Calcutta High Court (Appellete Side)
Md. Ainul & Anr vs The State Of West Bengal on 15 May, 2017
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
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. 529 of 2008
Md. Ainul & Anr.
Vs.
The State of West Bengal
With
CRA 330 of 2014
Md. Lala @ Nizam
Vs.
The State of West Bengal
For the appellants in CRA 529/2008 : Mr. Sekhar Basu, Ld. Sr. Advocate
Mr. Somnath Banerjee, Ld. Advocate
Mr. Ranadeb Sengupta, Ld. Advocate
For the appellants in CRA 530/2014 : Mr. Abhijit Bhadra, Ld. Advocate
For the State : Mr. Ranabir Roy Chowdhury, Ld. Advocate
Mr. Mainak Gupta, Ld. Advocate
Heard on : 6.04.2017, 10.04.2017 & 12.04.2017
Judgment on : 15.05.2017
Md. Mumtaz Khan, J. :
These appeals have been preferred by the appellants assailing the judgment, order of conviction and sentence dated July 11, 2008 passed by the Ld. Additional District and Sessions Judge, Fast Track Court-III Barrackpore, North 24 Parganas in Sessions Trial No. 26(7)06 arising out of Sessions Cases No. 22(3)06. By virtue of the impugned judgment appellants were convicted for commission of the offence punishable under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code (hereinafter referred to as IPC) and were sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each in default to suffer further rigorous imprisonment for 2 years each with a direction for set off as per provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr. P. C.). Appellant Md. Ainul was, however, acquitted from the charges punishable under Section 25(1)(a)/27 Arms Act.
The case of the prosecution, in brief, is that on November 19, 2005 at about 10 p.m. four L.P. Lorry loaded with buffalos while proceeding towards Indira Colony along RN Thakur Road for delivery of the buffalos to P.W.1 stopped near a Vat on RN Thakur Road for unloading the buffalos. At that time appellants came there and demanded money from the drivers of those lorries to which they expressed their inability to pay. In the meantime, two of the drivers reported the matter to Md. Bhola, the victim. Accordingly Md. Bhola, the victim, along with P.W.1, P.W.2, P.W.4 and Md. Ijahar went there and told appellant Md. Ainul not to do this as they both deal in buffalos otherwise buffalo business will be stopped. Then an altercation took place between Md. Bhola, the victim and Md. Ainul, the appellant, and in course of altercation appellant Md. Ainul fired at the victim in his abdomen and thereafter all the appellants fled away therefrom. Victim was rushed to the R. G. Kar Hospital and a written complaint (Ext.1) was lodged.
On the basis of the above written complaint of P.W.1 scribed by P.W.9, received by P.W.14 on the same night was forwarded to the IC Belghoria P. S. through constable c/2025 Nemai Dhibar for starting a case. It was received at the Belghoria P.S. on the same night at 23.15 hours and a Belghoria P.S. Case No. 215 dated November 19, 2005 was started against the appellants under Section 326/307 IPC and 25/27 Arms Act and the case was endorsed to P.W.14 for investigation.
In the meantime, on November 23, 2005 at 04.40 p.m. victim died at R. G. Kar Medical Collage and Hospital. P.W.7, medical officer and RMO of R. G. Kar Medical Collage and Hospital then intimated the said death to Tala P.S. On November 24, 2005 inquest was held at the R. G. Kar Medical Collage and Hospital by SI Kousik Das of Tala P.S. in connection with Tala P.S. inquest no. 846/05 dated November 24, 2005 in presence of P.W.5, cousin brother of the victim, and P.W.8, elder brother of the victim. Dead body was removed to NRS Morgue.
On November 25, 2005 at 4.40 p.m. P.W.6 conducted post mortem examination over the dead body of the victim and opined that death was to due to the effects of gun-shot injuries and homicidal in nature.
Charge Sheet being No. 14/2006 dated February 11, 2006 was submitted against the appellants under Section 302/34 IPC and 25/27 Arms Act by P.W.14.
On July 14, 2006 charge was framed under Section 326/34 IPC and 302/34 IPC against the appellant Ainul and Md. Lala @ Nizam and in addition to that under Section 25(1)(a) Arms Act against the Md. Ainul. Subsequently after arrest of the appellant Md. Pappa @ Nausad charge was framed against him on September 15, 2006 under Section 326/34 IPC and 302/34 IPC and after their pleading not guilty to the charges, trial commenced.
