Calcutta High Court (Appellete Side)
Dilip Das & Ors vs The State Of West Bengal on 18 March, 2016
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA No. 52 of 2004
Dilip Das & Ors.
Versus
The State of West Bengal
For the appellants : Mr. Milon Mukherjee
Mr. Prabir Mazumder
Mr. Subhasish Dasgupta
For the State : Mr. Ranbir Roy Chowdhury
Heard on:- 1/12/2015, 02/12/2015, 09/12/2015, 07/01/2016 and 13/01/2016
Judgment on:- 18/03/2016
Debasish Kar Gupta , J. :
This appeal is directed against judgement, order of conviction dated January 7, 2004 and sentence dated January 9, 2004, passed by the Learned Additional Sessions Judge, 4th Court, Nadia in Sessions Trial No. 11(7) of 2001 arising out of Sessions Case No.16 (4) of 1997 by which all of the four appellants have been convicted for commissioning of offence punishable under Section 147 of the Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced each of them to suffer rigorous imprisonment for one year as also convicted them for commissioning of offence punishable under Sections 149/307 of the I.P.C. and sentenced each of them to suffer rigorous imprisonment for six years and to pay fine of Rs.2,000/- each in default to suffer rigorous imprisonment for six month each. All of the four appellants have been further convicted for commission of offence punishable under Sections 149/302 of the I.P.C. sentencing each of them to suffer rigorous imprisonment for life and to pay fine of Rs.2,000/- each in default to suffer rigorous imprisonment for a further period of six months each subject to set off the period of detention of each of the appellants as provided under Section 428 of Cr.P.C. Five other accused persons, namely, Ram Ghosh, Mahadeb Ghosh, Santosh Saha @ Sutradhar, Paritosh Saha @ Sutradhar and Samar Halder @ Ghata have been acquitted from the charge levelled against them. The remaining one accused person, namely, Ratan Debnath was absconding and as such case was filed against him by an order dated February 18, 1997, after issuing "warrant proclamation attachment."
The backdrop of the case, in a nutshell, was as under:-
On November 27,1992, at about 10.30/11.00 hours, one Jayanta Das (victim) and Jadab Chakraborty of Saktinagar Baikuntha Sarak, District- Nadia, (the de facto complainant and PW2), went to the house of one Sona Sarder of Ichapur, Dogachi, by a Cycle. Sona was not available at his home. They were returning back at about 10.30/11.00 hours. They were compelled to get down by some miscreants under the leadership of Ram Ghosh (Commissioner of Krishnagar Municipality), his brother Mahadeb Ghosh, Ratan Debnath, Dilip Das (appellant no.1), Sadhan Saha, Amal Das (appellant no.4), Panchu @ Samar Das (appellant no.2), Putchkey @ Ram Prosad Saha (appellant no.3) of Baikuntha Sarak, Santosh Saha of Beltala and others near Baikuntha Sarak Haribhushan Das Primary School (hereinafter referred to as the said primary school) with firearms and deadly weapons. They assaulted the victim and the PW 2 with the help of rod, "dao" (Chopper) and pipe gun. While the above miscreants were taking both of them to a "kalabagan" (Banana field) nearby, the PW 2 fell down on the way. He heard a sound from the above "kalabagan" which was normally raised when a goat was cut by its throat. The PW 2 realized that the victim was killed. Then the miscreants came towards the PW 2. He (PW 2) remained lying on the ground like a dead body. The miscreants left the place.
On receipt of an information on November 27, 1992, at 11.50 hours Nirojakhya Bhattacharya, Sub Inspector of Police, attached to Kotwali Police Station, Nadia, arrived at the place of occurrence at 12.25 hours. He recovered the dead body of the victim from the above "kalabagan" and held inquest examination at 13.35 hours on that date over the dead body of the deceased. He prepared the inquest report (Ext.-3/3). PW 3, PW 4 and PW 6 were the witnesses of the above inquest report. He further informed the inspector through R.T. and asked him for sending further force.
In the meantime, PW 1, the younger brother of the deceased received the above information on the above date i.e., on November 27, 1992, at about 12.00 hours from his friend Pradip Majumdar while he had been attending class in Industrial Training Institute. Immediately, he went to the place of occurrence. PW 1 lodged a written complaint to the Kotowali Police Station, District-Nadia at 14.15 hours. According to the above letter of complaint, the cause of delay in lodging the complaint was that the PW 1 had been busy to inform of the above incident to his father at his place of work in Kolkata. Further, there was delay on the part of the police to bring the dead body in the police station.
On the receipt of the letter of complaint from PW 1, the Kotwali P.S. Case bearing FIR No.521/92 dated November 27, 1992, was drawn against the aforesaid nine miscreants for commissioning of offence under Sections 147/148/149 and under Sections 302/326/307 of the I.P.C. Subsequently, Section 212 of the I.P.C. was added thereto.
