Calcutta High Court (Appellete Side)
Baira @ Bhimnath Singh vs The State Of West Bengal on 20 May, 2011
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present :
THE HON'BLE MR. JUSTICE GIRISH CHANDRA GUPTA
And
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
CRA NO. 336 OF 1991
Baira @ Bhimnath Singh ... Appellant
Vs
The State of West Bengal ... Respondent
with
CRA NO. 344 OF 1991
Lada @ Dipak @ Pradyut Datta ... Appellant
Vs
The State of West Bengal ... Respondent
CRA NO. 397 OF 1991
Sanjay Biswas ... Appellant
Vs
The State of West Bengal ... Respondent
CRA NO. 11 OF 1992
Tapan Roy Karmakar ... Appellant
Vs
The State of West Bengal ... Respondent
CRA NO. 86 OF 1992
Samiran @ Samiran Dhar ... Appellant
Vs
The State of West Bengal ... Respondent
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Appearance:
For the Appellants
For CRA NO. 336 OF 1991 : Mr. Sekhar Bose
Mr. Deep Chand Kabir
For CRA NO. 344 OF 1991 : Mr. Partha Pratim Das
For CRA NO. 397 OF 1991 : Mr. Debabrata Banerjee
For CRA NO. 11 OF 1992 : Mr. Rabindranarayan Datta
For CRA NO. 86 OF 1992 : Mr. Debashish Roy
For the State Respondent : Ms. Chandreyi Alam
Ms. Sufia Begum
Heard on : 3.2.11, 28.2.11, 14.3.11, 15.3.11
& 16.3.11.
Judgment on : 20.5.2011
RAGHUNATH RAY, J. :
Introduction:
Five Criminal Appeals preferred by convict-appellants separately against the judgment and order of conviction and sentence dated 16.9.91 passed by the learned Sessions Judge, XIIIth Bench, City Sessions Court at Calcutta in Sessions Trial No. I of June, 1988 were taken up for hearing one after the other.
=3= By the judgment of conviction and sentence impugned, the learned trial judge convicted the appellant (1) Baira @ Bhim Singh and (2) Lada @ Dipak @ Pradyut (in short A1 and A2 respectively) for offences under Section 148/307/34 IPC and 302/34 IPC. Accordingly, both of them were sentenced to suffer imprisonment of life and also a fine of Rs. 100/- each in default further R.I. for 14 days. Both of them were further sentenced for R.I. for 7 years and also a fine of Rs. 100/- in default for further R.I. for 14 days in respect of an offence under Section 307/34 IPC. No separate sentence was, however, passed for the offence under Section 148 IPC.
2. The rest three appellants namely, (3) Tapan Roy Karmakar, (4) Sanjay Biswas and (5) Samiran Dhar @ Samir (in short A3, A4 and A5 respectively) were found guilty of offences under Section 147/302/34 IPC and 302/34 IPC. All of them were accordingly convicted thereunder and sentenced to imprisonment for life and a fine of Rs. 100/- each in default whereof R.I. for 14 days under Section 302/34 IPC. All of them were further sentenced to R.I. for 14 days under Section 307/34 IPC. No further sentence was passed for the offence under Section 147 IPC. Substantive part of sentence was directed to run concurrently. Since all these criminal appeals were preferred separately against the judgment impugned, we propose to dispose of the same by a common judgment.
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3. Mr. Rabindranarayan Datta, learned Advocate submits that the appellant Tapan Roy Karmakar had already left this world of living. A report was, therefore, called for from the Commissioner of Police, Calcutta vide order dated 28.2.2011. It was, however, reported inter alia by the Commissioner of Police, Kolkata that despite a thorough enquiry in the locality nobody could throw any light about the death of the said appellant A3.
4. It, however, appears from the report submitted by the Commissioner of Police, Kolkata that the death certificate of appellant Lada @ Dipak @ Pradyut Dutta, A2 issued on 17.9.10 by the Kolkata Municipal Corporation is genuine and he died on 17.9.10 during the pendency of CRA No. 334 of 1991. We are, therefore, concerned with the rest four appeals.
Genesis:
5. A series of incidents took place in quick succession in three different places in close proximity of each other in a chilly winter night on 28.12.1986. The prosecution produced three sets of witnesses in support of three incidents. It has rightly been pointed out by the learned trial court that 'there is no definite evidence on record to show which of the incidents took place first of all'. It can, however, be inferred from the general tenor of ocular evidence as also on close dissection of surrounding circumstances on record that the three points in close proximity as identified by the learned Trial court are the places where the incidents of alleged assault occurred.
A. First incident:
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6. The first incident allegedly occurred on the eastern footpath of Singhee Lane adjacent to Simla Byayam Samity club (in short SBS) on 28.12.86 at about 9.30/9.45 P.M. Such incident was witnessed by PWs 4,6,7,8,9,10 and 15. Of them PWs 7 to10 appeared to be the injured who sustained injuries of different nature because of alleged overt acts by the appellants and other miscreants in course of the first incident. PW 7 was allegedly assaulted with a knife by A1 on the left side of his belly while PW 8 was stated to be assaulted by A2 with a sword-like-small-knife on the left thigh. PW 9 alleged that he was assaulted by A1 with a small sword-like-weapon at the junction of the thigh. PW 10 was said to have been assaulted with a sword like knife in abdomen. PW 6 witnessed the alleged incident from his balcony wherefrom the entire junction of Singhee Lane and T.P.Road and junction of Singhee Lane and Vivekananda Road were visible. All these eye-witnesses found a group of persons including A2 and Ditoo of T.P.Road, A1 and Lintoo of S.C.Street, Ashim Burman of M.P.Lane and Muchi Gopal of Basak Bagan Lane along with 6/7 others carrying weapons like sword, dagger, bombs and revolvers etc. They were found to assault the victims namely,
(i) Prithwis Goswami, PW 7, (ii) Rupnarayan Das, PW 8, (iii)Somenath Kundu, PW 9 and (iv) Pradip Kundu, PW 10.
B. Second incident:
7. The second incident took place on Singhee Lane at the crossing of Singhee Lane with Vivekananda Road. Even though, due to inclement weather, a festival of song and dance under the patronage of the State Government =6= scheduled to be held at Yuba Bharati Krirangan, Salt Lake, was abandoned, the defacto-complainant, Ganesh Agarwal, PW 3 was found standing at the crossing of Singhee Lane and Vivekananda Road and discussing the fate of "Hope 86" with Lalu Das and Ajoy Agarwal at the material point of time. After departure of Ajoy, it was noticed by Ganesh that A1 and A2 along with Muchi Gopal, Lintoo, Ditu and Ashish Burman and 6/7 others came there and surrounded him. All on a sudden A1 and A2 attacked him with knives causing injuries on the left side of his buttock. He also suffered injuries at the upper hip (kuchki). It was further noticed that while Lalu Das was endeavouring to run away, he was intercepted and assaulted brutally with knife, pistol, bombs etc. by those assailants.
Consequently, the victim fell down on the ground near the Park. A1 and A2 together with other miscreants, thereafter, proceeded towards Girish Park along with Vivekananda Road. While escaping they also exploded bombs and fired several rounds from fire arms. This part in the series of incident was witnessed by PW 14. The victim, Ganesh Agarwal, however, returned to his para (mohalla) in injured condition. Sri A. K. Kundu removed him to the hospital and he was discharged after being rendered proper treatment. Another victim Lalu who sustained serious stab injuries, however, died in the Medical College Hospital, Calcutta (in short CMCH).
C. Third incident:
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8. The third and the last in the hectic sequence of deadly events occurred inside 42A and 42B, Sita Nath Road (in short S.N.Road) a couple of cubits inside the common entrance of the two houses. Both A1 and A2 were found inside the premises No. 42-A & B, S.N.Road. Both the appellants started to shout while they entered the said premises. A1 allegedly assaulted Gour with a weapon which looked like sword-cum-dagger in his belly and the victim subsequently succumbed to such stab injuries in CMCH. PW 17, Netai, the brother of the victim was also stabbed in his belly in similar fashion with the same weapon.
He, however, with the scar on his belly survived after his deep wound in the belly being stitched in the SSKM Hospital. He being the brother of Gour, since deceased, who was assaulted earlier in his presence, had an occasion as an injured witness to see the movement and activities of all the miscreants including A1, the assailant who were armed with bombs, sword and dagger etc. Thereafter those two along with other miscreants proceeded towards Vivekananda Road and on reaching there they exploded bombs. PWs 18, 19 and 20 witnessed the third incident.
Topography:
9. In order to ascertain the proximity of the places of occurrence, an idea of the topography of the area where such incidents happened in quick succession, is essentially required. Exts. III and III/I are indicative of a plan depicting a portion of Singhee Lane, Vivekananda Road, S.N.Road, T.P.Road and its surroundings. Topography of the area can, therefore, be gathered from the =8= blue print (Ext. III/I) prepared by Sri A. K. Bhattacharjee, a Police Officer, PW 2 acting as official plan maker. It would appear therefrom that Singhee Lane runs from north to south. Its extremity joined with T.P.Road and the northern end falls on Vivekananda Road while SBS is situated at the eastern foot of Singhee Lane, a little away from its crossing with T.P.Road. The blue print further evinces that there are two arms of S.N.Road. Both joined Vivekananda Road at their northern end. If one walks along Vivekananda Road and Singhee Lane crossing towards west, he will come across S.N.Road at his left. If one travels further along Vivekananda Road, he will get another arm of S.N.Road which meets T.P.Road at the southern end. The first arm of S.N.Road after it proceeds towards south for some distance takes a turn to the west and falls on second road, viz., the second arm of S.N.Road near 3A, S.N.Road.
First Information Report:
10. The statement of Ganesh Agarwal, PW 1 of 31/1, Ramtanu Bose Lane, Calcutta-6, an employee of M/s. Ashok Hosiery at Baranasi Ghosh Street who also sustained injuries in course of second incident was recorded by S.I., S. Banerjee, PW 41 and the said statement was subsequently treated as an FIR. On the basis of such FIR, Jorasanko P.S. case No. 661 dt. 29.12.86 under Sections 148/149/307 and 302 IPC read with Sections 3 and 5 of the Explosive Substance Act and also Sections 25 and 27 of the Arms Act was registered in the intervening night of 28/29.12.86 against six accused (i) Lada, (ii) Baira, (iii) Gopal =9= @ Muchi Gopal, (iv) Lintoo, (v) Ditu, (vi) Asim Burman along with 6/7 others for investigation.
Investigation:
11. During investigation, both the I.O.s i.e. PWs 41 and 42 recorded the statements of nearly 35 witnesses in total in terms of Section 161 CrPC and also seized a good number of documents from the hospital records. Two separate P.M. reports in respect of two victims, viz., Gour and Lalu were also collected by PW 41. PW 42 recovered a revolver loaded with two live cartridges kept concealed in the debris as per showing of A5 (vide Ext 2/31). There was also further recovery of blood stained knife together with torn white trouser stained with blood kept concealed in the debris as per showing of A2 (vide Ext. 4/1) in course of investigation. He further collected forensic reports (Exts. 15 & 16 series). He also seized wearing apparels of some of the appellants under proper seizure lists (Ext. 2 series) in the presence of witnesses. After completion of investigation on 30.3.87, the second I.O., PW42 submitted the charge sheet under Section 148/149/302/307 and 324 IPC against A1, A2, A3, A4, A5 and five others out of them A1 and the rest four were shown as absconders. The case was committed to the ld. Court of Sessions by the learned Metropolitan Magistrate, 11th Court, Calcutta on 15.2.88.
Heads of the Charge:
= 10 =
12. Pursuant to the said commitment, the appellants hereinabove were arrayed in Sessions Trial no. 1 of June 1988 before the learned XIIIth Bench of the City Sessions Court, Calcutta to answer the following charges:
"First - That you along with four absconding accused persons viz. Lintoo @ Ardhendu Das, Asim Burman, Ditu @ Diptendra Burman and Gopal @ Muchi Gopal on 28th December, 1986 at about 9.30 P.M. on Singhee Lane, crossing of Vivekananda Road, with Singhee Lane and Sitanath Road complex, were member of an unlawful assembly and did in prosecution of the common object of such assembly, viz. to murder Lalu Das and Gour Chandra Das and to assault Prithwis Goswami, Netai Chandra Das, Pradip Kundu, Somenath Kundu, Rupnarayan Das and Ganesh Kumar Agarwal commit the offence of rioting and at that time were armed with deadly weapons, to wit, knife, bomb, sword, dagger, revolber etc. and thereby committed an offence punishable under Section 148 of the Indian Penal Code and within the cognizance of the Court of Sessions.
Secondly - That you along with four absconding accused persons viz. Lintoo @ Ardhendu Das, Asim Burman, Ditu @ Diptendra Burman and Gopal @ Muchi Gopal on the same date, hour and place as mentioned in court No. 1 above, in furtherance of common intention of you all, did commit murder by intentionally and/or knowingly by causing the deaths of Lalu Das and Gour Das and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and within the cognizance of the Court of Sessions.
Thirdly - That you along with four absconding accused persons viz. Lintoo @ Ardhendu Das, Asim Burman, Ditu @ Diptendra Burman and Gopal @ Muchi Gopal on the same date, hour and place as mentioned in court No. 1 above, were members of an unlawful assembly and did in furtherance of common intention of you all being armed with deadly weapons viz. knife, sword, dagger, bomb, revolver, etc. cause hurt by intentionally or knowingly to Prithwis Goswami, Netai Chandra Das, Pradip Kundu, Somenath Kundu, Rupnarayan Das and Ganesh Kumar Agarwal and under such circumstances that if by that act you had caused the death of Prithwis Goswami, Netai Chandra Das, Pradip Kundu, Somenath Kundu, Rupnarayan Das and Ganesh Kumar Agarwal, you would have been guilty of murder.
And thereby committed an offence punishable under Section 307 read with Section 34 of the Indian Penal Code and within the cognizance of the Court of Sessions."
= 11 = Trial:
13. In course of trial, the prosecution examined as many as 42 witnesses including the defacto-complainant, several doctors and I.O.s and also relied upon a plethora of documents (Exts. 1-series, 2-series, 3, 4, 9-series, 10, 11, 12-
series, 13-series & 14-series) in support of its case. On the other hand, none was examined from the side of the defence to substantiate its plea of false implication on the ground of the political rivalry and groupism amongst the members of SBS and its rival club. The defence case, gathered from the trend of cross-
examination and the appellants' examination under Section 313 CrPC, is that since the appellants and the injured were the members of two different clubs, there was an outstanding enmity against each other. It was also contended inter alia that because of rivalry and the appellants' refusal to work in the Election Campaign of Krishna Chandra Kundu, PW 13, a Councillor of the locality, they had falsely been implicated in this criminal case even though all of them are innocent.
14. Upon consideration of both oral and documentary evidence coupled with other surrounding circumstances and relevant materials on record, and having made its detailed assessment in the light of various judicial pronouncements of the Apex Court cited by the contesting parties, the learned trial court was of the view that the prosecution had fairly succeeded in establishing the charge under Section 148/307/34 and 302/34 IPC against accused Lada @ Dipak @ Pradyut Datta, A2 who expired during pendency of the = 12 = appeal and also against Baira @ Bhimnath Singh, A1. The learned trial Judge further found accused Ashish Kundu (not before us), Tapan Roy Karmakar, A3, Sanjay Biswas, A4 and Samiran Dhar @ Samir, A5 guilty of offences under Section 147/307/34 and 302/34 IPC. All of them were convicted thereunder and sentenced accordingly as indicated in the preceding paragraphs.
Appeal:
15. Assailing the judgment and order of conviction and sentence impugned, Baira @ Bhimnath Singh, the convict-appellant A1 and A2 preferred CRA NO. 336 of 1991 and CRA NO. 344 of 1991 respectively while CRA NO. 397 of 1991, CRA NO. 11 of 1992 and CRA NO. 86 of 1992 were filed by the co-
convict appellants Sanjay Biswas, A3, Tapan Roy Karmakar, A4 and Samiran Dhar @ Samir, A5 respectively.
16. In support of CRA No. 336 of 1991 and CRA No. 86 of 1992 a separate memorandum of argument was submitted on behalf of A1 and A5 respectively. No memorandum of argument was, however, filed on behalf of A3 and A4 in CRA No. 397 of 1991 and CRA No. 11 of 1992 respectively.
