Calcutta High Court (Appellete Side)
Ashok Roy vs The State Of West Bengal on 24 February, 2020
Bench: Joymalya Bagchi, Suvra Ghosh
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Suvra Ghosh
CRA 391 of 2011
Ashok Roy
Vs.
The State of West Bengal
With
CRA 437 of 2011
Milan @ Milanmoy Tewary & Anr.
Vs.
The State of West Bengal
For the appellant No.2 : Mr. Sudipto Moitra, Sr. Adv.,
in CRA 437 of 2011 Mr. Vijay Verma, Adv.
For the appellant No.1 Mr. Swagata Dutta, Adv.
in CRA 437 of 2011 Mr. Kaushik Choudhury, Adv.
For the appellant in : Mr. Ramkrishna Bhattacharya, Adv.
CRA 391 of 2011 Mr. Sabyasachi Hazra, Adv.
For the State : Mr. Saswata Gopal Mukherjee, P.P.,
Mr. Ranabir Roy Chowdhury, Adv.
Mr. Manish Gupta, Adv.
Heard on : 13.08.2019, 11.11.2019, 14.11.2019,
12.02.2020, 24.02.2020
Judgment on : 24.02.2020
Joymalya Bagchi, J.:-
These appeals are directed against the judgment and order dated 7th June,
2011 and 9th June, 2011 passed by the learned Additional Sessions Judge, 1st
Court, Bankura in Sessions Trial No. 2(2) 2008 arising out of Sessions Case
No.27(5) 2007 convicting the appellants namely Raja Basu Roy (since deceased),
Ashok Roy, Raju @ Naru Dubey and Milan @ Milanmoy Tewari for commission of
offence punishable under Sections 120B, 302/34, 307/34 of the Indian Penal
Code and under Sections 25/27 of the Arms Act and under Sections 9B(1)(b) of
the Explosive Act and under Sections 3/5 of the Explosive Substances Act and
sentencing them to suffer imprisonment of life for the offence punishable under
Section 120B of the Indian Penal Code and to suffer imprisonment of life and pay
a fine of Rs.25,000/- each, in default, to suffer simple imprisonment of 6 months
each for the offence punishable under Sections 302/34 of the Indian Penal Code
and to suffer imprisonment for 10 years for the offence punishable under Section
307/34 of the Indian Penal Code and to suffer imprisonment for 3 years for the
offence punishable under Section 25 of the Arms Act and to suffer rigorous
imprisonment for 7 years for the offence punishable under Section 27 of the
Arms Act and to suffer imprisonment for 2 years for the offence punishable under
Section 9B(1)(b) of the Explosives Act and to suffer rigorous imprisonment for 10
years for the offence punishable under Section 3 of the Explosive Substances Act
and to suffer simple imprisonment for 3 years for the offence punishable under
Section 5 of the Explosive Substances Act. All the sentences shall run
concurrently.
Prosecution case alleged against the appellants is to the effect that on
13.01.2007at 7.00 a.m. Araha Bajpayee deceased herein, had left his petrol pump in a Scorpio vehicle bearing No.WB38N/7512 which was driven by Felu Tewari (PW 1). At 7:30 a.m. they had reached a bump on the road near village Radhamadhabpur within Gangajalghati Police Station. As a result the vehicle slowed down and at that time 3/4 persons came running towards the vehicle. Felu has identified Raju Dubey, (appellant in CRA 437/11) as one of them. Raju identified the vehicle to the other persons and bombs were thrown at the vehicle. Consequentially, Araha Bajpayee as well as Felu suffered injuries. The miscreants ran away towards Bhadragora in two motor cycles. Both Araha and his driver Felu were shifted to Amarkanon hospital. Araha was declared dead and Felu was shifted to Bankura hospital in injured condition. Statement of Felu was reduced into writing in the hospital by Jitendra Nath Mukherjee (P.W. 15), the then inspector-in-charge of Bankura police station and treated as FIR being Gangajalghati PS Case no. 5 of 2007 dated 13.1.2007 against Raju Dubey and four unknown accused persons. In the FIR it was alleged that Raju had been threatening his master Araha with murder for some time in the past. In the course of investigation the appellants and other accused persons were arrested. On the leading statement of Raju Dubey improvised fire arm, maroon coloured attaché case, mobile phone and a motor cycle allegedly used during the incident were recovered. Similarly, on the showing of Raja Basu Roy @ Ujjal Guha (since deceased) and Ashok Roy, improvised fire arms, ash coloured attaché case containing documents belonging to petrol pump owned by the deceased and other articles were seized. Arms expert (P.W. 26) opined seized fire arms were in working condition. In conclusion of investigation, charge sheet was filed against the appellants and one Pradyut Mondal and Fajlur Rahaman.
