest report (Exbt. 2). He also signed on the seizure lists (Exbt. 1/1 and Exbt. 3 respectively). He proved the articles which were seized in front of the house of Joya Sardar. In cross-examination, he stated that he did not name the assailants to the police at the time of inquest. The seized nuts did not bear his signature.
P.W.13, Rajendra Singh was a Constable attached to Tiljala police station at the time of occurrence. He accompanied the police officer to the place of occurance in connection with the murder of Joya Sardar.
P.W.14, Dr. P.B. Das held the postmortem over the dead body of Joya Sardar. He found the following injuries:-
One old healed up scar mark over the abdomen from side to side upper part measuring 7" x 3". Further, abrasion over lateral side of right arm measuring 4" x 3". Abrasion over the right shoulder anteriorly measuring 11/2" x 1/2 ". Abrasion over right side chest wall measuring 4" x 11/2". Abrasion over right cheek measuring 2" x 1". Abrasion over right side abdomen measuring 4" x 11/4". Abrasion over middle of abdomen measuring 3" x 11/4". Abrasion over medical side of left arm measuring 21/2" x 11/4 ". Abrasion over medical side of left elbow measuring 21/2" x 11/4". One scratch mark over abdomen upper part measuring 3" x 11/4". 3 scratch marks over right shoulder anteriorly placed above down and lateral to medical measuring respectively 4" x 11/4", 6" x 11/4", 51/2" x 11/4". Abrasion over right flank upper part measuring 3" x 1". One incised wound over right back lower part measuring 11/2" x 1/2"
muscle deep. Incised wound over left arm measuring 1" x 1/2" muscle deep. Incised wound over just below the lower border of mandible at chin measuring 21/2" X 1"bone deep having cut mark over the lower border of mandible the injury is more towards right side. One incised wound over neck anteriorly middle more towards right side from mid line measuring 3" x 1"muscle deep. One incised wound over right flank lower part measuring 2" x 1" into muscle deep. One incised wound over dorsum of right hand obliquely placed left to right measuring 3" x 1" bone deep having cut mark on the small bones of the right hand. One bomb blast injury over the medical side of right arm to down fore-arm measuring 8" x 4" muscle deep having carbon marks all round the wound. One bomb blast injury over front of right leg measuring 4" x 3" bone deep complound factures of both bones of right leg. Bomb blast injury over medical side of left thing measuring 11/2" x 11/2" muscle deep. Bomb blast injury over lateral side of right wrist joint measuring 1" x 1/2"
muscle deep. Bomb blast injury over dorsal side left wrist joint measuring 11/2" x 11/2" bone deep - fracture of shaft of radius of left fore-arm. All the incised injuries and abrasions had clotted blood in and around the injuries. They were ante-mortem and resistant to washing. The bomb blast injuries had marks of carbon around the wounds. In his opinion, death caused due to the effects of the injuries which were ante mortem and homicidal in nature. He further deposed if someone is rubbed or dashed against any hard blunt substance or surface, such abrasions might be caused. Incised wounds might be caused by any sharp cutting weapon. Fractures were due to the effect of bomb blast injuries.
P.W.15, Chatik Mondal is the coconut seller who accompanied Gagan (P.W.2) to Tiljala police station in his cycle.
P.W.16, Chittaranjan Samanta was Constable attached to Tiljala police station on the date of occurrence. He carried dead body of the victim, Joya to the doctor for autopsy. He proved his signature on the dead body challan (Exbt. 4).
P.W.17, Dr. Urmila Khanna was the Professor of Surgery attached to Calcutta Medical College and Hospital on the date of incident. She deposed that Gagan Sardar (P.W.2) was admitted to the Surgery department of the said hospital on 2.4.1987 and discharged on 23.4.1987. The discharge certificate was issued from the said hospital on 23.4.1987 (marked as Exbt. 5). In cross- examination, she deposed that the discharge certificate was not written by her and she had no independent recollection of the same.
P.W.18, Mukta Ram Dhara was the A.S.I. of Police of Tiljala police station on the date of occurrence. He was in charge of maintaining malkhana register. His duty was to receive the seized articles under the seizure list and keep the same in malkhana.
