Calcutta High Court (Appellete Side)
Raja Dutta @ Animesh Dutta vs State Of West Bengal on 9 July, 2010
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Sailendra Prasad Talukdar
And
The Hon'ble Justice Prabhat Kumar Dey
C.R.A. No. 248 of 2007
RAJA DUTTA @ ANIMESH DUTTA
Versus
STATE OF WEST BENGAL
With
C.R.A. No. 257 of 2007
JISHU JAIN
Versus
STATE OF WEST BENGAL
With
C.R.A. No. 398 of 2007
TAPAS DAS @ BHOMBAL & OTHERS
Versus
STATE OF WEST BENGAL
With
C.R.A. No. 480 of 2007
DULAL HAZRA @ DULU
Versus
STATE OF WEST BENGAL
In C.R.A. No. 248 of 2007
For the Appellant : Mr. Milan Mukherjee,
Mr. Manna,
In C.R.A. No. 257 of 2007
For the Appellant : Mr. Sekhar Basu,
Mr. Rajdeep Majumdar,
Mr. Debasish Roy,
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In C.R.A. No. 398 of 2007
For the Appellants : Mr. J. N. Chatterjee,
Mr. Swagata Dutta,
Mr. Uttam Basak,
In C.R.A. No. 480 of 2007
For the Appellant : Mr. J. N. Chatterjee,
For the State : Mr. Ashimesh Goswami, P.P.,
Mr. R. R. Ghosal,
Judgement on : 09.07.2010
PRABHAT KUMAR DEY, J. :
All the four appeals are directed against the judgment and order of conviction and sentence dated 12.03.2007 passed by the learned Additional Sessions Judge, Fast Track Court 1, Alipore, 24 Parganas (South).
The appellants, namely, Jishu Jain, Dulal Hazra, Raja Dutta, Tapas Das, Shankar Das and Goutam Ghosh were found guilty of the offence under Section 302 / 120B of the Indian Penal Code.
The appellant, Tapas Das, was also found guilty for the offence under Section 25 (1B)(a) of the Arms Act.
The appellants Shankar Das and Goutam Ghosh were also found guilty for the offence under Section 25(1) of the Arms Act.
The facts of the instant case may be briefly stated as follows :
On 7th April, 2002 at about 3.15 / 3.20 P.M. while Mahesh Kumar Agarwal, being the owner of a five storeyed building, namely, "Metro Garden" was inside 3 the office room of Jyoti Construction, three unknown young persons came straightway in front of the office of Jyoti Construction and enquired about the said Mahesh Agarwal from the security guard, named Upendra Kumar Patel of "Metro Garden". The said security guard asked them to wait for some time as his master, Mahesh Agarwal, was inside the office room and he was with his customers. Suddenly, one out of them brought out his firearm and entered into the office room forcibly by threatening the security guard pointing his firearm upon the said security guard. At the same time, the other two persons also entered inside the office room with their firearms and fired two rounds aiming Mahesh Agarwal. The said security guard became puzzled for a moment seeing the incident and in the meantime, the said three miscreants came out of the office room hurriedly and fled away. Mahesh Agarwal sustained bullet injury with profuse bleeding on his right 'thigh'. The said security guard managed to place his master upon a chair outside the office room. In the meantime, some occupants of that building along with local people rushed there hearing the sound of firing. Injured Mahesh Agarwal was immediately removed to Calcutta Medical Research Institute. On 9.4.2002 Mahesh Agarwal succumbed to his injuries at the said hospital.
On the basis of the statement of the security guard, Upendra Patel, New Alipore Police Station case was started under Section 307 / 34 of the Indian Penal Code read with Section 25(1B)(a) / 27 of the Arms Act against the three unknown miscreants and thereafter, Section 302 / 34 of the Indian Penal Code was added.4
After completion of investigation, charge sheet was submitted under Section 302 / 120B / 34 of the Indian Penal Code read with Section 25(1B)(a) / 27 / 35 of the Arms Act against the accused Raja Dutta, Dulal Hazra, Tapas Das, Shankar Das, Goutam Ghosh, Sudip Kumar Sen, Apu Chatterjee, Md. Nasir, Jishu Jain and Bapi Nandi showing Bapi Nandi as absconder.
The learned Trial Judge framed charge under Section 320 / 389 / 120B /34 of the Indian Penal Code against Jishu Jain, Dulal Hazra, Raja Dutta, Tapas Das, Shankar Das, Goutam Ghosh, Sudip Kumar Sen and Apu Chatterjee and under Section 25(1B)(a) /27 of the Arms Act against Tapas Das, Shankar Das and Goutam Ghosh.
In order to discharge the burden of proving the charges, the prosecution examined as many as 50 witnesses in this case. None was examined on behalf of the defence. The accused persons during their respective examination under Section 313 Cr. P.C. pleaded innocence and denied the allegations made by the witnesses for the prosecution.