The PW 12 was engaged to conduct investigation in the above matter. In course of investigation, PW 12 prepared a rough sketch map of the place of occurrence and despatched the dead body of the victim for post mortem examination on November 27, 1992, at 18.00 hours. The post mortem examination was conducted by the PW 13 on the dead body on November 28, 1992, and he prepared post mortem report bearing No.1246 dated November 28, 1992. According to the opinion of the PW 13, the death of the victim was due to shock and haemorrhage resulting from injuries mentioned in the post mortem report which one was ante mortem and homicidal in nature.
The PW 12 handed over the case docket to D.D.I., Krishnagar on the instruction received from the Deputy Inspector General of C.I.D. The above case was endorsed to Aditya Chandra Roy, (PW14) attached to the C.I.D., West Bengal at Krishnagar on November 27, 1992, for investigation. On May 8, 1993, PW 1 and PW 9 were examined by the PW 14. He prepared another rough sketch map of the place of occurrence (Ext.10).
Charge-sheet bearing no.151 dated August 28, 1991, was submitted before the Court by PW 14 against eleven (11) accused persons for commission of offence under sections 147/148/149/326/307/302/34 of the I.P.C. Showing accused Ratan Debnath as absconder. Subsequently case was filed against accused Ratan Debnath on February 18, 1997, after issuance of "warrant proclamation attachment."
Charge was framed against all the ten accused persons on December 17, 1997, "Firstly, for commissioning of offence punishable under Section 147 of the I.P.C.
Secondly, for committing of offence punishable under Sections 149/302 of the I.P.C.
Thirdly, for commissioning of offence punishable under Sections 149/307 of the I.P.C."
Taking into consideration the evidence adduced by fifteen prosecution witnesses, one defence witness, documentary evidence and statements of the appellants recorded under Section 313 of the Cr.P.C., the impugned judgment, order of conviction and sentence were passed by the learned Court below.
It is submitted by Mr. Milon Mukhejee, learned Senior Advocate, appearing on behalf of the appellants that the learned trial Judge was in error in failing to hold at the end of the trial that the charge framed against the appellants for unlawful assembly at the place of occurrence was not even sustainable in law. According to him, charge framed for commissioning of any other offence by any of the appellants was not proved beyond any reasonable doubt in view of the following:-
(i) There was reasonable doubt with regard to the evidence of PW 2 so far as the question of witnessing the commission of offence by the appellants with his associates was concerned. The evidence of the PW 2 and PW 9 was not at all creditworthy.
The remaining prosecution witnesses, i.e. PW 3, PW 4, PW 6 and PW 7 were declared hostile permitting the prosecution to cross-examine them. According to the evidence of PW 5, he did not witness the murder. PW 8 was the seizure list witness of a bicycle. So, none of them witnessed the commission of offence under reference. In view of the above, there was no eyewitness and as a result, the decision making process of the learned trial Court cannot be sustained in law.
(ii) The inquest report of dead body of the victim was prepared on November 27, 1992, with reference to the Kotwali P.S. Case bearing FIR No.521 dated November 27, 1992. But the above FIR was drawn after the inquest report had been prepared.
(iii) The Kotwali P.S. Case bearing FIR No. 521 had been drawn on November 27, 1992, at 14.15 hours, which was forwarded to the Court of learned Magistrate on December 1, 1992. Due to the above unexplained delay, the investigating agency got ample time to implicate the appellants falsely for commissioning the offence under reference.
(iv) The place and time of occurrence of the incident mentioned in the charge was contradictory with the place and time of occurrence stated by the I.O. (PW 12) in course of his examination-in-chief.
(v) The names of the accused persons were not disclosed in the hospital by PW 2 during preparation of the treatment papers with regard to injury sustained by him. But the names of the accused persons were mentioned by him only when his statement was recorded under Section 164 of Cr.P.C. on December 14, 1992. He was brought before the learned Magistrate for recording his above statement by the police in a police car.
Further, according to his statement made in course of cross- examination on June 27, 2003, the faces of all accused persons were covered with napkin which was contradictory to his evidence dated July 16, 2001, and June 27, 2003, were concerned. That apart, there were contradictions in between the evidence adduced by PW 2 with that of PW 9 (mother of the victim).
(vi) The procedure followed by the learned Court below for recording the statements of the accused persons under Section 313 of Cr.P.C. was not sustained in law. Consequent thereupon, the right of the appellants guaranteed under the provision of Section 313 of Cr.P.C. was denied to them.
(vii) Though Ghata @ Samar Haldar stood on the same footing with the appellants, he was acquitted but the appellants were held guilty of commissioning the offence.