Prosecution examined 14 witnesses and after closer of the evidence for the prosecution appellants were examined under Section 313 Cr. P. C. Thereafter defence also examined 3 witnesses including the appellant Md. Ainul. Thereafter, on June 19, 2008 after detection of certain mistakes in mentioning the sections in the charge framed a fresh charge was framed under Section 302 IPC read with Section 34 IPC against all the appellants and under Section 25(1)(a) and 27 Arms Act against the appellant Md. Ainul and after the contents of the charges were read over and explained to them they pleaded not guilty. An opportunity was given to the parties to re-examine or cross-examine any of the witnesses already examined. After neither of the parties was willing to re-examine or cross-examine any of the witnesses argument was heard and thereafter Ld. Trial Judge passed the impugned judgment.
Mr. Sekhar Basu, ld. Senior Advocate appearing for the appellants in the former appeal (in CRA 529 of 2008) submitted that the impugned judgment, order of conviction and sentence are not sustainable for the following reasons:-
1. There were contradictions in between the evidence of reported eye witnesses with regard to the involvement of all the appellants which raises doubt with regard to the prosecution story.
2. According to FIR and P.W.1 there were merely altercation in between Md. Ainul and the victim which shows absence of any common intention towards the involvement of other two appellants in causing the death of the victim.
3. FIR and evidence of P.W.1 was silent about the active participation of appellants Md. Papa and Md. Lala and there was an improvement in this regard in the evidence of reported eyewitnesses P.W.2, P.W.3 and P.W.4. and as such the same affects the veracity of prosecution case in so far as the involvement of those two appellants are concerned.
4. Drivers were known to the victim and the complainant but they did not come into picture either during investigation or during trial.
5. There were contradictions with regard to the nature of the arm used in the commission of the alleged offence as according to FIR it was a pistol whereas according to P.W.11, one of the seizure witnesses, it was a revolver while the I.O. reportedly recovered a pipe gun to be the weapon of offence.
6. There was nothing in the autopsy surgeon report about blackening, tattooing or scorching which demolishes the prosecution story.
7. According to IO he collected entire bed head ticket but only part bed head ticket showing treatment from 23rd November, 2005 onwards was brought on record which did not reveal any gun-shot injury and as such it will go against the prosecution as had it been produced it would have gone against the prosecution and for this reason presumption can be drawn against the prosecution story. P.W.7 even admitted that cause of death is not known as per the death certificate.
8. Contents of the inquest report was not proved by examining the officer of Tala P.S. who held the inquest and only two witnesses proved their signatures. There was also nothing in the record as to under whose instruction dead body was shifted from R. G. Kar Hospital to NRS and even the constable who identified the dead body before the autopsy surgeon was not examined and as such identification of dead body was doubtful.
9. There was non-compliance of the provision of Section 313 Cr. P. C. as no question with regard to the statements of the witnesses recorded under Section 164 Cr. P. C. as also with regard to post mortem examination was put to the appellants as a result right of rebuttal evidence was denied to the appellants.
According to Mr. Basu, learned Court below did not take into consideration the above aspect of the matter while passing the impugned judgment.
Mr. Basu relied on the decisions of in the matter of Ram Kumar Pande Vs. The State of Madhya Pradesh reported in AIR 1975 SC 1026, in the matter of Sujit Biswas Vs. The State of Assam reported in (2013) 4 Supreme 509, in the matter of Mohinder Singh Vs. The State reported in AIR 1953 SC 415, in the matter of Hem Raj and Ors. Vs. Raja Ram and Ors. reported in 2004 SCC (Cri) 1412, in the matter of Ajay Sharma Vs. The State of Rajasthan reported in 1999 SCC (Cri) 74, in the matter of Balu @ Bala Subramanium and Anr. Vs. The State (U.T. of Poducherry) (2015) 4 Crimes 320, in the matter of Manjeet Singh Vs. The State of Himachal Pradesh reported in (2014)5 SCC 697/2014(2) SCC (Cri) 673, in the matter of Sharad Birdhichand Sarada Vs. The State of Maharashtra reported in 1984 SCC (Cri) 487, in the matter of Mohan Sardar Vs. The State of West Bengal reported in 2016(4) C. Cr. LR (Cal) 304 and in the matter of Ishwar Singh Vs. The State of Uttar Pradesh reported in AIR 1976 (SC) 2433 in support of his above submissions.
