Calcutta High Court (Appellete Side)
Motia Rahaman Dewan & Others vs The State Of West Bengal on 18 January, 2019
Author: Jay Sengupta
Bench: Md. Mumtaz Khan, Jay Sengupta
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
And
The Hon'ble Justice Jay Sengupta
C.R.A. 391 of 2009
Motia Rahaman Dewan & Others
Versus
The State of West Bengal
For the appellant : Mr. Milon Mukherjee
....... Senior Advocate
Mr. Rahul Ganguly
....... Advocate
For the State : Mrs. Rituparna De Ghosh
........ Advocate
Heard on : 11.05.2018, 04.06.2018, 02.07.2018, 03.07.2018,
05.07.2018, 12.07.2018, 18.07.2018, 20.07.2018,
11.12.2018
Judgment on : 18.01.2019
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Jay Sengupta, J.:
1. This appeal is directed against the judgment and order of conviction dated 25th May 2009 and sentence dated 26th May 2009 passed by the Learned Additional Sessions Judge, 2nd Fast Track Court, Chandannagar, Hooghly in Sessions Trial No. 11/08: Sessions Case No. 102/08, thereby sentencing each of the 12 accused/appellants to suffer imprisonment for life and to pay a fine of Rs. 5000/- and in default, to suffer imprisonment for 6 months more for the offence punishable under Section 302 read with Section 149 of the Penal Code and to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 1000/-, in default to suffer simple imprisonment for 2 months more for the offences under Sections 147 and 148 of the Penal Code and to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 1000/-, in default to suffer simple imprisonment for 2 months more for the offence punishable under Section 324 read with Section 149 of the Penal Code. Although the case was started against 13 accused, the trial took place and the conviction and sentence were delivered only in respect of 12 accused as one of the accused Sk. Isrile had passed away.
2. On 21st December, 2006 at about 17:25 hours, PW 2 lodged a First Information with the Officer-in-Charge, Haripal Police Station that on 21st December 2006 at about 17:00 hours, the appellants and another, being led by the appellant no. 1 and armed with weapons formed an unlawful 3 assembly and attacked the victim due to some previous grudge. The appellant Mantu Rahaman and Khakan Rahaman stabbed the victim with their knives on back side of the ribs. As a result, the victim fell down and died on the spot. When the informant and the victim's second brother's wife Rajia (PW3) came running to save the victim, the accused Khakan Rahaman stabbed the informant with the intention to murder him. The de facto complainant sustained a bleeding wound on his left side rib. The sweater on his body saved him. The accused Salim Rahaman pressed his private parts. Rajia Begam tried to restrain the assailants and sustained bleeding cut injuries on the fingers of both her hands from the knife of accused Mantu Rahaman and other arms that the accused had. Out of fear the local persons present there did not come to help. The de facto complainant further alleged that on 19th December 2006 sand was mixed in the meat of one Muzaffar and an altercation took place with one Asraf. The victim lodged a diary at the police station and an altercation took place over the incident and the accused Mantu Rahaman beat up the victim. The victim was attacked and murdered over that earlier incident.
3. Investigation commenced. PW 24 held the inquest over the dead body of the victim on 21st December 2006 at about 21:05 hours in the presence of witnesses PWs 7, 9, 10 and 18. The dead body was found lying in front of the 'Arat' of the victim. A deep wound measuring about 1 inch was seen on the right side of the spinal cord in the middle of the back of the victim. No other wound or injury could be found from outside. On interrogation, the 4 witnesses told that the appellant no. 1 led 12/13 assailants armed with deadly weapons and attacked the victim due to some previous grudge and murdered him. The accused Mantu Rahaman and Khakan Rahaman stabbed the victim with knives on the back side of his body. PW 21 conducted the post mortem examination over the dead body on 22nd December 2016 at about 13:00 hours. He found two stab injuries on the back of the victim and a bruise on his chest. He opined that the death had taken place with 48 hours of the autopsy and the immediate cause of death was shock due to haemorrhage from multiple stab injuries, which were ante mortem and homicidal in nature. After completion of investigation the Investigating Officer filed a charge-sheet. On 9th July 2008 charges were framed against the present appellants under Sections 147, 148, 302 read with Section 149 of the Penal Code and separately against the accused Mantu Rahaman and Khakan Rahaman under Sections 307 and 302 of the Penal Code and separately against the accused Mantu Rahaman under Section 326 of the Penal Code. As the appellants pleaded not guilty, the trial started.
