Lokman Shah and anr. Vs. State of West Bengal - Court Judgment

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	'title_for_layout' => 'Lokman Shah and anr Vs State of West Bengal - Citation 853066 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '853066',
			'acts' => ' <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 148, 149, 201 and 302;;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 16A, 144, 154, 161, 164, 313 and 366;;Evidence Act, 1972 - Sections 9, 30, 33 and 45;;<a href="/act/52009/arms-act-1959-complete-act">Arms Act, 1959</a> - Sections 25 and 27',
			'appealno' => 'Criminal Appellate Jurisdiction, Crl. Appeal No. 274 of 1992 with Death Reference No. 11 of 1996',
			'appellant' => 'Lokman Shah and anr.',
			'authreffered' => '',
			'casename' => 'Lokman Shah and anr. Vs. State of West Bengal',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Gayasi v. State;',
			'citingcases' => '',
			'counselplain' => ' Mr. Balai Chandra Roy, ;Mr. Sekhar Kumar Bose, ;Mr. Subrata Kumar Basu and ;Mr. Asim Kumar Roy, Advs.',
			'counseldef' => ' Mr. Tapan Roy Chowdhury and ;Mr. Thakurdas Roy Chowdhury, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-12-01',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Gitesh Ranjan Bhattacharjee and ;Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">G.R. Bhattacharjee, J.</p><p style="text-align: justify;">1. Both the above noted Death Reference and the criminal appeal are being dealt with and disposed of by this Judgment as they arise out of the same Judgment of the 3rd court of Additional Sessions Judge, Allpore. The trial court by its judgment and order dated 26-8-92 acquitted the accused Sanda Akhtar and the accused Hossaln Chowdhury but convicted the accused Naslm @ Naso and the accused Lokman Shah under section 302/149 IPC and further convicted the accused Naso under sections 148, 201/149 IPC. Subsequently after giving a hearing on the question of sentence the trial court by Its order dated 31-8-92 sentenced both the accused Naso @ Naslm and Lokman Shah to death for their conviction under section 302/149 IPC for the murder of V.K. Mehta and also sentenced the accused Nase to R.I. for 3 years and fine of Rs. 2.000/- i.d. to R.I. for 6 months for the offence of rioting punishable under section 148 IPC and also sentenced him to R.I. for 3 years and a fine of Rs. 2,000/-I.d. to R.I. for 6 months for the offence punishable under section 148 IPC and also sentenced him to R.I for 7 years and a fine of Rs.6000/- I.d. to R.I. for 1 year and 6th months for the offence punishable under section 201/149 IPC. The substantive sentences of Imprisonment were directed to run concurrently. The trial court then made a reference to this court under section 366 Cr.PC for consideration of confirmation of the death sentence Imposed upon the two accused Nase and Lokman. Correspondingly the said two accused have preferred appeal to this court against the judgment and orders of conviction and sentences passed by the trial court. As we have already noted both the death reference and the criminal appeal are being dealt with and disposed of simultaneously by this Judgment.</p><p style="text-align: justify;">2. It may be noted here that on an earlier occasion the trial court In a trial on the same charges and others passed Judgment and orders of conviction and sentences In S.T. No. l(6)/88 and on that occasion four accused persons namely Naso and Lokman (the present appellants) along with the accused Akhtar (c) Sanda Akhtar and Hossaln Chowdhury were Inter alta convicted under section 302/149 IPC for the murder of V.K. Mehta and sentenced to death. There were also other sentences In respect of different accused persons on that occasion. It is however to be noted specifically here that on that occasion the accused Nanney Kasai was convicted under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and sentenced to R.I. for 6 years and he was further sentenced to R.l. for 2 years for conviction under section 148 IPC with the direction that both the sentences would run concurrently. The said accused Nanney Kasai. we are told, did not prefer any appeal against the conviction and sentences Imposed on him and he rather preferred to undergo the sentences imposed on him by the trial court The four accused named above who were sentenced to death however preferred appeals against their conviction and sentences which were all heard together by a Division Bench of this court along with the death reference for consideration of confirmation of death sentence Imposed upon them by the trial court. The Division Bench hearing the said death reference and the connected criminal appeals disposed of the same by Judgment dated 8-7-91 by which the death reference was rejected and the appeals were allowed and retrial of the said four appellants-accused persons by the trial court was directed to be held In respect of the charges for which they were found guilty by the trial court. The precise ground on which the retrial was directed was that the trial court allowed the prayer of amendmenl of certain heads of charges at the stage of argument at the behest of the learned Special Public Prosecutor, thereby making amendment In respect of the names of the places of occurrence in the concerned charges. In view of such amendment In the concerned charges at the stage of argument before the trial court, the Division Bench hearing the earlier appeals and the death reference felt that the accused persons ought to have been given an opportunity by the trial court to cross-examine the prosecution witnesses after alteration of charges, and only on that ground the Division Bench considered It proper, without entering Into the merit of the prosecution case, to direct retrial of the case by the trial court In the manner directed by the Division Bench which we will mention hereafter. But before that we briefly describe the nature of charges framed against the accused persons including the present appellants. The first charge was one under section 148 IPC for rioting. The second charge was one under section 302/149 IPC for the murder of Mokhtar All, a police constable In white uniform. The third charge was one under section 302/149 IPC for the murder of V.K. Mehta, D.C. Port Division., In Khanki uniform. The fourth and the fifth charges were under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and Mokhtar All respectively. The sixth and last charge was under section 324/149 IPC for causing hurt to K.K. Sharma, Asstt. Commissioner of Police (II), Port Division and to Rama Shankar Slngh, constable.</p><p style="text-align: justify;">3. The direction of the Division Bench for retrial was couched In the following language :--</p><p style="text-align: justify;">'On the conclusion as above, we set aside the order of convictions recorded and sentences Imposed upon the four appellants before us and direct their retrial only in respect of those charges for which they were found guilty by the learned trial Judge. In the retrial the learned Judge will give the appellants an opportunity of further cross-examining those witnesses of the prosecution, who had earlier deposed In respect of the above charges and thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure. The four appellants should then be given an opportunity to adduce evidence on their behalf. On the basis of the evidence already on record, evidence to be brought on record pursuant to this order, and the further statements of the appellants, If any, made under' section 313 of the Code of Criminal Procedure, the learned Judge will write out a fresh judgment after hearing the arguments of the parties. By way of abundant caution, we reiterate that the retrial, in terms of this order Is to be confined to the four appellants only and that too only in respect of the charges for which they were found guilty. Since the appellants are In custody for a pretty length of time, we direct the learned trial Judge to conclude the retrial as expedltiously as possible, preferably within a period of two months from the date of communication of this order. Till then, the four appellants shall continue to remain in custody.</p><p style="text-align: justify;"> The appeals are thus allowed and the reference made by the learned Judge under section 366 of the Code of Criminal Procedure is rejected.</p><p style="text-align: justify;">Consequently the retrial was required to be confined to the charge under section 302/149 IPC against the four accused persons, namely, Naso, Lokman, Sanda Akhtar and Hossain Chowdhury, for the murder of V.K. Mehla and also against the accused Naso to the charge under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta as well as under section 148 IPC for rioting.</p><p style="text-align: justify;">4. The trial court held the retrial pursuant to the above noted direction of the Division Bench. The witnesses whom the accused persons desired to further cross-examine In the retrial were produced by the prosecution and were cross-examined. However, at the retrial the prosecution could not produce two of their Important witnesses namely P.W. 26, Md. Mustafa and P.W. 38. Md. Narln as they were not traceable and this fact was recorded by the trial court In Its order No. 295 dated 28-2-92. Be that as It may, on retrial the accused Sanda Akhtar and the accused Hossaln Chowdhury were given the benefit of doubt and were acquitted and this had to be done, as it appears from paragraph 32 of the Judgment of the trial court, mainly because the evidence of the two prosecution witnesses, namely, P.W. 26 and P.W. 38 were not taken Into consideration as they could not be produced for further cross-examination at the retrial. In paragraph 33 of the Judgment of the trial court, it Is recorded in that connection that the learned Special Public Prosecutor after taking sufficient opportunity finally expressed his Inability to produce those two witnesses and also pointed out that after a lapse of nine years the whereabouts of those witnesses could not be ascertained and It may be that for fear of life they had absconded. However, at the retrial the trial court convicted and sentenced the appellants-accused Naso and Lokman as noted earlier and thereafter made this reference under section 366 Cr.PC for confirmation of death sentence Imposed on them. The said two appellants have also preferred criminal appeals against their conviction and sentences.