Charges were framed under Sections 120B, 302/34 & 307/34 IPC, 25/27 of the Arms Act, 9B (1)(b) of the Explosives Act and 3/5 of the Explosive Substances Act against the appellants and other accused persons.
In the course of trial, the prosecution examined 31 witnesses to establish its case and exhibited a number of documents.
The defence of the appellants was one of innocence and false implication.
In conclusion of trial, the trial court by the impugned judgement and order dated 7.6.2011 & 9.6.2011 convicted and sentenced the appellants, as aforesaid. However, by the self-same judgment and order, co-accused persons Pradyut Mondal and Fajlur Rahaman were acquitted of the charges levelled against them. During the pendency of the appeals, Raja Basu Roy expired. Accordingly, criminal appeal being CRA 439 of 2011 preferred by the said appellant was dismissed as having abated vide order dated 11.11.2019.
Learned senior counsel appearing for Raju Dubey (appellant no. 2 in CRA 437 /11) argued that the prosecution case has not been proved beyond reasonable doubt as the sole eye-witness PW 1 is not a reliable witness. PW 1 embellished his version in court with regard to the role of Raju Dubey in the incident. While in the FIR, PW 1 had claimed Raju had identified the vehicle to other miscreants who threw bombs, in court he stated Raju and others threw bombs at Araha Bajpayee resulting in his death. It is also submitted PW 1 had not disclosed the identity of the miscreants at the first instance before the medical officers at Amarkanon or Bankura hospital. Subsequent statement made by him to P.W 15 appears to be an afterthought and is not corroborated by PW
20. Threats held by Raju to the deceased on earlier occasion has also not been proved. Letter written by Raju has not been produced in court. Evidence of PWs 8 and 21 with regard to extra judicial confession made by Raju over phone and his demanding a sum of Rs. 20 lakhs are patently absurd and have not been supported by independent witnesses. There is no evidence on record that the deceased suffered gun-shot injuries and recovery of fire arms on the showing of appellants have not been proved beyond doubt. Manner in which the victim and Felu were shifted to hospital is unclear. While Felu (PW 1) claimed both of them went in ambulance, PW 20 deposed that Araha was taken in a different vehicle. P.W 20 also has not supported the prosecution case with regard to registration of FIR by P.W 15. Senior Counsel relied on various authorities in support of his contention.
Learned counsel appearing for Milon Tiwari (appellant no.1 in CRA 437 OF 2011) argued that his client has not been identified by PW 1 as one of the miscreants who had thrown bombs at the victim. His complicity is based on the uncorroborated evidence of PW 8 that Raju Dubey claimed that mobile connection no. 9932248892 belonged to his client. No report from the service provider establishing such fact has been placed on record. Although a remark is made in the seizure list (Ext 16) alleging motor cycle seized pursuant to the leading statement of Raju Dubey belonged to Milon Tiwari, no registration certificate endorsing such fact has been proved. PW 1 has not given out the registration mark of motor cycle used by the miscreants to flee from the spot. Such incriminating fact has also not been placed before the appellant for his explanation under section 313 Cr.P.C. Hence, his client is entitled to an order of acquittal.
Learned counsel appearing for Ashok Roy (appellant in CRA 391 of 2011) argued that there is no evidence to show that his client was present at the place of occurrence. PW 1 has not identified his client in court as one of the miscreants who threw bombs at the deceased. Recovery of firearm pursuant to the leading statement of his client has not been proved. There is no evidence to show that the victim had died due to gun shot injuries. With regard to the recovery of attache case it is submitted that the independent witness to the seizure had not identified his client in court. There is no evidence that the miscreants had carried away attache cases belonging to the deceased from the vehicle after throwing bombs at him. Hence, his client is entitled to an order of acquittal.