4. From a careful perusal of the evidence on record it appears that PW 1 was a son of the victim and an eye-witness to the occurrence. He deposed that on 21.12.2006 at about 17:00 hours the appellant no. 1 and his associates being the other appellants and one Sk. Isrile (since deceased) came in front of the go-down of the victim. The appellant no. 1 called his father from his go-down and when he came out, the appellant no. 1 5 threatened him as to why did he lodge a complaint at the police station and the other accused asked for the permission of the appellant no. 1 to kill the victim. Then the appellant no. 1 ordered the other assailants to kill the victim whereupon all the others jumped upon the victim. The appellant nos. 5 and 8 were armed with knives. The appellant no. 5 stabbed PW 1's father from behind on his waist in two different places. Then the victim fell down on the ground. At that time PW 8, the victim's wife and PW 3, the victim's brother's wife came to the go-down hearing the hue and cry. PWs 2 and 3 came to rescue the victim. But the appellant no. 8 stabbed PW 2 with a knife on the right side of his chest. The appellant no. 5 again assaulted PW 3 with a knife as a result of which she sustained cut injuries on her two fingers. He further deposed that all the accused had come armed with weapons. The appellant no. 5 was armed with a knife, the appellant no. 8 was armed with an iron chain and the other accused were armed with iron rods. The victim died on the spot. In the cross-examination, PW 1 stated that first an altercation took place between the victim and the appellant no. 1 and thereafter the appellant no. 1 and the other accused assaulted the victim. The altercation continued for about 30 seconds and the assault continued for about a minute. He further deposed that one Mujaffar, PW 5 had a meat shop in the market. On 19.12.2006 one Asraf Mondol went to the said meat shop to purchase meat. PW 5 told him that he would not give him any meat unless the due arrears were paid. Thereafter, Asraf came with a full basket of dust and spread it out on the meat. PW 1 admitted in his cross that it was the appellant no. 5 who stabbed the victim first and thereafter he withdrew the knife from the victim's body. After receiving the first stroke, the victim 6 was still standing. They tried to extricate the victim from the assailants, but the appellant no. 5 gave another blow with the knife to the victim.
5. PW 2 was a brother of the victim, the de facto complainant of the case and an injured eye-witness. He corroborated the presence of PWs 1, 3 and 4 during the incident. He deposed that the appellant no. 1 along with the other accused came in front of the go-down and called for the victim. The appellant nos. 5 and 6 came with knife, the appellant no. 8 was armed with an iron chain and the other accused came with iron rods. The appellant no. 1 asked the victim about why he lodged a complaint against him before the police station. At that time the other accused asked the appellant no. 1 to direct them to kill the victim. Then the appellant no. 1 ordered them to kill the victim. The accused persons pounced upon the victim. The appellant nos. 5 and 6 stabbed the victim on the back and the victim fell down on the ground. When PW 2 went to rescue the victim the appellant no. 5 also stabbed him with a knife on the left side of his chest. At that time PW 3 came to rescue him when the appellant no. 6 assaulted her with a knife on her two fingers of her left hand. When the victim died the accused fled away from the place of occurrence. PW 2 further deposed that on 19.12.2006 one Asraf Mondol went to purchase meat from the shop of PW 5. But PW 5 refused to sell him meat as there were some outstanding dues. Then the said Asraf Mondol spread out dust over the meat. The victim advised PW 5 to lodge a complaint before the police station. Before the incident the accused had assaulted the victim and the latter had lodged a complaint 7 against him before the Haripal Police Station. PW 2 deposed that the appellant no. 3 pressed his throat and the appellant no. 10 pressed his private part during the incident. He had to be treated medically at the Haripal Hospital. In the cross-examination PW 2 stated that the first strike of the knife was received by the victim just 1 inch over the waist and the next strike was received by him also about 1 inch over the waist. He stated that he prepared the written First Information Report at Kalachara Bazar and handed over the police. PW 11 had drafted the FIR as per his instructions.
6. PW 3 was the wife of the victim's brother and an injured eye-witness. She corroborated the presence of PWs 1, 2, 4 and 8 at the time of occurrence. She deposed that PW 8 and she were going to the doctor's chamber. PW 3 deposed that at the time of the incident the appellant no. 1 along with the appellants 5, 6, 7, 8, 9, 10 and the accused Isrile (since deceased) came to the go-down of the victim and called him from there. The appellant no. 1 told him as to why the victim lodged a complaint against him at the police station. The appellant nos. 5 and 6 were armed with knives, the appellant no. 8 was armed with an iron chain and the other accused had iron rods with them. Then the other accused sought permission of the appellant no. 1 to kill the victim and the appellant no. 1 ordered them to do so. The appellant no. 5 stabbed the victim with a knife on his back. The appellant no. 6 also stabbed the victim with a knife on the victim's back. Then the victim fell down on the ground. When PW 2 and she went to rescue 8 the victim the appellant no. 5 stabbed PW 2 on the left side of his chest and the appellant no. 6 assaulted her with a knife on her left hand. She received cut injuries on her two fingers of the left hand. When the victim died, the accused fled away. She was medically treated at the Haripal Hospital. She also made a statement under Section 164 of the Code before a Learned Magistrate. In her cross-examination, PW 3 admitted that when the accused pounced over the victim, he fell down on the ground. Thereafter, the accused assaulted him with iron chain. When the accused jumped over the victim then assaulted him with iron chain and iron rod. She further stated that when the accused stabbed the victim with a knife, the victim was wearing a sweater and a vest.
7. PW 4 was a son of the victim and an eye-witness to the occurrence. He corroborated the presence of PWs 1, 2, 3 and 8 at the place during the occurrence. He deposed that the appellant no. 1 along with other accused came to the godown and called the victim. Then the appellant no.1 threatened him about why the victim made a complainant before the police station. The other accused sought permission from the appellant no. 1 to kill the victim and the appellant no. 1 obliged. Then the accused persons jumped over his father. PWs 5 and 6 stabbed his father on his back with knives. The appellant no. 8 was armed with an iron chain and the other accused were armed with iron rods. When his uncle PW 2 came to rescue the victim, he was stabbed with a knife on the back of his chest and when PW 3 came to rescue the victim she was assaulted with a knife and she 9 sustained injuries on her two fingers of the left hand. In his cross, PW 4 stated that the appellant no. 5 first stabbed his father on his back and when the victim turned towards the appellant no. 6, he stabbed the victim with a knife on his back side. The victim fell down on the ground.