</p><p style="text-align: justify;">5. The prosecution case has been succinctly stated in the earlier judgment of the Division Bench and we restate the same. The prosecution case in a nutshell is that in the morning of March 18, 1984 communal disturbances broke out at Fathepur Village Road under the Garden Reach Police Station and its adjoining areas which fall within the Port Division of Calcutta Police. On getting information of the disturbances Sri Vinod Kr. Mehta, the then Dy. Commissioner of Police of the Port Division went there alongwlth his securily guard Moktar All. Sri K.K. Sharma (P.VV.7), who was the Asstt. Commissioner of Police of that Division then, also reached there along with his security guard R.S. Singh (P.W. 16) and other police officers. When the police personnel tried to restore peace and normalcy, they were attacked by a riotous mob with brick-bats, bombs etc. To avoid mob fury, Sri Mehta and others entered into a mosque but as they were not allowed to remain there by its [mam, they came out. Then they were again attacked with bombs and other lethal weapons and finding no other alternative Sri Mehta took shelter In the house of Abdul Latif Khan (P.W. 21). a constable attached to the Calcutta Police, at G.222 Battikal Second Lane. Moklar All. In his return, took shelter In a near-by house at Dhankhettl. Unfortunately, however they could not save their lives as they were hacked to death by the riotous mob. Subsequently, the charred body of Moktar All was found In an open space near the premises where he took shelter, while that of Sri Mehta bereft of his uniform, was found floating in a drain near premises No. F/59, Attabag with multiple Injuries on his person. Sri K.K. Sharma and his security guard were also attacked by the riotous mob and injured but fortunately they could save their lives by running away. Sri Sharma lodged an Information about the incident in the evening and on that information Garden Reach Police Station registered a case against 150/200 unknown persons for the murder of V.K. Mehta and Moktar All and for assault on Sri K.K. Sharma and other police personnel. S.I., S.R. Ganguly (P.W. 80) of Garden Reach Police Station took up investigation of the case but under orders of superiors Investigation was subsequently taken up by S.I., S.K. Bhattacharjee (P.W. 1) of the Detective Department (Homicide Squad) of Calcutta Police who submitted charge-sheet.</p><p style="text-align: justify;">6. Having described above the genesis of the present appeal, the charges framed, the prosecution case in a nut-shell and the scope of retrial, we now proceed to examine the merit of the prosecution case on the basis of the facts, circumstances and evidence on record. It Is needless to mention that we are now concerned mainly with the case against the two appellants Nase and Lokman. At the very out set. we may mention here that ext. 3/1 Is the site plan which will be of great assistance in appreciating the facts, circumstances and evidence on record Including their co-relation in respect of different aspects of the matter. We may here also adumbrate a broad categorisation of the different types of prosecution witnesses. P.W. 80, Santl Ranjan Ganguly, S.I. of Police who was attached to Garden Reach Police Station at the relevant time is the first I.O. of the case. P.W. 1, SaroJ Kr. Bhattacharjee, S.I. of Police attached to Homicide Squad. Detective Department, Calcutta Police is the second I.O. who submitted charge-sheet after Investigation of the case. P.W. 2 Is the plan maker. P.Ws. 3, 4, 5 and 6 are photographers. They are all police personnel. P.W. 65 Is a private photographer. P.W. 7, K.K. Sharma is the Assistant Commissioner of Police, Port Division who lodged the FIR and P.Ws. 8, 9, 10, 11. 12, 13 and 16 are all police personnel who had been to the disturbed area for restoring law and order there. P.Ws. 15. 18, 20. 22, 23, 25. 27. 28, 29. 34. 35, 36. 37 and 48 were all declared hostile by the prosecution. However, of the said hostile witnesses, we may have to discuss the evidence of some, namely P.Ws. 15, 18, 20, 22, 23 and 25. The main prosecution witnesses Implicating the present appellant Nase are P.Ws..16, 19,21 and 24. The other two vital witnesses P.Ws. 26 and 38 however, could not be produced for further cross-examination at the retrial. P.W. 46 Is the Autopsy Surgeon who held the post-mortem examination on the dead-body of V.K. Mehta. P.Ws. 44, 66 and 67 are also medical witnesses. P.W. 47 is the Judicial Magistrate who held T.I. parade. P.W. 51 is the Judicial Magistrate who recorded the confessional statements of the two accused Nanney Kosal and Lokman Shah on 3-4-84 and 9-6-84 respectively (vide ext. 13 and ext. 14).</p><p style="text-align: justify;">7. We will now discuss the evidence of some witnesses from which we will get an Idea of the nature of the Incident that took place on 18-3-84 in the concerned locality. P.W. 7, Sri K. K. Sharma was posted at the relevant time as Assistant Commissioner of Police (II). Port Division. He says that late V.K. Mehta was his Dy. Commissioner and he died on 18-3-84. It may be noted here that It is In evidence that 18-3-84 was a Sunday and It was the day on which 'hoiI' festival.was being celebrated. It is the evidence of Sri K. K. Sharma (P.W.7) that on that day while he was at his house he received a telephone from Port Division. Telephone Exchange at about 10-45 a.m. to the effect that a trouble was going on at the Junction of Falherpur Village Road and Paharpur Road and that the D.C. Mr, Mehta wanted his presence there. Then he proceeded to the place In a Jeep accompanied by his body guard Rama Shankar (P.W. 16) who was well acquainted with that place and they reached there at about 11 -30 a.m. and found brick-bats lying on the roads and remants of exploded bombs and he also saw a huge gathering. He also heard nofsy sounds. He says that he saw some local police officers standing there and seen D.C. Port accompanied by one Mr. Sen and local leader came to that place accompanied by some agitated persons and the D.C. told him that they would go out and see what was going on and then he, his guard, D.C., his guard Moktar All and 5/6 armed constables proceeded along the Fatherpur Village Road and entered the Mathorpara Basil and found agitated crowd on both sides of Mathorpara Bastl Lane. According to his evidence they proceeded further and came near Ramnagore Lane when brick-bats, bombs etc. were hurled at them and It was about 11-45 a.m. at that time. He says that there Is a mosque near the place where the Mathorpara Bast! approach meets Ramnagore Lane. His evidence is that due to heavy brick batting and bomb throwing D.C. asked them to take shelter Inside the mosque and In order to save themselves they entered Inside the mosque. He describes that there Is a collapsible gale at the back portion of the mosque and they entered the mosque through the front gate and after some time they noticed that a riotous mob of about 40/50 persons were trying to break open collapsible gale of the mosque and those persons were armed with brick-bals, bombs, swords, daggers etc. and Ihen the Imam of the mosque told them to leave the mosque and then the D.C. told him that they would have to leave the place and to go out and had also some discussion regarding their future course of acllon and also told him lhal they were to disparse the violent mobs. According to him the D.C. further told him that he (A.C.) should try to disperse the mob from Mathorpara Bastl approach and Ramnagore Lane junction while D.C. would disperse the mob from eastern side of the mosque. He estimates that there were about 400/500 persons around the mosque, and say that when they came out he noticed the D.C. In the midst of a crowd and was going towards the east. His evidence is that bombs and brickbats were thrown at them and he was surrounded by some persons and they forced him to sit on the ground and someone took off the helmet from his head and he was praying to God for his life and one person started hitting on his head with a full brick ('then if). He also noticed that some persons had daggers and swords with them. He says that he received bleeding Injury on his head and he was more or less senseless at that time and after some time somehow he managed to get up and could, with difficulties, reach the place wherefrom they had earlier proceeded towards the mob. He says that when he was made to sit forcibly by the mob, the situation was such that he could notice where his security guard was and where the other armed constables were. He also did not see his security guard subsequently on that date. His evidence Is that he met the D.C. Head Quarters, D.C. S.B.-I who were standing there at the place where he returned after sustaining injury, namely, near the junction of Paharpur Road and Fathepur Village Road and on seeing his condition the D.C. Head Quarters advised him to go to Calcutta Hospital for treatment and also ordered one sergeant to accompany him to the hospital and he then went to the Calcutta Medical Research Institute and was treated there. His evidence Is that he reached the hospital at about 12-15 p.m. and his Injury on the head was stitched and from there, Ignoring the advice of the doctor to take admission in the hospital, he went to Lalbazar and reached there at about 2-00 p.m. and met the Commissioner of Police (C.P.) and other high officials and narrated the Incident and from Lalbazar he went home as per the direction of the C.P. His further evidence Is that while at home he got a message that Police Commissioner had gone to the spot and he should go there and then he went to the spot and met the superior officers and came to know that the dismembered charred body of the body-guard of D.C. Mehta had been found in an open space and he also saw the charred body which was beyond recognition to him. He gave the name of the body-guard as Moktar All. He says that he also noticed that metallic buttons used by police constables were lying near the charred body and also found remnants of white uniform used by Calcutta Police Constables. According to his evidence D.C., Port Division V.K. Mehta was still untraced and they conducted search for him and on search the body of V.K. Mehta was recovered from a Kancha Nala and it was found that socks were on his feet and both legs were tied with a rope and he was wearing only one Jangea and the Galnjee was rolled up to his chest and the body had multiple marks of injuries In the eyes, face, chest and other parts and the body was sent to morgue for post-mortem examination. From his evidence it appears that In the T.I. parade he Identified the accused Sk. Nanney and in his evidence he says that he saw the said accused (Nanney) when they were coming out of the mosque. In a very violent and aggreslve mood with a bomb In his hand and he was shouting. His evidence is that after the bodies were sent to morgue, he went to Garden Reach Police Station and there S.I., Santf Ranjan Ganguly (P.W. 80) recorded his statement which was signed by him after going through the same. His statement which was recorded and treated as FIR was marked Ext. 4. In his cross-examination he says that he made the statement to the S.I. at