Mr. Abhijit Bhadra ld. advocate appearing in the latter appeal (CRA 330 of 2014 adopted the above submissions advanced by Mr. Sekhar Basu, ld. Senior Advocate.
Mr. Ranabir Roy Chowdhury, ld. advocate appearing for the state submitted that the case against the appellants was proved beyond all reasonable doubt and P.W.1 fully corroborated the FIR and his evidence remain unshaken and P.W.2, P.W.3 and P.W.4 who were the illiterate persons corroborated the statement of P.W.1 and their statements before the Magistrate also shown there was no deviation from their earlier statement. According to Mr. Roy Chowdhury FIR was not encyclopedia and that it was lodged immediate after the incident and the appellants were known persons. According to Mr. Roy Chowdhury though there was deviation in the evidence of P.W.2, P.W.3 and P.W.4 from the evidence of P.W.1 with regard to direct involvement of appellants Lala Papa along with the appellant Ainul but there were possible as whatever one witness noticed other witnesses might not have noticed. According to him with regard to the contradictions and discrepancies as to the used of arms it was not vital as all the different persons described such type of arm in different name and that it was a short gun and not long one. According to Mr. Roy Chowdhury medical evidence supported the eyewitnesses and there was no denial as to the nature of the injury sustained and according to the doctor there was evidence of scuffling before. According to Mr. Roy Chowdhury PM report is result of examination and it is a medical opinion given before the court which may or may not be accepted by the court and only incriminating evidence with regard to commission of the offence needs to be put during examination under Section 313 Cr. P. C. and not the result of PM report. According to him substantive evidence was put to the appellants during their examination under Section 313 Cr. P. C. and nothing was brought on record to show that any prejudice was caused to them which vitiate the proceeding.
Mr. Roy Chowdhury relied upon the decisions in the matter of Umar Mohammad Vs. The State of Rajasthan reported in 2007(14) SCC 711, in the matter of Shyama Ghosh Vs. The State of West Bengal reported in 2012(3) SCC (Cri) 685, in the matter of Nar Singh Vs. The State of Haryana reported in 2015(1) SCC (Cri) 699, in the matter of Jagan Shravan Patil Vs. The State of Maharashtra reported in 2009(3) SCC (Cri) 1475, in the matter of Prakash Vs. The State of Karnataka reported in 2014(3) Supreme 460 and in the matter of Gopal Chandra Das and Ors. Vs. The State of West Bengal reported in 2016(4) Cal L.T. 306 in support of his above submissions.
We have considered the submissions of ld counsels for the both sides and given our thoughtful consideration to the materials on record to consider the propriety of the impugned judgment, order of conviction and sentence.
On perusal of the evidence of the doctor, P.W.6, and the P.M. report (Ext5) it was evident that while conducting postmortem examination over the dead body of the victim on November 23, 2005, doctor found the following injury:
(1) One abrasion 1'' X ½ '' over right shoulder tip region. (2) One 9½'' long mid-line stitched up wound from tip of the Xiphisternum to downwards along mid-line of anterior abdominal wall. On removal of stitches and cleaning it is found to be a surgical incise wound into the abdominal cavity closed in layers. (3) one transversely oval gun-
shot would of entrance ¾'' X ¼'' X abdomen cavity at and left to mid- line 2'' below xiphisternal tip 48'' above left heel. Margins are reddish color and abraded with evidence of infection. Injury(2) surgical incision incorporated the medial end of the entrance wound (4) Surgical drainage wound ¼ '' diameter roundish into the abdominal cavity situated on the left lower abdominal wall 2'' left to mid-line. (5) surgical drainage wound into abdominal cavity ¼'' diameter 1'' below injury no. 4 (6) Drainage wound ¼ '' diameter into a abdominal cavity 1'' below injury no.5 and 4'' left to mid-line. (7) one colostomy wound on the right mid anterior abdomen of the right side with evidence of transfixing of colon with the wall of wound. (8) one ½ '' X ½ '' abdominal cavity wound of exit on the back of upper left abdominal wall 3'' left to posterior mid-line and 47'' above left heel. In the opinion of the doctor death was due to effects of gun-shot injury and homicidal in nature. Interestingly he was not challenged by the defence on this score. Defence had also not disputed or denied the injuries found on the person of the victim by the doctor, P.W.6, on November 23, 2005 at the time of conducting post-mortem examination and/or the cause of his death. So the question arises how the victim sustained those injuries on his person and/or who caused those injuries? In this regard it was the specific allegations of the prosecution that in course of scuffling in between appellant Ainul and the victim over demand of money by the appellants from the drivers of lorries carrying cows and buffalos, appellants Md. Lala and Md. Pappa in furtherance of their common intention, instructed Ainul to assault the victim and as such Ainul fired at the victim causing bleeding injuries on his abdomen resulting in his death. Defence had denied the allegations of the prosecution and had taken the plea of innocence and false implication.