The learned Trial Judge after taking into consideration all relevant facts and materials by judgment dated 12.3.2007 found six accused persons, namely, Jishu Jain, Dulal Hazra, Raja Dutta, Tapas Das, Sankar Dasn and Goutam Ghosh guilty and convicted them accordingly under Section 302 / 120B IPC and sentenced them to suffer imprisonment for life and also to pay a fine of Rs.5,000/- each, in default, to suffer imprisonment for six months each. Accused Tapas Das was also found guilty and convicted under Section 25(1B) (a) of the Arms Act and sentenced to suffer imprisonment for two years and also to 5 pay a fine of Rs.2,000/-, in default, to suffer further imprisonment for two months. Accused Sankar Das and Goutam Ghosh were also found guilty under Section 27(1) of the Arms Act and convicted thereunder and sentenced to suffer imprisonment for three years each and to also to pay a fine of Rs.3,000/- each, in default, to suffer further imprisonment for three months each. Learned Counsel appearing for the appellants sought to assail the impugned judgment on the ground that the learned Trial Court failed to appreciate materials on record in its proper perspective. It was the specific case of the prosecution that accused Jishu Jain was in jail custody in connection with other cases and as he needed huge amount of money, he was behind the scene causing the death of Mahesh Agarwal through his associates, as the said Agarwal failed to fulfil the demand of Jishu Jain. It was the further case of the prosecution that Jishu Jain wrote a letter to Mahesh Agarwal asking him to make payment immediately through his associates, Raja Dutta, Dulal Hazra and Bapi Nandi, but Mahesh Agarwal refused to meet such demand and as a result, he was threatened and ultimately murdered by the said miscreants.
P.W. 1 was an ASI of Calcutta Police, who took five snaps of the premises no. 31/2, Sahapur Colony being directed by S.I. Abhijit Ghosh. He also stated that he developed the printed photographs and identified one photograph (Mat. Ext. I), wherefrom it was shown as "Metro Garden". He further stated that he took another photograph, which showed a wide cover passage leading to the premises through the entrance gate. It was his further evidence that he took another photograph, which showed a chair and the office room was visible. A 6 patch of blood was there beginning from the chair upto the office room and another photograph was taken by him which was inside the office room - a chair and on the floor of patch of blood was shown.
P.W. 2 is the another A.S.I. of Police, who prepared a rough sketch map of the premises in question.
P.W. 3, an employee of Calcutta Medical Research Institute, handed over the bloodstained wearing apparels to the police.
P.W. 4 is a witness to the seizure of carriage register. He also identified accused Raja Dutta and also the taxi bearing no. WB 9A 7843.
P.W. 5 is the owner of taxi bearing no. WB 9A 7843, which was seized by the police. However, he was declared hostile by the prosecution.
P.W. 6 stated that accused Sankar led the police officer and brought out a firearm from the heap of empty boxes in their presence and it was seized by the police under seizure list in which he put his signature. This witness also stated that leading the police, accused Tapas brought out one firearm from a bag containing sand etc and the said arm with a cartridge was seized under seizure list wherein he put his signature. He further stated that the remaining accused i.e. Goutam led the police and brought out one firearm from garbage. It was also seized in their presence under seizure list in which he put his signature. He identified those accused persons in the T.I. Parade as well as in Court.
P.W. 7 was a witness to the seizure of death certificate of Mahesh Agarwal. P.W. 8 was another witness to the seizure of some photographs. 7 P.W. 9 was purported landlord but no doubt produced in support of claim to tenancy. However, he stated that Sankar, Goutam and Tapas were his tenants. He corroborated the evidence of P.W. 6 on the point of seizure of firearm and cartridge being brought out by each of the accused person namely, Sankar, Tapas and Goutam leading the police personnel. He also identified the accused persons in court.
P.W. 10 stated that on 7.4.2002 at about 3.15 P.M. he found three persons armed with pistal running from colony side. They were discussing amongst themselves that work had been completed and they boarded into the taxi which sped away. He also stated that Raja Dutta was found following the taxi from behind in a motorcycle. This witness further stated that he went to the office of Mahesh Agarwal and found him with bullet injury and he was bleeding. He identified Raja Dutta in court. He also identified the other three accused persons in T.I. Parade but failed to identify them in court.
P.W. 11 corroborated the evidence of P.W. 10 by saying that he found Mahesh Agarwal was bleeding. He was a witness to the seizure of controlled blood and bullet head being seized by police under the seizure list.
P.W. 12 was a resident of the building named "Metro Garden" where the alleged incident took place. According to him, three young persons enquired about Mahesh Agarwal from the Darwan and thereafter, they went inside the office by pushing the Darwan. He also stated that he heard sound of firing twice and also found that the said young persons coming out of the office with chamber (small size gun) in their hands and the Darwan lifted Mahesh Agarwal 8 with bleeding injury. This witness identified those young persons as Sankar Das, Tapas Das and Goutam Ghosh in T.I. Parade as well as in Court.
P.W. 13 also corroborated the evidence of P.W. 12. He deposed that he heard the sound of firing and also witnessed three young persons armed with revolvers running away after coming out of the main gate of the building.
P.W. 14 was a mosaic mistri working in the building of Mahesh Babu at Sahapur Colony. He also corroborated the evidence of P.Ws. 6, 12 and 13 by stating that he heard the sound of firing and then, three young persons coming out from main gate of Sahapur Colony and running away with revolvers in their hands. He also identified two accused persons, namely, Tapas and Goutam, of the three persons in the T.I. Parade as well as in Court. He also stated that he found Maheshbabu sitting in a chair with bleeding injury on his person.