about 8-05 p.m. He also clarifies that the statement fn the FIR (Ext.4) 'after seeing Commissioner of Police I came back to the spot at about 15 hours' is not correct, because he went home from Lalbazar and from home he went to the spot. This he has said In his examination-in-chief and we do not think that there is any substantial discrepancy In the matter. In his cross-examination he says that the police vehicles were parked near the crossing of Paharpur Road and Fatherpur Village Road since the vehicles could not got through Mathorpara. He also says that he was assaulted at Ramnagore Lane near a place where Mathorpara Road meets Ramnagore Lane and after the assault he went to the crossing of Fathepur Village Road via Mathorpara Lane. He says that at Lalbazar he came to know that V.K. Mehta and his body guard were still missing. He also says that dusk to dawn carfew was Imposed in that area on 18-3-84 and he was Informed at the P.S. that section 144 Cr.P.C. had been also promulgated in that area. He says that after the incident due to his Injuries he was completely on bed rest for two months. In his cross-examination in the retrial, he says that the dead body of V.K. Mehta was recovered from a Kanchha Nala and he saw It when it was taken out from that Nala. He however did not see the actual bringing out of the body from the Nala. He first saw the dead body, he says, by the side of the road where It was kept after bringing the same out from the nala. His further evidence Is that about 8 to 10 police personnel Including himself and D.C. Mehta were Inside the mosque and while some of the police personnel were not armed, some were carrying muskets and gas shells. It may be noted here that Ext.4 which Is the statement of P. W. 7, K.K. Sharma that was recorded as FIR on 18-3-84 stands In substantial conformity with the evidence of P.W.7. Sri K.K. Sharma as given in court.</p><p style="text-align: justify;">8. P.W. 8, Sayed All Reza Is an armed constable of police. His evidence is that on 18-3-84 he reported to Lalbazar for duty at 6 a.m. and his duty was allotted to Watgunge P.S. and he went there with a gas gun, and that while he was In that P.S. on standby duty at about 10/10-15 a.m. the Subedar reported that a trouble was going on In Garden Reach area and they were required to go there and accordingly they left for Garden Reach and reached there at about 10-30/10-45 a.m. He says that he saw D.C. Mehta, A.C. and olher police forces and police officers present there and then D.C. Mehta proceeded Inside the bastl along with A.C.. the witness (P.W.8), guards of D.C. and A.C., 5 armed constables, 2 plain clothed constables and 3 police officers In plain cloth. He says that after entering Inside the basti they found a dead body lying there and D.C. asked two police men to guard the dead body and three police officers In civil dress were asked to bring a vehicle and pick up the body. He says that they heard noise coming from Inside the bastl and also heard sounds of bombs and then D.C. Mehta alongwith A.C. proceeded Inside towards that direction and they were with them and when they reached the road through the lane near the mosque they were attacked from both sides of the road and they took shelter in that mosque with the help of a Moulabl and members of the mob were throwing bombs, brick-bats and they had lathi, rods also with them. He says that he noticed that about 20/25 bombs were hurled towards them and when they took shelter In the mosque, a violent mob being armed with weapons were trying to break open the back side collapsible gate of the mosque and the Moulabl was also threatened by the mob with dire consequence if he did not drive out the police parly from the mosque and then on being asked by Moulabl they came out of the mosque and they were attacked with bomb and brick-bats and then the A.C. ran inside the lane through which they had reached the road and they also followed him. He says that as soon as he entered inside the lane he saw that the A.C. was being assaulted on his head With a brick and his helmet was missing. According to his evidence he tried to fire gas from his gun but the gun did not work and then using the gun as a lathi he gave a blow to a boy who was assaulting the A.C. He further says that when he hit that boy with the gun the gas shell burst out. He however says that he could not recognise the boy who assaulted the A.C. with the brick on his head as trouble was going. He further says that when the gas shell burst out, all of the persons fled away from the place and A.C. then stood up and started walking slowly with bleeding Injuries on his head. P.W.8 says that he also received a brickbat blow on his leg when he was going to enter inside the lane after coming out of the mosque. His evidence is that he followed the A.C. keeping watch on the back side and In this way they reached the place where they had come from watgunge P.S. and at that time he noticed the presence of D.C. Headquarters at that place alongwith other police officers and constables and they had a talk with the A.C. His evidence Is that he reported to one police officer that D.C. Mehta had been separated from them and on hearing this the D.C. Headquarters proceeded inside the basti alongwith them in order to ascertain the situation. He says that it was then about 1/1-30 p.m. and he took the D.C. and the others to the mosque and on his way he reported the entire incident to the D.C. Headquarters. He says that the D.C. Headquarters started asking the people of the locality regarding the whereabouts of D.C. Metha and on receiving one information they went to an open space on Ramnagore Lane and saw that a human body was burning. He further says that they noticed a piece of white uniform and a nickel button used by constables lying near that place and so he guessed that It was the body of the guard of D.C.Mehta. That place, he says, is near the mosque. His evidence is that then he and other police constables remained at that place where the dead body was burning and the other police officers went to other place and then at about 5-30/6-00 p.m. they come to know that the dead body of V.K. Mehta had been traced out. His further evidence is that he saw that a dead body was placed by the side of a drain in a lane and the dead body was covered with a white cloth and a police officer lifted that cloth and he found that it was the dead body of Mehta with marks of injuries. In his cross-examination he says that he was 3/4 cubits behind the A.C. when the A.C. was being assaulted and as he was threatening the mob with the gas gun he was not assaulted by any person of that mob. He gives the time as 2/2-30 p.m. when he noticed that the dead body was burning. P.W.9 is also an armed constable attached to the 5th Battalion. He was also sent on duty to Garden Reach area on 18-3-84 after 10-00 a.m. He says that in their party there were 4 armed constables and four had gas guns and some others had lathies and one inspector was with them. His evidence Is that on reaching Paharpur they found a gathering and also heard shouts and D.C. Port, A.C. and other police officers were present at that place. His further evidence Is that D.C. Port, asked four armed constables and four constables with gas guns to accompany him in the adjacent lane and they entered in the lane and after going some distance found a house in blaze and the D.C. placed two armed constables to guard that house and then they along with D.C. were proceeding through an adjacent baeti area and noticed a dead body and D.C. ordered two local police men to guard the dead body and they proceeded further and came to a road near a mosque and when they were on that road they were attacked from both sides with brick-bats, bombs and on being attacked they entered inside the mosque. He says that there were 60/70 persons on both sides of the road. His evidence is that then some persons were trying to break open the gate of the mosque and the Moulabl asked them to get out of the mosque and they came out of the mosque and they were attacked with bombs and brick-bats. He says that he took shelter in a chala and also threw his gas granade but the granade did not burst. He says that from the Chala he came out and started running and he met the A.C. and other police men. He says that A.C. had bleeding injury on his head and finally he boarded the lorry. in his cross-examination he says that D.C., A.C., himself and other police men were together up to the mosque of Paharpur.</p><p style="text-align: justify;">9. P.W.10 is another armed police constable. He was also sent on duty to that place on that day. His evidence is that when they came to the Junction of Paharpur Road and Fathepur Village Road, D.C. Port, V.K. Mehta, his guard, A.C. Port Mr. Sharma, his guard, O.C. Garden Reach P.S. and some local police officers and constables were present there. He says that a house was burning some distance away and a vehicle of Fire Brigade was there. His evidence is that they along with D.C. and A.C. proceeded towards the northern direction and D.C. posted two armed constables near the burning house and proceeding further they found a dead body and D.C. posted the constable of local P.S. there and they proceeded further and noticed an agitated mob and also heard sounds of bombs. He says that they reached Ramnagore Lane near the mosque and up till then the D.C. did not order them to fire. He further says that the D.C. did not pass any order to fire. His evidence-is that when they reached near the mosque, bombs were thrown and they entered inside the mosque. He further says that 20/ 25 persons armed with sharp weapons such as sword, tangi like weapon, klrlch etc. tried to break open the gate of the mosque and when they then all came out of the mosque bombs, brick-bats were thrown at them. He also speaks of assault by one person on A.C. Mr. Sharma and says that his helmet had fallen on the ground and his head was bleeding. He says that at that stage he did not see the D.C. He further says that on their way back he had fired two rounds in the air in order to save themselves as bombs were being hurled from roof-top. He also speaks about the burning of a house and says that Mr. Sharma told the D.C. Headquarters that the D.C. Mehta had been separated from them and then Sharma left for hospital as he has injury on his head and they boarded the lorry. His cross-examination shows that the D.C- Port Division had a shield in his hand at certain stage. P.W. 11, Ashlm Chakraborty is also an armed constable of Calcutta police who was sent on duly there on that day. He says that he was carrying gas gun. He also speaks about the mob found on reaching Fathepur Road arid Paharpur Road crossing. He testified to the presence of D.C. Port. A.C., Port and their guards and officers of Garden Reach P.S. as well as