All the appellants submitted separate written arguments to supplement the aforesaid oral submissions.
In response, learned Public Prosecutor along with Mr. Roy Chowdhury and Mr. Gupta argued that evidence of injured eye-witness PW 1 clearly shows that Raju Dubey and others had thrown bombs at himself and his master, Araha, resulting the latter's death. At the earliest opportunity his statement was recorded and the said witness has disclosed the role of Raju in court also. Minor discrepancies in the deposition of the injured eye-witness do not affect his credibility or trustworthiness. In addition thereto, there is ample evidence on record to show that Raju had been threatening the deceased with murder as would appear from the evidence of P.W 1 and P.W 3. Soon after the incident, Raju had telephonic conversations with one Sakti Kesh (who could not be examined during trial as he had died earlier) stating that he had murdered the deceased. Thereafter Raju made similar assertion to P.W 8 and P.W 21 and demanded Rs.20 lakh from them. Roles of other appellants had transpired from the extra-judicial confession of Raju. On the leading statement of the appellants firearms as well as personal assets of the deceased were recovered. Hence, the prosecution case is proved beyond doubt.
Evidence of Injured Eye-witness, P.W. 1 Analysis of the rival submissions made on behalf of the parties show that the prosecution case is pivoted on the evidence of the injured witness, Felu Tewari (P.W 1). He was the driver of the deceased Araha Bajpayee and on 13.01.2007 on the morning they proceeded in a Scorpio vehicle towards Durlavpur. They reached a bumper at Manasatala at village Radhamadhabpur. He slowed down the vehicle to navigate the bumper. At that time three persons came running towards the Scorpio. Raju was one of the miscreants. Thereafter they hurled bombs at the vehicle. He suffered injuries on his head and body and fell down on the seat. His master, Araha Bajpayee, also suffered injuries. They were taken to Amarkanan Hospital. From there they were referred to Bankura Medical College and Hospital. He met Sakti Kesh and informed him that Raju had hurled bombs at random at him and Araha Bajpayee. At Bankura Hospital he disclosed the entire incident to I.C. Bankura, who reduced his statement into writing. He put his left thumb impression on the document. He further deposed that Araha Bajpayee was carrying two attache cases, one was maroon and another was ash in colour in that vehicle. He made statement before the learned Magistrate. He identified Raju in Court. He deposed that he came to learn from villagers that miscreants were five in number and proceeded towards Bhadra More on two motor-cycles.
In cross-examination, he admitted that there was no identification mark in the attache cases. He stated that he saw three persons at a distance of 5 to 6 cubics from the vehicle. He had not stated to I.C., Bankura that one person had identified the vehicle and other two had hurled bombs.
Evidence of the aforesaid witness has been severely criticized by the appellants on the following score:-
(1) P.W.1 had not disclosed the name of Raju Dubey at the first opportunity to the doctors who treated him at Amarkanan Hospital and Bankura Medical College and Hospital.
(2) Statement of PW 1 reduced into writing by PW 15, the then inspector-
in-charge, Bankura P.S. in the hospital and treated as FIR is not corroborated by P.W 20.
(3) P.W. 20 also did not corroborate evidence of P.W. 1 that the latter along with the deceased Araha Bajpayee had been taken together to the hospital in an ambulance. On the contrary, P.W. 20 deposed Araha Bajpayee was taken to the hospital in a different vehicle driven by the said witness.
(4) His evidence in court with regard to role of Raju Dubey is at variance to that in the F.I.R. While in F.I.R. he stated Raju had identified the vehicle to other miscreants who threw bombs, in Court he stated that Raju along with others threw bombs.
In view of the evidence on record particularly that of the medical witnesses Dr. Nirjhar Bhattacharya (P.W 13) and Dr. Abhijit Bhattacharya (P.W 14), I have no doubt in my mind P.W 1 who was driving the vehicle of Araha Bajpayee was attacked with bombs resulting in bomb blast injuries on both of them. P.W 13 was the Assistant Professor attached to the Department of Surgery, Bankura Medical College & Hospital under whom Felu Tewari was admitted in the hospital. He treated the patient and found bomb blast injuries on his hands and scalp. He also noted lacerated injury on the right side of his face. He proved the medical papers marked as "Exbt-6" series. He deposed the injuries on the patient was likely to cause death. P.W 14 is another doctor who treated Felu in the hospital and corroborated the evidence of P.W 13.