P. Ws. 15 and 16 were declared hostile by the prosecution as they did not support its case.
P.W. 17 was a witness to the seizure of some documents.
P.W. 18 is a resident of the building in question. He stated that Maheshbabu got hurt by gunshot and he was removed to hospital where he died.
P.W. 19 stated about hearing of the sound of firing and he drove the Tata Sumo car in which Maheshbabu was taken to Calcutta Hospital. He did not speak about the alleged incident nor about involvement of the accused persons in the alleged incident.
P.W. 20 stated in his evidence that on 7.4.2002 at about 2.P.M. when he met Mahesh Agarwal in his office, Darwan entered into office and informed Mr. 9 Agarwal that three young persons wanted to meet him. He (Agarwal) asked the Darwan to tell them to wait for 5/10 minutes and Darwan left the office. He further stated that immediately thereafter three persons entered into the office by pushing the door and one of them placed a pistol on the head of the Darwan and asked him to remain silent and seeing this Mr. Agarwal stood up from his chair. Two accused persons immediately opened fired towards him and thereafter, they left the office of Mahesh Agarwal, who sustained bleeding injury on his 'thigh' and was sent to hospital. He identified the accused Tapas Das and Goutam Ghosh during T.I. Parade as well as in Court.
P.W. 21 corroborated the evidence of P.W. 20 regarding forcible entry of three persons into the office of Mahesh Agarwal and one of those three persons touched pistal on the head of Darwan and other two young persons brought out revolvers and pointed towards Maheshbabu and then they open fire and the same hit Maheshbabu on his thigh and he started bleeding profusely. Those accused persons fled away thereafter. He also identified accused Goutam in T.I. Parade as well as in Court as a person who open fire from his revolver to Mahesh Agarwal on the relevant date.
P.W. 22 is a Police Officer who received some documents after seizure. P.W. 23 was a Police Constable. His evidence is not relevant as he simply escorted the accused Jishu Jain from Jail to Sessions Court at Alipore.
P.W. 24, being the Accountant under the victim, simply stated that accused Raja Dutta and Dulal Hazra used to come to the office of Maheshbabu 10 and he made payments twice or thrice to them as per direction of Maheshbabu and those payments were not in connection with supply of building materials.
P.W. 25 was another constable and he was simply tendered by the prosecution for cross-examination and his evidence is not relevant.
P.W. 26 was another constable who took the deadbody of the victim to the morgue.
P.W. 27 was a witness to the inquest report of the deadbody of Mahesh Agarwal.
P.W. 28 was declared as hostile by the prosecution as he did not support the prosecution case.
P.W. 29 was an Asst. S.I. of Police of the Detective Department at Lalbazar. According to him, he produced the papers for according sanction and the Police Commissioner accorded the sanction.
P.W. 30 was a Police Officer who held inquest over the dead body of the victim and prepared inquest report.
P.W. 31 was Dr. Chayan Bose, who was on duty at C.M.R.I. on the relevant date and attended the victim and on examination he found the patient was profusely bleeding from the lower part of his body. The victim was transferred to I.C.U. for better management. According to him, the patient sustained bullet injury at interior aspect of right thy upper 1/3rd by some miscreants.
P.W. 32 was another doctor who issued death certificate of the victim stating that the patient died due to cardiac respiratory failure in a case of gunshot injury.
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P.W. 33 was a witness to the seizure of motor cycle and was subsequently declared hostile by the prosecution.
P.W. 34 was a Judicial Magistrate who held T.I. Parade inside the Central Jail at Alipore in respect of the suspects Tapas Das @ Bhombal, Shankar Das @ Bhai and Goutam Ghosh, who were identified by the witnesses.
According to P.W. 35, the victim happened to be his brother in law. He stated that he met the victim before 15 days of the incident and the victim was in deep anxiety. He also stated that the wife of the victim told him over phone that the victim was depressed as he was receiving some unwanted phone calls. He further stated that he wanted to know the reason of his anxiety when he met him and in reply he told that one Jishu Jain was claiming Rs.5 Lac from him through his agents, namely, Raja Dutta, Bapi Nandi etc. He further stated that the victim met Jishu at Alipore Court as well as in Alipore Central Jail who threatened him with dire consequences in case of failure to make payment of the said sum and also told him that Bapi, Raja and Dulu were approaching him to settle the matter at Rs.2 Lac. This witness further stated he advised the victim to contact the local police and local colony committee then, he told him that he would not intimate the matter to police station. But he would inform the local club and committee about the same. He produced some documents before the police, which were seized under seizure list in his presence.
P.W. 36 Dr. Debasish Mukherjee stated in his evidence that he attended the victim and on examination he found him unconscious and non-responsive 12 and the victim was admitted with history of gunshot injury on right upper side (thy). He found the following injuries :
1. One lacerated wound about 1 CM in diameter over right upper thy about 5 CM below mid inguinal point.
2. An abrasion about 1.5 Cm into ½ CM on the medial side of right knee.
3. An abrasion about 1.5 CM into ½ CM on the dorsum of right hand.
4. Blanket abrasion on right hand on the dorsum lateral aspect, another would was punctured abrasion on left forearm and wrist.