police men of that P.S. He says that they could hear shoutings and sounds of bombs coming from northern side and the D.C. asked them to follow him and than D.C., A.C., their guards and they including the witness along with police officers of the local P.S. and constables proceeded towards north through Fathepur Village Road and through a narrow lane in the basti when they heard sounds of bombs and noise in the Bastt and also they found a deadbody near a two storyed building covered with cloth. He says that the D.C. ordered the two constables of the local P.S. who had muskets to guard the deadbody and also directed the two officers of the local P.S. to make arrangement for removal of the deadbody and then he along with D.C., A.C., their body guards, two armed constables and four gas constables including himself proceeded towards further north and reached Ramnagar Lane near a mosque. He says that many people were shouting, standing on sides of Ramnagar Lane and they were attacked with bombs and brickbats from both sides of the road and then they all entered (n the mosque. His evidence shows that a mob armed with swords, bhojalis were trying to break open the collapsible gate and the D.C. ordered them to come out of the mosque and then they all came out and they were again attacked with bombs and brickbats from both sides of the road. He says that he was hit on his leg with a brickbat. He further says that he fired one round of tear gas shell but it did not explode and then out of fear and to save himself, he took shelter in a tileshed and another constable also took shelter there. He noticed that the A.C. Port Division was going back. He also speaks about the bleeding injury on the head of the A.C. Port Division Then they reached the crossing of Paharpur and Fathepur Village Road where D.C. Headquarters was present. He says that A.C., Port Division talked to the D.C. Headquarters. P.W. 12 Naba Ranjan Dutta is an armed police constable. He says that from Lalbazar they were sent to Garden Reach area and they went there in a lorry and reached Paharpur Road at about 11/11-15 a.m. and found V.K. Mehta. D.C., Port and A.C., Port present there. His evidence also shows that when they reached the road near the mosque a mob of about 150 persons or so on both sides of the road started throwing bombs and brickbats towards them and then they entered inside the mosque and then some persons were trying to break open the collapsible gate of the mosque and were shouting for driving them out of the mosque. He further says that D.C. and A.C. had some conversation with the Moulabl of the mosque and thereafter they all came out and when they came on the road they were again attacked with brickbats and bombs from both sides on the road. He says that he was also hit on his hand and feet by brickbats. He of course cannot say as to which of his companions had gone in what direction but he noticed that the A.C. and 2/3 armed policemen were going towards the lane through which he had come earlier and he followed them. P.W. 13 Ajit Kr. Malty, a constable of Calcutta Police who was in the police party at the relevant time also speaks about that part of the incident which the other police witnesses have described as discussed above.</p><p style="text-align: justify;">10. P.W. 16 Rama Shankar Singh who is a police constable was the security guard of K.K. Sharma (P.W.7), the A.C.-11 (Port) at the relevant time. He went to the spot with the A.C.-II (P.D.) on the relevant date. He says that they reached Fathepur Village Road and Paharpur crossing at about 11-00 a.m. and found the D.C.. Port. Vinod Kr. Mehta and his body guard, both in police uniform, present there as well as the O.C. Garden Reach P.S. and three police officers of South Port Police Station. He also speaks about the presence of some constables of Garden Reach P-S. and police force there. His evidence shows that the people of that locality were in very agitated mood and the D.C. was trying to pacify them and at that time they heard uproars and sounds of bombs coming from Mathorpara side and then the D.C., Port, his body guard, Mr. Sharma, he (the witness), three police officers, two constables of Garden Reach P.S. and six armed constables, [two carrying muskets, two with gas guns and two with gas granades) proceeded towards Mathorpara under the leadership of D.C., Mehta and on reaching Mathorpara they noticed one deadbody lying on the ground near the house of one idrlsh and then the D.C. told the three police officers to make arrangement for removal of the deadbody in a vehicle and the D.C. also posted two Garden Reach P.S. constables near that deadbody. His further evidence is that they then heard roars coming from Ramnagar Lane side and then D.C. Mehta, his body guard. Mr. Sharma, the witness himself and six armed constables proceeded towards that direction and as soon as they reached Ramnagar Lane from Mathorpara they were attacked from the eastern and the western sides of the Ramnogar Lane with brickbats, bombs etc and in order to save their lives they entered in a mosque situated on Ramnagar Lane and they noticed a mob standing behind the collapsible gate of the mosque and trying to break open the gate. He further says that the mob was shouting and asking the imam of the mosque ot drive them out of the mosque and then the Moulabi asked the D.C. to leave the mosque and then the D.C., Mehta had some talks with Mr. Sharma and thereafter they left the mosque. As soon as they came out of the mosque, he says, they were attacked from both sides of the road with bombs, brickbats etc. He says that he received bleeding-injury on his right leg as he was hit with a splinter of bomb and with a brickbat when he was on Ramnagar Lane. He says that he received bleeding injury on the thigh of his right leg and he fell down on the ground and got up within two minutes. His evidence is that at first he could not see any of his companions but subsequently he noticed that the D.C. Mehta and his body guard were running towards the eastern side and a (SIC)b was chasing them with swords, brickbats and bombs. it is to be noted here that from this witness, namely, the body guard of the A.C.. Sri Sharma we get that on being chased by the armed mob, the D.C., Mehta and his body guard ran towards the eastern side. His evidence is that in order to save him he himself started running towards the western side and reached Paharpur road. His evidence read with the evidence of the police witnesses discussed earlier thus indicates how D.C. Mehta and his body guard at that point of time were separated from the other members of the police party on the face of the attack made by the furious and armed mob, and at that point of time when the other members of the police party retreated towards the western side, the D.C., Mehta and his body guard were running in the other direction, namely, the eastern side on being chased by the mob and thus they became isolated from the other members of the police party. P.W.16 says that when he reached Paharpur Road on running away from the place of the trouble, he found a taxi there and he went to Garden Reach P.S. in that taxi and there he reported the incident to one A.S.I, of the P.S. and from the P.S. he went to Calcutta Police Hospital for treatment and was admitted there and he was in the hospital for 26 days. A significant part of his evidence is that he speaks about the presence of Nannay Kasal and Naso (an appellant) and Puttan in the mob having bombs with them when the police parly was attacked by the mob on Ramnagar lane as soon as they reached there from Mathorpara. He also says that he had seen Nannay Kasal to throw bombs towards them. He further says that at that time he also saw Hallm, Naru, Gorachand and llllas, all asked with brickbats and also idrish Rahaman, Kallu armed with bombs. He further says that he had also seen Kasrln in that mob. He says that he knew them previously. in court he also identifies the accused Naso and certain other accused persons. His evidence is that the mob which was throwing bombs etc towards them and the -mob that chased the D.C. and his body guard as well as the mob that was trying to break open the gate were all in angry mood. The evidence of this witness is thus significant as he testifies to the presence of the accused Naso, an appellant herein, with bomb in his hand in the furicus mob that attacked the police parly. in his cross-examination he says that the distance between the mosque and the Paharpur road along Ramnagar Lane will be five to ten minutes walk and the crossing of Ramnagar Lane and Paharpur Road will be about 5 to 10 minutes walk from the crossing of Fathepur village Road and Paharpur Road. He says that they wereinslde the mosque for about 5/ 6 minutes. He also says that both the D.C. and his body guard were in uniform. From his cross-examination we get that the distance between Ramnagar mosque and the Ramnagar oulpost will be less than a mile. He further says that on that day there was trouble in alomost all parts of that area. His evidence is that on that day there was disturbance between Hindu and Muslims. in his cross-examination during retrial he says that after coming out of the mosque he sustained injury on his right leg from a splinter and he fell down and thereafter he managed to go towards Paharpur Road and he went to the Garden Reach P.S. at about 12-45 p.m. and he narrated before the duty officer how he sustained injury and thereafter taking sick report he went to the police hospital. He further says that excepting the disturbance infront of the mosque he had no occasion to see any other disturbance on that day. He also says that when he was in the hospital for 26 days the Police Officer from Lalbazar vlslled him for interrogation. From him we get that he was posted in Garden Reach P.S. for one year from 1980 to 1981.