8. PW 5 was a meat shop owner who had a trouble with one Asraf Mondol. He was a pre and a post-occurrence witness. He deposed that on 19.12.2006 the said Asraf came to his meat shop and spread out dust on his meat and accordingly he lodged a complaint before the police station. He deposed that the matter was amicably settled. He further deposed that on that day an altercation took place between the victim and the appellant Salim and accordingly the victim lodged a complaint before the police station. On 21.12.2006 at about 16:00 hours an altercation took place between the victim and the appellant Mantu in the Bazaar and the same was settled. Thereafter, on the same day at about 16:30/17:00 hours the appellant no. 1 along with the other accused came when PW 5 was in his tea stall. After five minutes PW 5 heard that the victim was murdered. He went to the place of occurrence and found the accused had already fled away and the victim was lying on the ground. He deposed that when the accused came to the place of occurrence he did not find anything in their hands. He found at the place of occurrence that the victim had sustained injuries on his waist. In his cross-examination, PW 5 admitted that he did not submit any written complaint before the police station against Asraf with the allegation of spreading dust on his meat. He further stated that the altercation 10 between the victim and the appellant no. 6 took place on the date of the incident regarding submission of complaint before the police station.
9. PW 6 was co-villager and a post occurrence witness. He deposed that on 21.12.2006 at about 17:00 hours the victim died in front of his godown at the Kalachara Bazar. He heard a hue and cry, rushed to the place of occurrence and found the victim lying on the ground. He also found the appellant no. 5 sitting over the dead body and he asked the appellant no. 5 to leave. The appellant no. 5 left the place of occurrence. He did not find any injury on the victim. In the cross-examination, he stated that in fact he and his neighbour one Sahajahan both requested the appellant no. 5 to leave.
10. PW 7 was a co-villager and a witness to the inquest. He found that the victim had sustained injuries on two portions of his back. In his cross, PW 7 stated that the police did not inquire of him about the cause of death of the victim.
11. PW 8 was the wife of the victim and an eye-witness to the occurrence. She deposed that PW 3 and she were proceeding towards a doctor's chamber. On that day she found that the appellant no. 1 along with the other accused came to the go-down of her husband and called him from outside. The appellant no. 1 asked the victim about why he lodged a diary before the police station. Then the other accused sought the permission of 11 the appellant no. 1 to kill the victim. The accused, armed with iron rod, knife and chain pounced over her husband. The appellant nos. 5 and 6 stabbed her husband with knife on his back portion and the other accused also assaulted her husband with iron rod and chain. When PW 2 came to rescue her husband, the appellant no. 5 stabbed him on his left 'panjar'. When PW 3 came to rescue, the appellant no. 6 assaulted her with a knife and she sustained cut injuries on her two fingers. In her cross-examination PW 8 stated that the victim did not lodge any diary against other the appellant no. 1 or anybody else. She stated that she had heard that there was a dispute in the village regarding the slaughtering of cow and the victim never supported such slaughtering. She deposed that all the accused pounced upon her husband as per the instructions of the appellant no. 1. First the appellant nos. 5 and 6 stabbed the victim with knife and thereafter the other accused assaulted the victim with iron rod and chain. She went on to submit that after receiving the stab injury, the victim fell down on the ground and after that the other accused assaulted him with iron rod, chain and knife. Near the end of her cross-examination PW 8 stated that it was the appellant no. 5 who had first stabbed the victim with a knife. After receiving the stab injury given by the appellant no. 5, the other accused held the victim. Thereafter, the victim fell down on the ground and after that the appellant no. 6 stabbed the victim with a knife.
12. PW 9 was a co-villager. He was a pre and post-occurrence witness and a witness to the inquest for the offence of murder. He was also a seizure list 12 witness for the wearing apparels of the victim. PW 9 deposed that when he was sitting in a sweet shop, he found that the appellant no. 1 and the other accused were going towards the go-down of the victim while discussing to kill him. After about two minutes he heard a hue and cry and reached in front of the go-down. He found the victim lying on the ground. He also found that the appellant nos. 5 and 6 were holding knives in their hands. He saw that when PWs 2 and 3 and one Sahajahan came to rescue the victim, the appellant no. 6 threatened to kill them. The accused also assaulted them with iron rods and sticks. Thereafter, the victim died on the spot and the accused fled away from the place of occurrence. In his cross-examination PW 9 stated that when he went to the place of occurrence he found that the victim was lying on stone chips in front of his go-down. The body of the victim was slanted in his presence by PW 2 and others to pour water in his mouth.
13. PW 10 was a co-villager, a post-occurrence witness and a witness to the inquest. He deposed that on hearing a hue and cry he came out from his house and reached the place of occurrence. He found the victim lying in front of his go-down. He found that PW 2 had sustained injuries on his left chest and PW 3 on her two fingers. PWs 2 and 3 and the sons of the victim told him about the incident.