P.W.19, S.I. Byomkesh Bhanja Choudhury is the investigating officer in the instant case. He deposed that on 2.4.1987 he was posted as S.I. of Police at Tiljala police station. On that day at 12.50 p.m. one Gagan Sardar came to Tiljala police station with severe bleeding injuries. On the basis of his information he lodged G.D. Entry No.67 dated 2.4.1987 (Exbt. 6). He proved the general diary (Exbt.6). He sent the injured Gagan (P.W.2) to Calcutta National Medical College and Hospital. After recording general diary he along with other police force went to the house of Gagan (P.W.2) and recorded the statement of Chali @ Sumitra Sardar (P.W.1), wife of the victim Joya Sardar. He proved the statement recorded by him and after admitting the same to be true she put her LTI thereon in his presence. He forwarded the same to the Officer-in-Charge, Tiljala police station for treating the same as F.I.R. He proved the statement (Exbt. 7). He proved the formal F.I.R. (Exbt. 8). He took up the charge of investigation of the case. Inquest of dead body was conducted by him. He proved the inquest report (Exbt. 9). After inquest he sent the dead body to the morgue. He seized 250 grams of nuts, some pieces of burnt jute strings, some burnt pieces of jute thread, one burnt tin container and one rubber material used in scooter in presence of witnesses under the seizure list (Exbt. 10). He seized one scooter, some broken tiles, from the house of Gagan (P.W.2) and one wooden bar, 10 pieces of broken windows and doors from the house of Joya Sardar under a seizure list (Exbt. 11). He also seized some quantity of blood, one used torn saree, one unexploded bomb and some blood stained cement under the seizure list (Exbt. 12). He identified the seized saree and the nuts (Mat. Exbt. I and II respectively) in Court. He identified the seized jute strings, rubber used in the scooter and a broken piece of tin container (Mat. Exbt. III collectively). He sent the blood and cement for F.S.L. analysis. He proved the packets with labels bearing his signatures (Mat. Exbt. III collectively). He prepared the sketch map of the place of occurrence. He examined Gagan Sardar (P.W.2) in the hospital. He collected the injury report, discharge certificate and postmortem report. He recorded the statement of the witnesses under section 161 Cr.P.C. On completion of investigation he submitted charge- sheet against the aforesaid accused persons. He sent jute strings, unexploded bomb and iron nuts to the Controller of Explosive but the latter wrote a letter to P.W.19 that he had not received the articles. In cross-examination, he stated that no burn marks were found in the jute strings (Mat. Exbt. III). The name of the informant appeared in G.D. Entry (Exbt. 6). Names of the accused persons also appeared there. The G.D. Entry relates to cognizable offence. On 2.4.1987 he left the police station about 1.00 p.m. and returned to police station at about 8.15 a.m. on 3.4.1987. The G.D. Entry No.72 dated 2.4.1987 was written by P.W.18 (Exbt. A, on admission). He further deposed that P.W. 1 did not state to him that at around 12.00 - 12.30p.m. she found some persons shouting and proceeding towards the house of Gagan (P.W.2). She did not state to him the manner in which Pora Bablu abused her husband. She did not state to him that the accused Pora Bablu threw the bomb. She did not state to him that she requested the accused Nidhiram not to fire at her husband. She did not state to him that the accused Nidhiram held her by her wearing apparel. She did not state to him that the accused Tarak abused her husband. She did not state to him that after they closed the doors and windows of their room bombs were hurled and the southern window was broken. She did not state that the accused Kalua hit her husband on his cheek with a sword and she embraced her husband and the miscreants abused her. P.W.3, Basanti Sardar did not state to him that the accused Pora Bablu told others to hit her husband or for that matter her husband cried after he suffered burn injury. She did not state to him the exact words that Pora Bablu told Joya at the time of abusing the latter. P.W.6, Jharna Sardar did not state to him that Pora Bablu had told others to hit Gagan (P.W.2). P.W.7, Rashmoni Sardar did not state to him that on receipt of bomb injury her uncle Gagan (P.W.2) escaped. P.W.8, Basudeb Sardar did not state to him that while he was coming out from his house, he saw smoke coming out from the houses of victim Joya and Gagan (P.W.2). P.W.9, Ganesh Naskar did not state to him that all the accused persons were going towards east. He, however,had stated the names of the accused persons.