17. Argument on behalf of A1, Baira @ Bhimnath Singh:
A. (i) Mr. Deep Chand Kabir, learned Advocate appearing for the appellant Baira questioned the prosecution story of bomb blasts causing fatal injuries to the victims and the injured. More so, whenever, there is nothing on record to indicate that the remnants of bombs or blood stained earth etc. were ever seized from the P.O. In this connection, he also referred to the relevant portion of the testimony of PWs 3, 4, 6, 7, 8, 9, 10 & 15 to show that no shot was fired or = 13 = bomb was blasted when alleged incidents occurred. It is pointed out by him that PW 3 gives out in his cross- examination that no shot was fired or bomb was blasted within his eyesight and he heard only the sound. PW 4 also testifies that he heard only the firing and sounds of bombs within three minutes after leaving the place. Similarly, PW 6 says that no bomb or pistol was used on the spot. PW 7 also cannot remember if he heard any sound of bomb while leaving the place. PW 8 says that after he went to SBS he heard sounds of bombs from Singhee Lane and Vivekananda Road crossing. PW 9 states that he did not hear any firing or sounds of bomb blast while proceeding to the house of PW 15 who deposes that he cannot recall whether he heard any sound of bomb. On the other hand, PW 10 states in examination-in-chief that he heard sounds of firing and bomb blasts. But it is extracted from his cross-examination that he did not hear any bomb blast or firing. PW 14 categorically testifies that no bombs were exploded and no shots were fired within his eye sight. PW 16, makes no whisper about bursting of bombs or firing of shots within the four corners of his testimony. PW 19, however, says that he heard a sound of bomb explosion from Vivekananda Road side. PW 36, the ballistic expert who examined fire arms categorically deposes that he did not receive any fired bullet for the purpose of examination.
(ii) It is further argued that there is nothing on record to suggest that the remnants of bombs or blood stained earth were ever seized from the P.O. It is, therefore, submitted that evidence on bomb blasts and firing of shots is inconsistent and self-contradictory. So, such discrepancies on vital and material aspect of the matter remained unexplained during trial. He is, therefore, of the view that such discrepancies and inconsistencies of substantial nature are sufficient to evoke suspicion in the mind of the court about the genuineness of the prosecution story.
(iii) He also highlighted material discrepancies in the testimony of PWs 3, 4, 5, 6, 7, 8 and 9 on the point as to how, when and wherefrom both the victims namely, Gour since deceased and Netai, injured were brought to the hospital after the incident. According to him, while PW 3 stated that PWs 7 to10 together with Lalu and Gour were = 14 = brought to SBS and were taken to hospital therefrom while others including PW 14 testifies that Gour and Netai were brought later and PW 14 specifically says that PWs 3, 8, 9, 10 and Lalu since deceased were taken together to the hospital in a Police van. It is, therefore, argued by him that such vital discrepancies in the testimony of prosecution witnesses corrode their credibility and thus considerably weaken the prosecution case.
B. Mr. Kabir takes us through the testimony of PWs 8 and 10 and submits that both of them talked about assault on them by A2 but none of them spoke about any assault on the person of their companions i.e., PWs 7 and 9 by A1. PWs 4 to 10 and 15 also did not state that they saw any assault either on PW 3 or Lalu since these injured eye- witnesses had no occasion to see the second or third incident. Therefore, the involvement of A1 in all the alleged incidents is not established.
C. Mr. Kabir also doubted the trustworthiness of PWs 1, 2, 23, 25 and 39 who depose in the Court for the first time without being examined by the I.O. during investigation.
D. (i) It is next argued by him that medical evidence adduced through PWs 23, 25, 26, 27 and 29 suffers from serious infirmities in terms of nature of assault and injuries sustained by the victims. According to him, injured witnesses' claim that they sustained injuries on vital organs threatening their lives is not backed by medical evidence on record. On the contrary, there is a conclusive medical opinion that buttocks, thighs or hips are not vital organs of human body and as such assault on these parts cannot endanger human lives. He has also referred to the medical evidence of PW 25 who medically examined Netai Das, PW 17 at SSKM Hospital and stated in his evidence that he performed an operation on the patient who was brought by somebody who stated that he received first aid at MCH. Two stitches were given on the abdomen and later the patient was discharged as a minor case. It was further detected that the patient had pulmonary tuberculosis and the diagnosis was intestinal injury with pulmonary tuberculosis. The Doctors, however, stated that the patient would have succumbed within 7 days unless the operation was performed. It is gathered from his cross-examination that the Police did not obtain his medical opinion during investigation and he is deposing for the first time. It is extracted in his cross-examination that the injuries might also be caused by a person falling on a sharp pointed object like a railing or by sharp cutting pointed weapon.
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(ii) Referring to the evidence of PW 26 who medically examined PW 7 at MCH it is submitted by him that the victim suffered from pain in abdomen following assault by a knife on 28.12.86 at 10.00 P.M. in Singhee Lane near SBS.
He was allegedly assaulted by A2, A1 and other unknown persons as per his version in the chief. During cross-examination, PW 7, however, speaks otherwise. It is stated therein that he mentioned the name of A1 as the assailant to the doctor at the MCH and further that he received only one knife blow. His younger brother as PW 24 deposes that he came to know from him (PW 7) that he was stabbed by A1. That apart, PW 26 specifically admits that he did not note the names of assailants at the place where he mentioned the cause of injuries sustained by the injured. Rather, the names had been mentioned in the left hand side of the body and to some extent overlaps the body writing itself presumably because the names were given later on. It is also admitted by him that he did not mention from whom he derived the history of assault including the names of assailants. In view of serious discrepancies and inconsistencies in the testimony of PW 7, the injured, PW 24, the brother of the injured and the doctor, PW 26 who medically treated the injured, their evidence implicating A1 as the sole assailant in causing stab injuries on the left side of his belly is to be viewed with suspicion and no reliance should be placed upon the same.
(iii) He also castigates the findings of post mortem doctor PW 27 who conducted Lalu's P.M. examination at MCH on the ground that the same are inconclusive. Injury No. 1 as found by him was one incised cut penetrating wound (stab wound). He also detected three abrasions of different types and sizes over middle of front of chest, over front of right knee and right leg. According to the doctor, injury No. 1 was caused by a sharp edged pointed weapon = 16 = and the said injury No. 1 was alone sufficient to cause death. Further, abrasions might have been resulted from fall following stab injuries. He is of further opinion that if a person receives an injury caused by an assailant with a weapon like M. Ext. XIV or a sword on hip, thigh or buttock and is left unattended he will go on bleeding for such injuries and ultimately he may die. He has thus pointed out serious inconsistencies in the medical opinion which is based on surmises. He further argues that there are plenty of infirmities in the medical evidence which is also not in conformity with the ocular testimony of injured eye-witnesses.
(iv) Similarly, the medical findings of another post mortem doctor, PW 29 who held the post mortem on Gour, another victim, are also under challenge. He found four injuries. He opined that injury No. 2, that is, a penetrating wound on front abdomen to the left side of midline being spindle shaped was caused by a two edged weapon while injury No. 4 that is, a stitched up wound on left thigh might have been caused by a single edged weapon. Mr. Kabir submits that the doctor has confused the matter further by stating that injury No. 2 might have been caused by a single edged weapon, even though "probability will be that the weapon at both the margins sharp. The chance of injury having been caused by a weapon with one sharp edge is remote". Such inconsistent and self-
contradictory medical opinion would not be useful in ascertaining the cause of the death of the victim. In such perspective of the matter, he is of the view that the medical evidence is at variance with the ocular evidence tendered by eye- witnesses.
E. (i) In the last leg of his argument, Mr. Kabir has strenuously argued that the evidence on record does not reflect that A1 had an intention to kill the deceased and according to him, ingredients of offences under Section 302 IPC cannot be attracted in the facts and circumstances of the present case. Analyzing the evidence of eye-witnesses = 17 = coupled with surrounding circumstances on record in his own way, it is submitted by him that it is evident from the very nature of the allegations and the supportive evidence sought to be led by the prosecution, that the assailants assaulted the victims at random without making anyone, in particular, their target of attack. The intention to kill the victims cannot in any way be gathered from the materials and circumstances on record. Rather, witnesses depose in one voice that they had not witnessed any shots fired and/or any bomb hurled which would directly refute any allegation that the appellants, particularly, A1 had any intention to kill the victims. Such presumption is strengthened since nothing was found in course of investigation to indicate that any remnants of bombs that is, bomb fragments or splinters etc. or fired bullets or even blood stained earth etc. were ever recovered from the P.O. That apart, no injury was suffered by any one present due to explosion of bomb or due to firing of shots and further evidently the incidents which lasted for a few seconds only, did not encompass assault on the victims of such a magnitude that can be said to attract the provisions of Section 302 IPC.
(ii) He further proceeds to argue that even if the evidence of eye-witnesses is taken into consideration, it would be obvious that they spoke about a haphazard assault wherein A1 and his associates purportedly attacked the victims indiscriminately and passed on after a few seconds without ensuring any logical end to their alleged attack. Furthermore, the nature and dimension of incidents unfolded during trial also do not indicate that the appellant A1 had the intention to kill anyone. More so, whenever the injured victims did not suffer serious injuries on any vital parts of the body and as per medical evidence, buttocks, thighs or hips cannot be regarded as vital areas of the body. He has also highlighted another significant circumstance wherefrom it would appear that none was assaulted more than once and such alleged assault was over even within a few seconds without any follow-up action by the appellants. There is cogent and clear evidence to establish that no shots were fired and no bombs were hurled towards any of the victims who were either allegedly assaulted by a knife or were roughed up. According to him, none of the assaults was made in a pre-meditated manner to kill the victims. In fact, there was no calculated move to take away the lives of the victims. There is nothing on record to indicate that any of the victims was chased by A1. On the contrary, there is positive evidence that the injured witnesses or purported eye-witnesses who ran away were not chased or targeted in any manner by A1 beyond the initial assault as alleged.
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(iii) In this context, he refers to a ruling of the Apex Court reported in 2008 CrLJ 4353 (Bangaru Venkata Rao vs. State of A.P.) wherein it is held that if it is established that the act complained of was committed without premeditation in sudden fight in heat of passion upon sudden quarrel the offences can be brought under the purview of Section 304 Part 1 IPC. He has also relied upon another ruling of the Apex Court reported in JT 2009 (13) SC 662 (Baban Bandu Patil vs. State of Maharashtra). It is held therein that Exception 1 of Section 300 IPC is applicable to a case of sudden quarrel where the appellant gave a blow to the accused without premeditation in course of sudden quarrel and such blow resulted in the death of the deceased.
(iv) Reliance has also been placed upon another ruling of the Apex Court reported in 2010 CrLJ 450 (Gurmukh Singh vs. State of Haryana). In this case the Apex Court altered the conviction of the appellant under Section 302 IPC to a conviction under Section 304 Part II IPC. It was observed inter alia therein that in cases of single injury the facts and circumstances of each case have to be taken into consideration before arriving at the conclusion whether the accused should be appropriately convicted under Section 302 IPC or under Section 304 Part II IPC. Mr. Kabir has further relied upon another ruling of the Apex Court reported in 2010 CrLJ 392 (Naimuddin vs. State of W.B.). In this case also conviction under Section 302/34 IPC was found not sustainable and the appellant was convicted under Section 304 Part II/149 IPC. The case of D. Sailu vs. State of A.P. [2008 CrLJ 686] has further been cited to show that considering the background facts Exception IV to Section 300 IPC was invoked and conviction under Section 302 IPC was altered to one under Section 304 Part I IPC by the Apex Court.
Argument on behalf of A3, Sanjay Biswas:
18. Appearing on behalf of A3 in CRA No. 397 of 1991, Mr. Debabrata Banerjee, the learned advocate assailed the judgment impugned on the following grounds:
(a) There is nothing on record to indicate as to who identified the dead bodies of Lalu and Gour, since deceased, to the I.O. even though, as per evidence on record Paramhangso, Constable No. L-120 identified those two dead bodies before the autopsy surgeon for their P.M. examination,
(b) Evidentiary value of T. I. Parade in respect of the suspect Sanjay Biswas is nil since he was identified to the identifying witnesses by the Police Personnel during his police custody. In this connection, reliance has been placed upon a ruling of the Apex Court reported in AIR 1988 SC 345 (Hari Nath Chhabi Nath Raj Nath vs. State of = 19 = Uttar Pradesh) in support of his contention. No explanation is also forthcoming from the side of prosecution as to why inordinate delay was caused in holding T. I. Parade,
(c) The name of A3 does not figure in the FIR. That apart, the unusual behaviour of witnesses coming out of their respective homes and gossiping under open sky by the side of a deserted street of north Calcutta in a stormy weather of a chilly night towards the end of December, 1986 is against the normal human conduct and, therefore, it strains our reasons.
(d) No specific overt act has ever been alleged against him within the four corners of the testimony of the injured eye-witnesses. Referring to paragraph 29 of a ruling of the Apex Court reported in (1988) 2 SCC 96 [Paras Nath Singh vs. State of Bihar] it is argued that Section 302 read with Section 34 IPC cannot be attracted since no overt act whatsoever had been attributed to the co-accused. In the present case, when the co-accused were very much known to the eye-witnesses, non-mention of their names in the evidence as to their participation throws a great deal of doubt as to their sharing of common intention.
(e) Evidence on record is not sufficient to indicate that A3 shared common intention and premeditation with the rest of the appellants. In support of his contention, he refers to a decision of the Apex Court reported in 2008 (15) SCC 501 (Arun vs. State by Inspector of Police, Tamilnadu). In fact, participation of A3 in the series of gory incidents allegedly occurred at 9.30 P.M. to 9.45 P.M. on the fateful day is not proved from the materials on record.
(f) Even, during the examination of A3 under Section 313 CrPC, it was simply put to him that he was amongst the miscreants who formed an unlawful assembly causing injuries to several persons out of whom two had to succumb to their injuries. Not a single question intending to attribute any overt act was put to him in course of his examination under Section 313 CrPC by the learned trial court.
Argument on behalf of A5, Samiran Dhar @ Samir:
19. In support of CRA No. 86 of 1992 preferred by A5, Mr. Debashish Roy, learned advocate formulated the points for argument as under:
i) A5 was not named in the FIR.
ii) He was arrested from Vivekananda Road on 9.1.87 by the first I.O., PW 41 who had already made over
the charge of investigation to PW 42 on 7.1.87 and as such his arrest was highly irregular and illegal.
iii) He was placed in a T. I. Parade 20 days after arrest.
= 20 =
iv) PWs 4 and 5 simply stated about his complicity in commission of offences alleged without giving
details as to how he could be implicated in this case only on the ground of mere complicity.
v) Even though, the medical report speaks about profuse bleeding, no blood stained earth was collected by the I.O. even from inside the house where occurrence allegedly took place.
vi) Non-examination of material witnesses, namely, Krishnakanta Roy, a constable who brought the victim Lalu Das in a Police vehicle to the CMCH as available from the injury report, is fatal for the prosecution. The driver of the said Police vehicle has also not been cited as a witness in the C.S. for the reasons best known to the prosecution.
vii) There was a calculated inaction on the part of the investigating officers and as such important pieces of evidence that transpired during investigation were not collected and follow-up links which came to light in course of investigation were not maintained to find out the true state of affairs emerging out of a series of incidents of assault upon the victims since deceased and the injured. Moreover, further investigation in right direction was not carried out with sincerity and promptitude as required in the case of double murder.
viii) Even though, injury reports were in the custody of the investigating officers, no steps were taken either to get the same exhibited or to summon the doctor to prove the injuries on the person of the injured.
ix) No explanation is on the fore as to why the services of PWs 1 and 2 were pressed belatedly. Curiously enough, instead of requisitioning the service of the photographer, PW 1 and the plan maker, PW 2 on the very date of the incident or on the following day thereafter, both of them were asked to perform their respective job after the lapse of considerable period of time.
x) Even though, evidence on record indicates that only one type of weapon was used to cause alleged injuries by the assailants, medical documents, however, speak about various types of injuries on the person of different victims which is virtually impossible as per evidence of Dr. Ajoy Kumar Gupta, PW 27.
xi) Authenticity of medical certificate issued in connection with the medical treatment of PW 7 issued after three months from the date of incident can easily be doubted. The course of natural investigation was diverted and fictitious allegations were levelled against the appellant Samiran since Krishna Chandra Kundu, PW 18, the erstwhile Councillor of the locality exerted his political clout to malign the appellant.