From the aforesaid evidence it is established beyond doubt that P.W 1 is an injured eyewitness to the incident. However, referring to the cross- examination of P.W 13 it has been argued that Felu did not disclose the names of the assailants to the medical officer. I am not impressed by such submission. P.W 1 had explained during cross-examination that he had not disclosed the name of the assailants to the medical officer. Hence, failure to record the names of assailants in the medical records, in my considered opinion, does not affect the truthfulness of the case. On the other hand, P.W 15, Jitendra Nath Mukherjee, the then Inspector-in-Charge of Bankura Police Station, had interrogated the injured witness on the self-same day and had reduced his statement into writing. In his statement, P.W. 1 clearly stated that Raju and other miscreants had attacked the vehicle with bombs. Evidence of P.W 15 is corroborated by P.W 25, S.I. Alamgir, who accompanied him to the hospital. Evidence of these witnesses with regard to registration of FIR are not contradicted by PW 20 as contended by the appellants. PW 20 deposed regarding disclosure of names of assailants at Amarkanon hospital by PW 1 which had not been reduced to writing by police. He had not commented with regard to recording of FIR by PW 15 at Bankura Hospital as per statement of PW 1. Hence, there is no contradictions in the evidence of the prosecution witnesses with regard to registration of FIR. Registration of F.I.R. at the earliest disclosing the incident including the role of Raju Dubey therein, therefore, removes any possibility of false implication. Furthermore, evidence has come on record at Amarkanan Hospital PW 1 had disclosed the name of Raju Dubey to Sakti Kesh (employees of the deceased, Araha Bajpayee) as one of the assailants. Unfortunately, Sakti Kesh had died and could not be examined during trial. However, such fact is proved by other employees of the deceased viz. P.Ws. 8, 20 and 21.
P.W 8, Shiba Prasad Tewary @ Kanu Tewari, deposed that Sakti Kesh told him that he had heard from Felu that Raju Dubey was one of the miscreants. His version is corroborated by PW 21.
P.W.20 arrived at the spot first and took the deceased to hospital. Felu regained his senses and told him Raju and his associates hurled bombs at the vehicle of Araha Da. Sakti Kesh had also heard everything from Felu. His evidence is corroborated by P.W.1, Felu who deposed that he narrated the incident to Sakti Kesh.
In view of the aforesaid evidence on record, particularly, conversation between Felu, P.W.1 on the one hand and P.W.20, Munsi Ahamad Hossain and Sakti Kesh on the other hand at Amarkanon hospital and the prompt registration of first information report by PW 15 disclosing the role of Raju Dubey in the incident, non-disclosure of his name in the hospital records loses significance. One cannot also lose sight of the fact that Raju Dubey is a powerful man in the locality who had threatened Araha Bajpayee, master of P.W.1 Felu Tewari prior to the incident. Hence, it is natural that Felu disclosed the incident and the role of Raju Dubey therein only to persons in confidence i.e. the other employees of Araha and the police.
Finally, it has been argued that role of Raju Dubey in the incident has been embellished by Felu Tewari, P.W.1, during his deposition in court. I have considered the evidence on record in the backdrop of the first information report. While in FIR, Felu argued Raju had identified vehicle to other miscreants who threw bombs at them, in court the witnesses deposed when the vehicle had slowed near a bump three persons came from behind and threw bombs at the vehicle resulting in bomb blast injuries on himself and the deceased. One of those persons was Raju Dubey. It is undisputed Raju Dubey was known to the witness from before as he had threatened his master Araha Bajpayee with murder on earlier occasions. In this backdrop minor contradiction with regard to the role of Raju Dubey i.e. whether he pointed out the vehicle to other miscreants who threw bombs or all of them had thrown bombs is of little consequence. Raju Dubey along with others had come in a body armed with bombs and some of them from the group had thrown bombs at the vehicle resulting in the death of Araha. Post mortem doctor, Biswajit Sukul, P.W.22 found multiple injuries on the body of the deceased and opined that the death was due to the explosion of bombs, ante mortem and homicidal in nature. Hence, pre-concert, presence and participation of Raju Dubey in the murder of the deceased is wholly established.