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14. PW 11 was a brother of the victim and a post-occurrence witness. He was also the scribe of the First Information Report. After receiving the news of the victim's death over telephone, he arrived at the village in his motor cycle. He found that the dead body was lying by the side of a heap of stone chips. One Safikul Islam showed it to him by turning the dead body and he found two deep wounds on the back of the victim. In the cross-examination, he stated that the ground where the dead body of the victim was lying was the stained with blood.
15. PW 12 was a co-villager and an eye-witness to the occurrence. He was sitting in a tea stall near the go-down. He deposed that the accused came to the go-down and the appellant no. 1 asked the victim as to why he filed a case against him and as to why did he assault the appellant no. 6. Then an altercation took place between the two. The appellant no. 1 then instructed the other accused to assault the victim and accordingly the accused pounced on the victim. PW 12 saw that the appellant no. 5 stabbed the victim with a knife on his back and the victim fell down on the ground. He saw that the appellant no. 6 also held a knife but could not see what he did at the place of occurrence. PW 3 tried to hold the knife the appellant no. 5 and from that suffered cut injuries on her finger. PW 2 also came to rescue but he sustained injuries on his chest inflicted by the appellant no. 5. He said that he was not interrogated by the police. In his cross, PW 12 deposed that all the accused took part in the altercation. The accused persons assaulted the deceased with kicks and blows.
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16. PW 13 was the elder brother of the victim and the husband of PW 3. He was a post-occurrence witness who was not interrogated by the police. After reaching the place of occurrence he turned over the body of the victim and found two deep wounds on the back portion. He also found that his wife had sustained bleeding injury on her hands.
17. PW 14 was a co-villager and an eye witness to the incident. He deposed that the victim was murdered on 21.12.2006 in front of the go- down of the victim at Kalachara Bazar at about 16:40 hours. He found that an altercation took place between the victim and the accused and some accused left the place of occurrence. In the meantime the said accused brought some other accused persons being all the accused of this case. The accused came and said that they would assault the victim. PW 14 told the appellant no. 1 to settle the dispute but he did not pay any heed. Then the accused called the victim from his go-down and when the victim came out, altercation started. Then the appellant no. 10 pounced upon the accused and the other accused started to assault the victim. The appellant no. 5 stabbed the victim with a knife and the victim fell down on the heap of stones. Then the appellant nos. 3 and 4 tried to assault the younger son of the victim with an iron rod. PW 14 went to rescue him by holding the said rod. PWs 2 and 3 also sustained injuries on their persons. PW 14 gave a statement under Section 164 of the Code before a Learned Magistrate. In the cross-examination, he stated that when PW 2 came to rescue the victim, 15 PW 5 assaulted him with a knife on his chest. He stated that PW 3 also sustained knife injuries accidentally when she tried to rescue the victim.
18. PW 15 used to supply electricity to the shop owners of Kalachara Bazar with his generator. He came to the place of occurrence and found a huge gathering. When the accused started to shout, he left the place of occurrence in fear.
19. PW 16 was the doctor at the Haripal Rural Hospital who treated PWs 2 and 3 on 21.12.2006 for the injuries sustained by them. PW 2 told him that he was assaulted by a few persons, who pressed his scrotum and also dragged knife over the left side of his body. On examination PW 16 found a sharp cutting injury on the left axillary region approximately 2.5 centimetres and tenderness over the chest and back and laceration over scrotum. He opined that the main injury might be caused by a knife. PW 13 told him that she was assaulted by few persons with sharp cutting weapons. On examination, PW 16 found tenderness over the chest and back of PW 3. Three stitches were found over the left hand, injury was of approximately 3.5 centimetres. PW 16 opined that such injuries may be caused with a knife. In his cross-examination PW 16 admitted that none of the patients mentioned the names of the accused before him.
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20. PW 17 was a photographer who had taken some photographs at the instance of the Investigating Officer.
21. PW 18 was a cousin brother of the victim and a post-occurrence witness. He found two wounds on the back side of the dead body. In his cross-examination he stated that he had found a small quantity of blood stained earth near the dead body.
22. PW 19 was also a post-occurrence witness. He found the dead body of the victim lying on the ground and his wife and sons crying beside the dead body. He also found two stab injuries on the back of the victim. The wife and sons of the victim and PW 2 told him that the appellant no. 1 and 6 had come and murdered the victim. In the cross-examination, he stated that the dead body of the victim was lying in front of the go-down and there was a huge heap of stone chips by the side of the dead body. PW 20 had a rental pump repairing shop at Kalachara Bazar under the victim. He was a pre and post-occurrence witness. He deposed that at the time of incident an altercation took place between the victim and the appellant no. 1 and others. He became scared and went inside the shop room. After 10 to 15 minutes when he came out of his shop room he heard the cries of the victim's wife and son and found the victim's dead body lying on the ground. 17
23. PW 21 was the post-mortem doctor. On 22.12.2006 he held the post- mortem examination on the dead body of the victim. He found that rigor mortis was present. One stab injury was there in the back chest above Iliac crest besides vertebral column right side about 1" x 1" x 1". Another stab injury was there above Iliac crest on the back on the left side besides the vertebral column - 2" x 1" x 1". There was a bruise on the chest. Liver and kidney were injured. The time of death was within 48 hours of the autopsy and the cause of death was shock due to haemorrhage and multiple stab injuries, which was ante mortem and homicidal in nature. He opined that the stab injuries might be caused by knife and the bruise might be caused due to assault. In the cross-examination, PW 21 admitted that he did not find any tailing mark over the dead body.