= 21 =
xii) Strangely enough, even though, he did not name the appellant Samiran as one of the assailants, he identified A5 as one of the members of the group of unknown assailants in the T.I.Parade. Such conduct of the witnesses is highly suspicious.
xiii) Similarly, although PW 8, another injured witness was allegedly assaulted in front of SBS by A2 with a sword-like-knife and he did not name A5 as one of the assailants, he identified A5 as one of the unknown miscreants at the T.I.Parade.
xiv) PW 9 neither identified A5 as one of the members of the group of assailants nor could he identify any one during the T.I.Parade. He even could not identify A5 in open court during trial. In course of cross-examination, he also stated that prior to his assault, he did not hear any shouting or noise at the locality.
xv) PW 10 also did not name the appellant as one of the assailants. But mysteriously, he identified the appellant as one of the assailants in the group of the unknown assailants.
xvi) The sequence of events speaks for itself. Neither the provisions of Section 302 IPC nor Section 307 IPC is attracted in the present case. Even if it is admitted for argument's sake that A5was in the company of his associates against whom serious accusation of assaulting the victims is there, the same cannot be deemed to be sufficient to infer the appellant's intention to kill them.
xvii) Although two persons namely Gour since deceased and his brother Netai were assaulted inside the premises causing serious bleeding injuries on their person, the I.O., did not find any trace of blood stains therein even though there was no chance of the same being washed away by rain water.
xviii) PW 20, a so-called pre and post occurrence witness to the happenings in the residence of PW 18, did not name A5 as one of the assailants but interestingly he also identified Samiran as a member of the group of unknown miscreants in the T.I.Parade.
xix) The story of recovery of a revolver together with two live cartridges from a packet kept concealed in the debris of a house beside 'Kunal Medical Hall' by the Police at the instance of A5 is not at all believable for the simple reason that no statement of A5 to that effect was recorded by the I.O. prior to the alleged recovery. That apart, the papers in the packet in which the articles were wrapped originally were not produced before the court.
xx) The exact time of occurrence was not given by any of injured eye-witnesses PWs 3 to 10, 14 and 17 to 20 and further their evidence was also not consistent to pinpoint the P.O. where the alleged incidents occurred.
= 22 = xxi) The nature of injuries and weapons used for causing such injuries do not match each other. Phraseology like double-edged weapon, sword-like-weapon, sword-like-knife or simply with a knife or a weapon which look like sword-dagger, in fact, is bound to create a lot of confusion in the mind of the court about the exact nature of the weapon actually used by the assailants as also the extent and nature of injuries sustained by the victims consequent upon such assault. In course of cross-examination on behalf of A1, PW 29 opined that injury No. 4 was an incised wound and it might have been caused by a sharp cutting weapon with pointed tip and may even be from a single-edged weapon. Injury No. 2 might have been caused by a pointed sharp cutting weapon with sharp margin on both sides. But subsequently he deviated from such opinion and suggested that the injury No 2 might have been caused even if one edge of the weapon is sharp though 'probability will be that the weapon at both the margins sharp'. Again he added that the chance of use of single-edged sharp weapon to cause such injury is remote. Such discrepant medical opinion cannot help the court to come to a definite finding about the nature of injuries and weapons used to cause such injuries.
xxii) PWs 4 and 5 identified A5 during the T.I.Parade. But both the deponents and A5 being the residents of the same para were known to each other. Admittedly, this fact was not brought to the notice of the learned Metropolitan Magistrate, PW 31 who conducted the T.I.Parade. In such a situation, identification of A5 by PWs 4 and 5 in course of T.I.Parade is of no help to the prosecution.
xxiii) Even though the statement of PW-3 which was subsequently treated as an FIR was recorded in the emergency Unit of CMCH the signature of attending nurse and doctor did not figure therein.
xxiv) The signatures of the informant appearing on the left hand margin of the FIR is doubtful since the normal and usual practice prevailing in our country is to put in the signature on the right margin.
xxv) It is doubtful that Lalu was not removed along with PW 3 to CMCH in the same Police vehicle even though both of them sustained injuries in course of the second incident.
xxvi) As per the second I.O., PW 42 controlled earth was seized from 2, S.N.Road while the seizure list
speaks about seizure of the same from 6, Singhee Lane.
xxvii) The contents of FIR stand contradicted by the informant PW 3 himself in his testimony as PW 3. As per FIR, the informant returned to Para Mahalla after alleged assault and was taken to CMCH by A. N. Kundu, PW 16. The informant as PW-3 developed a new story in his deposition to the effect that he was taken to SBS by the Para = 23 = people. He was taken therefrom to the CMCH along with the other injured by the Police in a Police van. The informant, however, stated in the FIR that he came to know about others' injuries when he met them in the Hospital.
xxviii) Non-examination of Ajoy Agarwal with whom Ganesh Agarwal, PW 3 was deliberating on 'Hope 86' remains unexplained.
xxix) PW 14 spoke about the presence of the witnesses namely, Kanai Das, the gardner of SBS and Mr. Jugal Das. Both of them used to stay in the Gardner quarter and are material witnesses since they witnessed the incident. But none of them was cited as a witness in the C.S. xxx) The sequence of events narrated by PW-3 does not corroborate with that of other injured eyewitnesses.
xxxi) It is also startling to note that none of the injured even though sustained injuries after being assaulted, raised any alarm to save themselves.
xxxii) It is gathered from the testimony of PW-6 that all the injured namely a) Prithwis Gowsami, PW 7, b) Rupnarayan Das, PW 8, c) Somenath Kundu, PW 9, d) Pradip Kundu, PW 10 and e) Netai Das, PW 17 were stabbed twice by a knife but only one injury was found as per Medical Report. The weapon used by them was allegedly a knife.
xxxiii) PW6 who used to wear a spectacle having minus power for ten years cannot be expected to witness the incident from his balcony covering a considerable distance. In such a situation, the claim of PW 6 that he witnessed the incident from the first floor balcony can easily be belied.
xxxiv) No person from the nearby area witnessed the alleged recovery of the weapon of assault and was not examined subsequently by the second I.O., PW 42.
xxxv) Recovered knife and revolver were not sent to the finger print expert for its chemical examination. Per Contra:
20. Refuting the various facets of argument advanced on behalf of the appellants, it is assiduously argued by Mrs. Chandreyi Alam, learned counsel appearing for the State that there are sufficiently strong, cogent and consistent evidence and circumstances on record to prove the guilt of appellants satisfactorily. So, the learned Trial court's order of conviction and sentence is founded on the legal evidence. It is further argued by her that even though A3, A4 and A5 were not named by the witnesses during their examination under Section 161 CrPC as also in course of narration of = 24 = the incidents before the Court and were simply mentioned as associates of principal accused Baira and Lada, these appellants, namely, (i) Sanjay, (ii) Samir and (iii) Tapan were identified by the two injured witnesses namely, (i) Somenath Kundu, PW 7 and (ii) Pradip Kundu, PW 10 and also by other five eye-witnesses namely (i) Rabinsankar Das, PW 4, (ii) Tarun Das, PW 5, (iii) Achinto Kumar Das, PW 14, (iv) Anil Das, PW 19 and (v) Swapan Pramanick, PW 20 during the T.I.Parade on 30.1.1987. No complaint whatsoever was made by the appellants before the learned Metropolitan Magistrate, Kolkata either before or after the hoding of the T.I.Parade. Their involvement in those incidents has, therefore, been well-established because of their identification by at least two injured witnesses and five eye-witnesses during the T.I.Parade.
21. It is further submitted by her that the terribly dreadful incidents took place in three phases in quick succession and in the first occurrence, a good number of persons sustained injuries while the defacto-complainant sustained injuries on his buttock as also upper lip and Lalu suffered fatal stab injuries causing penetrating wounds in the second incident as per postmortem report. Both the brothers namely Gour and Netai sustained serious injuries in the third incident while Gour succumbed to his injuries and Netai survived despite such a dastardly attack. Although several persons sustained injuries in course of these three incidents happened in quick succession, the sequence of the events analysed in its proper perspective would tend to show that Lalu and Gour were the intended targets. Ultimately, the assailants succeeded in causing death of two innocent victims while causing injuries to a good number of persons as well.
22. It is also specifically argued by her that it is absurd to suggest that there was no overt act on the part of A3, A4 and A5 for the simple reason that they proceeded from one place to another in course of the series of events in the same transaction in search of their targets and such conduct of these appellants is sufficient to indicate that all of them shared common intention in causing death of Lalu and Gour and as a member of unlawful assembly, they cannot avoid vicarious liability. In this context, he has, in particular, referred to the cogent testimony of PW 18, 19 and 20 to indicate that they corroborate each other on the mode of assault perpetrated upon Gour by A1 and their associates which include A2, A3, A4 and A5 respectively. They have also identified all the appellants in Court.
= 25 =
23. On the question of not holding inquest in respect of two dead bodies, it is argued by her that the inquest is necessitated to ascertain whether a person had died under the circumstances which were doubtful or an unnatural death. There is no indication that the victims died under suspicious circumstances or it was an unnatural death. Therefore, having regard to the nature of incidents, delineated in the narration of witnesses, it cannot be said that holding of inquest as per Section 174 IPC is a must in the facts and circumstances of the present case. So, there is no irregularity in this case on that score.
24. It is further argued by her that the participation in the assault established by legal evidence is sufficient to bring the dreadful offenders within the purview of Section 34 IPC. A good number of persons armed with deadly weapons assaulted the unfortunate victims. It cannot be construed as an accident but it speaks about deliberate design of the assailants. In fact, without prior meeting of minds the appellants could not come together equipped with deadly weapons in quick succession at three places having close proximity with each other in order to assault the unarmed innocent victims and the injured.
Profile:
25. In order to have a better grasp on the gamut of the entire ocular evidence on record, it would be convenient to outline the various prosecution witnesses by categorising them broadly in their individual heads as under:
a) Injured eye-witnesses - I) First Set:
i) Prithwis Goswami, PW 7, ii) Rupnarayan Das, PW 8, iii) Somenath Kundu, PW 9 and iv) Pradip Kundu, PW 10 sustained injuries in course of the first incident which was also witnessed by v) Nirmal Das, PW 6 from the east facing balcony of the first floor of his house.
II) Second Set:
= 26 = In course of the second incident i) Ganesh Agarwal, PW 3, the defacto-complainant was assaulted and injured while Lalu succumbed to his injuries. However, ii) Achinta Kumar Das, PW 14 also saw the incident.
III) Third Set:
i) Netai Das, PW 17, the brother of the deceased Gour. ii) Krishna Chandra Kundu, Ex Councillor, PW 18 and iii) Anil Das, an adjoining house owner of Premises 42A and 42B of S.N.Road, PW 19 and iv) Swapan Pramanick, a local shop owner, PW 20 witnessed the third incident which is the last in the series.
b) Local residents - i) Rabisankar Das, PW 4 and ii) Tarun Das, PW 5 were gossiping with the first set of injured witnesses at the material point of time.
c) Post-occurrence witness - i) Amar Nath Kundu, the younger brother of Somenath Kundu, PW 9, the injured; and ii) Somenath Goswami, PW 24, the younger brother of Prithwis Goswami, the injured are the post-
occurrence witnesses and iii) Phanibhusan Pal, PW 15, a gold smith who had to sprinkle water in his room on the face of an unconscious victim with bleeding injuries on his person.
d) Medical Evidence - i) Dr. Sibaji Ghosh, PW 23, treated medically PW 7; ii) Dr. Haradhan Mondal, PW 25, attached to S.S.K.M. Hospital rendered medical treatment to Gour Das, since deceased. iii) Dr. Shyamal Kr. Gope, PW 26 attached to CMCH rendered medical assistance to PW 7, Prithwis Goswami. iv) Dr. Ajoy Kumar Gupta, PW 27 conducted the P.M. Examination of Lalu Das, since deceased. v) Dr. D. Chowdhury, PW 29 held P.M. examination of Gour, since deceased. vi) Dr. Sankar Prasad Roy, PW 30, a Medical Officer attached to CMCH and
vii) Dr. Shaymal Ghosh, PW 32 examined Lada on the following day.
e) Forensic Experts - i) Partha Sinha, PW 33, ii) D. K. Sengupta, PW 34 and iii) R. K. Sen, PW 35 are the Forensic experts.
f) Ballistic Expert - i) N. K. Nag, PW 36 is the ballistic expert.
g) Seizure witnesses - i) Sadananda Pramanick, PW 22 was a witness to the seizure of incriminating weapons while ii) Joydeb Chakraborty, PW 28 witnessed the seizure of the bed head ticket of Netai Das.
h) Police Witnesses - i) Constable Kamal Behari Chakraborty, PW1, Police Photographer; ii) Inspector Ashok Kumar Bhattacharjee, PW 2 Plan Maker; iii) Sushil Ranjan Das, Constable, PW 38; iv) Param Hangsh Singh, PW 39, Constable who took dead bodies of Lalu and Gour for P.M. Examination; v) Tapan Kr. Bose, PW 40, the S.I. of = 27 = Police had been to the P.O. with the first I.O.; vi) Satyajit Banerjee, S.I., PW 41, is the first I.O. and vii) P.S.Chakraborty, Inspector of Police, PW 42 is the second I.O.
i) Tendered Witnesses - i) Dilip Kundu, PW 11, ii) his father Krishna Chandra Kundu, PW 13, iii) Rajkumar Pramanick, PW 12 and iv) Madan Mohan Das, PW 21 were tendered for cross-examination. PWs 11, 12 and 21 were cross-examined on behalf of A1 while cross-examination of PW 13 was declined.
j) Formal witness - i) Prasenjit Mondal, PW 31, the then Metropolitan Magistrate who held the T.I. Parade and ii) Sanjay Bose, PW 37 attached to C.E.S.C. were also examined and cross-examined.
Discussion:
First set of injured witnesses:
26. Prithwis Goswami, PW 7 of 59, Simla Street was engaged in a discussion on "Hope 86", which was postponed due to bad weather, with Pradip Kundu, PW 10, Somenath Kundu, PW 9, Rupnarayan Das, PW 8 and Tarun Das, PW 5 on the eastern footpath at Singhee Lane near the boundary wall of SBS in front of a lamp post on 28.12.86, at around 9.30--9.45 P.M. At that point of time they found Lada @ Dipak Datta, Baira @ Bhimnath Singh, Ashim Burman, Ditu @ Diptendu, Lintoo @ Ardhendu Das and Muchi Gopal along with 6/7 others being armed with knives, bombs revolvers etc. came there from T.P.Road side and attacked them indiscriminately. It is the specific evidence of PW 7 that A1 assaulted him on the left side of his belly (the deponent pointed to a place at the left side of his belly). His companions, viz., Pradip Kundu, PW 10, Somenath Kundu, PW 9, Rupnarayan Das, PW 8 were also assaulted by the miscreants. Rabisankar, PW 4 and Tarun, PW 5 who were also with them, however, managed to escape towards the Club. He, somehow with difficulty reached the house of Dr. Shivaji at 88A, T.P.Road and was medically treated there. He narrated the incident to the doctor and also the inmates of his own house. He, however, felt tremendous pain from his injuries at the same night and as such in the next morning on 29.12.86, he, together with his brother Somenath, PW 9 and another injured had been to the CMCH where he was treated for 6/7 days as an indoor patient and in course of such medical treatment a surgical operation was also done on him. He identified both A1 and A2 as also A3 and A5.
27. This injured witness was cross-examined at length. It is reiterated in his cross-examination that he told his brother, PW 24 that Baira assaulted him. He also told Dr. Shivaji that he received injuries from Baira. He has also forcefully denied that it was a stormy night or it was not possible to engage in talk standing on the street. Despite = 28 = grueling cross-examination his testimony on the material point of assault with a knife by A1 on his belly remains unshaken. In fact, we do not find any cogent and convincing ground to disbelieve him.
28. Similarly, Rupnarayan Das, PW 8, another injured also supports the version of PW 7 on the point of assault upon him as also his other companions, viz., Prithwis, Somenath and Pradip. He has, however, named Lada as his assailant who assaulted him with a sword-like-small knife on the left thigh (witness pointed to the place). His categorical testimony that while they were discussing about "Hope 86" standing on the eastern footpath at Singhee Lane close to the boundary wall of SBS in front of a lamp post, lights were on and there was no rain at that time around 9.30-9.45 P.M. His further specific evidence is that he saw Baira and Lintoo of S. C. Street, Lada and Ditu of T.P.Road as also Ashim Burman of M.R.Lane and Muchi Gopal of Basak Bagan Lane alongwith 6/7 others being armed with sword, knives, bombs, revolver etc. came from T.P.Road to Singhee Lane. They suddenly attacked them and started to assault with knives indiscriminately. He also corroborates other eye-witnesses on the point that Tarun and Rabisankar succeeded in escaping from the place at the sight of assault on them by the assailants. He along with Pradip and other injured somehow went to SBS club. He also heard the sounds of shots and bomb blasts from the direction of Singhee Lane and Vivekananda Road crossing. His further evidence is that some para people came out of their house and heard the sounds of bomb blasts and firing etc. and, a little thereafter, Ganesh Agarwal and Lalu Das were being carried to SBS by a good number of persons. Both of them had knife injuries on their person and their injuries were bleeding. Thereafter, a police van arrived at Singhee Lane and took him, Pradip, Lalu Das and Ganesh Agarwal in that vehicle to CMCH. According to him, on examination Lalu was declared dead by the doctor and the rest were retained for medical treatment. It is also available from his testimony that while they were being treated in the Hospital, Netai and Gour Das with severe bleeding injuries on their person were brought to the Hospital by Krishna Chandra Kundu for medical treatment. The deponent was, however, discharged from the hospital in the same night. He also identified Lada @ Dipak Datta, Baira @ Bhimnath Singh, Sanjay Biswas, Ashish Kundu, Samir and Tapan Roy Karmakar in the court.