</p><p style="text-align: justify;">11. P.W. 73 Sewnath Slngh was the O.C. of Garden Reach P.S. on 18.3.84. His evidence is that on that day at about 10-15 a.m. S.I.. O.K. Sikdar of Garden Reach P.S. received a massage from Lalbazar Control Room that a disturbance of communal nature was going on in Falhepur village Road area and that information was recorded in the G.D. of the Garden Reach P.S. and thereafter he along wllh S.I., H.P. Dutla. S.I., O.K. Sikdar left the P.S. with available force. He says that he was in his Jeep and the force was in a police vehicle and they reached the concerned area at about 10-30 a.m. and noticed that two groups of agitated mob numbering about 800 or so were throwing brickbats, bombs etc at each other and then he along with his officer and staff chased the crowd and the crowd melted and entered in the lanes and by-lanes. He says that two buildings were on fire and they tried to put off the fire. His further evidence is that the D.C. Port and some other police officers also arrived there, namely, O.C. iqbalpur P.S., O.C. SPPS, S.i. A. Cope, S.i. S. Gupta, Sergeant S. Banerjee and other police men. He also speaks about the presence of the armed body guard of the D.C. He says that when the D.C. came he had his guard Muktar All with him. The D.C., he says, was in his Khaki uniform and his guard was in white uniform. His evidence is that he showed the D.C. the affected place and the D.C. also chased the crowd. He says that other houses were set on fire and they tried to extinguish the fire with the help of local people and the Fire Brigade also arrived there and at that time on receiving and information that a man had been killed on Paharpur Road, he left for Paharpur Road with one or two constables on foot and on arriving there he found that the people were very much agitated and the dead body of one Subrata Bhattacharjee, whom he knew, was lying infront of the premises No.J-146. Paharpur Road and thereafter he pacified the people and came back to Fathepur village Road to make arrangement for the removal of the deadbody. His evidence is that the T.C. Head-quarters S.K. Dasgupta arrived at Fathepur village Road and at that time A.C. (ii) Port Division K.K. Sharma came there with injury on his head and thereafter he himself along with D.C. Headquarters and force proceeded towards Ramnagar Lane through Azhar Motla Bagan as they had no trace about the D.C. Port and his guard. His evidence is that they were searching for the D.C. and his guard at Ramnagar Lane and adjacent areas and K.K. Sharma, A.C. (ii) Port Division was sent to hospital accompanied by Sergeant J.L. Roy. His further evidence is that when they were continuing the search for D.C. and his bodyguard, they found at about 2-30 p.m. a deadbody which was on fire lit by bomboo pieces and other elements in an open plot in front of Mirza Galllb School and a burnt khankl cloth piece and one metal button were found near that place. He says that the fire was extinguished and the charred body was taken charge of by them and he asked his officer to hold inquest of the charred body and the inquest was held by S.i. S. Moitra. His further evidence is that they continued their search for Mr. Mehta and at about 5-30 p.m. the deadbody of Mr. Mohta was found floating in a kancha drain behind the premises No. F-59 and F-201, Atabag. The deadbody, he says, was floating on its back with legs towards north and head towards south with only under-wear on and the body was smeared wllh mud. He clarifies that by underwear he means under-garment. He also speaks of the presence of a pair of socks on legs and a rolled vest on the body. He says that there were injuries on the deadbody of Mehta, mostly on the face and the right part of the head. The body, he says, was taken out from the drain and S.I. S. Moitra prepared the inquest report of the deadbody of V.K. Mehta in their presence and then the charred body and the body of Mr. Mehta were sent to Calcutta Police Morgue for post-mortem examination. He says that the charred body was the body of Moktar All, the security guard of D.C. His evidence is that after the deadbodles were sent to Calcutta Police Morgue, they returned to Garden Reach P.S. at about 8-05 p.m. He further says that the D.C. Port did not carry any revolver on that day. His evidence is that when the security guards go for duty they carry service revolver and ammunallon. in his cross-examination he says that the charred body had no hands and legs and the head was also missing except the occipital region of the skull. He also says that the open space where the charred body was found is situated at the junction of Ramnagar Lane and Battlkal. He says that Ramnagar Lane runs from east to west and Battlkal runs from north to south and the open space extends up to Mirza Galib School from the junction of those two roads and the school is to the north of that junction. He further says in his cross-examination that from Lalbazar Control Room a massage was received that deadbody was floating in the kancha drain. He says that as the situation was abnormal, he cannot remember everything in details and it is difficult for him to say who detected the floating body first as there were many olflcers together in search of the deadbody. He further says that S.J., S.R. Gangull (P.W.80) was the l.O. of the case at the initial stage and thereafter the case was taken over by the Detective Department, Lalbazar. He says in his cross-examination that the D.C. D.D. Mr. H.A. Safwi also came to Ramnagar area a bit late and he was all through with them and curfew was imposed in that area and some persons were apprehended in that area on 18th and 19th March and were challanged in petty cases but he cannot tell the number of the arrested persons now. He also cannot tell in details whether all the arrested persons were challaned in petty cases or some were released after interrogation. He says that curfew was imposed on 18.3.84 in that area and so far he remembers the curfew was in that area for 10/12 days. He also says that as he did not witness all the incidents so he did not start any FiR suomotu. He says that the open plot where the charred body was found was at the Junction of Ramnagar Lane ?,nd Battlkal. He also says that they had been to Ramnagar Mosque at about 12-30 p.m. on that day and at that time there was no gathering there.</p><p style="text-align: justify;">12. P.W.15 Farha Juvoll is the iman of the Dhankhetibari Masjid where the policeparty took shelter on being attacked by the violent mob. This witness, it seems, was treated as hostile by the prosecution. But even then he testifies to the fact that the police party entered in the mosque and had been there for some time. P.W. 17 Abul Hassan is a resident of G-246 Ramnagar Lane. He says that the Maidan to the north of their house is known as Dhankhetl Maidan. in March, 1984, he was working in the wheat grinding shop of his cousin brother Makbul Ahmed at G-247 Ramnagar Lane. He says that on 18.3.84 as usual he went to the shop for his work at 7 a.m. and at about 9-45/10-00 a.m. while he was working in that shop he heard sounds of bombs coming from Mathorpara side and Fathepur village Road side and he found that people were running here and there and he came to know that riot had started between Hindus and Muslims and being afraid he closed the shop and went home at about 10-30/10-40 a.m. He says that he again heard sounds of bombs coming from Ramnagar Lane Dhankheti mosque side and he also heard uproars and he felt that the uproars and sounds of bombs were moving towards their house and he then opened his window partially and noticed that two policemen were running speedily towards Battlkal side, one policeman being in khaki uniform and the other in white uniform. He noticed one wire-net shield in the hand of that policeman who was in khaki uniform, and that brickbats were being thrown at him and he was blocking the blows with his shield. He further noticed that 20/25 persons were chasing the policeman and were hurling brickbats at him. He says that he could recognise some of thepersons in that mob who were throwing brickbats and chasing those policemen and he names Rahamat, Nanney. Corachand, Halim and Matin as the persons whom he could recognise. He says that the mob chased those policemen towards Batlikal side and he become afraid and closed the window. His evidence thus lends support to the prosecution case as well as the other evidence adduced by the prosecution in that behalf that the D.C. V.K. Mehta and his body guard Moktar All were being chased by a violent mob. He further says that at about 12-30 p.m. he heard sounds and uproars coming from Batukal side and subsequently it appeared to him that the roars were coming from Dhankheti Maidan and he again opened his window partly and noticed that a policeman in white uniform was lying on the ground and about 15/20 persons were there around that body. He further noticed that four persons were chopping the hands and legs of that policeman with chopper like weapons and he could recognise Rahamat and Matin who along with two others were chopping the hands and legs of that policeman. He also could recognise Gorachand and Hallm amongst the persons who were standing near the body of the constable. He noticed that some persons were placing bamboo pieces near that body, and he says that being afraid he closed the window. His further evidence Is that at aboul 7/8 p.m. In that night he came to know that D.C. Port had been murdered and his body guard was also murdered and his body was burnt down. He restifies that by the dress of that body he could recognise that he was a police sepoy. His evidence thus lends support to the prosecution case that the body of Moktar Ali, the body guard of D.C. Mehta was dismembered by cutting its limbs and was burnt by fire by the miscreants, and he also could identify some of the miscreants named by him. In his cross-examination he says that curfew was imposed in that area in the afternoon of 18.3.84. He further saus that his father was arrested by police at about 4/4-30 p.m. on 19.3.84 from the crossing of Barttikal and Ramnagar Lane and his father returned in that night at about 7-30/8-00 p.m. He says that In their locality the number of muslims is more than that of the Hindus. He denies the defence suggestion that his father was released by the police on the understanding that he would give evidence on behalf of the prosecution as tutored by the police. P.W. 18. Makbul Ahmed is a resident of premises No. 247 Ramnagar Lane. He testifies to the fact that on 18th March, there was huge mob and people were running here and there at about 10/10-10a.m. He was however treated as hostile by the prosecution. He says that on that day he. Mansoor, TaJ All and 30 others were arrested by police and taken to Garden Reach P.S. and they were released at about 11-00 p.m. P.W.19, Khalil Khan was resident of G-230, Batlikal at the relevant time as a tenant. He Is a police constable who was posted at Lalbazar Headquarters, R.C. Office In March, 1984. From his evidence we get that P.W.21 Abdul Latif Khan is his cousin brother and P.W.24 Hadis Khan Is the son of the said Abdul Latif Khan and that In March, 1984 Hadis was residing at G-222 Batlikal. It may be mentioned here that Abdul Latlf Khan is also a police constable. P.W.19, Khalil Khan says that in March. 