Now let us see how far the prosecution had been successful to bring home the charge against the appellants beyond all reasonable doubt before the learned court below.
Learned court below took into consideration the evidence of the P.W.1, P.W.2, P.W.3 and P.W.4, the eyewitnesses to the occurrence, besides the evidence of the autopsy surgeon, the IO, and the P.M. report(Ext5) as also the ballistic report (Ext.8) to arrive at a conclusion that the appellants in furtherance of their common intention have murdered the deceased and the charge under Section 302 IPC read with Section 34 IPC was proved against the appellants beyond all reasonable doubt.
With regard to the discrepancies, as pointed by the learned advocate for the appellants, it is the settled proposition that the discrepancies found in the evidences of eyewitnesses cannot affect their credibility unless such discrepancies are so vital. Reference may be made to the decision of Leela Ram vs. State of Haryana, reported in (1999) 9 SCC 525. It is also well settled that there bound to be some discrepancies between the depositions of different witnesses when they speak in details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Reliance is placed on the decision of State of H.P. vs. Lekh Raj, reported in (2000) 1 SCC 247. In the matter of Shyamal Ghosh vs. State of West Bengal, reported in (2012) 7 SCC 646, it has been held by the Hon'ble Apex Court that court should examine the statement of a witness in its entirety and read the said statements along with the statements of other witnesses in order to arrive at a rational conclusion instead of reading statement of a witness in part or in isolation. The above principles of law have been elaborately discussed by us in the Judgment delivered on January 29, 2016 in the matter of Tutul Sk @ Noor Alam & Anr. vs. State of West Bengal.(In re: CRA 824 OF 2006).
In the instant case, it was evident from the evidence of P.W.1, P.W.2, P.W.3 and P.W.4 that above eye witnesses had fully corroborated the prosecution case. They have specifically stated on oath that on November 19, 2005 at about 10.P.M. when four lorries loaded with cows and buffalos stopped near vat on R.N. Tagore Road for unloading then these appellants compelled the drivers to part with their money to which they refused and reported the matter to the victim. Accordingly, victim along with them (P.W.1, P.W.2, P.W.3 and P.W.4) went there and tried to convince the appellants not to do this, then he was shot at by appellant Ainul with a fire-arm causing bleeding injuries on his abdomen. Victim was then shifted to R. G. Kar Medical College and Hospital for treatment where he expired on November 23, 2005. They identified the appellants in course of their examination before court. They were cross-examined at length but their statements-in-chief remained unshaken during cross- examination and nothing was brought on record to discredit them in so far as the appellant Md. Ainul was concerned. Their evidence on oath in so far as the appellant Md. Ainul was concerned appears to be trustworthy and believable. There appears no reason why so many eye witnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them. As such there was no reason to discard their evidences in so far as the appellant Md. Ainul was concerned. The evidence of eye witnesses does not suffer from any infirmity, and appears to be convincing. No significant contradiction or infirmity has been brought to our notice. The wounds found on the body of the victim by P.W.6, the doctor, thus sustain the eyewitnesses' version. It is true that drivers of the lorries in question did not come into picture either during investigation or during trial but in our opinion this will not cause any serious prejudice to the appellants as it is for the prosecution to decide whom to examine and how many witnesses they consider it proper to examine to prove their case against the accused persons. However, it is the duty of the court to see whether the evidence adduced by the prosecution was sufficient to warrant conviction of the appellants. In the instant case, we find that prosecution case was fully established by the direct testimony of the eyewitness, which was corroborated by the medical evidence.