29. Another injured, viz., Somenath Kundu, PW 9 also corroborates PWs 7 and 8 on the point of assault upon them by Lada and Baira by deposing to the effect that on the eastern footpath at Singhee Lane adjacent to SBS under a lamp post around 9.30 P.M. he found Lada @ Dipak Datta, Baira @ Bhimnath Singh, Ashim Burman, Ditu @ = 29 = Diptendu, Lintoo @ Ardhendu Das and Muchi Gopal along with 6/7 others being armed with knives, bombs, revolvers, sword like substance etc. came there from T.P.Road. They attacked them with these weapons. It is his specific evidence that Baira assaulted him with the knife at the junction of his thigh (witness points to that place). It transpires from his testimony that after receiving injuries somehow with difficulty he went to the house of Phani Babu, a resident of 6, Singhee Lane and narrated the incident to the inmates of the house. He also raised alarm asking for help stating that Lada and Baira had assaulted them. He also raised alarm after entering the house of Phani Babu. He was also physically carried to the police van which was standing on Singhee Lane by some para people for taking him to the hospital. At that point of time he noticed Pradip, Rupnarayan, Ganesh Agarwal and Lalu Das who sustained injuries in the same night. His wounds were stitched by an emergency doctor at the CMCH. He also identified Baira and Lada in court.
30. Both these two injured witnesses were subjected to rigorous cross-examination. PW 9 asserts therein that he saw the miscreants for the first time when they were 1-2 cubits away from him. From his cross-examination it is found that he suffered one injury and he did not receive any other blow from the assailants. He was discharged from the hospital in the same night after stitching. PW 8 gives out in cross-examination that he was assaulted from the front side. He received one knife injury and cannot remember if anybody caught him during assault. They were standing 3-4 cubits away to the left of the Club gate. He also heard the sounds of firing and bomb blast after he entered the club. We do not find any earthly reason to discard corroborative testimony of these two injured witnesses.
31. Pradip Kundu, PW 10, also sustained injuries. He supported the version of PWs 7,8 and 9 in toto by deposing that while he along with Somenath Kundu, PW 9, Rupnarayan Das, PW 8, Tarun, PW 5, Rabisankar, PW 4 and Prithwis Goswami, PW 7 had been discussing about the postponement of "Hope 86" standing on the eastern footpath at Singhee Lane adjacent to the wall of SBS club in front of a lamp post around 9.30-9.45 P.M., Lada @ Dipak Datta, Baira @ Bhimnath Singh, Ashim Burman, Ditu @ Diptendu, Lintoo @ Ardhendu Das and Muchi Gopal along with 6/7 others being armed with knives, bombs revolvers etc. came there from T.P.Road side and suddenly attacked and stabbed them with knives indiscriminately. They were also carrying revolvers and bombs etc. His further evidence is that Lada assaulted him with a sword like knife in the abdomen (witness points to the place). He also deposes that Rabisankar and Tarun managed to escape and ran towards SBS and he heard the sounds of firing and bomb blasts after = 30 = sometime. After his arrival at the SBS club, Ganesh Agarwal and Lalu Das were brought there in injured condition. Sometimes later when the Police came, he along with Rupnarayan, Ganesh and Lalu Das was taken to the Hospital by a police van. He also found Gour and Netai both in injured condition. Lalu Das was declared dead by the doctor. He was discharged after treatment in the same night. Gour Das was also taken to the Hospital and he subsequently died. The deponent also identified Baira, Sanjay Biswas, Samiran Dhar, Tapan Roy Karmakar and Lada in court. He is frank enough to admit in his cross-examination that he did not raise any alarm before he reached the gate of Phani Babu which is about 20/25 cubits away from SBS. It also transpires during his cross-examination that he has no enmity with the accused persons.
32. It appears that the defence has sought to bank upon certain contradictions appearing in the testimony of some of the injured witnesses vis-à-vis the statement of the injured recorded under Section 161 CrPC by the I.O. Those apparent contradictions, however, seem to be very minor in nature. It cannot be reasonably expected from the injured witnesses who came to the witness box after the lapse of more than 5 years to narrate the incident in every minute detail as were told by them to the I.O. immediately after the occurrence especially in respect of the occurrence of such a magnitude spreading over three places in close proximity with each other. The power of observation of a particular man differs from another. It is well settled position of law that the court is to consider the evidence of injured witnesses as also eye-witnesses in its right perspective. It is to be taken into account as to whether they have corroborated each other on the mode of assault, weapons used, the proximity of time and place. As a matter of fact, corroboration amongst injured witnesses and other eye-witnesses is required to be shown on such broad particulars of the incident. Taking the consistent evidence of all these injured witnesses in its proper perspective, we are of the opinion that the corroborative testimony of these injured eye-witnesses do not suffer from any inherent improbabilities or intrinsic inconsistencies rendering their evidence wholly unreliable on the question of the appellants' presence at the places of occurrence with deadly weapons as also assault upon the injured by them. All these injured eye-witnesses have, in fact, corroborated each other on the material point of use of a deadly weapon i.e. knife/sword to cause fatal stab injuries on the person of at least two victims since deceased and also infliction of injuries on the person of the injured.
= 31 =
33. It has simply been suggested to them that the appellants, particularly, Lada and Baira have been implicated at the dictate of Krishna Chandra Kundu, a local councillor, PW 18. Suggestion, if plausible, is acceptable. But the said wild suggestion hinting at political rivalry between Lada and Baira in one hand and Krishna Chandra Kundu on the other hand, is not backed by any tangible evidence on record. Therefore, we are not prepared to believe that the appellants had been implicated in this case simply to settle score with Krishna Chandra Kundu. Therefore, we feel inclined to place much reliance upon the testimony of all these injured witnesses.
34. Rabisankar Das, PW 4 of 62A, T.P.Road, a Gold Smith by profession deposes that on 28.12.86 around 9.30-9.45 P.M. he alongwith Pradip Kundu, PW 10, Somenath Kundu, PW 9, Rupnarayan Das, PW 8, Tarun, PW 5 and Prithwis Goswami, PW 7 was standing in the eastern footpath at Singhee Lane near the boundary wall of SBS in front of a lamp post and were discussing amongst themselves about "Hope 86" which was postponed due to bad weather. At that point of time they found Lada @ Dipak Datta, Baira @ Bhimnath Singh, Ashim Burman, Ditu @ Diptendu, Lintoo @ Ardhendu Das and Muchi Gopal along with 6/7 others being armed with knives, bombs revolvers etc. came there from T.P.Road side and began to inflict knife blows on them indiscriminately. He along with Tarun, however, managed to escape at their sight. On arrival at SBS, he found Pradip Kundu and Rupnarayan Das to reach there in injured condition. He also heard the sounds of shots and bomb blasts from the direction of Singhee Lane and Vivekananda Road crossing. He found some para people carrying Ganesh Agarwal and Lalu Das in injured condition to their club. Another injured Somenath Kundu was also brought there by some para people in injured condition. According to him, Amarnath Kundu and a couple of para people also accompanied them to the hospital in injured condition in a police vehicle. He identified Lada, Baira, Samiran Dhar, Ashish Kundu, Sanjay Biswas, and Tapan Roy Karmakar in open court.
35. Tarun Das, PW 5, another eye witness corroborated the testimony of PW 4 on the point of assault upon Rupnarayan and Pradip. He also heard the sounds of shots and bomb blasts from the crossing of Singhee Lane and Vivekananda Road. It is also available from his testimony that some para people brought Lalu Das and Ganesh Agarwal to the club premises since they suffered severe injuries. All these four injured were carried by a police van to the hospital for their medical treatment.
= 32 =
36. Since, both of them were eye-witnesses to the first incident, they had to face an incised cross- examination. Both of them, however, very successfully stood the test of cross-examination. There is nothing on record to indicate that these eye-witnesses bore any grudge against the appellants. We, therefore, do not find any reason rather convincing to discard their cogent and consistent testimony indicating involvement of A1 and A2 in causing injuries on the person of the injured with deadly weapons like knife and dagger etc. Second set of injured witnesses:
37. Ganesh Agarwal, the informant suffered injuries on his buttock as also on the upper hip. He testifies as PW 3 that he was assaulted by Lada and Baira with the help of sword-like-substance on 28.12.86 around 9.30-9.45 P.M. It appears from his testimony that prior to assault upon him, he found Lada @ Dipak Datta, Baira @ Bhimnath Singh, Ashim Burman, Ditu @ Diptendu, Lintoo @ Ardhendu Das and Muchi Gopal along with 6/7 others being armed with knives, bombs & revolvers etc. came there from T.P.Road side. Lalu Das tried to run away across Singhee Lane at their sight but the miscreants overpowered and assaulted him. As a result, Lalu Das fell down on the ground near SBS. Thereafter, the miscreants exploded bombs and fired shots from their pistol. They, however, left the place along with Vivekananda Road. Some para people took him near the Club and he narrated the incident together with the names of the miscreants before them. Sometimes later, the para people came and took him as also some other injured persons namely Pradip Kundu, PW 10, Somenath Kundu, PW 9, Rupnarayan Das, PW 8, Tarun, PW 5, Netai, PW 17, Gour and Lalu, the victims in that police vehicle. He was also medically treated by the doctors at the Hospital. On the very same day after he was medically treated, the police recorded his statement. He proved his signatures appearing on the statement and the same were marked as Ext. 1 and 1(a). He also identified Lada and Baira who were present in the court while the rest were not present in the court room.
38. The injured informant was cross-examined at length. Nothing has been extracted therefrom to show that he has deposed falsely. He has very resolutely withstood the rigours of cross-examination. It is frankly asserted by him during cross-examination that he was not admitted in the hospital and he did not hear any sounds of firing or blasting of bombs while he was standing and conversing with Lalu and further the area was peaceful at that point of time. It is available from his cross-examination that Lalu Das covered the distance of about 15 to 20 cubits towards south when he (Lalu) saw the informant being assaulted. None fired any shot or threw any bomb at him. He stated = 33 = that he knew all along that Bhimnath Singh is also known as Baira. It is gathered from his cross-examination that rain stopped around 6.30 P.M. It is further clearly stated by him that he had no watch with him at the P.O. and the time mentioned by him is all by guess. He has also denied the defence suggestion forcefully that Lada and Baira were implicated as they were members of Srikanto Club or that he was deposing falsely at the instance of Kesto Kundu since the appellants do not follow the political faith to which Kesto Kundu belonged to. Needless to say that such suggestion is also not backed by any iota of evidence on record. Suggestion offered to the witnesses including the informant appears to be very wild in nature. Nothing has, however, been brought on record either in the shape of oral or documentary evidence to indicate that there ever existed any political rivalry between the two clubs as hinted at the defence suggestion. Even in their examination under Section 313 CrPC it is not specifically pleaded that the appellants had an outstanding enmity with Kesto Kundu, a local councillor. In such a situation, the defence case on that score appears to be not factually tenable.
39. While Achinto Kr. Das, PW 14 was returning along with Vivekananda Road after collecting money from his parties in connection with his business, he found Lalu Das and Ganesh Agarwal talking to each other at the crossing of Singhee Lane and Vivekananda Road. Suddenly, Ditoo and Lada of T.P.Road, Baira of S. C. Street, Ashim Burman of M.R.Lane and Muchi Gopal of Basak Bagan Lane along with 6/7 others being armed with knives, revolvers, bombs etc. attacked Ganesh and Lalu. His specific evidence is that Baira and Lada stabbed Ganesh with a knife and Lalu after being assaulted with a knife fell down on the ground of Singhee Lane. Thereafter, bombs were burst and shots were fired from revolver. The miscreants, thereafter, went towards Girish Park along with Vivekananda Road. He also identified Baira, Lada, Tapan Roy Karmakar, Samiran Dhar, Ashim Kundu and Sanjay Biswas in court.
40. He had to face a stringent cross-examination but his testimony as a whole remained unshaken. Nothing is elicited there from to impeach the credit of this eye witness and he appears to be very cogent and consistent in his testimony. It transpires that he was about 12 cubits away when Ganesh was assaulted. After Ganesh was stabbed Lalu covered about 20 cubits along Singhee Lane before he was stabbed. He was also candid in his cross-examination to admit that no bomb was exploded and no shots were fired within his eye sight. He, however, got sounds of bomb blasts and firing within a minute after the miscreants escaped. He denied the defence suggestion that street lights were not on and it was raining at the material point of time. Such suggestion is, however, not supported by any material worth the = 34 = name on record. Rather there is positive evidence to indicate that there was no load shedding and it was not raining at the relevant point of time. There is also nothing on record even in the form of defence suggestion to indicate that the deponent had any enmity with the appellants. Therefore, it is difficult to believe that this eye-witness would seek to implicate the appellants falsely in this case without any rhyme or reason. More so, whenever the credit of this eye- witness remains unimpeached during cross-examination. This independent eye-witness appears to be a wholly reliable witness.
Third set of injured as also eye-witnesses:
41. Netai, PW 17 who sustained stab injuries in course of the third incident deposes that on 28.12.86 at around 9.30-9.45 P.M. while he was reading a newspaper in his house, he heard sounds of explosion from outside. Having heard shouts of help from his brother Gour, he looked towards the sadar door and found A2 and A1 inside their house. He at once ran for his brother's help but prior to that A1 assaulted his brother Gour with a weapon which looked like sword-cum-dagger in his belly and his brother fell down. Since he went to his brother's rescue A1 assaulted him with the same weapon at his belly (the witness showed the scar on his belly). When the deponent raised his voice and shouted, Krishna Chandra Kundu, his cousin ('mastuto bhai') came down from upstairs. A1 and A2 and their associates, however, proceeded towards Vivekananda Road along with S.N.Road. In the meantime, some para people came to their help and took him along with Gour to the CMCH in a taxi. The deponent had to be admitted subsequently to the S.S.K.M. Hospital where he was under medical treatment as an indoor patient for one month and 5/6 days. He was operated upon in the said Hospital. After the assault, he found his brother Gour to sustain two injuries one at the lower abdomen near naval pit and the other on the left side of the body. Gour, however, succumbed to such fatal injuries in the hospital.
42. He has been subjected to an extensive cross-examination on behalf of the appellants. Nothing has, however, been brought out to indicate that A1 and A2 and their associates were implicated by them falsely. It cannot be said by any stretch of imagination that this injured had named the strangers as the assailants of his brother for shielding the real culprits. As a matter of fact, the testimony of an injured witness is of immense value and importance in a criminal trial since the injuries confirmed the presence of a witness on the spot. In our case, all the injured witnesses including this witness had given the details of occurrence and had also clearly named the assailants who = 35 = inflicted injuries on their person as also upon the victims since deceased. It has merely been suggested mechanically to this injured witness that he did not see any part of the incidents and also did not suffer any injuries in the manner and at the place and by the persons stated by him. It is not clear to us as to why this injured witness would falsely depose against the appellants with whom he had no enmity. It can, therefore, safely be said that this injured witness would not spare the real assailants and falsely rope in the innocents. It is not even suggested to this witness that he is inimical towards the appellants. The presence of injuries on the person of a person, however, does not give any guarantee about his truthfulness. Therefore, the testimony of injured witnesses being the natural witnesses is required to be closely scrutinised with abundant care and caution, especially, where the injuries of witnesses are supported by medical evidence, due weight should be attached to their testimony. Evidence of injured witnesses is also corroborated by other eye-witnesses who should be relied upon in the present case.
43. Krishna Chandra Kundu, PW 18, another eye-witness deposes that he found A1 assaulting Netai, PW 17 with a sword-cum-dagger at his abdomen and out of fear he raised an alarm and ran towards Netai. It is also available from his testimony that Netai told him that A1 assaulted Gour first and thereafter he was assaulted by A2. He further deposes that when he raised the alarm, he found A2 and A1 and 6/7 others going towards Vivekananda Road. This eye-witness had to face grueling cross-examination. However, his evidence on the point of assault by A1 upon Gour and Netai with a sword like dagger at his abdomen remains unshaken. It is simply suggested to him that he was trying to eject Netai. Such suggestion is denied by the deponent. There is, however, no defence suggestion that he had any enmity with the appellants. In such view of the matter, the possibility of implication of the appellants falsely in this case stands overruled. More so, whenever it is elicited from his cross-examination that he had good terms with A1 and A2 prior to the incident since they were para boys. He had no occasion to lodge any complaint against them. We, therefore, feel inclined to place much reliance upon the cogent testimony of this eye-witness.