EXTRA JUDICIAL CONFESSION OF RAJU DUBEY Apart from the ocular version of the injured witness P.W.1 which is corroborated by the medical evidence of post mortem doctor P.W.22, it is contended Raju Dubey made extra judicial confession to P.Ws 8 & 21.
P.W.8 deposed on hearing the news he had gone to hospital and found Araha had been declared dead. Sakti Kesh told him Felu had narrated the incident to him and disclosed the name of Raju Dubey. At 1.30 P.M. Shakti talked to Raju Dubey on his mobile phone bearing no.9932248886 and switched on the loud speaker of the phone during the conversation. Raju admitted that he had killed Araha and threatened he would kill them. Phone number of Raju Dubey was 9333917563. Subsequently, on 14.01.2007 while the witness was with P.W.21 Dilip Adhikary, Raju phoned Dilip on his mobile and threatened that he had finished Araha and would also finish them next. In the evening, P.W.8 himself received threatening call from Raju from phone number 9732128513 who demanded Rs.2 lakhs and claimed he along with Dukhia, Nabin, Raja Basu Roy and Ashok Roy had killed Araha. Raju stated he was using the mobile phone of Milan Tewary.
P.W.21 (Dilip Adhikary) has corroborated the evidence of P.W.8. He deposed on 14.01.2007 he received a phone call on his mobile number from a person who stated he was Raju Dubey and that person told him that he had killed his partner and asked him to make arrangement for Rs.2 lakhs. Subsequently, Raju had threatened him on various occasions using a mobile phone bearing no.9732128513.
P.W.2 deposed that he is the owner of mobile number 9333917563. He claimed he had sold the mobile phone to Raju Dubey for Rs. 1,000/-. He had come to know Raju at the time when Raju's child was being born at Jibandeep nursing home. He identified the mobile phone produced in court.
P.W.31, investigating officer exhibited call records (Exts.26 & 27) of the mobile phone nos. 9333917563 and 9732128513. From the call records it appears on 13.01.2007 two phone calls were made around 9 A.M. from 9932248886(belonging to Sakit Kesh as per PW 8) to 9333917563(belonging to Raju Dubey as per PW 2). On that day around 1 P.M. two phone calls again were made from mobile number between the aforesaid two mobile phone connections. On 14.01.2007 two calls were made around 9 A.M. from mobile number 9333917563 to the mobile number of P.W.1 i.e. 9434016079. Similarly on the selfsame day at 7 P.M. a phone call was made from mobile number 9732128513 (belonging to Milan Tewary as per PW 8) to 9932248892 (belonging to PW 21).
Apart from the improbability of Raju Dubey claiming to the employees of the deceased that he had murdered him, I am of the view that the 'best evidence' with regard to the ownership of the mobile phones has not been produced in court. No report from service provider has been produced to show that the mobile number 9333917563 allegedly sold to Raju Dubey by P.W.2 belonged to the latter. It is difficult for me to accept the mere ipse dixit of P.W.2 that although he sold the said mobile phone with Sim card to Raju the connection had not been transferred in favour of the latter. Similarly, there is no independent evidence that mobile connection no.9732128513 stood in the name of Milan Tewari except the statement of co-accused, Raju. In the absence of link evidence establishing the ownership of the appellants to the aforesaid mobile phones, it is difficult for me to come to a firm conclusion that there was telephonic communication between the appellant Raju Dubey and the employees of the deceased i.e. Sakti Kesh, Shiba Prasad Tewary @ Kanu Tewari, P.W.8 and Dilip Ahikary, P.W.21 as contended on behalf of the prosecution. In the light of scanty evidence on record and the inherent improbability of the accused confiding his culpability to the aforesaid individuals who admittedly belonged to rival camp, I choose not to give credence to the extra judicial confession allegedly made by the appellant, Raju Dubey.
MOTIVE OF CRIME Evidence has come on record that there was enmity between the deceased Araha Bajpayee and Raju Dubey. P.W.1 driver of the deceased has alleged such fact in the FIR. Wife of the deceased (PW 3) also deposed 7-8 days ahead her husband received phone call from Raju who threatened him with dire consequences. Hence, I hold that there was enmity between Raju Dubey and the deceased Araha Bajpayee and the former had threatened him with dire consequences couple of days prior to the incident.