Therefore, our interference with the impugned judgment is not required on the above grounds.
With regard to the discrepancies in the autopsy surgeon report as to the absence of blackening, tattooing or scorching in the wounds, incomplete bed-head ticket, shifting of the victim to N.R.S. Medical college and Hospital from R. G. Kar Medical College and identification of the dead body before the doctor, as pointed by the learned advocate for the appellants, we find from Ext.5 that the autopsy surgeon found entry and exit of gunshot wound in the abdomen of the deceased. Incidentally the report is silent about blackening, tattooing or scorching in the wounds but it was evident from the said report that before postmortem examination there was surgical incision incorporating the medial end of the entrance wound and as such there was little scope to detect such markings.
It is also true that Ext.6, the bed-head ticket in respect of treatment of the victim at R.G. Kar Hospital, is an incomplete one and it only shows treatment from November 23,2005 onwards but the Ext.7, the death certificate issued from the said hospital, clearly shows that victim was admitted there on November 19,2005 and there was multiple gut injuries on account of bullet injury for which there was surgical intervention and the autopsy surgeon report confirms the death of the victim to be due to the effects of gun-shot injury.
The identity of the victim before the autopsy surgeon was never in challenge before the trial judge. Inquest was held in connection with Tala P.S. inquest no.846/2005 dated November 24, 2005 in presence of P.W.5 and P.W.8 who identified their signatures on the inquest report and the death certificate(Ext.7) also refers the said Tala P.S. inquest number. Victim died at the R. G. Kar Medical College, Calcutta and the inquest was also held there but postmortem examination was conducted at the N.R.S. Medical College and Hospital where victim was shifted. Postmortem report (Ext.5) too refers the said Tala P.S. inquest number as also the Belghoria P.S. Case number. According to P.W.6 he held postmortem examination over the dead body of Sk. Bhola in connection with Tala P.S. inquest no.846/2005 dated November 24, 2005 and Belghoria P.S. Case No. 215 dated November 19, 2005 and the dead body was identified before him by constable 2686, H. L. Hore of Tala P.S. He was not challenged by the defence on this score. However, nothing has been brought on record to show why the dead body was shifted to N.R.S. Medical College and Hospital from R. G. Kar Medical College. The police officer of Tala P.S. who held inquest over the dead body of the victim and sent it to N.R.S.Medical college and Hospital for P.M. examination and the constable of that P.S. who took the dead body for P.M. examination and identified the victim before the autopsy surgeon were neither cited in the charge sheet as witnesses due to the fault of the investigating officer nor they were examined by the prosecution but that will not render the prosecution case doubtful and cast a shadow of doubt with regard to the identity of the victim thereby throwing away the direct testimony of the eyewitness.
Therefore, our interference with the impugned judgment is not required on the above grounds.
Regarding contradiction relating to the weapon of offence, we find from the FIR that weapon used in the commission of the offence was described as pistol. Though the eye witnesses have clearly stated that victim was shot at by a firearm but they have not spelt out the exact name of the firearm. According to P.W.14, the I.O., he seized one shorter improvised pipegun (Mat. Ext. 1) loaded with one empty cartridge leading to the statements of the appellant Md. Ainul (Ext.14) from a place by the side of a khatal by the side of Barrackpore Belgharia Railway line by a seizure list (Ext.9) and sent the same to FSL for examination and collected report (Ext.8). P.W.11, one of the seizure witness, identified the said firearm as revolver. But according to P.W.10, Senior Scientific Officer Ballistics, State Forensic Science Laboratory, Govt. of West Bengal, it was an improvised single shot pistol and on examination it was found in working condition and he also found that the same was used for firing sometime before it was received in their laboratory. On comparison of the marks of firing present on the empty cartridge with that mark produced on test fire through that pistol, it was concluded that the said empty cartridge was fired from that pistal. The above statements of Senior Scientific Officer Ballistics, State Forensic Science Laboratory went on unchallenged. However, due to some loopholes in recording the statements of accused Ainul, failure of the prosecution to prove the signature/LTI of the said accused on the labels and owing to certain defect in the sanction order of the District Magistrate, learned court below acquitted the accused Ainul from the charge under section 25(1)(a)/27 Arms Act. We do not want to express our opinion on that count as the same is not under challenge before us. Even if P.W.11 identified Mat. Ext. I as revolver and I.O. as a pipe gun the same was classified as single shot pistol by P.W.10, an expert. This itself shows that common man have little knowledge about the nitty gritty of a small firearm. Under the circumstances and in view of the direct testimony of the eyewitness, the above contradiction does not affect the merit of the case.