44. Anil Das, PW 19, another eye-witness also unequivocally deposes that he found Gour in front of sadar door of premises no. 42A and 42B of S.N.Road and also heard the alarm raised by Gour Das. He further testifies that he saw A1 thrusting a sword like weapon in the belly of Gour. Netai also met similar fate when he came to rescue his brother Gour since deceased. He has been cross-examined rigorously but he has very successfully stood the test of cross-examination. It is suggested to him that he has been deposing falsely at the instance of the Police. Nothing is, = 36 = however, brought on record to indicate as to why he would depose falsely to oblige the Police. We, however, do not find any inherent improbabilities or intrinsic infirmities to discard these eye-witnesses' testimony.
45. Swapan Pramanick, PW 20, another post-occurrence witness to the third incident deposes that while he was sitting in front of the gold smith shop in his house and was having a smoke, he heard a bomb explosion. According to him, immediately thereafter he found A2 and A1 along with 6/7 other associates being armed with bombs, knife, sword and dagger etc. to come from Vivekananda road side. When they passed him along S.N.Road towards T.P.Road, he found all of them to go in front of the premises no. 42A and 42B of S.N.Road. It is also available from his testimony that lights of his house as also those nearby were burning. He found those persons to raise a hue and cry and two of them namely A1 and A2 entered the said premises while the rest of the gang retreated a bit. A2 and A1 came out of premises no. 42A and 42B of S.N.Road within one or two minutes and proceeded along with remaining gang members towards Vivekananda Road. Thereafter, when he had been to the P.O., he found both Netai and Gour lying on the floor in half sitting position with their injuries on their person. On his interrogation, Netai stated with much difficulty that he and his brother were assaulted by A1. He also found PWs 18, 19 and other para people at the P.O. It is simply suggested to him that he deposed falsely at the instance of the Police. He has denied the defence suggestion. Nothing has been extracted from his cross-examination to show that he was not there prior or subsequent to the incident of assault upon the victims. Since the defence has failed to impeach the credibility of this deponent during cross-examination, we think it safe and prudent to rely upon the testimony of all these pre and post occurrence witnesses. Even though, it has mechanically been suggested to these witnesses that no such incident as alleged took place at all, we do not find any merit in such wild suggestion for the simple reason that there are overwhelming materials on record to establish the factum of murderous assault inflicted upon Lalu Das and Gour Das as also other injured persons in the manner and place as depicted by the witnesses one after another in a graphic and detailed manner in the present case.
Medical Evidence:
46. Against the backdrop of such ocular evidence we are now to advert to the medical evidence. Dr. Ajoy Kr. Gupta, PW 27 who conducted the postmortem examination on the dead body of Lalu Das being identified by the constable No. E-120, Paramhangso Singh detected the following ante mortem injuries on the dead body :
= 37 = "1. One incised cut penetrating wound (stab wound) 1.7"x1.4".
Chest cavity placed more of less transversely over upper part of front of left side of chest with clean cut margin and spindle shape and placed 5" below inner end of left clavicle, 4.5" above left heel and 1.4" to the left of mid line and 1.8" above and inner to left nipple.
2. Abrasion (pressure type) 1"x03" placed obliquely over middle of front of chest over sternum at the level of fifth rib more or less along midline.
3. Abrasion (brush type ½"x ½") over front of right knee.
4. Abrasion ½" x ½" (brush type over upper 1/3rd of front of right leg being placed 2" below injury No. 3."
47. It was opined by the doctor that the death was due to the effects of one incised cut penetrating wound (stab wound) over the chest ante mortem and homicidal in nature. It is further opined by him that injury No. 1 alone is sufficient to cause death. According to him, abrasion as noted by him might have been resulted from fall following stab injury. It is further opined by him that injury No. 1 might have been caused by any pointed weapon with sharp edges like dagger, sword, knife etc.
48. Dr. D. Chaudhury who held the post mortem examination on the dead body of Gour Das identified by Constable E-120, Paramhanso Singh found the following injuries on the dead body :
"1. One surgically made stitched up left paramedia incision 10" in length extending from a point 1½" below xyphisternum up to a point 2" above superior border of symphysis pubis, ½" x towards the left from (2nd page begin) midline. On removal of stitches it was seen to be abdominal cavity and stitched up in layers according to surgical procedure.
2. One penetrating wound measuring 1.5" x abdomen cavity deel placed in front of abdomen 3" to the left of midline 38" above left heel inshap spindle shaped shaped direction obliquely from below upwards and medial words. On dissection and tracing the track it was seen to have pierced through the skin fascia muscle and peritoneum correspondingly to pierce a coil of small intesti through and through to terminate at anteromedial aspect of left kidnith a punctured wound measuring. 2"x1". 1"x4". The intestinal injury was seen repaired surgically.
3. Corrugated rubber drainage in skin a surgically made wound on left side of abdomen 1½"x5" abdominal cavity 4" above anterior superior iliac spine and placed 6½" towards the left from midline.
= 38 =
4. One stitched up wound 3" in length. On removal it is seen 3"x1" placed on lateral aspect of left though upper part 3½" below anterior superior iliac spine (left) and 38" above left heel shaped spindle shaped direction from above downwards."
49. According to him, the death was due to the effect of injuries mentioned in the P.M. Examination report which were ante mortem and homicidal in nature. In his opinion, injury No. 2 and 4 were caused by sharp edged weapons with pointed tip may be knife and dagger. It is categorically opined by him that injury No. 2 itself is sufficient to cause death in ordinary course of nature. He further opined that injury No. 1 was made surgically and it was done so in an attempt to save the life of the patient. Injury No. 3 was also made surgically by way of routine procedure in such cases.
Evaluation:
50. We would now proceed to consider the rival contentions of the learned lawyers for the parties in the light of evidence and circumstances on record discussed and dissected in preceding paragraphs coupled with the decisions of the Apex Court cited by them. Common contentions in the argument of the learned counsel are being clubbed together and dealt with under the following broad heads:
(I) Discrepancies:
51. There is no doubt that some of the injured as also eye-witnesses are discrepant in their version on the story of bursting of bombs and firing of shots.
So, it cannot be denied that some minor discrepancies are there. But such discrepancies of minor nature have been blown out of proportion to assail the truthfulness of the witnesses. On our reading and appreciation of the testimony of the injured witnesses/eye-witnesses critically, we do not find any intrinsic inconsistencies or inherent improbabilities to impeach their credibility. In fact, the entire evidence of such witnesses who are examined after the lapse of several years is to be taken as a whole for the purpose of judging their veracity. True, = 39 = the I.O. has not seized the remnants of bombs but the negligence from the part of the I.O. cannot be a ground to discard the entire prosecution story. That apart, it is also available from the testimony of the first I.O. PW 41 that blood stains were seized from 6, Singhee Lane even though, it was wrongly written in G.D. No. 2921 as 2, S.N.Road due to inadvertence. Having regard to the sequence of events happened in quick succession in a chilly winter night as also its dimension and magnitude, the recording of the name of wrong premises no.
wherefrom blood stains were seized is of no consequence.
52. Some of the injured witnesses stated that it was A2, Lada who assaulted the injured while other witnesses spoke about A1, Baira but such apparent discrepancies are of no significance since three incidents occurred, even though in close proximity, cannot be correlated and as such it is not possible for one set of injured witnesses to depose as to what happened in other two places of occurrence witnessed by other sets of injured witnesses as also eye-witnesses. Argument made on that score by the learned counsel thus stands overruled.
53. It cannot be disputed that discrepancies in the statement of witnesses on material points cannot and should not be lightly passed over as they seriously affect the value of the testimony. It is well settled that when there are inconsistencies of serious nature in evidence, the same cannot be accepted. But in a case where the eye-witnesses' account was not found totally inconsistent with that of the medical evidence and the same was accepted and relied upon by the learned trial court despite certain discrepancies, the Appellate Court should be slow and circumspective in upsetting such findings of the learned trial court. As a matter of fact, trifling discrepancies pointed out from the side of the appellants should be ignored in the context of other corroborative materials and circumstances on record. More so, if the stern reality is kept in view that several persons giving their version describing the occurrence witnessed by them = 40 = in minute details are naturally expected to differ even on material points since their power of observation, capacity to retain something in their memory being not the same. In such a situation, honest differences are quite possible. It is our common experience that discrepancies do occur even in the statement of perfectly honest witnesses. It would be unfair to discard the direct evidence tendered by the injured as also other eye-witnesses merely on the ground of such discrepancies when there is a general agreement as to material circumstances of the case.
54. Therefore, we are of the considered view that this court has to consider broad facts of a case and not the minor details while weighing probative value of the eye-witnesses. The Appellate Court which had no opportunity to form the opinion about the genre of evidence tendered by the witnesses will have to attach due weight to the appreciation of evidence by the learned trial court. In the absence of weighty and formidable reasons, it would not be proper to reject evidence on the ground of minor variance or infirmity in the matter of trivial details. It is well settled that undue importance should not be attached upon discrepancies which do not go to the root of the matter and shake the basic version of the witnesses. Therefore, the discrepancies which are due to normal errors of perception or observation should not be given importance and minor discrepancies are not to be taken into consideration while appreciating the evidence of the witnesses. The reasons for doing so have been outlined in a ruling of the Apex Court reported in 1983 CrLJ 1096 (Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat) as under :
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, an-other may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a wit-ness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
= 41 = (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and cut of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the wit-ness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
55. In paragraph 11 of a ruling reported in 1981 CrLJ 743:AIR 1981 SC 1237 [Krishnapillai Sree Kumar vs. State of Kerala], Their Lordships of the Supreme Court observed as follows:
"It is no doubt true that the prosecution evidence does suffer from inconsistencies here and discrepancies there but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc. go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases......"
56. As a matter of fact, the court while appreciating the evidence, is required to evaluate the entire materials on record by excluding the exaggerated version given by the witnesses. More so, whenever in recent time, it is the general perception that "the witnesses now-a-days go on adding embellishment to their version for the fear of the testimony being rejected by the court". In such a situation, the court, therefore, should not discard the evidence of such witnesses altogether, if they are otherwise trustworthy, for the simple reason that 'variances and discrepancies in details, contradiction in narration and embellishment in essential parts should not affect the core of the testimony of the witnesses'. As already discussed earlier, minor discrepancies regarding the minute details of the incidents including the sequence of the events and overt acts are possible even in the versions of a truthful witness. In fact, the same are inevitable. We are emboldened to say that such minor discrepancies only add to the truthfulness of their evidence. Any witness giving evidence with mechanical accuracy and mathematical precision may lead us to opine that the witnesses are giving tutored version. In our considered view, minor discrepancy which does not affect the main fabric need not be taken into account, whenever, the evidence of witnesses is found acceptable on broad probabilities.
57. Turning back to the present case and applying the foregoing principles of law as enunciated by the Apex Court to the facts of the present case, we find that omissions, contradictions, inconsistencies and improvements in the testimony of prosecution witnesses highlighted from the side of the defence in their argument are, in fact, not in regard = 42 = to the presence and participation of the appellants in the occurrence but in regard to the minor and inconsequential differences, sequence of events and other collateral facts which do not make their testimony untrustworthy against such backdrop. It would be safe and prudent on our part to ignore such omission, contradictions, apparent inconsistencies and improvements.
58. True, PWs 13 and 14 have stated in their evidence that while they were taken to CMCH by a Police van with other injured persons, Netai Das has also been named as one of them. But such assertion is not supported by other witnesses. In this context, the learned trial court has observed as under :
"...but this part of evidence cannot fit with the evidence given by the other witnesses as it is not the prosecution case that Netai Das accompanied the rest of the injured persons in the Police van. In my opinion, this is a discrepancy which on the face of the overwhelming evidence to the contrary should not be given too much importance, but should be considered as a product of long delay between the date of incident and his deposition in court."
59. We are in complete agreement with the observations of the learned trial court specially in view of the fact that such discrepancies were inevitable when several persons including the two victims since deceased sustained injuries on their person as a result of sudden attack and assault by a good number of miscreants in a body with deadly weapons in a chilly winter night upon a large number of victims within a very short span of time.
(II) Non-examination of PWs 1, 2, 23, 25 and 39 by the I.O. during investigation:
60. PW 1, constable Kanan Behari Chakraborty, the police photographer and PW 2, Inspector Ashok Kumar Bhattacharjee, the plan maker were not examined by the I.O. in course of investigation. Further, both Dr. Shivaji Ghosh, PW 23 and Dr. Shyamal Kumar Gope, PW 26 who treated Prithwis Goswami, PW 7 were also not examined by the I.O. during investigation. The statement of the constable Paramhanso Singh, PW 39 who carried the dead body of two deceased, namely, Gour and Lalu for P.M. examination was also not recorded by the I.O. These witnesses appear to be formal in nature and relevant documents, e.g., relevant photographs of the victims, sketch plan, rough sketch map of the place of occurrence and medical papers etc. have also been exhibited as Material exhibits or Paper exhibits, as the case may be during trial. All these witnesses have also been cross-examined on behalf of the appellants. But the appellants have, however, failed to show as to how they have been prejudiced because of non-examination of these = 43 = witnesses by the I.O. during investigation. A plea of prejudice is sustainable if a reasonable likelihood of prejudice is shown specifically or is obtained on the facts of the case. As a matter of fact, only the appellants can tell the court whether they are really prejudiced. If there is a real prejudice they can specify the facts and circumstances causing prejudice to them. Since it has not been specifically shown as to how prejudice has been caused to the appellants, their non-examination by the I.O. is not fatal for the prosecution.
61. In our considered view, no prejudice has thus been caused to the appellants and in such a situation, even though, their statements have not been recorded by the I.O. in course of the investigation, evidence tendered by them can be relied on. Having observed this, we would also make it clear that in such a situation, the Court, however, is to be circumspective and to exercise abundant care and caution in appreciating their evidence critically and thereafter placing reliance upon such witnesses.
(III) Non-examination of material witnesses:
62. Even though Ajay Agarwal, a companion of PW 3 was conversing with the defacto-complainant at the crucial moment when the second incident took place, the prosecution did not care to cite him as a witness in the charge- sheet. Krishnakanto Roy, a constable who brought the victim Lalu Das to CMCH and whose name also figures in the injury report has also not been examined. Even the driver of the police vehicle by which the injured victims were taken to the hospital has been left out. Ajay Agarwal was not an eye-witness to any part of the incidents. True, on the eve of second incident Ganesh was conversing with Ajoy about 'Hope 86'. But, about a couple of minutes thereafter, Ajoy left for his home and, thereafter, the appellants came to the scene of occurrence. Therefore, Ajoy cannot be regarded as a material witness and as such his examination is not necessitated to prove the prosecution case. Further, non- examination of the driver of the Police vehicle or the constable who brought the victim Lalu to CMCH is also of no consequence since the factum of Lalu's admission in CMCH is well established from the medical documents as also ocular testimony of the injured. In such a situation, it cannot be inferred that the prosecution has deliberately withheld the examination of material witnesses. Ext. 7 was authored by Dr. Sanjay Bhattacharya. But despite due diligence the prosecution could not examine him even though the document in question has been exhibited by another doctor who was conversant with his writings. Therefore, non-examination of Dr. Bhattacharya has not affected the prosecution case in any way.
= 44 =
63. Similarly, non-examination of Kanai Das and Jugal Das, the gardeners who used to stay in gardener quarter and also witnessed the incident as stated by Achinto Kumar Das, PW 14, is of no consequence for the simple reason that there is no dearth of eye-witnesses in the present case.
64. In this context, we would like to refer to a ruling of the Apex Court reported in AIR 1989 SC 2004 [Pattad Amarappa vs. State of Kerala] wherein it is held that in a particular case the onus of proving the prosecution case rests entirely on the prosecution and that the prosecution cannot be compelled to examine one witness or the other and if a material witness is withheld, the utmost that would follow would be to draw an inference against the prosecution. But before such inference can be drawn, it must be proved to the court that examination of such witnesses has been deliberately withheld by the prosecution.
65. In another ruling reported in AIR 1965 SC 328 [Darya Singh vs, State of Punjab] it is observed inter alia by the Apex Court that the duty of the prosecution is normally to examine all eye-witnesses, but if this selection is made fairly and honestly and not with a view to suppress inconvenient witnesses from the witness box, no adverse inference can be drawn against the prosecution. It is apposite to quote the relevant portion of para 11 of the aforementioned judgement as under:
"It is well settled that in a murder case, it is primarily for the prosecutor to decide which witnesses he should examine in order to unfold his story. It is obvious that the prosecutor must act fairly and honestly must never adopt to devise of keeping back from the court eye- witnesses only because their evidence is likely to go against the prosecution case. The duty of the prosecutor is to assist the court reaching a proper conclusion in regard to the case which is brought before it for trial...it may be that if a large number of persons have witnessed the incident, it would be open to the prosecution to make selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient witness from the witness box."