However, I do not give much credence to the deposition of P.W. 3 with regard to a purported letter shown by her husband wherein it was stated Raju, Milan, Ashok, Nabin, Papu, Raja Basu Roy would murder her husband and had hatched a conspiracy in that regard as the said letter had not been produced in Court. In the absence of the said letter implicating the other appellants seeing the light of the day, I find it difficult to hold that the prosecution has been able to prove their motive in the crime.
Recovery of fire arms and other incriminating articles as per leading statements of the appellants P.W. 31, investigating officer, deposed that he arrested Raju Dubey and Fajlur Rahaman from Quality Bar-Restaurant, Park Street and took them to Bankura. On the statement of Raju he recovered one improvised firearm loaded with .303 live cartridge under a seizure list, Exhibit-2. He also recovered a maroon coloured attache case from the residence of Raju under a seizure list Exhibit-3. Subsequently, he interrogated Raju and the latter stated that he would help to recover motorcycle and mobile phone used in connection with this case. Accordingly, he was taken to near a tank named Dangahir in the village Barjora and a black and white mobile phone with word 'classic' was kept in a polythene packet kept under the soil, Exhibit-15. Motorcycle bearing No.WB 40C 1663 was also recovered near the bank of river Damodar under a seizure list, Exhibit 16.
Though the aforesaid seizures have been supported by police witness (P.W.
25), the independent witness (P.W. 24) has not supported the prosecution case and was declared hostile. Leading statement of Raju was not also reduced in writing and exhibited in trial.
One ash coloured attache case containing personal items of the deceased was allegedly seized pursuant to the showing of the appellants Raja Basu Roy and Ashok Roy as per evidence of I.O. (P.W. 31) and the police witness (P.W. 25). Evidence of independent witnesses P.W. 16 and P.W. 17 in this regard are not convincing. P.W. 17, witness to the seizure of the attache case, was not able to identify any of the miscreants including Ashok Roy. His evidence with regard to the manner of recovery of the attache case is at variance to the police witness P.W. 25. P.W. 17 deposed officer-in-charge of G. Ghati Police Station had come in a police vehicle. There were four persons in the vehicle. One of the said four persons had brought out an attache case. On the other hand, P.W. 25, the police witness gives a different narration relating to the recovery of the attache case. He stated that both the accused persons, that is, Ashok Roy and Raja Basu Roy took out the attache case from Sar Bandh and handed over the case to the O.C. Although P.W. 1 identified the attache case in Court, he admitted in cross- examination there was no identifying mark on the said case. No evidence is forthcoming with regard to the theft of the attache cases from the vehicle at the time of the incident.
Hence, I hold it cannot be said with certainty that attache cases were recovered in this case on the showing of the appellants or that the cases had been stolen at the time of the incident.
With regard to recovery of improvised fire arms on the showing of Raja Basu Roy and Ashok Roy, I find P.W. 16 identified Ashok Roy as the person who brought out some powder and improvised firearm in the presence of police. P.W. 26, arms expert, deposed that the seized firearm was in working condition. However, no evidence is forthcoming that the said firearm had been used in the course of the incident. Post mortem doctor also does not state that the deceased had suffered bullet injury. Hence, I am of the opinion that it cannot be said that the alleged firearm seized on the showing of the Ashok Roy had been used for the aforesaid offence.
Role of the appellants Ashok Roy and Milan Tewary in the incident Presence of the appellants, namely, Ashok Roy and Milan Tewary or Raja Basu Roy at the place of occurrence has not been noted by P.W. 1, injured witness.
As discussed earlier, recovery of ash coloured attache case pursuant to the leading statement of Ashok Roy and Raja Basu Roy has not been supported by independent witnesses and has not been proved beyond doubt. There is nothing to show that the firearms recovered on showing of Ashok Roy were used in the alleged incident. There is also no evidence on record that mobile connection No. 9732128513 belonged to Milan Tewary. Evidence has also not forthcoming that the motorcycle seized on the leading statement of Raju Dubey belonged to the said appellant.
Hence, there is hardly any legally admissible and convincing evidence that Ashok Roy, Milan Tewary and Raja Basu Roy were the members of the group who chased the vehicle and threw bombs at the deceased Araha Bajpayee and the injured witness, Felu Tewary (P.W. 1).