From the analysis of the aforesaid evidence it is clear that a number of persons being variously armed had come to the house of Gagan (P.W.2) on 18th Chaitra, 1393 B.S. at around 12.00 - 12.30p.m. At that time Gagan (P.W.2) was combing his hair after taking bath and one of his wives Basanti (P.W.3) was making arrangement for serving meal. The accused persons, namely, Pora Bablu, Harabinda, Kalua, Nidhiram, Lamba Bablu called Gagan (P.W.2) outside and Pora Bablu and Harabinda asked him why he did not attend the meeting. He replied that he did not go as it was not related to his affairs. Thereafter, Pora Bablu exhorted others to hit him and a bomb was hurled at him. Fortunately, the bomb hit the wall and exploded. He suffered injuries on his hands and chest. He ran away from the spot crying for help. Evidence of Gagan (P.W.2) in this regard is corroborated by his wives Basanti (P.W.3) and Sulata (P.W.4) including his daughter Maharani (P.W.5) and others, namely, Jhorna Sardar (P.W.6), sister-in- law and Rashmoni Sardar (P.W.7), daughter of the deceased, Joya Sardar. Gagan (P.W.2) rushed towards Arupata bridge and met with P.W.15,a green coconut seller who took him on his cycle to the police station. He informed the incident which was diarised as General Diary Entry No.67 dated 2.4.1987 (Exbt. 6) wherein it is alleged that Pora Bablu @ Bablu Sardar, Harabinda Sardar, Kalua Halder @ Suparna Halder, Nidhiram Sardar, Ganesh Sardar, Mathur Sardar, Lambu Bablu Pramanik, Tarak Sardar and Shambu Sardar along with fifteen- twenty others came to his house being armed with various weapons such as pipe guns, swords, bombs and attacked his house by throwing bombs and thereafter they damaged his scooter and ransacked his house and thereafter they proceeded to attack the house of his brother, Joya Sardar with bombs. He was sent to Chittaranjan hospital for treatment.
The next phase of the incident comes from the mouth of P.W.1 who stated that when her husband, Joya intervened and enquired of the miscreants as to their conduct, Pora Bablu abused him and threw a bomb at his leg. Joya sustained injuries and fell down. P.W.1 intervened and dragged her husband towards their residence. Nidhiram tried to fire at Joya Sardar from his pipe gun and P.W.1 requested him not to do so. Thereupon, Nidhiram hit her with his pipe gun and pulled her wearing apparel. After entering the house she closed the doors and windows but bombs were hurled at their house by the miscreants. Thereafter, they left the place for some time. After a while they came back and tried to break the windows of their house. One of the windows had been broken and the miscreants open fired. Then they left the spot saying that they were going to the house of Basu. After about 8-10 minutes they again returned and broke the door of the verandah with an axe. Then the appellants entered the room where P.W.1 and her husband had concealed themselves under a cot. The appellant, Lamba Bablu hit her husband with an axe. Kalua hit her husband on his cheek with a sword. Nidhiram dragged him out. Tarak fired at her husband with a pipe gun. Her husband died on the spot. The aforesaid evidence of P.W.1 finds some corroboration from her daughter (P.W.7) who deposed of the assault on his father, Joya Sardar while he was standing in the passage leading to their house. P.W.7 also spoke of the presence of her mother P.W.1 who dragged the victim to their house and concealed themselves, therein while the miscreants threw bombs at their house. It is true that there are minor variations and/or improvements in the evidence of P.W.1 with regard to the exact roles played by the appellants in the murderous assault upon her husband when compared with her earlier statement to the police. However, such variations and/or contradictions must be seen in its proper perspective keeping in mind the fact that she had deposed in Court after seven years after the occurrence and it is absurd to expect from a lady to narrate the specific roles of each of the accused persons with photogenic exactitude when such murderous assault was perpetrated with utmost brutality by all of the appellants' upon her husband. The apparent contradiction in her ocular version vis-à-vis medical evidence in the form of absence of gunshot injury in the postmortem report must also be seen in the light of the aforesaid facts that she had witnessed the incident while she concealed herself under the cot while the appellants unleashed a volley of attacks upon her husband and some of them had even tried to drag her and throw her out of the room. Under such stressful surroundings it is possible that she mistook that the gunshot fired by Tarak had hit the victim, whereas it had actually missed the mark. However, the roles played by the appellants in initially attacking the house of Gagan (P.W.2) and thereafter proceeding to attack his brother, Joya Sardar is depicted in clear and certain terms and I have no reason to disbelieve the version of the most natural witness, that is, wife (P.W.1) of the victim as to the incident. Nothing was placed on record to discredit the fact that P.W.1 was along with her husband inside the house when the appellants entered their house and showered fatal blows on the victim. On the other hand, her version is probabilised by the narration of other witnesses who spoke of the roles of the appellants who were members of an unlawful assembly immediately prior to and after the occurrence. Moreover, the version of P.W.1 relating to the throwing of bombs and indiscriminate assaults on the victim resulting in his death is corroborated by the extensive injuries including bomb blast injuries found by the autopsy surgeon.