P.W. 37 Dr. T.B. Das, autopsy surgeon, held post mortem examination over the deadbody of the victim. On superficial examination and deception he found the following injuries over the person of the dead body :
1. Abrasion over dorsum of right hand placed above down measuring two inches into one inches.
2. Abrasion over medial side of right forearm placed side to side measuring two inches into ¼ inches.
3. Abrasion over front of right leg upper part placed side to side measuring one inch into half inches.
4. Abrasion over back of left forearm measuring six inches into three inches placed above down.
5. Abrasion over medial side of right knee measuring one inches into ¼ inches placed above down.13
6. Bruises over right clavicular region and chest wall anteriorly measuring 4 inches into ½ inches.
According to him, death was due to the effect of gunshot injury for which surgical intervention was necessary and the said injury was ante mortem and homicidal in nature.
P.W. 38 was another Doctor Abani Kumar Biswas. On the date the victim was referred to him. He operated the patient on the same date i.e. 7.4.2002 in the evening and after exploration of right femoral triangle would be entry irregular margin about 1 cm in diameter and he found profuse bleeding from deep wound. He also found complete transaction of the right femoral vain and tear of tributaries, tear of the superficial femoral artery at the upper third and mid third junction of the right thy and repair of the superficial femoral artery and legation of the transaction femoral vain and tributaries as well as cozing of blood from mussle and unknown tributaries. The said wound was closed in layer. The patient ultimately died.
P.W. 39 was accompanied the victim and Dulu Hazra who were going to Alipore Court and after a while he came near a prison van in the Alipore Court and the victim and Dulu Hazra went near the said van and he was behind them. He also stated that Dulu identified Jishu and Dulu also told Jishu that the victim had come. Dulu, Mahesh walked with Jishu and he also followed them where Jishu told Mahesh to hand over the amount of money, which he demanded to Dulu Hazra and Raja, otherwise, he would be killed. Thereafter Jishu went away 14 with police. He also identified Jishu Jain in the T.I. Parade at Alipore Central Jail as well as in Court.
P.W. 40 was a Sr. Scientific Officer attached to Ballistic Division of the State Forensic Science Laboratory. Some paper packets were produced before him. The envelope marked "C" contains one soft nose fired bullet. He also examined one mutilated soft nose fired bullet contained in a glass vial marked "F". He stated that each of the bullets marked "C" and "F" was found to bear of brown stains. He further stated that paper packet contained the following :
1. One cut opened off white coloured pu full pan bearing a nearly circular hole. On its lower front of the zip fasterner cover pleat.
2. One cut open half sleeve blue shirt
3. One cut opened sando gangi
4. One cut opened jangia bearing two holes on its right front side.
5. Each of exhibits was found to bear dark brown stains almost throughout.
P.W. 41 happened to be the wife of the victim. She stated that her husband was a promoter who was shot on 7.4.2002 when she was in her father's house in Beliaghata and her husband died on 9.4.2002. She also stated that her husband disclosed her that the accused on instruction of Jishu Jain demanded money from him and they also threatened him that if the money is not paid, they would kill him.
P.W. 42 was a Judicial Magistrate who held T.I. Parade of two suspects, Md. Nasir and Apu Chatterjee and submitted report.
15
P.W. 43 was the brother of the deceased. According to him, the victim was looking agitated a few days prior to the incident. On being asked, he replied that one Jishu Jain of Behala was demanding huge money from his brother through Raja, Dulal and Bapi. He also told him that the said person threatened to kill him if the money is not paid. He further stated that Jishu demanded initially Rs.5 Lac through Raja, Dulu and Bapi, but they reduced the amount subsequently to Rs.2 Lac. He also stated that Mahesh told him that he went to Alipore Court to meet Jishu Jain. He identified some letters of the deceased Mahesh Agarwal.
P.W. 44 was a neighbour of Mahesh Agarwal since deceased. He stated that ten days before his death, Mahesh called him and showed some papers containing some write-up and asked him to copy the same. He further stated that he wrote some letters at the house of the victim.
P.W. 45 was an expert attached to Question - Documents Examination Bureau at Bhabani Bhavan, Alipore. According to him, some documents including six letters and one sheet of paper containing some writings were examined and compared with the help of scientific appliances and submitted report.
P.W. 46 was another brother of Mahesh Agarwal, since deceased. He is not an eyewitness to the incident and he stated that his brother was murdered by bullet shot. He was a witness to the inquest report as well as seizure list. He also identified some documents in court.
16
P.W. 47 was an S.I. of Police, who seized one bullet head and bloodstain in cotton from the place of occurrence, controlled earth and prepared seizure list. He stated that he accompanied the Investigating Officer to the place of occurrence.
P.W. 48 was a Judicial Magistrate who held T.I. Parade in Alipore Central Correctional Home in respect of suspect, Jishu Jain and after holding T.I. Parade he submitted his report.
P.W. 49 was a Police Officer, who, after receiving intimation over phone, had been to the place of occurrence after making G.D. Entry at the concerned police station. He was the Investigating Officer of the case and in course of investigation he recorded the statements of witnesses, prepared seizure list after seizure of articles.