24. PW 22 was a local blacksmith. He was an independent witness. PW 22 deposed that the appellant no. 1 and the other accused came in front of the go-down of the victim and called him from outside. The appellant no.1 scolded the victim as to why did he lodge a complaint against them. Then the accused sought the permission of the appellant no. 1 to assault the victim and the appellant no. 1 instructed them to do so. The accused persons pounced over the victim. The appellant nos. 5 and 6 stabbed the victim from behind with knives. Thereafter, the victim fell down on the ground. The accused persons fled away from the place of occurrence. At the time of the incident PWs 2 and 3 came to rescue the victim. PW 6 assaulted PW 2 on the right chest and he also assaulted PW 3 on her fingers and she 18 sustained cut injuries. In his cross-examination PW 22 admitted that he did not see the other accused except the appellant nos. 5 and 6 to assault the victim with chain and iron rod. He stated that the appellant no. 5 stabbed the victim from behind with a knife by a single stroke. After receiving the first stab injury, the victim was still standing. PW 22 added that the appellant nos. 5 and 6 stabbed the victim at a time from behind and after receiving such injuries the victim fell down on the ground.
25. PW 23 was the constable who carried the dead body of the victim for the post-mortem examination.
26. PW 24 was the Investigating Officer of the case. He deposed that on 21.12.2006 at about 17:25 hours the Officer-in-Charge received information over telephone from Kalachara Bazar that one Mohan Mondol was murdered there and a GD Entry was lodged and police went to the place. The dead body of the victim was found lying in front of his go-down. At about 19.05 hours the Officer-in-Charge received a written complaint from PW 2. PW 24 held inquest, seized articles, examined witnesses, collected injury reports and the post-mortem report and also collected the statements recorded under Section 164 of the Code. After completion of the investigation, he submitted the charge-sheet. He tried to recover the weapons, but could not do so. In the cross-examination, PW 24 stated that the officer in charge had received information over telephone as regards the murder of the victim by 19 the appellant no. 6 and others. Except the name of the appellant no. 1 no other name of the accused had been mentioned in the said GD Entry lodged upon receiving the telephone call. He admitted that no blood mark or accumulation of blood could be found near the said dead body. He stated that there was a group struggle in the locality. Previously the accused and the victim belonged to the same group, but subsequently they were divided into separate groups.
27. PW 25 was an Assistant Sub-Inspector of Police who proved the GD Entry No. 839 dated 18.12.2006 and a certified copy of the same was marked as exhibit 15. He stated that the said GD entry was lodged by the victim.
28. Mr. Milon Mukherjee, the Learned Senior Counsel appearing on behalf of the appellants vehemently opposed the impugned judgement and order of conviction and sentence. He submitted that the First Information Report lodged in this case was ante dated as would be evident from the fact the Learned Magistrate received the same on 28.12.2006 although the same had been lodged on 21.12.2006. He submitted that the prior GD Entry was not produced and it only purportedly mentioned Mantu and others as the assailants. He expressed surprise that the injured eye-witnesses the PWs 2 and 3 did not take the name of the assailants although they were examined medically at about 9 p.m. and 9:15 p.m., respectively on the same date as 20 that on which the First Information Report was lodged. Even the injury reports did not contain the names of the accused. The Learned Senior Counsel also expressed his awe at the giving of addresses of the accused and even their fathers' names, accurately in the First Information Report. According to the Learned Senior Counsel the story as given in the inquest was so well corroborated in the First Information Report that it seemed too good to be true and it appeared that it was tailor-made to be so. He submitted that the charges framed against the accused were defective. He submitted that the non-application of mind was clear from the fact that the Learned Trial Judge clubbed the charge under Sections 302, 149 of the Penal Code in respect of not only the victim deceased Rafikul but also vis-a- vis' the injured witnesses PWs 2 and 3. He further submitted that as there was no seizure of blood stained earth from the place of occurrence, the place of murder could not be fixed. He submitted that in the sketch map, Kalachara Hattala is shown as 'R' which is about 150 feet away from the place of occurrence 'A'. Then, the charge was wrong as it mentioned Kalachara Hattala as the place of occurrence. The Learned Senior Counsel expressed his bewilderment about how the victim could suffer only two injuries when all the 13 accused had allegedly pounced upon him and assaulted him with weapons. He also submitted that if the assailants had an intention to kill then they would not stab at the back. He submitted that there was no specific evidence forthcoming as to whether exhortation by Motiar Rahaman amounted to abetment for murder. He submitted that if PW 3 was to be believed then the appellant no. 6 could not be hauled up for murder. He emphasized on PW 5's evidence that when the accused came to 21 the place of occurrence, they did not have anything in their hands. PWs 1, 2, 3 and 4, according to him, were interested witnesses as they were related to the victim and as such, ought to be disbelieved. He further submitted that the post-mortem doctor did not find any tailing mark for the stab injury although there was ocular evidence that the accused had allegedly withdrawn the knife after stabbing the victim. He submitted that the GD Entry lodged was about spreading of dust and did not relate to any filing of complaint. On his argument that evidence of exhortation was a weak piece of evidence, the Learned Senior Counsel relied on Jainul Haque vs. State of