It has been argued that the injuries on Gagan (P.W.2) have not been proved in accordance with law. P.W.17, Urmila Khanna stated that the injury report was not in her handwriting. However, it appears from the evidence of the Investigating Officer (P.W.19) and the contents of the general diary that he had been referred to and was admitted at Calcutta National Medical College and Hospital. These facts clearly establish that P.W.2 had been brutally attacked by the appellants and others and he had suffered injuries for which he had been admitted to the aforesaid hospital. As discussed earlier, version of P.W.2 had been corroborated by other witnesses. Evidence of P.W.1 with regard to the second phase of the incident of assault on her husband, Joya Sardar in front of their house and the bomb attacks after she had concealed herself with her husband therein is corroborated by her daughter (P.W.7). These pieces of evidence corroborate the facts and circumstances leading to the assault on the victim, Joya Sardar by the appellants inside the house wherein Joya and his wife (P.W.1) had concealed themselves. The aforesaid evidence on record establish the presence of P.W.1 inside the room when her husband was assaulted by the appellants. In the face of such clear and convincing evidence, I am unable to accept the contention of the appellants that she was not present at the spot as she had not suffered any injuries. P.W.1, herself, deposed that the appellants dragged her and tried to throw her out of the room while they were assaulting her husband. Hence, it cannot be said that she was not manhandled by the appellants and the aforesaid argument does not find muster in the facts of the case. Judging her evidence from the aforesaid facts, I have no doubt in my mind that P.W.1 was present inside the room when the appellants barged into the room and subjected her husband, Joya to indiscriminate assault. In this backdrop, failure on the part of P.W.1 to consistently spell out the exact roles of the appellants who no doubt shared the common object of causing murder of the victim is of little relevance. Evidence of P.W.8 and P.W.9 shows that the appellants fled away in a body from the place of occurrence after the incident. Their presence as members of the unlawful assembly with arms immediately before, during and after the occurrence is clearly established through the evidence of the prosecution witnesses. It is therefore evident that the appellants were members of the unlawful assembly and they were variously armed and had attacked the houses of Gagan (P.W.2) and Joya with bombs and thereafter had broken into the room of Joya and murdered him. In the light of the aforesaid facts it can be safely concluded that they shared the common object of murdering the victim and failure to prove the exact role of each of the appellants in the murderous assault is immaterial to establish their guilt.
It has been argued that the names of the appellants have not transpired in the inquest report although the sole eye-witness was present at the time of recording inquest. I find that the statement of the victim, which was treated as F.I.R, was reduced into writing by P.W.19 prior to the preparation of the inquest report and the names of the appellants have been mentioned therein. Apart from this, one must bear in mind that the purpose of holding inquest is to note the cause of death. The said document merely records the cause of death, that is, whether it is suicidal, homicidal or an accidental and the absence of names of assailants in case of homicidal death do not ordinarily affect the veracity of the prosecution case [see Surendra Pal & Ors. vs. State of Uttar Pradesh & Anr., (2010) 9 SCC 399 and Guiram Mondal vs. State of W.B., (2013) 15 SCC 284].
Authorities relied on behalf of appellants are not apposite. In Rameshwar Dayal Vs. State of U.P., AIR 1978 (SC) 1558 the issue which fell for decision was whether the statement of investigating officer recorded in the inquest report to the effect that he found empty cartridges at the spot, was admissible in evidence or not while holding that the facts seen by the Investigating Officer at the spot were admissible as direct evidence, the Apex court clarified that in the event of any divergence in the injuries noted in the inquest report by the police officer and those found by the autopsy surgeon, the latter would prevail. It held as follows:-
"...where a statement in the inquest report was pitted against the medical evidence it had to yield before the opinion of the expert. It is obvious that the description given by the Sub-Inspector was merely his opinion which was not the opinion of an expert and could not, therefore, stand scrutiny before the evidence of a duly qualified expert, viz., the doctor..."
The ratio of the aforesaid decision, therefore, militates against the contention of the appellant and supports the prosecution case that in the case of divergence in the injuries noted in the inquest report and those found in the post-mortem report, the latter would prevail.
In State of Gujarat vs. Patel Mohan Mulji and Another, 1994 Cri.L.J. 280, the names of the accused persons were absent not only in the inquest report but also in the statements of the purported eye-witness recorded immediately thereafter. In the instant case, the statement of the eye-witness, P.W.1 was recorded at the time of the preparation of the inquest report wherein the appellants have been mentioned as the assailants of the victim. Hence, the report is factually distinguishable from the present case.