P.W. 50 was another Investigating Officer of this case, who ultimately submitted charge sheet against the accused appellants, Dulal Hazra, Raja Dutta, Tapas Das, Shankar Das, Goutam Ghosh, Md. Nasir, Apu Chatterjee, Sudip Sen, Jishu Jain and Bapi Das under Sections 120B / 302 / 34 of the Indian Penal Code and under Section 25/27 of the Arms Act.
Mr. Chatterjee, learned Counsel appearing on behalf of the accused appellants, relied upon a decision reported in (1997) 6 SCC 185 (Kaptan Singh & Others Vs State of MP and Another) wherein the Hon'ble Supreme Court held that the reliance of the learned Trial Judge on the result of investigation to base his finding is again patently wrong if the observation of the Trial Judge is taken to its logical conclusion it would mean that a finding of guilt can be 17 recorded against an accused without a trial relying solely upon the police report. Here in this case, evidence of P.W. 49 i.e. I.O., categorically deposed the Trial Court relating to the result of investigation and on the basis of the facts and documents relied upon during investigation and as such this decision is not applicable in the facts and circumstances of the instant case.
In a case reported in (1997) 6 SCC 171 (Vijender Vs State of Delhi), finding of guilt cannot be based on result of investigation by the police. It should be based solely on evidence produced during trial. Here in this case the Trial Court came to the finding on the evidence adduced during trial.
In Yashpal Mittal Vs State of Punjab reported in 1978 Cr.L.J. 189 the Hon'ble Apex Court held that the very agreement concert or league is the ingredient of the offence of criminal conspiracy. In this case, fact of criminal conspiracy has been made out in evidence and the learned Trial Court rightly held the accused persons guilty of the offence of conspiracy.
In Hardeo Singh Vs State of Bihar reported in 2000 Cr.L.J. 2978, the Supreme Court held that to establish the charge of conspiracy there is required cogent evidence of meeting of two minds in the matter of commission of offence..................... in the absence of which the charge cannot be sustained.
In the decision reported in (2009) 3 SCC (Cri) 646 (Sudhir Shantilal Mehta Vs Central Bureau of Investigation) the Supreme Court held that an agreement between two or more persons, agreement should be to do or cause to be done an illegal act or acts which itself may not be illegal but by illegal means. In view of the above, this decision is not relevant in the instant case. 18
In a judgment reported in (2005) 11 SCC 600 (State of Delhi Vs Navjot Sandhu), the Hon'ble Apex Court held that it is not necessary that all conspirators should participate from the inception to the ends of the conspiracy. Conspiracies are to be proved by circumstantial evidence. Usually, both the existence of the conspiracy and its object have to be inferred from the circumstances and the conduct of the accused.
Mr. Chatterjee, learned Counsel, also relied upon a decision reported in 1999 Cr.L.J. 1138 (Sanjiv Kumar Vs State of HP) wherein the Supreme Court held that offence under Section 120B is an agreement between the parties to do a particular act. There is not an iota of material to establish the alleged agreement between accused Sanjiv Kumar and accused Kamlesh. In absence of such evidence the mere fact that Sanjiv Kumar was the nephew of Kamlesh cannot be held to be sufficient to lead to an inference of conspiracy.
It was submitted by the learned Counsels of the appellants that identification of the assailants is doubtful and not reliable. It was also submitted by them that the alleged eyewitnesses i.e. P.Ws. 20 and 21 were not believable. They also submitted that there is contradiction between the deposition of P.W. 49 regarding statement of P.Ws. 20 and 21. He also submitted that the prosecution failed to prove that the accused appellants, namely, Tapas Das, Shankar Das and Goutam Ghosh were the tenants under P.W. 9 being the landlord. It was further argued that seizure of arms was also doubtful and the prosecution failed to establish the charges against the appellants by satisfactory evidence and as such, they be acquitted of the charges.
19
Leading to the statement of Shankar Das, Tapas Das and Goutam Ghosh, police recovered firearm from each of them, which were kept by them inside the heaps of paper boxes and from inside the garbage respectively. The said seizure was made in presence of witnesses. P.W. 20 and P.W. 21 stated before the Trial Court in their evidence that while Mahesh Agarwal was in the office, then three young persons forcibly entered into the office by pushing the security guard and one of them, touched the pistal on the head of the security guard and asked him to remain silent and on seeing this, the victim stood up from chairman and in the meantime, two young persons open fired towards him and thereafter those three persons fled away and Mahesh sustained bleeding injury on his thy. The said P.Ws. identified those persons as Tapas Das and Goutam Ghosh in the T.I. Parade as well as in Court.
The essence of the offence of conspiracy is the fact of combination by agreement, which may be expressed or implied. The conspiracy arises and the offence is committed as soon as the agreement is made and the offence continues to be committed so long as the combination persists i.e. until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however, it may be. The act in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. The offence of conspiracy requires some kind of physical manifestation of agreement. Expressed agreement, however, need not be proved. For actual meeting of two persons is necessary.