(viii) The First Information Report (hereinafter referred to as the FIR) contained the names of nine accused persons for commission of offence punishable under Sections 147/148/149 and 302/326/307 of the I.P.C. initially. Subsequently, charge under Section 212 of the I.P.C. was added. By virtue of the impugned judgment five accused persons out of nine were acquitted finding them not guilty of charge under Sections 147/149/302 and 149/307 of the I.P.C. The prosecution failed to prove the commission of offence under Section 212 of the I.P.C. against the appellants. Once the five accused persons had been found not guilty of the charge under Sections 147/149, the remaining four accused persons, i.e. the appellants, could not be punished for commissioning offence under Sections 147/149 /307 of the I.P.C. in absence of framing of charge against them under Sections 146 and 148 of the I.P.C.
Reliance is placed by Mr. Mukherjee on the decisions of K.C. Mathew & Ors. vs. State of Travancore-Chochin, reported in AIR 1956 SC 241, Chikkarange Gowda & Ors. vs. State of Mysore, reported in AIR 1956 SC 731, Ajmer Singh vs. The State of Punjab, reported in 1953 Cri.L.J. 521 (SC), Nanak Chand vs. State of Punjab, reported in AIR 1955 SC 274, Jai Dev vs. State of Punjab, reported in AIR 1963 SC 612 and Sharad Birchichand Sarda vs. State of Maharashtra, reported in 1984 SCC (Cri) 487 in support of his above submissions.
On the other hand, it is submitted by Mr. Ranbir Roy Chowdhury, appearing for the State respondents, that the PW 2 was the most important prosecution eyewitness. The appellants were identified by him in course of recording his evidence before Court while Ghata @ Samar Haldar was not identified by him. The charge framed against the other four accused persons were not proved beyond reasonable doubt and as such they were acquitted. Therefore, the principles of natural justice of fair play was not denied to the appellants treating Ghata @ Samar Haldar and the aforesaid four other acquitted persons unequally. It is submitted by Mr. Roy Chowdhury in his usual fairness, that the prosecution case was proved beyond any reasonable doubt on the basis of the evidence of PW 2 and other documentary evidence.
It is also submitted by Mr. Roy Chowdhury that the impugned judgment was not passed depending upon the evidences of either PW 1 or PW 9 who were hearsay witness. According to him, though it was not in dispute that PW 3, PW 4, PW 6 and PW 7 were declared hostile witnesses but the evidence of PW 3, PW 4, PW 6 and PW 7 corroborated with the evidence of PW 2 partially up to the extent the same supported the prosecution witness.
According to the evidence of PW 4, there was existence of previous disturbance in the locality concerned and police picketing had been withdrawn before one day of the occurrence of the incident. According to PW 6, one of the accused persons Ram Ghosh @ Ram Chandra Ghosh was the elected commissioner of the municipality concerned and he was an influential person of the locality concerned.
Ghata @ Samar Haldar was not identified by PW 2 due to the reason that he was not present in Court on July 16, 2001, i.e. the date of adducing evidence of PW 2. But he was identified by the above prosecution witness while adducing evidence in Court and the discrepancies in the statement of PW 2 recorded under Section 164 of Cr.P.C. with the evidence adduced on June 27, 2003, were minor in nature.
Reliance is placed on the decision of Santosh Kumari vs. State of Jammu & Kashmir & Ors., reported in (2011) 9 SCC 234 in support of his above submissions.
Having heard the learned Counsels for the respective parties at length and after considering the facts and circumstances of this appeal, we find that the learned trial Judge analysed the evidence (both oral and documentary) in the following manner to arrive at a conclusion that the commission of offence by the appellants was proved beyond doubt:-
The case of the prosecution as projected before the learned Court below, the PW 2 not only witnessed the death of one Jayanta Das (the deceased) on November 27, 1992, but he was also assaulted by the appellants and their associates at the material point of time. He was the person who identified the dead body of the deceased when the police came at the place of occurrence on the above date at 12.25 hours. He was also treated in Shaktinagar Hospital for the injuries sustained by him due to such assault. He identified all the appellants in Court.
In the matter of Sarwan Singh & Ors. vs. State of Punjab, reported in (1976) 4 SCC 369, the Hon'ble Justice S. Murtza Fazal Ali, as His Lordship then was, speaking for a three Judges Bench of the Hon'ble Supreme Court, observed that even though an eyewitness might have belong to the group of the deceased and that witness came from one particular group was sufficient to show the interested nature of evidence. But it was not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts required as a rule of prudence, not as a rule of law, was that the evidence of such witness should be scrutinized with a little care. It was further observed in the above decision that there might be circumstances where only interested evidence might be available and no other, e.g. when an occurrence took place in absence of no other witness, but once such witness was scrutinized with a little care and the Court was satisfied that the evidence of the interested witness have a ring of truth such evidence could be relied upon even without corroboration. The relevant portion of the above decision is quoted below:-
"10. . . . . Moreover, it is not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the courts requires as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house when the only witnesses who could see the occurrence may be the family members. In such cases it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness."