Bihar, (1974) 3 SCC 543, on the issue of delay in lodging First Information Report, he relied on (i) Ishwar Singh vs. State of Uttar Pradesh, (1976) 4 SCC 355; (ii) Rebati Baidya vs. State of West Bengal, (2014) 1 Cal LJ 67; (iii) Mehraj Singh vs. State of U.P., (1994) 5 SCC 188. On the issue of requirement of specific overt act for conviction under Section 149 of the Penal Code, he relied on (i) Baladin and Others vs. State of U.P., AIR 1956 SC 181; (ii) Queen vs. Sabed Ali and Others, 1873 SCC Online Cal 64. He relied on Asraf Biswas vs. State of West Bengal, 2016 SCC Online Cal 4342 on the point that it would not be proper to accept the prosecution case when the place of occurrence had not been established. On the ratio that prosecution had to prove the precise circumstances as narrated, he relied on Mamfru Chowdhury vs. King Emperor, 1923 ILR 418. On the question of proper appreciation of evidence as a whole, the Learned Senior Counsel relied on Arun Kumar Sharma vs. State of Bihar, (2010) 1 SCC 108. 22
29. Mrs. Rituparna De Ghosh, the Learned Counsel appearing on behalf of the State strongly supported the impugned conviction and sentence. As regards non-seizure of blood stained earth from the place of occurrence, she submitted that the same was a mere defect in investigation and therefore, did not vitiate the trial. On this she relied on Gajoo vs. State of Uttarakhand, (2012) 9 SCC 532. She submitted that all the witnesses indicated the presence of all the 13 accused. The appellant no. 1 gave a direction to go and kill the victim. PWs 2, 3, 8, 12 and 22 deposed that the assailants came with arms. PWs 2 and 3 were the injured eye-witnesses and therefore are to be believed. PWs 8, 12 and 22 corroborated their version. Out of these, PWs 12 and 22 were independent witnesses. As regards the charge of Section 302 of the Penal Code simpliciter on the appellants 5 and 6, she submitted that such defect in charge will not vitiate the trial in view of Section 464 of the Penal Code. She submitted that every delay in sending the First Information Report to the Magistrate does not indicate that the First Information Report was ante dated. On this she relied on the ratio laid down by the Hon'ble Apex Court in Bhajan Singh vs. State of Haryana, (2011) 7SCC 421. She further submitted that there was no cross-examination of the Investigating Officer/ PW 24 as regards the delay in sending the First Information Report. Had it been done, PW 24 could have explained the delay. Since the defence did not cross PW 24 on this, it cannot derive any advantage from the issue. As regards some witnesses naming the appellant no. 5 and some naming the appellant no. 6 as the main assailant who stabbed the victim, she submitted that only PW 1 deposed that the appellant no. 5 had alone stabbed the victim while PWs 2, 3 and 4 clearly stated that both the appellant no. 5 as 23 well as the appellant no. 6 stabbed the victim. She submitted that everyone might not see a particular incident from the same angle, especially when 13 accused had pounced upon a victim and only 2/3 stab injuries were given. This according to her also shows that the witnesses were not tutored. She submitted that the incident did occur and the trustworthiness of the witnesses could not be shaken. As regards receiving of no other injury, the Learned Counsel submitted that it was a December evening and the victim was wearing a sweater. Assault might not manifest through external injuries. Regardless of the cross-examination regarding tailing marks, the doctor did clearly mentioned that the injury could be caused by a knife. Regarding the purported defects present in the charges, the Learned Counsel submitted that the same did not vitiate the trial because it was not proved that the same had prejudiced the accused. Even the examination under Section 313 was quite clear. Nothing was suggested that the accused were confused. The Learned Counsel further submitted that mere defects in investigation did not vitiate the trial.
30. We heard the submissions of the Learned Advocates appearing on behalf of the parties and carefully went through the evidence and other materials on record.
31. First, the First Information Report was lodged on the same day i.e., 21.12.2006 as the date of occurrence and soon after the occurrence. 24 Therefore, we do not agree with the submission of the Learned Senior Counsel appearing on behalf of the appellants that there was any delay in lodging the first information. The decisions relied upon on behalf of the appellants are not relevant in the facts of the present case. Moreover, merely because the Learned Magistrate received the First Information Report on 28.12.2006, one cannot just presume that the First Information Report was sent after an inordinate delay. If defence wanted to derive any advantage over such purported fact, it ought to have cross-examined PW 24, the Investigating Officer on this score, thus offering him an opportunity to explain the delay, if any. We agree with the submission of the Learned Counsel for the State that every delay in sending the First Information Report to the Magistrate does not indicate that the same was ante dated. Moreover, the inquest was held within two hours from the lodging of the First Information Report and contained the Police Station Case number. So, there is no question of the First Information Report being ante-timed.
32. As the prior GD Entry reportedly mentioned Mantu and others as the assailants, there is no harm in accepting a more elaborate letter of complaint as the First Information report soon thereafter.
33. That the First Information Report is well corroborated by the Inquest Report need not necessarily evoke any surprise. Had the case been otherwise, the defence would perhaps have been better placed. Nor is the 25 mentioning of names and addresses of all the accused in the First Information Report an unnatural act. In villages, density of population is thinner. It is more likely that the neighbours and locals would be better known to each other or at least their identity easily traceable. Even today posts reach villagers without any assigned house member.