In Mobarak Sk. @ Mobarak Hossain vs. State of W.B., (2011) 1 C.Cr.LR 687, the eye-witnesses were not believed and since the names of the assailants had not been mentioned in the inquest report, the prosecution case was held as not proved. In the instant case, the evidence of P.W.1 is corroborated by other prosecution witnesses as well as the medical evidence. Under such circumstances, absence of the names of the appellants in the inquest report is no reason to disbelieve the prosecution case.
It has been argued that there was delay in dispatch of the First Information Report which was recorded on 2.4.1987 but was dispatched to the Magistrate on 6.4.1987. I find that the genesis of the incident was already recorded in the general diary being G.D. Entry No.67 dated 2.4.1987 (Exbt. 6). Therefore, under such circumstances, delay in dispatch of the First Information Report to the jurisdictional Magistrate is a ministerial lapse and does not discredit the prosecution case. The authorities relied upon in this regard being T.T. Antony vs. State of Kerala & Ors., 2001 SCC(Cri) 1048 and Rebati Baidya vs. State of W.B., 2014(1) CLJ 67, are clearly distinguishable on facts.
It has also been argued that the examination of the appellants under section 313 Cr.P.C. was faulty as the questions posed to them were complex and jumbled up. Reliance was placed on Sujit Biswas vs. State of Assam, 2014(1) SCC(Cri) 677, Rajen Chetri vs. State of W.B., 2017 (2) AICLR 86 (Cal) and Nar Singh vs. State of Haryana, 2015(1) SCC 496. I have examined the questions put to the appellants under section 313 Cr.P.C. and I find all the circumstances were brought to their notice during such examination and they fully understood the circumstances which were being relied upon against them. Hence, I am of the opinion that the manner of examination of the witness has not prejudiced the appellant in any manner whatsoever so as to render the trial a mistrial. It is pertinent to note that none of the appellants during their examination had raised the issue that they had failed to understand any of the questions posed to them by the court.
It has also been argued that the seized articles like wearing apparels of the victim, unexploded bombs, broken doors and windows etc. were not produced during trial. This according to the appellants renders the prosecution case improbable. I find from the evidence on record that the aforesaid articles have been seized from the place of occurrence under seizure lists which have been duly proved and exhibited in the instant case. Some of the seized articles like torn sari of P.W.1, jute strings and/or nuts seized from the Police Officer. were also produced in the course of trial. There is also evidence that blood stained earth was sent for FSL examination. The bombs and other articles seized during investigation were also sent for examination by the Controller of Explosives. Trial was held after seven years from the date of incident and non-production of some of the articles seized during investigation is attributable to investigational lapses and ought not cost any show on the truthfulness of the prosecution case.
Finally, it has been argued that the act of the appellants do not fall within the ambit of offence punishable under section 302 Indian Penal Code read with section 149 Indian Penal Code. I find that the appellants came in a body with various arms and weapons and initially attacked P.W.2 and thereafter proceeded to attack the victim. When the victim and his wife took shelter under a cot inside their house, they broke windows and doors of the house, and trespassed therein assaulted the victim indiscriminately resulting in his death. Extensive injuries were found on the body of the victim by the autopsy surgeon. The appellants were, therefore, the members of the unlawful assembly, who by their conduct and activity made it amply clear that they shared the common object of murdering the victim. The facts of the instant case is distinguishable from those in Nankaunoo vs. State of U.P., AIR 2016 (SC) 447,where a single gunshot injury was suffered by the victim in his thigh. In view of the nature and situs of the injury the Apex Court had altered the conviction to section 304 Part (II) Indian Penal Code.
Similarly in Tejalben vs. Mihirbhai Bharatbhai Kothari, (2016) 3 SCC 69, the victim had survived for sixty-two days and, therefore, the conviction had been altered to sections 304(I)/34 Indian Penal Code. In the instant case, the victim suffered innumerable incised wounds and bomb blast injuries resulting in instantaneous death. The aforesaid factual matrix of the case leaves no doubt in my mind that the object of unlawful assembly was to cause death of the victim and the appellants as the members of the unlawful assembly are liable under Section 302/149 of the Indian Penal Code.
In view of the aforesaid discussion, the appeal is dismissed. The period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of Section 428 of the Code of Criminal Procedure.
A copy of the judgement along with L.C.R. be sent down to the trial Court at once for necessary action.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) PA to J. Bagchi, J.