Therefore, our interference with the impugned judgment is not required on the above ground.
With regard to the submission as to the omission to put questions with regard to the statements of the witnesses recorded under section 164 Cr. P. C. and the P.M. report during examination under Section 313 of the Cr. P. C., it is settled law that as part of fair trial, section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to give his explanation regarding the circumstances appearing against him in the evidence adduced by the prosecution. It is not necessary to put the entire prosecution evidence and elicit answer but only those circumstances which are adverse to the accused and his explanation would help the court in evaluating the evidence properly. Reference may be made to the decision of Dharampal Singh vs. State of Punjab, reported in (2010) 9 SCC 608 and the relevant portion of the above decision is quoted below:-
"21. As part of fair trial, Section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to give his explanation regarding the circumstance appearing against him in the evidence adduced by the prosecution. The purpose behind it is to enable the accused to explain those circumstances. It is not necessary to put the entire prosecution evidence and elicit answer but only those circumstances which are adverse to the accused and his explanation would help the court in evaluating the evidence properly. The circumstances are to be put and not the conclusion. It is not an idle formality and questioning must be fair and couched in a form intelligible to the accused. But it doe not follow that omission will necessarily vitiate the trial. The trial would be vitiated on this score only when on fact it is found that it had occasioned a failure of justice."
(Emphasis supplied) Any omission to put any material circumstances to the accused does not ipso facto vitiate the trial and that the accused must show prejudice and that miscarriage of justice had been sustained by him. Reference may be made to the decision of Nar Singh vs. State of Haryana, reported in 2015(1) SCC(Cri) 699 and the relevant portion of the above decision is quoted below:-
"20. The question whether trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313 Cr. P. C. has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under section 313 Cr. P. C., it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to safeguard given to him under section 313 Cr. P. C. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused."
It is evident from the record that such plea of prejudice caused to the accused/appellants is raised before this court for the first time. This is a case of the year 2005. It was brought to our notice that appellant no.1 of former appeal and appellant of later appeal are in custody. While the right of the accused to speedy trial is a valuable one, Court has to sub serve the interest of justice keeping in view the right of the victim's family and the society in large.
Statements of a witness recorded under section 164 Cr. P. C. is not a substantive evidence. It can be used to corroborate or contradict a witness. Similarly, postmortem report can be used to corroborate the statements of the doctor. In the instant case, we find from the record that the statements of the witnesses recorded under section 164 Cr. P. C. were not relied on by the trial judge while holding the appellants guilty of the commission of offence of murder. However, no such question was put by the Court with regard to the P. M. Report but for that reason alone, in our view, appellants are not entitled for acquittal. From the questions put to the appellants during their examination under section 313 Cr. P. C., we find that the circumstances which were adverse to the appellants were duly put to them and they gave replies thereto and also set up their defence. In view of the above the contention of the appellants does not lead us to interfere with the impugned judgment on this score.
With regard to the submission as to the proof of criminal act of the appellants in furtherance of their common intention, we find that appellants Md. Lala and Md. Pappa have been convicted for the offence of murder only with the aid of section 34 I.P.C. The cardinal principle of analyzing the evidence to find out the answer to the question of a criminal act of the accused persons in furtherance of their common intention was laid down by Privy Council in Barendra Kumar Ghosh vs. Emperor, reported in AIR 1915 PC 1. In Mahabub Shah vs. Emperor, reported in AIR (32) 1945 PC 118, the Privy Council repeated and reiterated the same view. The above proposition of law was adopted by a Bench consisting of three Hon'ble Judges of the Supreme Court in Pandurang, Tukia and Bhillia vs. State of Hyderabad, reported in AIR 1955 SC 216. The decisions in the matter of Joginder Singh vs. State of Haryana, reported in 1995 SCC (Cri) 178 and State of U.P. Vs. Atul Singh, Etc. Etc. reported in AIR 2009 Supreme Court 2713 are also in the same line.