20
The meeting of Raja Dutta with Tapas, Shankar and Goutam established the pre-concert of minds and tacit understanding amongst themselves as to what should be done. Dulal Hazra lead the assailants to the office of Mahesh Agarwal, which established his physical manifestation of expressed agreement. The evidence of P.W. 12 also established that the said Dulal Hazra accompanied the three young persons namely, Tapas, Shankar and Goutam to the office of the victim. The said fact is also corroborated by P.W. 13. I also get ample support from the evidence of P.Ws. 20 and 21 that those three accused persons entered into the office of the victim and as a result of firing from arms of the said accused, the said victim sustained bleeding injury. From the evidence of P.W. 49 I find that the accused Tapas, Shankar and Goutam were arrested by him from a house in Salkia, Howrah and leading to their statements three firearms and one cartridge was recovered in presence of witnesses. P.W. 9 happened to be the landlord of the premises wherefrom the arms and cartridge were recovered from the accused persons, who were tenants under the said landlord i.e. P.W.9. The evidence of P.W. 9 could not be said to be an interested witness as no evidence appeared from his cross-examination and there was no reason to disbelieve his evidence.
One bullet head was seized from the office of the victim and it was established from the evidence of P.W. 47 that there is no doubt that an incident took place in the office of the victim and firearm was used and as a result, the victim sustained bleeding injury.
21
From the evidence of P.W. 49, it was found that he arrested the accused Raja Dutta and leading to his statement, a taxi bearing no. WB 9A 7843 was seized in presence of witnesses (P.W. 4 and P.W.5). It was also established from the evidence of P.W. 10 that the accused Raja Dutta by a motorcycle followed the said taxi in which the aforesaid three accused persons fled away. The involvement of Raja Dutta in the offence as alleged could not be ruled out.
From the evidence of P.W. 43 it appears that in his presence in the office of the victim, Raja Dutta and Dulal Hazra asked the victim to give money as demanded by Jishu Jain and the victim was also asked to meet Jishu either in jail or in court. This P.W. 43 further stated that Jishu demanded Rs.5 Lac initially and subsequently the amount was reduced to Rs.2 Lac. He also stated that he informed the matter to P.W. 35 and advised the victim to inform the matter to the local police station and club.
P.W. 41, the wife of the victim, corroborated the evidence of P.W. 43 by saying that 20 / 25 days prior to the incident, she found her husband with great anxiety and on being asked her husband told her that Dulal, Raja and Bapi demanded Rs.5 Lac from him as per instruction of Jishu Jain and they also threatened to kill him if the money was not paid.
P.W. 35, being the brother in law of the victim, corroborated the evidence of P.Ws. 41 and 43 regarding demand of money by Jishu Jain through Raja, Dulal and Bapi. He has further stated that the victim met Jishu at Alipore Court as well as in jail where Jishu threatened the victim to face dire consequences if the demand is not met. So the demand of money by Jishu Jain through the accused, 22 Raja, Dulal and Bapi could not be ruled out. Dulal and Raja had been identified by P.W. 24 by stating that they used to visit the office of the victim.
On careful scrutiny of the materials and evidence on record, the involvement of Jishu Jain, Raja and Dulal cannot be brushed aside. The accused Jishu, as it appears from the evidence on record, was the mastermind behind the incident of assault and the conspiracy hatched by him and his involvement could not be ruled out.
P.Ws. 31, 32, 36 and 38, being the doctors, treated the victim, who sustained bullet injury on his thigh and ultimately, he succumbed to his injuries. P.W. 37, autopsy surgeon, opined that the cause of death of the victim was due to effect of gunshot injury, which is ante mortem and homicidal in nature.
My attention was drawn to certain inconsistencies in the evidence on record but in my considered view, the evidence adduced by the prosecution either oral or documentary does not seem to suffer from inherent weakness and it is free from all sorts of infirmities.
In view of the facts and circumstances and having regard to the material evidence on record, I hold that the conviction and sentence imposed against the accused, namely, Jishu Jain, Tapas Das, Goutam Ghosh, Shankar Das, Raja Dutta and Dulal Hazra are justified.
It does not suffer from any infirmity and the same should be upheld. In the result, all the appeals are hereby dismissed.
(PRABHAT KUMAR DEY, J.) 23 I had the pleasure of going through the judgment of my learned brother (J. Dey). While concurring with the said decision, I would just like to add a few more things. The same are :-
In order to establish the charge of 'murder', the prosecution must prove that
(i) the death of a human being has actually taken place;
(ii) such death has been caused by, or in consequence of, the act of the accused;
(iii) such act was done with the intention of causing death; or it was done with the intention of causing such bodily injury as (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or the accused caused death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
Six accused persons, namely, Jishu Jain, Raja Dutta, Dulal Hazra, Tapas Das, Shankar Das and Goutam Ghosh had been found guilty of the offence under Sections 302/120B of the Indian Penal Code. Now, what is the evidence in order to justify such conviction ?
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P.W. 12 found Bapi Nandi and Dulal Hazra standing near the main gate of the building wherein the victim had his office. It was at about 3:00 P.M. on 7th of April, 2002. He found three persons getting down from a yellow coloured taxi. They followed Dulal Hazra and went inside the building. Dulal went upstairs to his flat and Bapi stood outside. Those three persons went inside the office of the victim after pushing aside the Durwan, who, in response to their enquiry, asked them to wait. Within two minutes, P.W. 12 heard two firing sounds. Those three persons came out of the office with chambers (small gun) in their hands. Durwan, Upendra Patel, lifted the victim with bleeding injury and made him sit on a chair. Bapi Nandi also could not be seen after that.