34. We agree with the submission of the Learned Senior Counsel appearing on behalf of the appellants that the Learned Trial Judge erred in mechanically clubbing charges under Sections 302, 149 of the Penal Code even in respect of the injured eye-witnesses PWs 2 and 3. But this is hardly a defect in charge that would prejudice the accused or vitiate the trial. From the trend of cross-examination of the prosecution witnesses and the examination of the accused under Section 313 of the Code, it is quite clear that the appellants had a very good idea about the actual prosecution case they were faced with.
35. The appellants' contention about PWs 2 and 3, the injured eye- witnesses, not disclosing the names of the assailants during the inquest is not of much significance, inter alia, as this is not a case were the names of the assailants were not mentioned in the First Information Report. Moreover, it is quite settled that non-mentioning of names of the accused during an inquest is not per se bad in law.
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36. Mentioning of the names of assailants before the treating doctor too is not an absolute imperative. Moreover, the injured might have thought that as the First Information Report mentioned all the names, it was not necessary to specifically name the accused in the injury reports.
37. Now, coming to the core facts, the Learned Senior Counsel appearing on behalf of the appellants submitted that as no blood stained earth could be seized from the purported place of occurrence, the place of occurrence could not be fixed and consequently the conviction was bad in law. It transpires from the evidence of PW 9 that the victim's dead body was lying on a heap of stone chips and the body was slanted by PW 2 and others. PW11 too supported the factum of slanting the body. So, it is evident that the dead body got shifted a little bit. Moreover, blood that spilled due to the stab wounds might have seeped through the heap of stone chips. The evidence adduced by numerous eye-witnesses and post-occurrence witnesses, some of whom were independent ones, clearly described the place of occurrence. Mere non-collection of blood-stained earth from such place is not fatal to the prosecution case at least in the context of the present case. The decision relied upon in this regard on behalf of the appellant is quite distinguishable on facts.
38. The alleged error in the charge about mentioning of the place of occurrence as Kalachara Hattala too did not cause any prejudice to the accused as from the trend of cross-examination of the prosecution witnesses 27 and the examination of the accused under Section 313 of the Code, it is quite clear that the appellants had a clear idea about the place of occurrence and the actual prosecution case that they were facing.
39. As regards the contention of the appellant no. 1 that exhortation by him would not amount to abetment of murder, it is clear from the evidence adduced by pre-occurrence witnesses and eye-witnesses that it was the appellant no. 1 who led the mob, quarrelled with the victim and then authorised the other accused to murder the victim and all these, due to a previous grudge. It is apparent that the appellant no. 1 enjoyed a position to influence the actions of the other appellants. He put such position of influence to good use and directed the co-accused including the appellants 5 and 6 to murder the victim. This is not a case of mere exhortation in the nature of egging on some act. The appellant no. 1 seems to be a principal player in the commission of the offences as he overtly gave permission to the co-accused to do the victim in upon their seeking such sanction. The decisions relied upon by the Learned Senior Counsel for the appellants on this score are clearly distinguished on facts.
40. In this case, there were several pre-occurrence witnesses, post- occurrence witnesses and eye-witnesses to the commission of offences. PW 5 was an independent co-villager who deposed about an altercation between the victim and the appellant no. 9 on 19.12.2006 and between the victim and the appellant no 6 in the afternoon of the date of occurrence. Later, he saw the accused go towards the place of occurrence and after some time the 28 victim was found murdered. PW 9, another independent local witness deposed that he had seen the accused go towards the victim's place while discussing to kill him. We find no earthly reason to disbelieve these witnesses. Then there were as many as 8 eye-witnesses to the murder out of whom PWs 1, 4 and 8 were related witnesses, PWs 2 and 3 were related yet injured witnesses and PWs 12, 14 and 22 were independent witnesses. Barring a few minor differences, their evidence strongly supported the prosecution case. Even if, for a moment, one forgets the dictum that related witnesses need not be treated as interested witnesses, there is no reason to disbelieve the testimonies of local villagers PWs 12, 14 and 22 as also the severely injured witnesses PWs 2 and 3. In addition, there were several immediate post-occurrence witnesses to the incident like PWs 5, 6, 9, 10, 11, 13 and 19.
41. The contention of the appellants that PW 5 did not see the accused carrying any weapon with them does not necessarily help their case. After all, PW 5 did not witness the exact scene when the accused reached the place of occurrence. In any event, there were eye-witnesses who saw the assailants armed with weapons. Even if one discounts the carrying of several weapons by the accused as exaggeration by over-enthusiastic witnesses, one may not notice carrying of two knives by two of the accused in the midst of such a commotion.
42. Now, as regards the infliction of only two major stab injuries despite thirteen accused attacking the victim, the same is not totally improbable. It 29 is the prosecution case that only two knives were used by the assailants. The contention of the State that the assault by others with hands or other blunt weapons might not leave an indelible mark on the body as the victim was wearing a sweater is not quite acceptable in as much as the alleged assault by the other accused, whether by hands or with other blunt weapons, should have left some mark on the dead body in spite of the cover of a sweater. However, the infliction of the stab injuries at the back of the victim does not necessarily preclude an intention to kill. There was at least an altercation of the victim with as many as thirteen assailants, two of the accused stabbed him, the victim tried to remain standing even after the first strike of knife and all these happened within a few minutes. It is more likely that in such melee, the blows might land a little away from where it was intended. Nevertheless, the stab injuries were sufficient to cause death.