66. Needless to mention that in the present case a large number of eye-
witnesses were examined in support of the prosecution case and nothing has = 45 = been shown specifically to indicate that witnesses have deliberately been kept back and the learned trial court has not been properly assisted by the learned Public Prosecutor in reaching a proper conclusion in the case in hand. It cannot, therefore, be said that non-examination of Sanjay Agarwal, Krishna Kanta Roy, constable and the driver of the Police van constituted a serious infirmity in the proof of the prosecution case.
67. It is enough if the witnesses essential to the unfolding of the narrative on which the prosecution is based are examined. It is not, however, the law that the prosecution is bound to call all witnesses who may have seen the occurrence and to multiply the number of witnesses unnecessarily. The only requirement is that the prosecution should call all material witnesses who, according to the estimation of the prosecution, are sufficient to prove its case. It is not intended in our law that all the witnesses named in a charge-sheet or whose names figure in the FIR or any other documents, should invariably be examined or tendered in a court for examination. Therefore, in a case where the prosecution has examined a total number of 42 witnesses whose evidence was considered material for the case, the law does not permit the court to draw an adverse presumption under Section 114(g) of Indian Evidence Act on the ground that best evidence has been kept away from the court. As a matter of fact, in the present case, there is nothing on record even in the form of defence suggestion that all the eye-witnesses examined by the prosecution had any animus against the appellants and were interested in implicating them falsely. The independent = 46 = witnesses examined in this case have also steadfastly supported the prosecution version and no available independent witnesses who witnessed any of the phases of occurrence have deliberately been withheld. In fact, if the evidence adduced by the prosecution is found to be adequate to prove the charge, the non-examination of other persons like Krishnakanto Roy, Sanjay Agarwal and the driver of the police vehicle who brought the victim to CMCH does not make the evidence of other witnesses unreliable. Rather, in view of examination of 42 witnesses, there is no need to multiply the number of witnesses for the simple reason that the evidence has to be weighed and not counted.
68. That apart, it is to be borne in mind that non-examination of a material witness does not throw doubt over the prosecution case in all circumstances in a blanket manner. Such a situation is to be dealt with on the facts of each case. Moreover, the prosecution case is not adversely affected when no prejudice is caused to the accused on account of non-examination of some of the witnesses when there is evidence of other eye-witnesses. In fact, all the witnesses who have witnessed the incident need not be called to give evidence. (Vide AIR 1977 SC 701:1977 CrLJ 343 [Verghese Thomas vs. State of Kerala]).
(IV) Evidentiary value of injured witnesses:
69. In the instant case, there are as many as six injured witnesses, i.e., PWs 3 to 10 and 17. It is well settled that in a criminal trial a great value is attached to the testimony of an injured witness for the simple reason that their injuries confirm their presence on the spot. In fact, their injuries help the court to draw a reasonable inference that they were present at the time of occurrence. In our case, each of these injured witnesses had given the details of the occurrence and also clearly named some of the assailants. In fact, their overwhelming evidence establishes participation of the appellants. It is also settled position of law that the evidence of injured eye-witnesses cannot be discarded merely because they are relation of the victims. In the present case, the fact that the injured received injuries is also mentioned in the FIR. Therefore, minor discrepancies appearing in their evidence before the court will not = 47 = discredit their testimony. As a matter of fact, the evidence of the injured can be the sole basis, rather, the best basis for either recording or sustaining a conviction. In this context, we may refer to a ruling of the Apex court reported in 1994 (1) SCC 736 [Haramant L. Kukkadi vs. State of Karnataka] wherein it is ruled that whenever sufficiently strong evidence has been brought on record to establish the participation of accused and each of the injured witnesses presented a graphic details of occurrence naming the assailants, conviction, in such circumstances, was sustained by the Apex court.
70. In a very recent decision of the Hon'ble Apex Court reported in (2011) 2 AICLR 338 (State of U.P. vs. Naresh & Ors.) it is held in paragraph 23 of the said ruling as under:
"23. ......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......"
71. In the present case, there are as many as six injured witnesses including the informant. The learned counsel for the parties made too much of minor discrepancies which appear in the corroborative testimony of the injured even though such insignificant discrepancies do not affect the sub-stratum of the prosecution case. Therefore, in our considered view, no major contradictions and discrepancies have been brought on record warranting rejection of their evidence in toto. In fact, on a meticulous dissection of their evidence, we find that their testimony is cogent, consistent and credible.
(V) Inconsistent medical opinion:
72. Mr. Kabir has sought to bank upon purported confusing medical opinion by P.M. doctor vide his contention under 17D(iii) & (iv) to show incongruities in the prosecution case. In this context, we may rely upon the = 48 = paragraph 19 and also the relevant portion of paragraph 20 of the case of D. Sailu vs. State of A.P. [2008 CrLJ 686] (supra) cited by him and the same may be reproduced hereunder:
"19. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'.
20. ... where the eyewitnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive... Eyewitnesses account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility..."
73. It is well settled that if direct evidence is satisfactory and reliable, the same cannot be rejected by a hypothetical medical opinion. Medical opinion is not to be given primacy over ocular evidence (vide AIR 1984 SC 1233 [Punjab Singh vs. State of Haryana] and AIR 2005 SC 41 [State of M.P. vs. Dharkole @ Gobind Singh & Ors.]). More so, whenever medical evidence in respect of the nature of injuries and weapon used lends support to ocular testimony, no importance should be attached to hypothetical medical opinion elicited during cross-examination. Therefore, we are of the considered view that since the prosecution story is inherently consistent and probable and injured-cum-eye-witnesses' account inspires confidence being backed by corroborative medical evidence on record, the apparent inconsistency of insignificant nature in medical opinion based on hypothesis is of no consequence and it cannot overrule reliable direct evidence supported by cogent medical evidence. Therefore, Mr. Kabir's argument is not legally tenable in this regard.
(VI) Applicability of Exception I & IV to Section 300 IPC:
74. To invoke exception I to Section 300 IPC it must be proved that (i) the deceased injured the accused by acts or words and thus caused provocation and (ii) the provocation should be such as to cause a reasonable man to lose his power of self control and should have actually caused the accused sudden and temporary loss of self-control. The crux of the matter is that the act complained of must be done while the person doing it is deprived of self-control by grave and sudden provocation. In other words, it must be done under the impulse of provocation. What may amount to grave and sudden provocation provided for in the Explanation to the Exception 1 of Section 300 is, however, a question of fact.
= 49 =
75. Similarly, to obtain the benefit of Exception IV to Section 300 IPC four requirements must be satisfied. It is to be proved (a) it was a sudden fight, (b) there was no premeditation, (c) the act was done in a heat of passion and
(d) the assailant had not taken any undue advantage or acted in a cruel manner. An unpremeditated assault in which death is caused committed in a heat of passion upon a certain quarrel comes within this Exception. Therefore, to bring a case under Exception IV to 300 IPC apart from the fact that the culpable homicide must be without premeditation, the whole occurrence must be on a sudden fight in the heat of passion on a sudden quarrel.
76. So, it is needless to mention that to bring a case either under Exception I or Exception IV to Section 300 IPC the ingredients of Exception I or Exception IV to 300 IPC are to be established.
77. It is well settled that the prime question of intention is to be decided with abundant circumspection on the touchstone of facts and circumstances of each case. There is no doubt that intention to cause death is to be gathered from the relevant surrounding circumstances in the absence of direct evidence on the point. In this context, we may refer to a ruling of the Hon'ble Apex Court reported in 2007 (1) SCC Cri 500 (Pulicherla Nagaraju vs. State of A.P.). It would be apposite to reproduce the paragraph 29 of the said decision as under:
"29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..."
(Emphasis supplied) = 50 =
78. Applying the principles of law as enunciated hereinbefore, we are now to meticulously scrutinize the evidence and attending circumstances on record to come to a finding as to whether the combination of all the circumstances could lead us to opine that the appellants had no intention to cause the death of the victims. It is a case of double murder perpetrated in a series of dreadful events happened in quick succession. A1 and A2 along with other appellants and their associates armed with deadly weapons like knife, dagger or sword etc. pounced upon the victims and inflicted gruesome assault upon them in a ruthless manner by deadly weapons. Consequently, two victims namely Lalu and Gour succumbed to their fatal injuries in the hospital. True, several persons sustained injuries of minor/moderate nature and even some of them were discharged after rendering first aid. But this circumstance alone does not necessarily minimize the gravity and brutality of heinous crime of perpetration of double murder by A1 and A2 in a premeditated manner within a very short span of time.
79. It is, however, quite evident from the ocular as well as documentary evidence in the shape of medical papers, seizure lists and other connected documents that i) the weapons like sword, dagger, knife etc. used by the miscreants including the present appellants were of deadly nature; and the same were sufficient to cause penetrating wounds, incised wounds threatening human lives while some of such weapons were two-edged while others were single-edged. There is also specific corroborative evidence to indicate that the weapons were carried by the appellants and their associates and the same were not picked up from the spot; iii) the stab injuries were aimed at the vital parts of the body of the victims while some of the injured sustained injuries upon hips, buttocks and thighs which are undoubtedly not vital parts of the body; iv) it is needless to mention that the amount of force applied in causing injuries was severe and as per medical opinion such injuries were sufficient to cause the death of the victims; v) the atrocities complained of against the appellants and other miscreants were not perpetrated in the course of sudden quarrel or sudden fight or free for all fight. In fact, both the victims who lost their precious lives were unarmed. There is nothing on record even in the form of defence suggestion or in the statements of accused persons recorded under Section 313 CrPC that both the deceased or 7/8 persons who sustained injuries in the same transaction provoked the appellants and their associates to commit such heinous murder of Lalu and Gour. In fact, no sudden quarrel ensued between the victims and miscreants leading to sudden fight or free for all fight amongst the appellants, the deceased and the injured; vi) the manner of assault and the way in which miscreants including appellants formed an unlawful = 51 = assembly with deadly weapons do not indicate that the series of incidents occurred by chance. Rather, it can easily be gathered from the surrounding circumstances as also corroborative evidences and materials on record that the miscreants came to the places of occurrence in a prearranged manner and they had premeditation in perpetrating murderous assault upon the victims on a public road in a chilly winter night of December.
80. In this context, we would like to refer to the evidence of PW 3, the injured informant who deposes as under:
".........Lalu Das when he saw the assault on me tried to run away towards Singhee Lane but all those persons seeing the same left me and attacked Lalu Das and assaulted him. As a result, Lalu fell down on the road near Simla Byayam Samitee. Thereafter, the miscreants fired some bombs and shots from their pistol and left the place along with Vivekananda Road........."
81. True, Ext. 7 evinces that Lalu Das was brought to the Emergency Ward of CMCH and the doctor wrote on a slip of medical paper inter alia "Krisna Kanto Roy at 10.45 P.M. (in a police van) Bullet injury at 9.30 P.M. ... pt. brought dead ... 3 cm. incised (L) ant. Chest, no charring of skin surrounding, no inversion margin". But as per P. M. Report, the victim Lalu Das had no bullet injury. He had, however, one incised cut penetration wound (stab wound) 1.7"X1.4" over the chest ante mortem and homicidal in nature. In view of specific ocular evidence of the injured and eye-witnesses to the effect that Lalu was stabbed on his chest with a knife by A1, which stands corroborated by the P. M. doctor's medical report, it is beyond our comprehension as to how the doctor wrote about bullet injury on Ext 7 in respect of the victim who was brought dead. Such recording appears to be baseless exfacie and as such the same is not acceptable. At any rate, the testimony of the injured and the eye-witnesses is quite in conformity with the medical evidence reflected through P.M. Report. In such a situation, it is absurd to suggest that the ocular evidence is in conflict with the medical evidence or there is any glaring inconsistency between the two. Rather, it is well established from the direct evidence supported by the medical evidence that Lalu sustained stab wound and not bullet injury as wrongly recorded in Ext. 7 by the doctor without bestowing sufficient care while performing his duties as an emergency Medical officer.
82. In fact, the shots were fired and bombs were hurled to create a terror stricken atmosphere which caused panic amongst the inhabitants of the area and its neighbourhood since it was not an isolated incident confined to any = 52 = particular place but there was a series of incidents covering neighbouring areas too. It is, therefore, crystal clear that when the unfortunate victim Lalu Das, since deceased endeavoured to run away towards Singhee Lane to save himself from the clutches of armed miscreants, he was not spared. After assault upon Lalu when he fell down on the ground near SBS, the assailants did not even spare him at that point of time. Rather they fired some bombs and shots from their pistol to ensure that none dared come forward to save the life of their target. The conduct of the appellants and his close associates, therefore, undoubtedly betrayed their determined bid to annihilate the victim.
83. Another unfortunate victim, Gour Das was assaulted in a similar fashion with a sword like weapon in his residence in the presence of his younger brother Netai, PW 17. The evidence of Anil Das, PW 19, an eye-witness is quoted hereunder to indicate the hardcore cruelty of A1 and A2 armed with dreaded weapons:
".........On 28.12.86 around 9.40 P.M. while I was entering S.N.Road after covering T.P.Road I found a good number of persons including Lada, Baira, Ditoo, Muchigopal, Ashim Burman, Lintoo and 6/7 others shouting infront of premises No. 42A and 42B of S.N.Road. They were shouting in the name of Gour Das. Some of the shops of T.P.Road were closed at that time but street lights were on so also the lights in adjacent houses. Immediately thereafter all the persons mentioned earlier with weapons proceeded towards Gour Das. I became nervous on seeing this and entered the gold smith shop opposite to premises Nos. 42A and 42B and closed the collapsible gate of the shop. I also found Gour Das in front of the sadar door of the premises nos. 42A and 42B. I also heard the alarm raised by Gour Das just before entering the gold smith shop. From the shop I saw Baira thrusting a sword like weapon in the belly of Gour. Within a couple of seconds Netai came running from inside the premises of 42A and 42B, S.N.Road stating 'Lada Baira tora ki korchhis'. As soon as Netai came in the front, Baira assaulted him with the same weapon. At that time a light was burning in front of the sadar gate. After assault Gour raised alarm so also Netai both of them sat on the floor after assault. Immediately thereafter all the miscreants left towards Vivekananda Road within a couple of minutes I heard a sound of bomb explosion from Vivekananda Road side. I was dumb founded for about 10/12 minutes and thereafter I came out the shop after opening the gate. I found Gour and Netai sitting in front of premises No. 42A with their hands pressed against their wounds and blood was coming from the same........."
(Emphasis supplied) = 53 =
84. There is nothing on record to indicate that the victim Gour Das since deceased or Netai, his brother, the injured had any altercation with the appellant Baira or his associates as a result of which both the brothers were attacked and assaulted. On the contrary, the testimony of an eye-witness quoted above tends to show that the unfortunate victim was targeted and chased by A1 and his associates and ultimately A1 thrusted a knife inside his belly mercilessly. As soon as the brother of Gour came to the place of occurrence, he was stabbed similarly by the same weapon in the fateful night of December, 1986. There is no iota of evidence to suggest even in the remotest way that any of the victims or the injured inflicted any injuries either on Baira or his associates. Evidence and connected materials on record are, however, sufficient to establish the loathsome role played by A1 and his associates in causing the death of Lalu and Gour in a ruthless manner. They did not care to spare the victim even when the deceased fell down on the ground. There is no defence suggestion to any of the witnesses that the appellants being provoked assaulted the victims or the other injured with such deadly weapons in a fit of anger resulting the death of Lalu and Gour.
85. Now turning to the five decisions cited by Mr. Kabir, it is found that the same are distinguishable on facts. In Bangaru Venkatarao's case (supra) and D. Sailu's case (supra) the applicability of Exception I and IV of Section 300 IPC has been dealt with. It is observed inter alia by the Apex Court in both the rulings that in case of Exception I, there is no total deprivation of self-control but in case of Exception IV, there is only 'that heat of passion which clouds men's soberness'. There is provocation in Exception IV as in Exception I. But the injury done is not the direct consequence of that provocation. It, however, appears that the Exception is founded upon the same principle for, in both there is absence of premeditation. We feel constrained to opine that none of the ingredients as enunciated above are satisfied in the present case as already discussed earlier. It is not established that the acts were committed either without premeditation in course of sudden fight in the heat of passion or upon sudden quarrel without assailants having taken undue advantage and not having acted in cruel or unusual manner. Rather atrocious attacks were made with a deadly weapon upon the victims to take away their precious lives without the slightest provocation from the unarmed deceased or the injured.
86. In the case of Baban Bandu Patil vs. State of Maharashtra (supra) it is held that if an act is done in the sudden fight in the absence of premeditation and there is total deprivation of self-control then such acts will be covered = 54 = under Exception 1 of Section 300 IPC. In the present case, there is no iota of evidence to indicate that there was total deprivation of self-control by the appellants due to sudden fight and provocation. Absence of premeditation is also not established. Therefore, the cruel acts of A1 and A2 cannot be covered either under Exception 1 or Exception 4 of Section 300 IPC.