P.W. 12 identified those three persons in Court. They are Shankar Das, Tapas Das and Goutam Ghosh. He identified them earlier in T.I. parade.
P.W. 13 corroborated such evidence of P.W. 12 on all material points. He identified Dulal as well as two of the three young persons, who got down from the taxi in Court. They are Goutam and Shankar. He too identified them in T.I. parade. Then comes P.W. 14. He further strengthened such evidence on behalf of the prosecution. On 7th of April, 200, at about 3:15 P.M., he heard two firing sounds and immediately, thereafter, he found three persons running away with revolvers in their 25 hands. He also identified two of them, namely, Tapas and Goutam. He identified them earlier in T.I. parade. These three witnesses were extensively cross-examined but could not be shaken the least.
P.W. 20, in his evidence in chief, deposed that when he was talking with the victim in his office room, the Durwan came over there at about 3 P.M. and told him that three young persons had come to meet him. The victim told the Durwan to ask those three persons to wait for about 5/10 minutes. The Durwan went out. Suddenly, those persons pushed the door and entered into the room. They also pushed aside the Durwan. One of those three persons placed pistol on the head of the Durwan and asked him not to raise alarm. He threatened that otherwise he would kill him.
The victim by the time stood up from the Chair, the other two young persons opened pistol and one of them said "Mere Fal Sahalake" (kill him). Two rounds were fired by them from the pistol. The victim, Mahesh Agarwal, sustained injury on thigh and started bleeding profusedly. Those three persons fled away. The Durwan took the victim outside the office room and placed him on a chair. P.W. 20 identified two of the three persons in Court. He also identified Tapas Das as one who placed pistol on the head of Durwan and asked not to raise alarm. He identified accused, Goutam Ghosh, as one of the two persons who opened fire. 26
P.W. 21, who was also present with P.W. 20 in the office room of the victim at the relevant time, corroborated such evidence on all material points. There is nothing in their cross-examination, which could really raise any doubt regarding their credibility.
True, the Durwan, Upendra Patel, who made FIR, was not examined. According to the prosecution, he could not be traced out. Defence stand is that he had been purposely withheld. But there is nothing convincing so as to justify brushing aside the prosecution stand in that regard. It could very well be that Upendra was far too scared and chose to hide himself. No doubt, Upendra is the first of the charge-sheeted witnesses. His evidence could have been very material. But there is no reason to read much into the failure on the part of the prosecution in producing him in Court at the time of trial.
So far appellant, Raja Dutta, is concerned, there is evidence (P.W. 9) on record to show that prior to 7th of April, 2002, he visited the rented house of those appellants on a number of occasions. P.Ws 35 and 41 clearly deposed that he demanded Rs. 5 lakhs from the victim on behalf of the accused, Jishu Jain and subsequently, told the victim to settle the matter with Jishu on payment of Rs. 2 lakhs. There is further evidence of P.W. 43 that Raja Dutta asked the victim to meet Jishu either in jail or in Court and since the victim declined, Raja told him that he would have to 27 face to consequences. There is nothing before this Court so as to disbelieve such evidence.
Mr. Ashok Mukherjee, ld. Counsel appearing for the appellants, Tapas Dutta & Ors., submitted that P.Ws 20 and 21 cannot be believed, since their statements were recorded four days after the incident. Referring to Exhibit-A, he submitted that it rules out the possibility of presence of P.Ws 21 and 21. Those two witnesses had been sought to be projected as "pocket witnesses".
Referring to the decision in the case of State of Karnataka Vs. Venkatesh, 1992 (1) SCC (Cri) 329, it was submitted that not disclosing the information at an earliest opportunity creates doubt. But in the factual backdrop of the present case, I do not think that there had been any such delay so as to give rise to any doubt.
It was submitted that there is inconsistency in the evidence of P.W. 20 and P.W. 21. They spoke about firing of two rounds whereas the Doctor found only one bullet.
Referring to the decision in the case between Rajinder and State of Haryana, AIR 2006 SC 2257, Mr. Mukherjee submitted that the Apex Court taking into consideration the fact that there was a single fire arm injury and that too, on 'thigh', converted the offence under Section 302 of I.P.C. to Section 304 of I.P.C.
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But the factual backdrop of the present case is significantly different. In the background of evidence on record - particularly that of P.W. 41, wife of the deceased victim, there is no reason to doubt that the only intention of the accused persons was to kill the victim, who had the audacity to refuse the demand of money. Learned Trial Court quite satisfactorily explained this aspect and referring to the fact that the victim was initially sitting on a chair and was hit while trying to stand up. This, by no stretch of imagination, suggests that the accused persons did not intend to kill him. It was sheerly an accident that the bullet hit him in the thigh.