The above principles of law with regard to the common intention has been elaborately discussed by us in the matter of Gopal Chandra Das & Ors. vs. The State of West Bengal reported in (2016)4 CAL LT 306 (HC).
In the instant case, we find from the FIR as also the evidence of the defacto-complainant, P.W.1, that no such plea as to the common intention in firing at the victim was attributed towards the appellants Md. Lala and Md. Pappa though they were present at the place of occurrence with Ainul who actually fired at the victim. It was only P.W.2, P.W.3 and P.W.4 who have alleged that Ainul fired at the victim on being instructed by the appellants Md. Lala and Md. Pappa. This part of evidence of P.W.2, P.W.3 and P.W.4 appears to be an improvement of the evidence adduced by P.W.1, the complainant and an exaggeration. Though all the appellants after firing fled away from the scene but this itself will not be sufficient to fasten guilt of every member present at the scene of occurrence. However, in so far as the firing by Ainul at the victim in course of altercation has been fully corroborated by each and every eye witnesses. Incident took place on November 19, 2005 and the victim died on November 23, 2005.
A plea of Alibi was taken with regard to the appellant Md. Ainul and to that effect defence even examined three defence witnesses. But, we find from the evidence of D.W.1 that he did not support the above claim of the defence while D.W.2, Kamala Singh, claimed that on the relevant night Md. Ainul stayed overnight at his house due to his illness whereas D.W.3, Golab Singh claimed that on the relevant night Md. Ainul stayed overnight in the company of Hriday Narayan Singh as he was not feeling well. Hriday Narayan Singh was not examined by the defence. Even no such document as to the illness of Md. Ainul was brought on record. Thus, we find that defence has miserably failed to prove the plea of Alibi of appellant Md. Ainul.
Taking into consideration the totality of circumstances, we do not find any evidence on record that there was motive to kill the deceased and/or that appellants Md. Lala and Md. Pappa shared common intention with appellant Ainul to commit the offence under which they were convicted. There was also no evidence that they were also carrying any arms. Merely because of their presence at the scene of the occurrence along with the appellant Ainul can not be ground for their conviction with the aid of section 34 I.P.C. Furthermore, it was not a preplanned cold blooded murder on the basis of long time conspiracy but it was at the spur of the moment in a fit of anger during altercation between victim and Ainul over demand of money from the drivers who brought cattle by their lorries. In such circumstances, taking into consideration the evidences and other materials on record, there was no scope for the learned Court below to convict and sentence the appellants under Section 302 IPC read with section 34 I.P.C. The learned Court below failed to consider at the time of passing the judgment that no evidence was brought on record to prove that there had been an intention to cause death and/or that it was a preplanned cold blooded murder on the basis of long time conspiracy. Therefore, the impugned judgment and the order of conviction and sentence are liable to be interfered with.
Accordingly, we quash and set aside the conviction and sentence of the appellants Md. Lala and Md. Pappa and acquit them of the charge levelled against them and alter the conviction and sentence of the appellant Md. Ainul under Section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code to one under Section 304 Part-I of the Indian Penal Code. For the altered conviction, the appellant Md. Ainul is sentenced to suffer rigorous imprisonment for a period of ten years. The fine imposed upon the appellant Md. Ainul and the default sentence awarded to him remain unaltered. The period of detention of the appellant Md. Ainul undergone during the investigation, inquiry or trial be set off against the period of substantive sentence of imprisonment stated herein above, in accordance with the provision of Section 428, Cr. P. C. If the detention of the appellants Md. Lala and Md. Pappa are not required in connection with any other case, they be set at liberty forthwith.
These appeals are thus disposed of by quashing and setting aside the conviction and sentence of the appellants Md. Lala and Md. Pappa and altering the order of conviction and sentence of appellant Md. Ainul as indicated herein-above.
Copy of this judgment along with the lower court records be sent down to the trial court expeditiously.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)