87. In Naimuddin's case (supra) the conviction of the appellant was converted to Section 304 Part II/34 IPC from one under Section 302/34 IPC on the ground that bricks were thrown on the vital parts of the body of the deceased who was an old man of 78 years and in that event, knowledge to commit murder can definitely be attributed to the murderer since the deceased died instantaneously after receiving the brick injury. Therefore, on consideration of the totality of the facts and circumstances of the case the appellants were convicted under section 304 Part II(I)/149 IPC after setting aside his conviction under Section 302/34 IPC. The factual scenario in the instant case is both contextually and factually distinguishable since a large number of miscreants including the appellants armed with deadly weapons assaulted Lalu the victim as also the injured at night on public road and another victim Gour and his brother Netai were also stabbed ruthlessly inside the premises without being provoked by the victims since deceased or the injured. Rather the victims and the injured were subjected to gruesome atrocities in a series of incidents happened in a quick succession without any backdrop of mutual altercation or fight. Therefore, the aforecited ruling is of no help to A1.
88. In the case of Gurmukh Singh vs. State of Haryana (supra) the occurrence took place at the spur of moment only and the appellant Gurmukh Singh inflicted a single lathi blow while the rest did not indulge in any overt act. Further, there was no intention or premeditation in the mind of the appellant to inflict such injuries to the deceased. But in the case in hand, A1 inflicted stab injuries on the person of both the victims as also the injured with a knife in a series of incidents. There was premeditation and intention to kill the victims.
89. Therefore, the materials on record do not justify any inference that the appellants had no intention to cause the death of the victims as also there was absence of premeditation. The evidence and materials on record also do not indicate even any hot exchange of words or mutual attacks leading to sudden death of both the victims sustaining injuries by both sides. On the contrary, a close scrutiny of materials on record leads us to opine that the crime was not committed without premeditation on the spar of the moment. In our considered view, A1 and A2 had = 55 = intention to cause death of both the victims and such intention was deplorably explicit from their conduct reflected through the clinching evidence and surrounding circumstances on record.
90. On the question whether the benefit of Exception 1 or 4 to Section 300 IPC can be invoked, on the facts of the present case, it can safely be said in the light of foregoing discussion that all the ingredients of Exception 1 or 4 to Section 300 IPC have not been satisfied. More so, whenever evidence on record unequivocally tends to establish that A1 and his intimate associates armed with deadly weapons assaulted the unarmed deceased and the injured brutally. Further, there was premeditation and homicide was not committed in a sudden fight in the heat of passion upon a sudden quarrel. The appellants took undue advantage of the situation of the deceased and caused fatal injuries to the victims in a very cruel and unusual manner. Both Exceptions 1 and 4 are thus not attracted in view of the fact that there is nothing on record to indicate that A1 and other appellants were provoked by the victims and because of provocation they lost self-control.
91. In Mahesh Balmiki's case reported in AIR 1999 SC 338:1999 CrLJ 4301 (supra), it is held that there is no principle that in all cases of single blow Section 302 IPC is not attracted. Single blow in some cases entail conviction under Section 302 IPC, in some cases Section 304 IPC and in some other cases under Section 326 IPC. It is to be determined on the facts and circumstances of each case.
92. In another ruling reported in (2006) 7 SCC 391 [Pappu vs. State of M.P.] it is held inter alia that it cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body it was given and several such relevant factors.
93. It is, therefore, well settled that whether the appellant dealt a single blow or several blows is of no consequence. The intention to cause death is to be gathered from the totality of circumstances and evidence on record.
94. In our ultimate analysis of the actual scenario reflected through evidence on record in the light of various judicial pronouncements, we are of the considered view that all the ingredients of Exceptions 1 or 4 to Section 300 IPC = 56 = laid down in the provision itself, have not been established. We, therefore, feel constrained to opine that A1 is not entitled to get the benefit of Exception I or 4 to Section 300 IPC. Thus, the argument advanced on that score by Mr. Kabir is devoid of merit.
VII. Faulty investigation:
95. True, no reason has been assigned as to why the Photographer, PW 1 and Planner, PW 2 were not deputed to the P.O.s immediately after the incident. Non-seizure of blood stained earth from each of three places of occurrence has also not been properly explained. More so, whenever the evidence on record indicates that there was no raining since 6.30 P.M. on that fateful night. It is, however, factually incorrect to say that the statement of A5 was not recorded by the I.O. prior to the recovery of incriminating weapons. In this context, we would like to refer to Ext 14 which evinces that the relevant portion of the statement leading to recovery of revolver loaded with remaining two live cartridges by a Police Officer on 15.1.87 was duly proved and exhibited. Therefore, the objection raised by Mr. Debashish Ray in this regard stands overruled.
96. Sanjay Bose, Deputy Manager, System Control Dept., C.E.S.C., has been examined as PW 37 and the relevant papers pertaining to the load- shedding record (Ext 12 and 12/1) have also been produced to establish that there was no load-shedding on T.P.Road, Singhee Lane, Vivekananda Road and surrounding areas at the material point of time at that fateful night. The defence plea of load shedding at relevant point of time thus stands demolished.
97. The forensic experts and ballistic experts etc. have also come to the witness box in support of the prosecution case. But despite such diligent pursuit to collect relevant pieces of evidence available in course of investigation from the side of the I.O.s, there are certain lapses as also negligence from the side of the I.O. Their failure to collect some of important pieces of evidence that transpired during investigation and to maintain follow-up links which could have been made available to them as ventilated by Mr. Ray in his argument under contention nos. 19(v), (vii), (viii), (ix) and (xvii) can unhesitatingly be construed as lapse or negligence from the part of the I.O.
98. It is, however, well settled position of law that if there is any lapse from the part of the I.O. in not seizing the blood stained earth from the P.O., the accused cannot be acquitted solely on account of faulty investigation. In a = 57 = ruling reported in 2004 CrLJ 2490 SC (Ram Bali vs. State of U.P.) it is ruled that mere failure or omission or negligence on the part of the I.O. cannot affect credibility of the prosecution case. More so, whenever the prosecution has succeeded in proving its case to the hilt by adducing cogent, consistent and clinching ocular and medical evidence. The guilt of A1, in fact, has otherwise been proved. Importantly, it can also be said that the prosecution case cannot and should not suffer because of defective investigation. More so, whenever, there is nothing on record even in the form of defence suggestion to indicate that such defective investigation has caused any serious prejudice to the appellants. It, however, cannot be disputed that in cases of defective investigation, the court is required to be more circumspective in evaluating the evidence on record. In this context, reliance can be placed upon a ruling of the Apex Court reported in AIR 1996 SC 193:1996 CrlJ SC 1728 (State vs. Gurmit Singh) wherein it is propounded that in cases of defective investigation, the court is to exercise abundant care and caution for analyzing the evidence on record critically but it would not be correct to acquit the appellants solely on the ground of defective investigation. It is also held herein that to do so would amount to playing into the hands of the I.O. even if investigation is designedly defective.
99. Similar principles have also been reiterated in another ruling by the Apex Court reported in 2004 CrLJ 1807 (Dhanj Singh @ Shera vs. State of Punjab) wherein it is observed inter alia that the accused cannot be acquitted solely on account of faulty investigation. More so, whenever the prosecution has fairly succeeded in establishing the charge brought against the accused by bringing sufficiently strong materials and circumstances on record indicating involvement of the appellant conclusively. We would also like to refer to Karnal Singh's case reported in 1995 CrLJ 4173 (SC) wherein acquittal of accused was ruled out solely on the ground of defective investigation whenever the case was otherwise proved with unrebuttable materials and circumstances on record beyond any reasonable doubt and the loopholes in the investigation were left to help the accused at the cost of worst sufferer of the case.
100. Considering all these, we are unable to persuade ourselves to concur with the views expressed by the learned counsel for the appellants that the prosecution case would fail in its entirety because of I.O.s' latches in conducting an effective investigation with further efficiency and efficacy. Therefore, the arguments so advanced by Mr. Kabir and Mr. Ray on that score must fail.
= 58 = VIII. Essentials of FIR under Section 154 CrPC:
101. Much argument has been advanced from the side of appellants to impress upon us that the statement of PW 3 recorded by the Police at Medical College Hospital cannot be treated as an FIR under Section 154 CrPC. Rather two G.D. Entries, i.e., G.D. Entry 2916 (Ext. 13) recorded at 10.00 P.M. on 28.12.86 and subsequent G.D. Entry 2921 (Ext. 14) recorded at the intervening night of 28/29.12.86 at 3.10 hrs. are the basic documents giving first information about the alleged incidents. On perusal of Ext. 13 it is found that an anonymous telephonic message was diarised. It was communicated to the duty Officer that a disturbance was going on at T.P.Road, Singhee Lane and Vivekananda Road area in front of SBS. Sounds of bombs and fire arms were also heard and 2/3 locals were stabbed. Pursuant to such a telephonic communication, a Police Party headed by S. Banerjee, the S.I., PW 41 along with two other S.I.s, D.P.Bhattacharjee and D. Bose and one Sergeant, S.K.Roy along with force proceeded towards the said area. On return to the P.S., S. Banerjee, S.I. recorded another G.D. being Entry No. 2921 (Ext. 14) at 3.10 hrs. of the intervening night of 28/29.12.86 diarising the steps taken up at the P.O. which include hospitalization of two victims since deceased together with the injured in a Police vehicle, recording of statements of the injured witnesses in the hospital. The names of assailants also figure therein. Further, information regarding registering of the P.S. Case i.e. Section EC/No. 661 dated 29.12.86 under Sections 148/149/307/302 IPC read with Sections 3 & 5 of the Explosive Substance Act and Sections 25/27 of the Arms Act against some of the appellants and 6/7 others was also diarised therein.
102. After a critical analysis of the telephonic message (Ext. 13) as also the subsequent G.D. No. 2921 (Ext.
14), the learned trial judge was of the view that the same cannot be treated as an FIR. On the contrary, the statement of PW 3 was taken down by the Police officer, PW 41 at the Medical College Hospital prior to the recording of G.D. Entry No. 2921 (Ext. 14). The said statement (Ext. 1) being the first in the point of time and also being in conformity with the essential ingredients of FIR, should be treated as such. He has, therefore, rejected the defence plea of treating G.D. Entry 2916 dated 28.12.86 or 2921 dated 29.12.86 (Exts. 13 and 14) as an FIR inasmuch as the requirement of law under Section 154 CrPC cannot be satisfied thereby. Accordingly, the statement of PW 3 (Ext. 1) was treated by the learned Court below as an FIR.
103. It is well settled that the First Information Report need not contain an exhaustive account of the incidents. In fact, the principal object of First Information Report is to make a complaint to the Police to set the = 59 = criminal law into motion. Its secondary, though equally important, object is to obtain early information of an alleged criminal activity (vide AIR 1972 SC 283 (Habib vs. State of Bihar) about the happenings in the area which have been diarized under the G.D. Entry No. 2916 (Ext. 13) dt. 29.12.86. It would appear that the said anonymous telephonic message is cryptic in nature. However, the Officer-in-charge proceeded to the place of occurrence on the basis of the said information to find out the details of incidents as also the nature of the offences relating thereto. True, it was a telephonic information about commission of a cognizable offence but it cannot be said that the bare information which was received by the Police Officer over telephone from an unknown person can be deemed to be a First Information Report having all its legal requirements. As a matter of fact, the information received by the I.O. on the telephone was not of such a nature containing sufficient details which would amount to a First Information Report. As regards to the ingredients of an FIR, it can be said at the outset that the word "information" as envisaged in Section 154 CrPC means something in the nature of a complaint or accusation or at least information of a crime given with the object of putting the law in motion in order to investigate as distinguished from information obtained by the Police when actively investigating a crime. Therefore, even though the FIR is not supposed to contain all details of the incident, it, however, must contain necessary ingredients of offences as it is the basic document on which the Police is to start investigation. It is not sufficient if it indicates only in a cryptic manner that an offence had been committed. In such view of the matter, it is well settled that every telephonic information about the commission of a cognizable offence irrespective of nature and details of such information cannot be treated as the First Information Report under Section 154 CrPC. Therefore, a cryptic and anonymous telephonic message which does not clearly specify the relevant particulars regarding the commission of a cognizable offence cannot be treated as a First Information Report. More so, whenever even the name of the informant is not available from the said telephonic message. Such message, even though, first in point of time, does not by itself come within the character of the First Information Report. The question whether a particular document constitutes a First Information Report or not is to be determined on the relevant facts and circumstances of each case (vide AIR 1970 SC 1566:(1970) 2 SCC 113 [Tapinder Singh vs. State of Punjab]).
104. In this context, it is also to be made clear that a vague information about the commission of murder given to the Police without disclosing as to who was murderer or the facts and circumstances of the case leading to the commission of the murder cannot be treated as an FIR. Where the contents of telephonic message are cryptic and indefinite and do not give any clue as to the names of the assailants or victims etc. alleging commission of cognizable = 60 = offence in round about manner, the same cannot be treated as an FIR. Similarly, mere information on telephone that at a certain place an incident in which several persons received injuries has taken place, being vague and indefinite and not disclosing the commission of cognizable offence straight way cannot be accepted as an FIR. Even mere information to the Police that the victim has been gang-raped without disclosing the clue of the accused persons was also held not an FIR. In fact, a laconic information received over telephone giving no details of offence is not an FIR. Reliance can be placed upon a ruling of the Apex Court reported in 1994 CrLJ 3067 [Ramsinh Bavaji Jadeja vs. State of Gujarat]. In this case the question as to whether the cryptic information given on telephone can be held to be the FIR of the occurrence was examined by the Apex Court and it was observed inter alia as under:
".........Section 154 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') requires an officer in charge of a police station to reduce to writing every information relating to the commission of a cognizable offence, if given orally to such officer. It further requires that such information, which has been reduced to writing shall be read over to the informant and the information reduced to writing or given in writing by the person concerned shall be signed by the person giving it. Section 2(h) defines investigation to include all the proceedings under the Code for the collection of evidence conducted by a police officer or by any other person (other than a Magistrate), who is authorized by a Magistrate in this behalf."
105. Now the question crops up as to at what point of time investigation would actually commence-whether or not the information of the cognizable offence given on telephone is sufficient. In a situation, when telephonic message is cryptic in nature and the Police Officer proceeded to the place of occurrence on the basis of that information to find out the details of the nature of the offence, as discussed earlier, the said information received by the Police Officer on telephone shall not be deemed to be an FIR. Against that backdrop of the circumstances, it is held in the aforementioned decision as follows:
".........the object and purpose of giving such telephonic message is not to lodge the First Information Report, but to request the Officer-in- charge of the Police Station to reach the place of occurrence........."
106. The Hon'ble Apex Court further proceeded to observe inter alia as under:
".........it cannot be said that in such a situation, the moment the Officer-in-charge leaves the Police Station, the investigation is commenced. In normal course, he has first to find out the person who = 61 = can give the details of offence, before such Officer is expected to collect the evidence in respect of the said offence."
107. Similar views have been reiterated by the Apex Court in a subsequent ruling reported in AIR 2003 SC 4414 (Damodar vs. State of Rajasthan).
108. Now coming back to the case in hand, we find that pursuant to Ext. 13, PW 41 along with force proceeded towards the places of occurrence and got the two victims with serious stab injuries together with other injured persons admitted to the hospital. He also got the statement of one of the injured eye-witnesses, namely, Ganesh Agarwal, PW 3 recorded in the emergency bed of CMCH. The said statement was correctly treated as an FIR. After recording of such statement given by the injured eye-witness PW 3 alleging commission of the cognizable offences, and also naming the assailants and the injured, the investigation, in fact, commenced. As already indicated earlier, the object and purpose of giving telephonic message by an unknown person is not to lodge the First Information Report but to request the Officer-in-charge of the Police Station to reach the place of occurrence. In such a situation, the telephonic information would not constitute the FIR while the written statement given by one of the injured eye-witnesses PW 3 would also not be hit by Section 162 CrPC since such statement was recorded prior to the commencement of investigation. Therefore, the said statement (Ext. 1) has rightly been accepted as the FIR of the present case.
109. We, therefore, do not find any cogent reason to differ with the learned trial court's finding that the statement of PW 3 (Ext. 1) recorded by the Police in the C.M.C.H. has rightly been treated as the First Information Report under Section 154 CrPC. Accordingly, after registering the relevant Jorasanko P.S.E.C/ No. 661 under Section 148/149/307/302 IPC read with Section 3/5 Explosive Substance Act and Section 25/27 Arms Act, on the basis of the said FIR, the investigation was correctly proceeded with.