(Emphasis supplied) State of Uttar Pradesh vs. Naresh & Ors., reported in (2011) 4 SCC 324 and the relevant portion of the above decision is quoted below:-
"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)"
(Emphasis supplied) It was available from the evidence of PW 2 that on November 27, 1992, at about 10.30/11.00 hours the deceased and the PW 2 were returning back to home from the house of one Sona Sorder of Ichapur, Dogachi, by a cycle. Both of them were compelled to get down by the appellants with their associates from the cycle under the leadership of Ram Ghosh (Commissioner of Krishnagar Municipality) near the said primary school with firearms and deadly weapons and assaulted them with the help of rod, "dao" (chopper) and pipegun. When the above miscreants were taking them to a 'kolabagan' (banana field) nearby, the PW 2 fell down on the way. The deceased person was dragged to the banana field. The PW 2 heard a sound which was normally raised when a goat is cut by its throat. He realized that the victim was killed. Then the miscreants came towards the PW 2. He (PW 2) remained lying there like a dead body. The miscreants left the place.
According to the evidence of PW 2, he was present at the time of dragging the deceased person to 'kolabagan' near the said school. He recognized the voice of the victim, who was not a stranger to him, upon hearing a sound which was normally raised by a goat when cut by its throat. PW 2 further identified the place of occurrence when the police brought him there.
Regarding to the corroboration of the oral evidence of a witness, a Division Bench of this Court, presided over by Justice Samir Kumar Mukherjee, as His Lordship then was, in the matter of Afzauddin Ansary vs. State of West Bengal, reported in (1997) 2 Crimes 53 Cal., observed that a man may lie but a document will never lie and the relevant portion of the above decision is quoted below:-
"20. A well-known dicta has been laid down not only by the apex Court of our country but also by the Privy Council that a man may lie but a document will never lie. It is a well-known adage that one swallow does not make a summer but it is a case where one swallow makes a summer. The question arises in this way as it gyrates the whole issue where the evidence as to recognition is a subsequent creation by the machination of the Ansaries. Exhibit-5 the copy of the general diary book projects an unnatural shadow about recognition of any one of the appellants before us. A silence has been maintained in the said exhibit where none of the names of the appellants found their room in the general diary book. .... .... .... ...."
(Emphasis supplied) It was true that PW 3, PW 4, PW 6 and PW 7 were declared hostile at the time of adducing their respective evidence. But the learned Court below took into consideration the evidence of the above witnesses partially.
As we know, the evidence of hostile witness cannot be treated as washed off the evidence of the records. It remains admissible in trial up to the extent, it is corroborated by other reliable evidence on record which supports the case of the prosecution. Reference may be made to the decision of Bhajju @ Karan Singh vs. State of Madhya Pradesh, reported in 2012 (2) SCC (Cri) 440 and the relevant portion of the above decision is quoted below:-
"19. . . . . It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. The view that the evidence of the witness who has been called and cross- examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases:
a. Koli Lakhmanbhai Chanabhai v. State of Gujarat, 199(3) R.C.R.(Criminal) 735 : (1999) 8 SCC 624;
b. Prithi v. State of Haryana, 2011(1) R.C.R.(Criminal) 262 : 2011(1) R.A.J. 46 : (2010) 8 SCC 536;
c. Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), 2010 (2) R.C.R.(Criminal) 692 : 2010(3) Recent Apex Judgments (R.A.J.) 1 : (2010) 6 SCC 1;
d. Ramkrushna v. State of Maharashtra, 2007(3) R.C.R. (Criminal) 33 : 2007(2) R.A.J. 656 : (2007) 13 SCC 525."
(Emphasis supplied) PW 3 was the rickshaw puller, who had found the PW 2 to come forward limping towards the sister and mother of PW 2 (PW 9). He further witnessed the arrival of the police at the village at the material point of time. According to his deposition, police (PW 3) took him (PW 2) to the place of occurrence boarding on a police van. Jadab Chakraborty indicated the banana garden as also they found the dead body of the deceased was lying there. The portion of his evidence supported the prosecution case as also the evidence of PW 2 and PW 9.
From the evidence of PW 9, the fact of going to the house of Sona Sarder of the deceased person at Ichapur for purchasing paddy on the date of occurrence of the death of the victim accompanied by PW 2 as deposed on June 5, 2003, was corroborating the evidence of PW 2.
The signature of the PW 6 in the inquest report as witnessed was proved by him. It makes no difference whether he was asked by the police to put his signature on the same.
It is also the time tested principle of law that identification of a person from his voice is possible by a witness with whom he is fairly acquainted or in intimate terms. Reference may be made to the decision of Dalbir Singh vs. State of Haryana, reported in (2008) 11 SCC 425 and the relevant portion of the above decision is quoted below:-
"11. In Anwar Hussain v. State of U.P. it was observed that even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms, from his voice, gait, features, etc. Therefore, there is nothing to discard the evidence of PW 8 so far as his claim to have recognised the appellant is concerned."