1984 Hadis Khan had no employment and he used to keep 2/3 cows and sell milk. He says that the uniform of Calcutta Police constable is white shirt and white pant and also they used buttons on their shirt which were made of brass. He also testifies that the emblom 'C.P.' is also made of brass. He knows Moktar All. He says that 18.3.84 was a holiday and he was In his house and at about 10/10-30 a.m. he heard a huge row coming from Fathepur village Road side and he also heard a row coming from Battikal side and he came out of his house and stood on the road very close to his house and while he was standing near the corner of the house of Kayum which is 228/2 Battikal, he saw that D.C. Mehta and his body guard constable Moktar All were being chased by a mob from the southern side to the northern side and they were throwing brickbats at those two police persons and were shouting 'maro, maro police lokko maro'. He says that the mob and those two police persons were 30/40 yards away from the place where he was standing, He testifies to the fact that the D.C. was in a khaki uniform and Moktar was in white uniform. He says that the house of Nalmmullah Is opposite to his house at a distance of 30/35 yards, the number of that house being G-228/3 Battikal. He saw that the security guard Moktar All entered in the house of Nalmmullah and 30/40 persons were chasing Moktar Ali. He says that he Intervened and stated to them not to assault the police otherwise they would feel the consequence. He says that in the mob some were carrying choppers and some were carrying swords. He also says that he was dashed down by the mob on the ground. He could recognise Gorachand. Sagir, Rahamat, Halim, Wahob and Kallu amongst the persons who were chasing the police constable Moktar Ali. He says that he was dashed down by Rahamat, and Kallu was with Rahamat at that time and that being afraid he then went Inside his house. His further evidence is that 20/25 minutes thereafter his brother's son Hadls (P.W.24) came to his house and reported that Naso and his associates had assaulted the D.C. very serious by in the house of Hadls, and that Hadis also stated that a sepoy was also being assaulted by Rahamat and Kallu on the road. Hadls, he says, was very much purturbed and he was trembling and Hadls told that he was leaving for his father-in-law's house. P.W. 19 Khalil says that he also became afraid apprehending attack on him and the members of his family as he was a police constable and so he along with his family members went to Ramnagar Police Camp. In his cross-examination he says that on that day at about 8-30/9-00 p.m. he went to Garden Reach P.S. after leaving the members of his family at Ramnagar Police Camp and made a statement to the police officer about the Incident seen by him. He says that he made the statement to the duty officer who recorded it in english. He says that his two brothers are also working as Calcutta Police constables and his cousin brother Latif (P.W.21) is also a constable of Calcutta Police. He further says that on that day latif Khan had duty. He says that his office was closed on that day being a Sunday and that the R.O. office remains closed on Sunday and other holidays. He says that he reached Ramnagar Police Camp with his family members at about 2/2-30 p.m. after locking his house. His evidence in cross-examination is that as soon as he came out of his house hearing the row he noticed that D.C. and Moktar crossed him from southern side to northern side speedily. He denies the defence suggestion that his brother's son Aktar was arrested by police and was made an accused but subsequently he was let off and in his place another Aktar was made accused. He however does not remember whether Hadls was arrested by the police. He also denies the defence suggestion that as he is a police constable so he is deposing falsely on being pressurised by hissuperior officers. He says that from Garden Reach P.S. he returned to Ramnagar Camp and stayed there with hts family for the night and in the next morning he returned home at about 8-00 a.m. Hadls, he says, came to his house at about 12/12-30 p.m., and reported to him what he had seen. He denies the defence suggestion that his relations were taken in custody by the police and when he and Latif asked the police officers to release them, they told that they would be released provided they would give evidence. in his cross-examination at the retrial he says that his statement was recorded by the police at the P.S. at about 8/8-30 p.m. on the date of the Incident.</p><p style="text-align: justify;">13. P.W.20 Akil Ahmed is a resident of G-223 Battlkal. He, it seems, was however treated as a hostile witness by the prosecution. From his examination-in-chief we however get that Latif Khan (P.W.21) and P.W.24 Hadls Khan (son of P.W.21) reside in the tileshed house which is adjacent to the house of this witness (P.W.20). We get it from P.W.21 and P.W.24 that the premises in which they reside is G-222 Battikal Second Lane. It is also to be mentioned here that according to the prosecution the incident of assault on D.C. Mehta took place in the said premises No. G-222. Battlkal Second Lane. P.W.20, Akil Ahmed says in his cross-examination that Hadis Khan (P.W.24) used to keep cows and sell milk and he used to keep cows in the courtyard. The prosecution expected this witness to give positive evidence about attack on two police persons but he belled that expectlon. From his examination-in-chief it however appears that their house is a two storied building and one can see the rooms of the tileshed (where Latif Khan and his son Hadls used to reside) from his house (the house of P.W.20) on leaning. However, what the prosecution inter alia suggested to this witness is that he stated to the I.O. during investigation that he found that some minor boys were pouring water In the room where D.C. entered and also on the courtyard, which however he disowns to have made. By this suggestion the prosecution possibly wanted to project a case that blood which had fallen there as a result of assault on D.C. Mehta was washed away with water. P.W.20 wants to say that on the date of the indicent he was not in his house and therefore he did not see anything. In his cross-examination on behalf of the defence he says that he returned home on 19.3.84 and on that day police had arrested Abut Hossain, Sallm and many others. He however, did not see Hadls Khan on 19.3.84. The evidence of this hostile witness thus shows that on 19.3.84 many pesons were arrested or picked up by the police. We will find from the evidence of P.W.24. Hadls Khan that he was also picked up by the police on 19.3.84 which we will discuss later. P.W.20 says in cross-examination that on 19.3.84 he stayed in the house for 2/3 hours and thereafter fled away from that area and went to his sister's house and stayed there for some days. The evidence of this hostile witness P.W.20, we find, lends support to the prosecution case that Latlf and his son Hadls were his neighbours at the relevant time and Hadls used to maintain cows and sell milk and that on 19.3.84 police arrested many persons of that locality.</p><p style="text-align: justify;">14. P.W.21 Abdul Latlf Khan was residing with his family at G-222 Baltikal Second Lane as a tenant at the relevant time and Hadis Khan (P.W.24) is his son. He says that In March, 1984 Hadls used to keep cows and sell milk and that he used to keep his cows in the said premises. Hisevidence is that on 18.3.84 which was the 'holiday' he had stand-by duty to be performed from 12 noon to 8-00 p.m. at P.T.S. Barrack and that at about 12 noon he got the information that a riot had started between the Hindus and Muslims in their area and he then started for his house from P.T.S. Barrack In order to see the members of his family. He says that at about 12-30/12-45 p.m. he reached Battlkal Second Lane and when he advanced ten steps or so he found that 6/7 persons were standing ahead of him and amongst them he could recognise Naso (an appellant), Puttan. Samsad and Abbas who were all armed. He says that some of them had swords, some had choppers, some had Napalas etc and they were standing by the side of kancha drain in Battikal Second Lane. According to his evidence the house of Dr. Hikmat All Mondal was situated near that place and he also noticed that one deadbody was lying by the side of that kancha drain but not inside the drain. He says that he knew those persons named by him as they were his neighbours. He also idenlified the accused Naso in court. He says that those persons were standing very close to that deadbody and that Naso was standing two cubits away from that deadbody which was at a distance of about 30/35 yeards from the place where he (the witness) was standing. He says that so far as he could see, blood was coming from head and the deadbody was smeared with blood. According to his evidence he stopped there and thought that it would not be proper for him to advance further and he became alarmed and then returning back he entered In the premises No. G-350 where his father was residing with his step-mother and he learnt from his father that there was trouble in Battlkal area and his wife and other members of the family had left that area and that he then went to his brother's house at Alif Nagar and came to know that his wife and sons and daughters had not come there and he then went to Kazlpara in the house of the father-in-law of his son. Md. Hadis and there he met Hadls and the other members of the family. Then he says that his son Hadls reported to him that a mob had chased D.C. Port and the D.C., Port took shelter Inside their house and then Naso, Puttan Samsad and some other persons started assaulting D.C. and that Hadis also reported to him that he had seen some miscreants assaulting one constable in front of the house of Naimullah. He testifies to the fact that at that time Mr. Mehta was the D.C., Port. His evidence is that thereafter from Kazipara he went to Garden Reach P.S. at about 8-00 p.m. and at that time there were many police officers who were very busy and at about 9-30 p.m. he could state to a police officer about the Incident seen by him and also heard by him from his son, and his statement was recorded. He also says that he found his brother Md. Khalil (P.W. 19) in the P.S. and his statement was also recorded by the police officer. He further says that at the P.S. he learnt that the deadbody of D.C. was recovered from the place where he had seen the deadbody of a person as stated by him and lhat the deadbody of police constable Moktar was recovered from Dhankheti Maidan. He says that he is residing at G-222 Battikal Second Lane for the last 25/28 years. In his cross-examination he also gives the names of certain other tenents who were living at G-222 Ballikal Second Lane with family. He says that the accused Naso at that time used to reside occasionally in the house of one Nazi Saheb in Battikal Second Lane and occasionally in the house near Match factory by the river side. In his cross-examination he says that he had seen 6/7persons including the persons named by him by the side of the Kancha drain and he became afraid when he saw those persons and he stood there for one minute when he saw