(IX) Test Identification Parade:
110. The Test Identification Parade was held by Sri Prasenjit Mandal, PW 31, the then Metropolitan Magistrate, IXth Court, Calcutta on 30.1.1987 inside the Presidency Jail premises. The four suspects viz. Ashish Kundu (not before us), Sanjay Biswas, A3, Tapan Roy Karmakar, A4 and Samiran Dhar, A5 were identified by the five = 62 = eye-witnesses, viz., Rabisankar Das, PW 4, Tarun Das, PW 5, Achinto Kumar Das, PW 14, Anil Das, PW 19 and Swapan Pramanick, PW 20 and also by three injured viz., Somenath Kundu, PW 9, Pradip Kundu, PW 10 and Rupnarayan Das, PW 8, during the T.I.Parade. Ganesh Agarwal, PW 3, however, identified the suspects Sanjay Biswas and Ashish Kundu while Prithwis Goswami, PW 7 identified the suspects Samir and Tapan Roy Karmakar. It is available from the testimony of PW 31 that none of the suspects made any complaint either during holding of T.I.Parade or immediately thereafter.
111. All the four suspects were also placed again for T.I.Parade on 26.2.87 inside the Presidency Jail. All of them were, however, further identified by one Kanai Das and Nirmal Das, PW 6. PW 31, however, deposes that after the T.I.Parade, all the four suspects stated that they were identified to the witnesses at Lalbazar.
112. The alleged incidents took place on 28.12.86 and the appellants were placed and identified by the witnesses barring two in the T.I.Parade on 31.1.87 i.e. within one month or so from the date of the incidents as also within three weeks from the date of their arrest. However, the T.I.Parade for the suspects in respect of two other witnesses was held on 26.2.87 i.e. within two months from the date of incidents.
113. Two months' delay in holding the T.I.Parade has been subjected to severe criticism by the learned counsel for the appellants. In the context of such assailment, it would be appropriate to mull over the situation necessitating the holding of the T.I.Parade as provided under Section 9 of the Evidence Act. It is settled position of law that failure to hold T.I.Parade does not render evidence of identification in court inadmissible. However, evidence relating to identification of accused made for the first time in court can only be used as corroborative evidence and should not form the basis of conviction. It is also not disputed that the T.I.Parade is to be held at the stage of investigation and it cannot be demanded by the accused that the T.I.Parade is to be held at or before the inquiry or trial. In this context, we would rely upon a ruling of the Apex Court reported in 2010 CriLJ 1440 (SC) [Mulla & Anr. vs. State of U.P.] wherein it is observed inter alia as under:
"The identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the = 63 = crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence."
114. In the case referred to above the accused was put up for the T.I.Parade after 63 days of occurrence and 55 days after their arrest. The possibility of accused being seen by the witnesses who identified them was ruled out and it was held that the delay in holding T.I.Parade was not fatal.
115. The Memorandum of Appeal of the T.I.Parade made by the learned Magistrate, PW 31 and the evidence relating thereto including the positive statement made by the witnesses during identification establishes the factum of identification of the appellants and the same was held admissible in evidence. A close look to evidence of PW 31 indicates that such T.I.Parade was held after observing all legal formalities and procedure as required under the law. There is no doubt that the delay in holding T.I.Parade should generally be explained as it is desirable that the Parade be done at the earliest without loss of time but if there is some valid explanation tendered by the prosecution for delay in holding Identification Parade the evidence of identification can be considered as reliable. Where there is unexplained and unreasonable delay of four months in conducting the Test Identification Parade the delay by itself detracts from the credibility of the Test (vide AIR 1988 SC 345:1988 CrLJ 422 [Hari Nath vs. State of U.P.]). The value of identification evidence is very much minimized if the identification proceedings are held long after the occurrence. It is sometime difficult to identify a person not very well-known when one sees with a rather different appearance after 4-5 months after the crime was committed. But in the present case, it is a point to be reckoned with that even though A3, A4 and A5 being the residents of the same locality were known to the injured and they were not strangers to the identifying witnesses, they had been placed in the T.I.Parade for the reasons best known to the Investigating Agency.
116. Taking those aspects of the matter into account, we are of the view that the result of T.I.Parade held on 28.2.1987 wherein two witnesses identified A3, A4 and A5 should be excluded from our consideration because of complaint by them before the learned Magistrate that they were identified to the witnesses in Lalbazar and also for about two months' delay in holding the T.I.Parade. But the T.I.Parade which was held much earlier on 31.1.1987 where more than six witnesses identified them was free from such blemishes and as such the result of such T.I.Parade is admissible under Section 9 of the Evidence Act and its evidentiary value whatsoever cannot be eroded. However, as = 64 = already discussed earlier, the main object of a T.I.Parade in course of investigation is to facilitate the progress of investigation in right direction. In fact, it is a part of investigation. The law as to identification during T.I.Parade, if taken into consideration in the light of various rulings of the Apex Court, may be summarised as under:
i) To satisfy the investigating authorities that a certain person not previously known to the witness was involved in the commission of the offence or a particular property is the subject matter of the crime,
ii) To furnish evidence to corroborate the testimony which the witness concerned tenders before the court.
117. In the present case, A3, A4 and A5 who were arrested on different dates in the month of January, 1987 were placed on T.I.Parade on 31.1.87, i.e., more or less within three weeks from the date or arrest. It should also be borne in mind that as a general rule the substantive evidence of the witness is the statement made in the court. The purpose of a prior identification is considered a safe rule of prudence to look for corroboration of the sole testimony of witnesses in the court as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. Identification made by the witnesses during trial is primary and substantive evidence in the case. An identification parade belongs to the stage of investigation by the police. Like any other evidence procured during investigation, a test identification parade and result thereof can be utilized either for corroboration or for contradiction. But the peculiarity of the present case lies elsewhere. The identifying witnesses feigned ignorance about the identity of A3, A4 and A5 in court, even though both sides were residents of the same locality. The holding of T.I.Parade was, in fact, not necessitated for those who were known to the identifying witnesses long before. In such circumstances, the earlier identification made by the witnesses at the Identification Parade has, by itself, no independent value.
(X) Applicability of Section 34/147/148 IPC:
118. There are overwhelming materials and circumstances on record to establish that A1 and A2 formed an unlawful assembly alongwith other miscreants in all the three places of occurrence. It, however, cannot be disputed that there is no specific overt act to the credit of other miscreants including A3, A4 and A5. The learned Trial Court has also correctly recorded its finding to that effect. But the fact remains that in the absence of direct evidence on the question of common intention inference can be drawn legally on the basis of surrounding circumstances and other relevant materials on record which are available from the evidence brought on record by injured witnesses and other eye-witnesses provided the factum of presence of A3, A4 and A5 in all the three places of occurrence as their intimate = 65 = associates while the series of assaults were committed by A1 and A2 is established. We feel constrained to observe that the same has not fairly been proved to the satisfaction of the court.
119. It is an admitted position that the names of A3, A4 and A5 do not figure in the FIR. It is also not available from the evidence and circumstances on record that identifying witnesses attributed any specific role to each one of them while identifying them during T.I.Parade. The learned Trial Court has rightly observed inter alia that the witnesses have stated in general terms that all the miscreants were armed with deadly weapons without specifying which weapon was carried or used by which of the accused. It is really disturbing to note that none of the injured/eye- witnesses stated specifically the names of A3, A4 and A5 as the members of an unlawful assembly when they deposed before the court. We also fail to understand as to why the identifying witnesses feigned ignorance about the identity of A3, A4 and A5 whenever evidence on record clearly spells out that A3, A4 and A5 are residents of the same locality and they had previous acquaintance with the appellants including A3, A4 and A5. At any rate, no plausible explanation is forthcoming in this regard.
120. It is, therefore, doubtful whether these three appellants together with other miscreants acted in concert with the principal appellants A1 and A2 who intended to cause death of two innocent victims. In fact, it is not established through the legal evidence and circumstances on record that these three appellants together with other miscreants including A1 and A2 proceeded from one spot to another with a pre-meditated plan. The presence of A3, A4 and A5 being armed with deadly weapons in the unlawful assembly has not been proved beyond all reasonable doubt.
120A. However, even if, the learned State Counsel's argument is accepted that they were present at the spot when the series of incidents occurred, the fact remains that none of them can be held vicariously liable for commission of double murder because of their mere presence at the P.O. unless the prosecution establishes at least two factors, i) common intention and ii) participation of the accused in the commission of an offence. These two legal requirements are to be satisfied for invoking the provisions of Section 34 IPC. It has rightly been pointed out by Mr. Banerjee, the learned counsel for A3 that even though no overt act is required to be attributed to the individual accused, his participation in the crime as also the presence of common intention must also be proved for applying the doctrine of = 66 = vicarious liability. Relying upon the ruling reported in JT 2009 (1) SC 48 [Nagaraja vs. State of Karnataka] as cited by Mr. Banerjee, it is held that only the presence of the accused by itself would not attract the provisions of section 34 of the IPC. Rather, it is to be established that A3, A4 and A5 formed any kind of common intention to murder the victims. There is, however, no doubt that 'the common intention may develop suddenly at the spot, but for the said purpose the genesis of the occurrence should have been proved'. In the present case, it has, however, not been shown that A3, A4 and A5 accompanied A1 and A2 along with other miscreants to the Places of occurrence to assault both the deceased for causing their death. In another ruling reported in JT 2009 (9) SC 16 [State of U.P. vs. Sahrunnisa & Anr.] as referred to by Mr. Banerjee, it is also ruled that the mere presence of the accused at the P.O. with the murderers does not show existence of common intention. Their mere presence by itself cannot be of criminal nature since a common intention cannot be attributed to them for the same. More so, whenever, it is held by the learned trial court on proper appreciation of materials on record that no overt act could be attributed to them.
120B. In the case of Arun vs. State by Inspector of Police, Tamilnadu (supra) it is further held that for the applicability under Section 34 IPC there must be corroborative evidence to show that the appellants charged with vicarious liability acted conjointly with the principal offenders in committing the murder of the victims. In the absence of such circumstances, appellants cannot be held constructively liable under Section 34 IPC for criminal act of murder committed by the principal offenders. Applying such principles of law coupled with the standard of proof laid down therein, we are of the view that there is no evidence whatsoever available on record to show that A3, A4 and A5 shared any common intention with A1 and A2 at any point of time and acted conjointly with A1 and A2. Similar legal principles have also been set out in another decision reported in 2008 (8) SCC 145 [Sashimohan vs. State of M.P.], which has also been relied upon by Mr. Banerjee in support of his contention that A5 cannot be held liable vicariously for commission of double murder by A1 and A2. Therefore, the learned trial court's decision that A3, A4 and A5 must be held vicariously liable for the acts done by A1 and A2 in furtherance of the common intention of all of them is not correct and legally sound. It is not safe and prudent to arrive at such a finding on the basis of doubtful materials on record. More so, whenever A3, A4 and A5 were neither named in the FIR nor specifically mentioned by name in the evidence of eye-witnesses as also injured witnesses. None of them was even named and identified in court. The identity of A3 and A4 and A5 as members of an unlawful assembly has, in fact, not been established beyond all reasonable doubt.
= 67 = 120C. By referring to Parasnath Singh's case reported in 1988 (2) SCC 96 (supra) it is rightly argued by Mr. Banerjee that when A3, A4 and A5 were very much known to the eye-witnesses, non-mention of their names in the FIR and also in the evidence as to their participation in forming an unlawful assembly throws a great doubt as to their sharing of common intention. In such a situation, fortified with the afore-cited ruling we have no hesitation in holding that even though A3, A4 and A5 were reportedly found in the company of the A1 and A2 at the time of occurrence, the same cannot be considered sufficient enough to attribute common intention of killing Lalu and Gour to them.
Findings:
121. On the wholesome appreciation of the entire evidence on record it can safely be concluded that the prosecution story rests on the evidence of a good number of injured witnesses as also other eye-witnesses. It is also well established from the medical evidence which includes plethora of medical papers (Ext. 2-series and 7-series) coupled with the corroborative ocular evidence on record that Lalu Das and Gour Das succumbed to stab injuries inflicted by A1 and A2. The injuries of other witnesses have also been proved from the bed-head tickets and other relevant medical papers. The prosecution has, therefore, proved the charge under Sections 148/307/34 and 302/34 IPC against appellants A1 and A2, since deceased beyond all reasonable doubt. The charge under Section 147/307/34 and 302/34 IPC has, however, not been established against A3, A4 and A5 beyond any shadow of doubt.
122. It is clear from the prosecution story as also the defence suggestion and appellants' statement under Section 313 CrPC that series of incidents happened without any provocation whatsoever from the injured as also the victims since deceased. Rather, the appellants came to the places of occurrence after adequate pre-meditation and the victims were taken aback because of sudden attack upon them with deadly weapons by A1 and A2 in the presence of their associates well equipped with arms. It has, nowhere, been suggested to the injured and other eye-witnesses within the four corners of their testimony that the series of incidents happened all on a sudden because of provocation from the side of the injured victims or there was any free fight between the assailants and the injured. It is also significant to note that the weapons used by the assailants were not of insignificant nature but deadly weapons like sword, knife, pistol and revolver etc. This, in fact, reflects common intention on the part of the A1, A2 and their associates to commit murder of the victims. The nature of injuries sustained by the victims plays a pivotal role in determining = 68 = culpability. The presence of A3, A4 and A5 armed with deadly weapons at the time of infliction of fatal injuries on the victims is, however, not established by clinching evidence and circumstances on record beyond reasonable doubt. There is no direct evidence in this regard. There is, however, no doubt that other miscreants who accompanied A1 and A2 hurled bombs and fired shots to prevent the neighbouring people from coming forward to save the precious lives of the victims and thus to ensure the death of their targets. Therefore, there is the element of participation in action in respect of other miscreants who have specifically been named in the FIR as also by the witnesses in their testimony before the Court. Some of the FIR named accused had been shown as absconders in the charge sheet and by evading Police arrest they did not care to face the trial. In such circumstances, A3, A4 and A5 cannot be vicariously liable for the death of the victims. True, Sadananda Pramanick, PW 22, a seizure witness identified A5 in Court as the person who brought out the packet containing a revolver and cartridges from debris in the presence of Police. The alleged recovery of the revolver together with cartridges as per showing of A5 on 15.1.87 after expiry of two weeks from the date of incident alone, however, does not confirm his presence at the Places of occurrence. In our considered view, such recovery of weapon at his instance as alleged by itself is not sufficient to connect A5 with the series of incidents. So, there is scope for doubting the presence of A3, A4 and A5 as associates of A1 and A2 and other FIR named miscreants whose presence has also been confirmed by the witnesses during trial. In that view of the matter, the court is to interfere with the findings of the learned trial judge to that extent only. In such compelling circumstances, conviction of Sanjay Biswas, A3, Tapan Roy Karmakar, A4 and Samiran Dhar, A5 under Section 147/307/34 and 302/34 IPC cannot be sustained for lack of sufficiently strong legal evidence and corroborative materials on record to prove the charges levelled against them beyond all reasonable doubt. All these three appellants are, therefore, entitled to the benefit of doubt. Accordingly, the judgment of conviction impugned including the sentence awarded thereunder so far it relates to A3, A4 and A5 be set aside to that extent only as indicated above. A3, A4 and A5 be acquitted of the charge on the benefit of doubt. Since the charges under Sections 148/307/34 IPC and 302/34 IPC have been established and firmly established on the basis of overwhelmingly strong evidence and materials on record against the appellant Baira, A1 beyond any shadow of doubt, we cannot but hold that Baira's (A1) conviction under Sections 148/307/34 IPC and 302/34 IPC should be affirmed. Accordingly, the conviction and sentence inflicted upon A1 stands confirmed.
Result:
= 69 =
123. In the result, CRA No. 336 of 1991 fails and stands dismissed accordingly. CRA No. 397 of 1991, CRA No. 11 of 1992 and CRA No. 86 of 1992 being governed by this common judgment succeed and the same are thus allowed. CRA No. 344 of 1991, however, stands abated.
Direction:
124. The principal appellant, Baira @ Bhimnath Singh, A1 is directed to surrender before the learned trial court within two weeks and to serve out the sentence. In default whereof, the learned trial court is at liberty to issue coercive process against the defaulting appellant in accordance with law.
125. All the three appellants namely, Sanjay Biswas, A3, Tapan Roy Karmakar, A4 and Samiran Dhar @ Samir, A5 be set at liberty at once and also be discharged from their respective bail bonds.
126. Let a copy of this judgment together with the LCR be sent back to the learned Sessions Judge, XIIIth Bench, City Sessions Court at Calcutta for necessary information and compliance.
127. Xerox certified copy of this order, if applied for, be given to the parties.
I agree. (Girish Chandra Gupta, J.)
(Raghunath Ray, J.)