Culpability of appellant Raju Dubey in the crime In view of the lack of evidence implicating other appellants in the crime, senior counsel for Raju Dubey seriously argued Raju could not be convicted either section 302/34 of the Indian Penal Code or under section 302 simplicitor. He relied on various authorities in support of such contention.
On the other hand, learned Public Prosecutor submitted role of Raju as a member of the group who shared common intention to murder is fully established and even if other appellants are acquitted, his conviction may be safely recorded under sections 302/34 IPC. He relied on Harshadsingh Pahel Vansingh Thakore vs. State of Gujarat, 1977 SCC (Cri) 26.
Section 34 of the Indian Penal Code does not create a separate offence. It is a rule of constructive liability by which all persons who share common intention to commit an offence are held guilty of the offence committed by one of them if such offence is committed pursuant to such common intention. When a number of persons are charged with section 34 of the Indian Penal Code it is the duty of the Court to see whether said persons shared a common intention and the offence was committed in pursuant to such intention or not.
In order to arrive at such conclusion the Court is to be satisfied on the following pre-conditions:-
(a) pre-concert (b) presence and (c) participation of the accused persons.
I have examined the role of Raju Dubey from that perspective. P.W. 1 has categorically stated that Raju and two others had come running towards the vehicle and had thrown bombs resulting in the death of Arabinda Bajpayee. Manner in which Raju and others being armed with bombs had rushed in a body towards the vehicle and bombs were thrown from the said group resulting in the death of the victim leaves no doubt that the pre-requisites of pre-concert, presence and participation of Raju with unknown others to commit the murder of Araha Bajpayee and attempt to murder Felu Tewary (P.W. 1) has been proved. Fact that prosecution has not been able to prove the identity of the others in the crime is of little consequence since the constructive liability of Raju in the crime is established beyond doubt.
In this regard, one may profitably refer to Harshadsingh Pahel Vansingh Thakore (supra) wherein while acquitting other accused persons the Court had maintained the conviction of one accused under sections 302/34 IPC holding as follows:-
"8. Counsel also argued that since three out of the four accused have secured acquittal the invocation of Section 34 is impermissible. The flaw in this submission is obvious. The courts have given the benefit of doubt of identity but have not held that there was only one assailant in the criminal attack. The proposition is plain that even if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable. Not that the story of more than one person having attacked the victim is false, but that the identity of the absolved accused is not firmly fixed as criminal participants. Therefore it follows that such of them, even if the number dwindled to one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with the constructive provision."
Authorities relied on behalf of the appellants are not applicable in the facts and circumstances of the case.
In Prabhu Babaji Navle Vs. State of Bombay, AIR 1956 SC 51 the principal accused who struck the blow on the deceased had been acquitted but the appellant who was alleged to have been present at the place of occurrence was convicted under sections 302/34 IPC. The Apex Court acquitted the appellant on the finding that there was no evidence that the appellant had shared common intention with another or others unknown. It held as follows:-
"4. ...Of course he could have been charged in the alternative for having shared a common intention with another or others unknown. But even then, the common intention would have to be proved either by direct evidence or by legitimate inference. It is impossible to reach such a conclusion on the evidence in this case once the co-accused are eliminated because the whole gravamen of the charge and of the evidence is that the appellant shared the common intention with those other four and not with others who are unknown."
In the present case, evidence of the injured eyewitness P.W. 1 clearly shows the sharing of common intention by Raju with unknown others. Hence, the aforesaid case is clearly distinguishable on facts as in the said case the evidence was such that it was impossible to come to a conclusion that the appellants could have shared common intention with another or others unknown in the face of acquittal of the named accused persons.
Similar view is expressed in Krishna Govind Patil Vs. State of Maharashtra, AIR 1963 SCC 1413. In the said report the Apex Court succinctly observed "None of the witnesses spoke to the presence of any other person, named or unnamed, who took part in the assault of the deceased".