those persons but none of them approached him. He specifically says that he became panicky as soon as he noticed the deadbody and those persons and he stood ther for one minute. Dr. Molla. he says, is known as Dr. Hlkmat All Mondal. He says that he was very much unnerved on seeing the deadbody all on a sudden. In his cross-examination he says that he reached Garden Reach P.S. at 8-00 p.m. and after his statement and the statement of his cousing brother Md. Khalil (P.W.19) were recorded, they left Garden Reach P.S. at 10-00 p.m. and he went to P.T.S. and his brother went to Ramnagar Camp. Khalll, he says, is also a Police constable of Calcutta Police. He says that when he reached Garden Reach P.S. he found many senior police officers Including Commissioner of Police and Jt. Commissioner of Police etc. present there. He says they he stated that he had seen something and heard something but no police officer was listening to him and so he could not report as soon as he reached the P.S. and finally he could make statement to the police officer at 9-30 p.m. and it was recorded In English and read over and explained to him. Much has been criticised by the learned Advocate for the appellants that according to this witness he reached Garden Reach P.S. at about 8-00 p.m. but his statement was not recorded by the police till 19-30 p.m. although this witness claims to have seen and heard about some very important facts specifically Involving some accused persons and this, according to the learned Advocate for the appellants, shows that the evidence of this police constables P.W.21 and of other concerned witnesses is the product of concoction and subsequent manupulatlon at the Instance of police. On the other hand, it is submitted by the learned Special Public Prosecutor representing the State that after such a shocking and gruesome Incident resulting In the death of a very senior police officer like Dy. Commissioner and also his constable guard, it was only natural that there would be many top police officers at the concerned P.S., namely. Garden Reach P.S. to take stock of the situation and also to take necessary follow up measures demanded by the situation and in such a state of affairs, it is quite possible that a police person of the rank of a constable like P.W.21 or P.W. 19 could not succeed readily in contacting the proper officer who would Immediately attend to his statements. Having regard to the facts and circumstances we also do not think that In a situation like this there was really any Improbability that the statement of these witnesses were recorded at about 9-30 P.M. at the P.S. although they went there at about 8-00 p.m. In his cross-examination during retrial, he says that uptil now he cannot say, whose deadbody It was, which he saw on that date. We may note here that if the evidence of this witness was really a product of concoction he would have possibly satd that the deadbody which he saw was recognised by him as the deadbody of D.C. Mehta. But he did not say so. He indeed knew D.C. Mehta, as he says but it is nothing unnatural that at that point of time when he suddenly saw the deadbody from a distance of 30/35 yards in the presence of some armed persons and the deadbody was smeared with blood, he did not naturally bother to engage himself In minute observation for detecting the identity of the deadbody, and Instead he left the place being naturally panicky but he was, as we have seen, very specific about the presence of certain armed miscreants named by him Including the appellant Naso.</p><p style="text-align: justify;">15. We now proceed to discuss the evidence of the next vital witness P.W.24, Hadis Khan, the son of P.W.21 Abdul Latif. He says that they reside at G-222 Battikal Second Lane as tenant and in March, 1984 he used to sell cow milk and had four cows and he used to keep two cows in their house and two in another place. He says that he himself and Mustafa, his helper (P.W.26) used to look after the Cows. His evidence is that on 18.3.84, sometime In the morning he came to know that a not between the Hindus and Muslims had started and that at about 11-30/11-40 a.m. again he heard sounds of bombs coming from Ramnagar Lane side when he was in his courtyard and his mother and Mustafa were in the house, but his father had gone for his duty. He next says that at about 12 noon he heard a huge row coming from Southern side when he was in his courtyard and on hearing the same he came out along with Mustafa from his house and stood on the road and notice that many persons were chasing two policemen towards South and one policeman was In a white uniform and the other was in Khaki uniform and the policeman in while uniform entered in the house of Naimullah and some persons also entered that house and those persons were hurling brickbats. His evidence is that the house of Naimullah was at a distance of 50/60 yards from the place where he was standing. He however could not recognise any of the persons who were hurling brickbats and chasing that policeman in white uniform and entered in the house of Naimullah. But his specific evidence is that the other policeman in khaki dress was being chased by the mob and when that policeman came near him he entered in the courtyard of his house and that policeman too entered in that courtyard and the policeman told him that he was D.C. Port and then on his pointing out the D.C. entered into the bathroom (Gasalkhana). The Gasolkhana, he says, was 9/10 cubits away from the place where he was standing and that simultaneously Idris and some other persons armed with brickbats etc. entered Into the courtyard and they were throwing brickbats aiming at the bathroom and simultaneously Naso (an appellant). Puttan, Samsad, Abbas, Mukim entered in the courtyard. He says that Naso had a rod in his hand and others had swords, nepala etc in their hands. He says that he knew those persons from before. The D.C., he says, became frightened on seeing those persons and requested them not to assault him after disclosing his identity as the D.C. of Police but some of those persons replied that they did not know D.C. and then ordered 'maro' and then Naso, Puttan, Samsad, Ahmed, Mukim and some others entered instde the bathroom and then Naso gave a rod-blow on the helmet of D.C. and there was dashing and pushing and the helmet fell down and Naso again assaulted D.C. with the rod on his head. P.W.24, Hadis says that then he came out from the courtyard and went out of the house and some people were throwing brickbats on the tiles of their roof but he cannot tell their names. He says that he then proceeded towards his uncle Khalll Khan's house but on his way when he came near the house of Naimullah he noticed that a pojiceman In white uniform was being assaulted on the road by Gorachand and some other persons and then he entered Inside the house of his uncle and reported the entire Incident to his uncle (meaning P.W.19) and he also reported that he was not going to stay and was going to his father-in-law's place and then he went to his father-in-law's place at Kazlpara at Howrah along with his mother. He says that after sometime hisfather Abdul Latif (P.W.21) came to his father-in-law's place and he reported the entire Incident to his father. He says that his father said that he would be staying in the P.T.S. barrack. He says that he used to keep two cows out of four cows near the power house gate commonly known as 28 number. In his cross-examination he says that he left for his father-in-law's place from his house at 12-30/1-00 p.m. and reached his father-in-law's house at about 2-00/2-30 p.m. His evidence Is that his wife and children had gone to his father-in-law's house on 15.3.84. He says that he and his mother returned home on 19.3.84 at about 6-30/7-00 a.m. from his father-in-law's place and he noticed that many police persons were roaming In their locality. He says that he was examined by the I.O. on 20.3.84 In their house. He further says that on 19.3.94 at about 12-00 noon police arrested him and placed in the van and the van patrolled in their locality and then at about 6-30/7-00 p.m. he was taken to Garden Reach P.S. and many people of their locality were also brought to Garden Reach P.S. on that day. He further says that he was released by the police in that night at about 9/10 p.m. and they were kept in the lock-up of Garden Reach P.S. from 7-00 p.m. till they were released. Much has been criticised by the learned Advocate for the appellants that when the police from the statements of P.W. 19 & P.W.21 could come to know In the very evening of the 18th March that Hadis had seen a vital part of the occurrence and also had named some of the culprits to them, there was no reason why his statement should have been recorded as late as on 20.3.84 in his house inspite of the fact that he was in the custody of police in police van and P.S. Hazat for quite a long time upto about 9-00/10-00 p.m. on the 19th March. This, according to the learned Advocate for the appellants, Indicates thai the prosecution case that Hadls saw a vital part of the incident is a concocted story. We are however not convinced by this submission. The enormity of the Incident, the involvement of a large number of persons and the complexities Inherently Involved In an Investigation of a case of this nature as well as the change of investigating officer on 19th March are indeed some of the factors which have to be taken Into consideration in this context. And that being so, we do not think that there really exists any reason to doubt the veracity of the evidence of this witness Hadls (PW.24). P.W.24, Hadls says in his cross-examination that the bathroom is used by the female inmates of the house and that the size of the bathroom would be about 8 cubits X 8 cubits. He says that the latrine is not inside that bathroom. He further says that the D.C. was Inside the bathroom when he came out from their house. Hefurther says that he came out from their house 6/7 minutes after the D.C. had entered In their courtyard. He also says that when he came out of his house the D.C. was being assaulted and he noticed about 50/60 persons on the road in front of their house. He however does not remember whether he had seen blood coming out from the head of D.C. when he was assaulted on the head by the iron road. His evidence is however clear that the D.C. was assaulted on his head by Iron rod. He denies the defence suggestion that Naso did not give blow with iron rod on the head of D.C. He makes it specific that the bathroom is used for washing hand and feet by the femalefolk of the premises before 'oozu' He says lhat there are no door and walls of that bathroom. Much has been commented upon by the learned Advocate for the appellants as to whether a bathroomof that size could have accommodated so many assailants