It will not be out of context to mention that the learned trial Judge found that there was no other witness present at the place of occurrence at the material point of time. From the evidence of PW 2, it would appear that though he did not witness the cutting of the deceased person, who was well acquainted with him (PW 2), by his throat but he saw the appellants being armed with deadly weapons to drag the victim towards 'kolabagan' and thereafter he heard a sound which was normally raised when a goat was cut by its throat. He recognized the voice of the deceased person. After the miscreants had fled away he found the cut injury on the throat of the deceased person. It could have been claimed by PW 2 that he witnessed the assault of the deceased person by the appellants with sharp cutting weapon inside the 'kolabagan'. Instead, he narrated the incident as far as he had witnessed the same.
The learned trial Judge, while dealing with the deposition of the PW 2 in course of cross examination recorded on June 27, 2003, on recall, took into consideration his (PW2) evidence recorded on July 16, 2001, evidence of recovery of dead body of the victim by the PW 12 on the date of occurrence at the place mentioned in the FIR, injuries detected in the dead body of the victim and the cause of death mentioned in the post mortem report, corroboration of the same with statements made in FIR, treatment papers of Saktinagar Hospital as indoor patient, seizure of a by-cycle from the place of occurrence after four days from death of the victim on the basis of the information received from PW 8, evidence of the PW 12 , amongst others.
Ultimately, the learned trial Judge took into consideration the evidence of the PW 2 adduced in examination-in-chief (earlier and subsequent to recall) discarding his deposition in course of cross examination recorded on June 27,2003, on recall. The sheet anchor of the decision making process of the learned trial Judge was that no question except two particular suggestions had been put to him during his cross- examination, the reply of which could not brush aside his entire evidence on record in support of the prosecution case. The possibility of being influenced by the powerful accused persons in course of two years in between his earlier testimony and latter one on recall. According to the learned Court below, it was an attempt to build up a defence story subsequently which was engineered with motive to advance such stray suggestion which should be discarded.
We have taken into consideration the time tested principles of law of appreciation of evidence in this regard as follows:-
We do not find any infirmity in the decision making process of the learned Court below in relying upon the evidence of the PW 2, taking into consideration its corroboration from the documentary evidence, i.e., the inquest report, the post mortem report, as also the evidence of PW 12 and PW 13 respectively so far as the place and time of occurrence of the death of the victim. Consequent upon the injury caused by the appellants, the nature of injury found in the dead body of the victim, type of the weapon of offence used there as also the fact of such injury causing the death of the victim which was ante mortem in nature. It is necessary to observe here that the propriety of the other part of the impugned judgment so far as the acquittal of other accused persons are concerned will be discussed in the later part of this judgment.
Regarding the contention of alleged discrepancy of referring to the Kotwali P.S. Case bearing No.521 dated November 27, 1992, in the inquest report, the learned trial Judge took into consideration that the PW 12 received the information under reference at 11.50 hours in the police station. He arrived at the place of occurrence at 12.25 hours. After recovery of dead body of the victim from banana garden the inquest examination began at 13.35 hours. From the evidence on record, it appeared that the Kotwali P.S. Case under reference was drawn at 14.15 hours on that date, i.e., November 27, 1992. Therefore, there was a difference of about 40 minutes which was a minor discrepancy. We do not find any infirmity in the impugned judgment in this regard. So, we ignore the above minor discrepancy avoiding hyper technical approach to the technical error committed by the investigating agency.
With regard to the contention of the appellants in respect of alleged delay in forwarding the FIR under reference to the Court of learned Magistrate, we find from the impugned judgment that the evidence of commissioning of offence under reference was analysed by the learned trial Judge on the basis of the evidence (both oral and documentary). Therefore, mere delay in forwarding the FIR to the Court of the learned Magistrate could not be recorded by itself as fatal to the instant case of the prosecution.
The next contention of the appellants relates to the discrepancy in the charge framed against the appellants and the evidence of the Investigating Officer (PW 12) in respect of the time and place of occurrence of death of the victim. While repeating the settled principles of law decided in the matter of State of U.P. vs. M.K. Antony, reported in (1985) 1 SCC 505, that touching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit the rejection of the evidence as a whole, we further refer to the provisions of Section 215 of the Cr.P.C. that unless the appellants were in fact misled by any error or omission which might have taken place in the charge and that it had occasioned a failure of justice, there would be no scope to interfere with the impugned judgment. After taking into consideration in the charge, we find that it was mentioned in the charge as Shaktinagar Baikuntha Sarak, Namapara near the school while the PW 12 visited the place of occurrence at Namapara Baikuntha Sarak. The time mentioned in the FIR of receiving the information at 14.40 hours, the time of receiving the information was at 14.40 hours on that date as appeared in some other documentary evidence as 14.15 hours, those are, in our opinion, minor in nature and the impugned judgment does not require interference while considering the impugned judgment in view of the settled principles of law discussed hereinabove.