Mr. Milon Mukherjee for the said appellant, Raja Dutta, expressed wonder as to what could justify P.W. 41 to keep quiet so long. On careful analysis of her evidence, I do not think that there is anything controversial in it. P.W. 41 stated that about 20/25 days prior to the incident, the victim in response to her query regarding his anxious look said that Raja, Dulal and Bapi under direction of Jishu demanded Rs. 5 lakhs from her and Jishu even threatened to kill him if such amount was not paid. There is no reason for discarding such clear and categorical evidence of P.W. 41. Entire effort on the part of the defence to create suspicion about the genuineness of the document Exhibit-45 does not seem to have any sound rational basis.
29
Mr. J. Chatterjee who appeared as learned Counsel for the Appellants, Tapas, Shankar and Goutam, referred to the "map", as Exhibited, which, according to him, indicates improbability. I think an attempt has been made to read something more than what meets the eyes. He also submitted that the evidence on record suffers from inherent inconsistencies.
Mr. Sekhar Basu, appearing as learned Counsel for the appellant, Jishu, sought to assail the letter purportedly written by the victim and submitted that it does not specify any name, far less, "Jishu". He referred to Section 93 of the Evidence Act in this context. I am afraid, an attempt has been made to overstretch the said provision. He contended that accused, Jishu, was admittedly in jail and how could he be a party to any criminal conspiracy. Having regard to the evidence on record, I think, his role as the architect of the entire crime, could be very well established by cogent, consistent and convincing evidence. Needless to mention that to be a part of a conspiracy, physical presence is not essentially required.
Mr. Basu referred to the decision of the learned Division Bench being presided over by Hon'ble Justice Asutosh Mookerjee, as reported in AIR 1924 Calcutta 323, while submitting that "the evidence must show that the incident alleged happened at the time, in the place and under the precise circumstances narrated on behalf of the prosecution." 30
No doubt, the legal complexion virtually remains the same. It was emphatically submitted by learned Counsel, Mr. Basu that the evidence on record falls far short of any proof of criminal conspiracy. But after careful consideration of their evidence on record, oral and documentary, I fail to find force in such submission. Mere fact that the appellant, Jishu, was in jail does not by any means indicate that he could not be a party to any conspiracy. There is well-substantiated evidence on record so as to establish that the appellant, Jishu, was the mastermind and others only played in his hands and acted according to his direction.
Mr. Basu submitted that P.W. 17 and P.W. 44 produced those letters Exhibit-25 series before the first Investigating Officer. According to him, contents of the said letters do not implicate appellant, Jishu, as an accused. The letters were written by P.W. 44. Referring to Section 93 of the Evidence Act, he submitted that prosecution cannot be permitted to clarify the same by oral evidence. This aspect has earlier been dealt with and there could be no question of any clarification of the same. The Court could very well proceed with the contents of the said letters.
I also find it difficult to accept the contention of Mr. Basu that the prosecution is required to prove that the accused, Jishu, was one of the conspirators with others in the murder of Mahesh. According to him, the offence of conspiracy to murder cannot go beyond 7.4.2002. 31
It is well settled that a conspiracy is not necessarily hatched in public view. They also serve who stand and stare. The role of accused, Jishu, as reflected from the evidence on record, goes far beyond that of a conspirator. He seems to be the architect of the entire crime.
There are instances where a common citizen feels scared to even speak out. They cannot always ventilate the thoughts, which are in their minds. They cannot transmit whatever information they have got. This does not necessarily lead to the conclusion that such persons cannot be trusted. The fact that P.W. 41 did not inform anything to police between 4.4.2002 to 21.4.2002 does not necessarily justify wiping out his evidence. Though P.W. 39 has been projected as a tutored witness, this Court finds no justification in brushing aside his evidence either. In this context, it may be said that credibility of testimony depends on judicial evaluation of the totality and not isolated scrutiny. Marginal mistakes and minor discrepancies cannot demolish a prosecution case. It cannot be disputed that truth sometime suffers from infirmity when projected through human process. Moreover, what is required is proof beyond reasonable doubt and not beyond all doubt. After all, proof beyond reasonable doubt is the guideline, not a fetish.
So far the present case is concerned, I find that the prosecution succeeded to establish the charge as against the accused persons beyond 32 all doubt and dispute, beyond all confusion and controversy. The evidence on record, oral and documentary, is found to be quite convincing and it satisfies the judicial conscience of the Court.
On behalf of the appellants, reference has been made to a few other decisions. In this context, I would like to refer to the observation of Lord Halsbury in Quinn v. Leathem, (1901) AC 495. The same is :-
"Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found."
After thorough analysis of the findings of the learned Trial Court, in the context of the evidence on record and the settled position of law, I do not find any such infirmity so as to justify any interference by this Court.
Accordingly, the cases being C.R.A. No. 248 of 2007, C.R.A. No. 257 of 2007, and C.R.A. No. 398 of 2007 and C.R.A. No. 480 of 2007 fail and be dismissed. There is no reason nor any rational justification for any manner of interference. Impugned judgement and order of conviction and sentence stands affirmed.
Send a copy of this judgment along with the LCR to the learned Trial Court for information and necessary action.
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Criminal department is directed to supply certified copy of this judgment, if applied for, to the learned Counsel for both parties as expeditiously as possible.
(S. P. Talukdar, J.)