On the contrary, in the present case P.W. 1 categorically stated that Raju Dubey along with unknown others had come in a body armed with bombs and bombs were thrown from the said group at the victim resulting in his death. Hence, acquittal of other appellants due to lack of evidence with regard to their participation in the conjoint assault cannot absolve the culpable role of Raju with unnamed others. The Apex Court in the aforesaid report succinctly clarified the proposition as thus:-
"6. ...It is well settled that common intention within the meaning of the section implied a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a Court can convict a person under Section 302, read with Section 34, of the Indian Penal Code, it should come to a definite conclusion that the said person had prior concert with one or more other persons, named or unnamed, for committing the said offence. A few illustrations will bring out the impact of Section 34 on different situations.
(1) A, B, C and D are charged under Section 302, read with Section 34, of the Indian Penal Code, for committing the murder of E. The evidence is directed to establish that the said four persons have taken part in the murder.
(2) A, B, C and D and unnamed others are charged under the said sections. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence.
(3) A, B, C and D are charged under the said sections.
But the evidence is directed to prove that A, B, C and D, along with 3 others have jointly committed the offence.
As regards the third illustration, a Court is certainly entitled to come to the conclusion that one of the named accused is guilty of murder under Section 302, read with Section 34, of the Indian Penal Code, though the other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence." (Emphasis supplied) The present case falls within the third illustration where although other appellants charged with Raju Dubey have been acquitted due to lack of evidence, the latter may be convicted as the evidence of the injured eyewitness proves he shared common intention with other unnamed persons in murdering the deceased.
In Sawal Das vs. State of Bihar, 1974 SCC (Cri) 362 the Court set aside the conviction of the appellant under section 302 simpliciter when the appellant was acquitted of the charge under sections 302/34 of the Indian Penal Code on the premise there was not direct evidence that he had murdered the victim.
In the present case constructive liability of Raju Dubey with unknown others is fully established and therefore the aforesaid report is distinguishable from the facts of the present case.
In State of West Bengal vs. Vindu Lachmandas Sakhrani @ Deru, AIR 1994 SC 772, parents of a deceased child were convicted of murdering her. Since one of them had been acquitted, the Court held the evidence was not sufficient to come to a conclusion that the other shared common intention to murder the child.
Factual matrix of the present case is clearly distinguishable as evidence on record particularly that of P.W. 1 clearly establishes the role of Raju, unlike other appellants, in sharing common intention with unknown others in commiting the crime.
In Ramvir Vs. State of Uttar Pradesh, 2019 (1) AICLR 558 (S.C.) no appeal had been preferred from the acquittal of the appellants under sections 302/149 IPC and there was no evidence to show that there were unknown persons apart from the acquitted accused persons who were members of the unlawful assembly.
In the present case there is clear and unequivocal evidence that Raju Dubey had shared common intention with others who could not be identified by the eyewitness, P.W. 1. Hence, acquittal of other appellants who were not identified by the principal witness does not affect Raju's culpability in the murder.
There is also no necessity of re-framing the charge as the prosecution case with regard to role of Raju in sharing common intention with unknown others is reflected not only in the evidence on record but in the FIR itself.
Hence, Raju was fully aware of the nature of the prosecution case against him and had every opportunity to defend himself during trial. Hence, he cannot be said to be prejudiced in any manner whatsoever in the event he is convicted for sharing common intention with others apart from the accused persons with whom he had been charged.
Accordingly, conviction and sentence of Raju Dubey @ Naru Dubey (appellant no. 2 in C.R.A. No. 437 of 2011) is upheld while that of Ashok Roy (appellant in C.R.A. No. 391 of 2011) and Milan @ Milanmoy Tewary (appellant no. 1 in C.R.A. No. 437 of 2011) are set aside.
Appellants Ashok Roy (appellant in C.R.A. No. 391 of 2011) and Milan @ Milanmoy Tewary (appellant no. 1 in C.R.A. No. 437 of 2011) shall be discharged from their bail bonds after expiry of six months in terms of Section 437A Cr.P.C.
I am informed that Raju Dubey @ Naru Dubey is in custody in connection with another case and he shall be forthwith shown arrested in connection with this case.
Bail bond of Raju Dubey @ Naru Dubey (appellant no. 2 in C.R.A. No. 437 of 2011) is cancelled.
Period of detention suffered by the Raju Dubey @ Naru Dubey (appellant no. 2 in C.R.A. No. 437 of 2011) during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
The appeals are accordingly disposed of.
Copy of the judgment along with L.C.R.s be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.) AP, tkm, sdas, rkd, ss & PA