The next contention of the appellants in respect of the evidence of PW 2 that according to his evidence adduced on June 27, 2003, that the faces of the miscreants were covered with napkin, it was evident that it was his evidence on recall which has already been discussed by us hereinabove. At the cost of repetition and reiteration this much we observe here that the suggestions put forward to the PW 2 in course of cross-examination on June 27, 2003, on recall, leads us to arrive at a conclusion that the decision making process of the learned Court below does not require our interference in this regard in view of the observations and discussions made hereinabove.
However, the non-disclosure of the names of the appellants by the PW 2 in hospital and subsequent disclosure of the names of the appellants while making statement recorded under Section 164 of Cr.P.C., we find from the evidence that according to his deposition in Court, he had acted on the instruction of police. Therefore, the statement of the above witness which had been recorded under Section 164 of Cr.P.C. should be ignored and the charge framed against the appellants should be tried leaving aside the above statement.
Regarding the propriety of the decision making process of the learned trial Judge in considering the statement made by the appellants under Section 313 of Cr.P.C., we find that none of the appellants put forth any substantial plea except bald denial after they abjured their guilt and desired to face trial in such a circumstances interference with the impugned judgment is not warranted in view of the settled proposition of law decided in the matter of Parbin Ali vs. State of Assam, reported in (2013) 2 SCC 81 and the relevant portion of the above decision is quoted below:-
"4. The accused abjured their guilt and desired to face the trial. During the trial, the prosecution, in order to establish its case, examined nine witnesses and brought on exhibit number of documents. After completion of the prosecution evidence, the accused persons were examined under Section 313 CrPC. They had not put forth any substantial plea except a bald denial and chose not to adduce any evidence."
The decisions of K.C. Mathew & Ors. (supra), Ajmer Singh (supra), Jai Dev (supra) and Sharad Birchichand Sarda (supra), the general principles to be followed at the time of recording the statement of accused person under the provisions of Section 313 of the Cr.P.C. of 1973 (Section 342 of the Cr.P.C., 1860) and the consequences of failure to follow such procedure adhering to the doctrine of prejudice caused to the accused have been laid down by the Hon'ble Supreme Court in the above decisions. In the case in our hand, a special distinguishable feature, i.e., the consequences of bald denial of the questions put forward to the accused persons is taken into consideration in the light of the proposition of law settled in the mater of Parbin Ali (supra). Therefore, none of the aforesaid decisions helps the appellants in this appeal.
With regard to the next contention of the appellants that a similarly circumstanced accused, namely, Ghata @ Samar Halder acquitted while the appellants were convicted by virtue of the impugned judgment, we do not find any substance in the above submission made on behalf of the appellants. All the appellants were identified by PW 2, eyewitness, in Court on July 16, 2001. He failed to identify Ghata @ Samar Halder in course of adducing evidence. Four other accused persons namely, Ram Ghosh @ Ram Chandra Ghosh, Mahadeb Ghosh, Santosh Saha @ Sutradhar and Paritosh Saha @ Sutradhar were also acquitted due to failure of the prosecution witnesses to identify them. So, the commissioning of offence punishable under Section 302 of the I.P.C. is proved against the appellants only beyond any reasonable doubt.
Regarding to the next contention of the appellants that in view of the facts and circumstances involved in this case that considering the number of persons found guilty of commission of offence, there was no scope to punish four appellants under Sections 147/149/307 of the I.P.C. and under Sections 149/302 of the I.P.C., we find from the impugned judgment that according to the learned trial Judge, the commissioning of offence under the aforesaid provisions of the I.P.C. was proved beyond any doubt. According to the learned trial Judge, the commission of offence by more than four persons was also proved beyond any reasonable doubt though only four appellants could be identified among those persons. Therefore, the learned trial Judge held that unlawful assembly of five persons or more was proved beyond doubt and consequent thereupon the appellants were punished invoking the provisions of Sections 147/149/307 of the I.P.C. as also under Sections 149/302 of the I.P.C.
The provision of Section 147 of the I.P.C. deals with punishment for rioting. Rioting is provided in Section 146 of the I.P.C. which speaks of using of force or violence by any member thereof, in prosecution of the common object of such assembly for holding every member of such assembly is guilty of the offence of rioting. Similarly, the provision of Section 149 of the I.P.C. deals with an offence which is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, for holding every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
The provision of Section 141 of the I.P.C. designated an assembly of five or more persons as "unlawful assembly", if the common object of the persons composing that assembly comes within the purview contained therein. So, an assembly of five or more persons is one of the essential ingredients, amongst others, in relation to punishment for rioting under Section 147 of the I.P.C. and for holding every member of unlawful assembly guilty of offence committed in prosecution of common object under the provision of Section 149 of the I.P.C.