43. As regards the evidence on the main assault by PWs 5 and 6, only PW 1 submitted that PW 5 alone had stabbed the victim while several other eye- witnesses clearly deposed that both had stabbed the victim. We agree with the submission of the Learned Advocate for the State that everyone might not see a particular incident from the same angle, especially when as many as thirteen assailants had accosted the victim and that this also shows that the witnesses were not tutored.
44. So far as the medical evidence is concerned, it squarely supports the ocular version. The non-detection of a tailing mark for a stab injury is not 30 fatal to the prosecution case, especially when the post-mortem doctor categorically stated that the injury could be caused by a knife.
45. The motive for committing the murder of the victim is evident from the earlier altercations between the victim and the accused. The animus between the two sides is also evinced by the lodging of earlier GD Entries. This has further strengthened the prosecution case.
46. As for the roles played by the appellants other than the appellant nos. 1, 5 and 6, one has to find out what overt acts could be attributed to them and the evidence about their sharing the intention of the appellant nos. 1, 5 and 6 to commit the alleged offences. It is true that all the appellants were named in the First Information Report as the assailants and most of the eye- witnesses took their names. But, the absence of other injuries on the dead body except the two stab injuries and the non-mentioning of the exact roles played by each of them at least by some of the eye-witnesses render the prosecution case a little weak as against the said other appellants in the facts and circumstances of the present case. It will not be prudent to base a conviction against these appellants being appellant nos. 2, 3, 4, 7, 8, 9. 10, 11 and 12 by invoking section 149 of the Penal Code merely because PW9 deposed that all the accused were seen going towards the place of occurrence discussing about murdering the victim.
47. From the above discussions, it is quite evident that the charge under Section 302 read with Section 149 of the Penal Code is established against 31 the appellants 1, 5 and 6 beyond all reasonable doubts, but they are not proved beyond all reasonable doubts as against the other appellants.
48. As regards the offence under Section 324 of the Penal Code, the ocular evidence of most of the eye-witnesses including the two injured eye- witnesses PWs 2 and 3 are well supported by the medical evidence and they unerringly point towards the guilt of the appellants 5 and 6. It does not transpire from the evidence though that the mob of thirteen accused came there to injure the PWs 2 and 3. In was in the process of the assault on the victim/deceased that the appellants 5 and 6 assaulted PWs 2 and 3, respectively. Even the charge under section 326 of the Penal Code was framed only against the appellants 5 and 6. In our considered view, only the appellants 5 and 6 are liable to be punished under section 324 of the Penal Code.
49. The offences under Sections 147 and 148 of the Penal Code are also well established against the appellant nos. 1, 5 and 6 as would be evident from the foregoing analysis of the evidence and other materials on record. When conviction and sentence is awarded under section 148 of the Penal Code, there is no need to invoke section 147 separately. But, so far as the rest of the appellants are concerned, there is no cogent evidence available that they carried arms or knew that the appellant nos. 5 and 6 were carrying arms, or they shared the common object of the appellant nos. 1, 5 and 6 to murder the victim/deceased.
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50. In view of the above, we modify the conviction and sentence awarded by the impugned judgment and order to the following extent-
(a) The conviction and sentence imposed under section 302 read with section 149 of the Penal Code are retained and upheld as against the appellant nos. 1 (Motia Rahaman Dewan), 5 (Khakan Rahaman) and 6 (Mantu Rahaman) and set aside as against the rest of the appellants;
(b) The conviction and sentence imposed under section 324 read with section 149 of the Penal Code are set aside in respect of all the appellants, but the appellants 5 (Khakan Rahaman) and 6 (Mantu Rahaman) are each separately convicted under section 324 of the Penal Code and each directed to suffer rigorous imprisonment for three years and to pay fine of Rs.1000/-, in default to suffer simple imprisonment of 2 months more, the sentence having to run concurrently with the other sentences; and
(c) The conviction and sentence imposed under section 148 of the Penal Code are retained and upheld against the appellant nos. 1 (Motia Rahaman Dewan), 5 (Khakan Rahaman) and 6 (Mantu Rahaman), but set aside in respect of the other appellants. However, we do not find any need to retain the conviction and sentence imposed against them under section 147 of the Penal Code.
(d) The appellant nos. 2 (Anil Majhi), 3 (Samir Majhi), 4 (Rabin Majhi), 7 (Sk Rafik), 8 (Paltu Rahaman), 9 (Habibar Rahaman), 10 (Sk Salim), 11 (Salim Mondal) and 12 (Hassim Mollick) are convicted under section 147 of the Penal Code and sentenced to suffer rigorous imprisonment for two years 33 and to pay a fine of Rs 1000/- each, in default to suffer further simple imprisonment for 2 months more.
51. Accordingly, the appeal is allowed in part with certain modifications as indicated hereinabove.
52. Let the Lower Court Records along with a copy of this judgment be sent down to the Learned Trial Court forthwith by special messenger for information and necessary action.
53. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J) I agree (Md. Mumtaz Khan, J)