In the instant case, four appellants i.e., less than five persons were convicted under Sections 147 of the I.P.C. From the facts and circumstances of the instant case, as discussed hereinabove, commissioning of offence under reference by the accused persons other than four appellants or their participation in unlawful assembly using force or violence as a member of unlawful assembly was not proved beyond reasonable doubt.
So, we are of the opinion that the learned trial Judge was in error in convicting the appellants for commissioning of offence under Sections 147 of the I.P.C. On the basis of a decision making process that though participation of five or more persons had been proved but four appellants out of those persons was proved beyond reasonable doubt.
However, Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. While interpreting the provisions of Sections 34 and 149 of the Indian Penal Code, 1860, Lord Sumner, as His Lordship then was, speaking for a three Judges Bench of the Privy Council in the matter of Barendra Kumar Ghosh vs. Emperor, reported in AIR 1925 PC 1, observed that the provisions of both the aforesaid sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap, but Section 149, cannot at any rate relegate Section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts deserving separate treatment at all in itself. The relevant portions of the above decision is quoted below:-
"......There is a difference between object and intention, for, though their object is common, the intention of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action which is the leading feature of S.34, is replaced in S. 149, by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap, but S. 149, cannot at any rate relegate S. 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all ......"
The Constitution Bench of the Hon'ble Supreme Court adopted the above principle of law laid down by the Privy Council in the matter of Willie (William) Slaney vs. State of Madhya Pradeh, reported in AIR 1956 SC 116 and the relevant portion of the above decision is quoted below:-
"86. Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant."
The above age old principle of law has been repeated and reiterated by the Hon'ble Supreme Court time and again. Justice K.T. Tomas, as His Lordship then was, while speaking for a three Judges Bench of the Hon'ble Supreme Court in the matter of Dhanna vs. State of M.P., reported in (1996) 10 SCC 79, observed that in absence of no unlawful assembly as the strength of assembly was insufficient to constitute it into "unlawful assembly", if the Court enters upon a finding that any of the remaining person who participated in the crime had shared common intention with the main perpetrators of the crime, the Court is not helpless in seeking the aid of Section 34 of the I.P.C. to enter a conviction against such persons arraigned as accused. This is despited the difference between the scope of Section 34 and Section 149 of the I.P.C.: Yet they have some resemblance between each other and are to some extent overlapping. The relevant portion of the above decision is quoted below:-
"7. The High Court found that there was no unlawful assembly as the strength of the assembly was insufficient to constitute it into "unlawful assembly". But if the Court enters upon a finding that any of the remaining persons who participated in the crime had shared common intention with the main perpetrators of the crime, the Court is not helpless in seeking the aid of Section 34 (IPC) to enter a conviction against such persons arraigned as the accused. This is despite the difference between the scope of Section 34 and Section 149: Yet they have some resemblance between each other and are to some extent overlapping (Barendra Kumar Ghosh v. King Emperor).
8. Legal position on this aspect remained uncertain for a time after this Court rendered a decision in Nanak Chand v. State of Punjab. But the doubt was cleared by a Constitution Bench of this Court in Willie (William) Slaney v. State of M.P., where this Court observed at para 86, thus:
"Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant."
9. It is, therefore, open to the court to take recourse to Section 34 of IPC even if the said section was not specifically mentioned in the charge and instead Section 149 IPC has been included. Of course a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course. This view was followed by this Court in later decisions also. (Amar Singh v. State of Haryana, Bhoor Singh v. State of Punjab.) The first submission of the learned counsel for the appellant has no merit."
In Babu & Anr. vs. State represented by Inspector of Police, Chennai, reported in (2013) 4 SCC 448, the Hon'ble Supreme Court took into consideration the similar facts and circumstances of a case to observe that when the evidence on record makes it clear that the deceased was attacked by a number of persons which falls short of number enabling the Court to punish all of them under the provision of Sections 147/149 of the I.P.C. in furtherance of their common intention all those accused persons are liable for the criminal act to causing the death of the deceased under Section 34 of the I.P.C., as a criminal act was done by each of them alone, the relevant portion of the above decision is quoted below:-
"15.2. Thus, the evidence of PW 1, PW 2 and PW 3 makes it clear that the deceased was attacked by A-1, A-2, A-3 and A-4 in furtherance of their common intention and therefore all the four accused persons (the appellants) were liable for the criminal act of causing the death of the deceased under Section 34 IPC, as if the criminal act was done by each of them alone. In Dhanna v. State of M.P., this Court has held that where the Court finds that the strength of the remaining was insufficient to constitute it into "unlawful assembly", but the remaining persons who participated in the crime had shared the common intention with the main perpetrators of the crime, the court can take the aid of Section 34 IPC even if the said section was not specifically mentioned in the charge. Since, discussions and observations made in the former part of this judgment have already lead us to irresistible conclusion that the evidence of PW 2 and the corroboration of the same by the evidence of PW 6, PW 9, PW 12 and PW 13 as also the documentary evidence, namely post mortem report dated November 28,1992 of dead body of the deceased and the treatment papers of the PW 2, made it clear that the deceased was attacked by all of the four appellants, therefore, all of them were liable for criminal act of causing death of the victim under Section 34 of the I.P.C., as if criminal act was done by each of them alone.
We find that reliance is placed by Mr. Mukherjee on the decision of Nanak Chand (supra) to submit that there is a clear distinction between the provision of Section 34 and 149 of the I.P.C. respectively which should not be confused. As discussed hereinabove, the above decision has been taken into consideration by the Hon'ble Supreme Court in the decision of Dhanna (supra) with the observation that the legal position on the above aspect remained uncertain for a time after the Hon'ble Supreme Court rendered the decision in Nanak Chand (supra) which was cleared by a Constitution Bench of the Hon'ble Supreme Court in Willie (William) Slaney vs. State of M.P. and thereafter, the Hon'ble Supreme Court arrived at a conclusion that it was open to the Court to take recourse to Section 34 of the I.P.C. even if the said section was not specifically mentioned in the charge and instead Section 149 of the I.P.C. had been included. However, a finding that assailant concern had a common intention with the other accused was necessary for resorting to such a course. As discussed in the earlier part of our judgment, a common intention with the other accused had also been proved from the evidence of the prosecution witness. In view of the above, the decision of Nanak Chand (supra) does not help the appellant in any way.
For the purpose of examining the decision making process of the learned trial Judge for convicting the appellants for commission of offence punishable under Section 307 of the I.P.C., the essential ingredient of such offence are as follow:-
(1) The accused did some act;
(2) Such act was done with intention or knowledge that hurt was likely to be caused to the victim by the act.
For the last part of the offence the accused was under sentence of life imprisonment when he committed the offence.
It appears from the evidence of PW 2 that he was assaulted by the appellant nos.3, 4 and Ghata with the help of blunt portion of "dao". From the treatment papers of PW 2 prepared by the PW 10, who had examined him, found the following injuries:-
"1. One multiple small abrasion both upper limbs.
2. Liniar parallel bruises on back 3" x ½" and there ½" apart. Pain, swelling of right wrist. Treatment given. Afterwards X-ray done and on X-ray the fracture of lower one-fourth right ulna was detected and the patient was referred to our orthopedic surgeon T. Dutta Roy."
From the aforesaid evidence, it was surfaced that the intention or knowledge of the aforesaid appellants was not of such nature as was necessary to constitute murder. The commission of offence by other accused person, namely, Ghata was not proved beyond any reasonable doubt and as such he was acquitted of the charge framed against him. Considering the use of blunt portion of "dao" to above intention or knowledge of either of the appellants could not be said to be proved beyond any reasonable doubt. Therefore, the decision making process of the learned trial Judge for convicting the appellants under Sections 149/307 of the I.P.C. is not sustainable in law in view of the discussions and observations made hereinabove.
So, our partial interference is required for setting aside the impugned conviction to the limited extent of sentencing the appellants for commissioning of offence punishable under Sections 147 as also 149/307 of the I.P.C. and to enter conviction against all the four appellants for commissioning of offence punishable under Section 302 of the I.P.C. seeking the aid of Section 34 of the I.P.C.
Accordingly, we allow this appeal partially to the extent setting aside the impugned conviction under Section 147 as also 147/307 of the I.P.C. and the conviction of the appellants is altered to one under Section 302/34 of the I.P.C. For the altered conviction, each of the appellants is sentenced to suffer rigorous imprisonment for life. The fine imposed upon each of them together with default clause remain unchanged. The period of detention of the appellants undergone during the investigation and trial be set off against the period of substantive sentence of imprisonment stated hereinabove under the provisions of Section 428 of the Cr.P.C The bails which have been granted to the appellant nos.1 and 3 in CRAN 159 of 2004, on March 9, 2004, and to the appellant no.2 and 4 in CRAN 750 of 2005, on April 20, 2005, respectively, are, therefore, cancelled and the appellants are directed to surrender before the Trial Court within a period of fortnight from the date of this judgement for serving the sentence and in the event of failure on the part of any of the appellants to comply with the above direction, the Learned Trial Court shall take appropriate steps in the matter.
Let copy of this judgment together with the Lower Court's records be sent down to the Trial Court by a special messenger of this court forthwith for taking necessary steps in compliance of this judgment expeditiously.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. ( Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.)