who are said to have assaulted the D.C. at the relevant time. In this connection we may mention that P. W.2, Ashoke Kr. Bhattacharjee, S.I. of police and official plan maker has given the area of the Gosulkhana (bathroom) as 5m.x4m. Since the Gosulkhana has no walls as we find it from P.W. 24 Hadis, we do not think that there is any improbability in sustaining of assaults by D.C. there from the assallents who chased and cornered him there. He (P.W.24) denies the defence suggestion that he has been tutored by police to give false evidence because his father and uncle are working as police constables. In his further cross-examination during retrial in February, 1932 he however says that his statement was recorded by the police while he was in police lock-up. This, it is submitted on behalf of the appellants, is not insistent with the prosecution case inasmuch as it is the prosecution case that his statement was recorded on 20.3.84 as earlier stated by the witness. He also says in his such further cross-examination that his father went to the P.S. for his release and he talked to his father before release from the P.S. lockup. But he says that at that time his statement was not recorded by the police. This, therefore, lends support to the fact that his slatement was recorded not on 19th but on 20th. He says that his statement was recorded, as he remembers, after his. talk with his father. In his such further cross-examination at the retrial he says that he returned from Kazlpara to his Garden Reach residence three days after the Incident. It should be remembered that he was facing further cross-examination at the retrial In February, 1992. about eight years after the Incident and therefore some minor inconsistencies and confusion in the deposition at such distance of time cannot be ruled out. Whatever may be the confused statement of P.W.24 Hadls eight years after the incident at the time of further cross-examination at the retrial, it may be noted here that even the hostile witness P.W.22 Brion Merces who is the brother-in-law of the appellant Naso testifies to the fact that police arrested him on 19.3.84 and Hadls, Mustafa, and Alamgir also were arrested by the police. Such statement of this hostile witness therefore lends support to the prosecution case that Hadis was arrested from his house on 19th March, at noon after he returned from Kazlpara on that day in the morning, and this fact does not get obliterated by any statement of Hadis which he might have made In a confused state of memory in course of his further cross-examination eight years after the Incident.</p><p style="text-align: justify;">16. P.W.22 Brlon Merces is a resident of C-85, Battlkal. Their balcony faces Battlkal Second Lane. From him we get that the appellant Naso Is his sister's husband. He was however treated as a hostile witness by the prosecution. He says in his examinatlon-in-chief that on 18th March. 1984, which was a Sunday, at about 10-00 a.m. he heard from the people that a not between Hindus and Muslims had started and at about 12 noon they heard great row and then he and his parents came to their balcony. He says that the Hindus and the Muslims were fighting and quarrelling and the Muslims started running shouting, that the Hindus had come to their locality, and that being frightened they (witness and his parents) all came Inside their room and closed the door. His evidence shows that some children and women had taken shelter Inside their house and they were saying that policemen had died. He saw nothing else. As we have alreadynoted, in his cross-examination he says that he was arrested by police on 19.3.84 and Hadis, Mustafa and Alamgir were also arrested by police. P.W.23 Narman Merces is the father of P.W.22 Brion Merces. He was also treated as a hostile witness by the prosecution. In his examination-in-chtef he says that on 18th March, 1984-which was a holiday, at about 10-00 a.m. they heard from the people of their locality that a trouble had broken out at Fathepur and they also heard some sounds of bombs and learnt that a riot had started between Hindus and Muslims. He says that then at about 12 noon he, his wife and his son came out of the room and stood on the balcony and noticed a huge mob on Battlkal Second Lane which was at a distance of 60 to 80 ft. from the balcony. He also speaks about throwing of breakbats. He says that he then came Inside the room and locked the door from Inside and after half an hour the area became very quiet. The accused Naso, he says is his son-in-law. P.W.25 Sakll Ahmed is the brother of P.W.20 Akil Ahmed and a resident of G-223 Batllkal Second Lane. He was however treated as a hostile witness by the prosecution. In his cross-examination on behalf of the defence he says that G-222 Battlkal Is to the north of his house where Latif constable (P.W.21) resides and he knows Hadls, the son of Latif constable. He says that he occasionally goes to G-222 Battlkal to Hadls for bringing cow milk. In his further cross-examination at the time of retrial he says that Aki-ka-Kurbani can be performed on any day of the year and after performance of this Kurbani a marking by palm with the blood of the sacrifice is given on the outer wall of the residence or on the outer door and some times this marking is also given in interior wall or door. This has been possibly taken in cross-examination to explain away blood marks. P.W.S 27, 28, 29, 34, 35, 36, 37 & 48 were all treated as hostile witnesses by the prosecution.</p><p style="text-align: justify;">17. P.W.14 Mansoor Ali is a resident of C-247 Ramnagar Lane and he is the owner of the ration shop situated on the ground floor of the same premises. His evidence is that on 18.3.84 at about 10-00/10-30 a.m. while he was in his house he heard sounds of bombs and he opened the windows and noticed that people were running hither and thither. These people, he says, were 200 yards away from his building, and he gives the number of the people as 150 or so. He says that he came down the stairs and closed the ration shop and again went up along with his brother. He says that he noticed that 3/4 police constable came out of the mosque and that many people went to the western side of the mosque and some people went to the eastern side and those people were running probably out of fear as police had come. He also speaks about throwing of brickbats upon the police party. He says that the police were in the middle part and on both sides there were mobs. He also heard sounds of firing and he closed the window and went inside the room. His evidence shows that after some time he heard row near his house and also sounds coming from the northern side of the mosque. They went to the roof of their house and noticed that a constable in white uniform was lying with his face and chest on the ground and many people were standing surrounding the constable and amongst those persons he could recognise Rahamat, Gorachand, Idris, Haltm, Nanney Kosal, Wahab, Saglr and Matil. He says that It appeared to him that the constable who was lying on the ground was dead. He further says that thereafter the mob burnt the deadbody of the constable with split bamboos. He also namesRahamat, Gorachand, Idris, Wahab, Halim and Nanney Kosai as some of the persons who were burning the deadbody of the constable. He says that after burning the deadbody of the constable all the miscreants fled away from the place and police came at about 3-00 p.m. He also says that the police had seized one button with ring, piece of burnt cloth, etc under a seizure list which was signed by him (Ext. 5/1). He says that the mob was armed with brickbats when they were throwing brickbats at the police party. He further says that he was in his house when police came at 3-00 p.m. and called him. He also says that the body of the constable which was lying on the open space was at a distance of forty yards from his residence. He further says that he noticed that Rahamat. Matil and 2/3 others whom he could not recognise were cutting the hands and legs of that constable with choppers. In his cross-examination he says that as the incident occurred long ago, he does not remember everything vividly but he remembers that Idris and Nanney Kosai were hurling bombs at the police.</p><p style="text-align: justify;">18. P.W.49 Haridas Mollra is the Senior Scientific Officer-curn-Asslt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He says that on 22.3.84 as per the direction of D.C.. D.D., Calcutta, he visited Ramnagar area with his colleague P.K. Sengupta. Sr. Scientific Officer. He says that he visited the place which is an open field near a school building and he collected from the debris some partly burnt pieces of cloths, some metallic buttons with rings and one ring. He says that he asked the Investigating officer who was with them to collect those articles, and those articles were seized by the I.O. and a seizure list was prepared In his presence and he signed the seizure list. He Identifies his signature, Ext. 12/1. It has been criticised on behalf of the appellants that those articles were seized only on 22.3.84 when the Scientific Officer of the Forensic Science Laboratory went there with the I.O., but the police could not seize those articles earlier although the police had been to all those places in the meantime after the date of occurrence. In our opinion, this Is inconsequential in view of the totality of the facts, circumstances and evidence on record. P.W.78, Prasanta Kr. Sengupta is the other Senior Scientific Offlcer-cum-Asstt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He examined in his laboratory certain articles which were sent to him for examination and he submitted his report which is Ext. 29. In his cross-examination at the retrial he says that he accompanied the expert. P.W.49 Haridas Moitra to Garden Reach, that Is, the place of occurrence In connection with this case and from that area they came back together. P.W.69 Pradip Shankar Chakraborly was an S.I. of police in March, 1984. attached to Homicides Squad. Detective Department. Lalbazar. He says that on 22.3.84 as per the direction of S.I. S.K. Bhattacharjee. the I.O., he accompanied him to Forensic Science Laboratory to bring the experts and they reached the laboratory at about 10-30 a.m. He says that after giving some directions the I.O. left and he (the witness) brought Sri H. Moitra (P.W.49). Expert to Garden Reach area and showed him the place where constable Moktar All was burnt and the murders of V.K. Mehta and his body guard were committed. He says that the expert examined the premises No. G-222 Battikal including the Gusalkhana and from there they went to the open place known as Dhanketl Maldan. The learned Advocate for theappellants submits that the expert (P.W.49) does not say that he went to the premises No. G. 222 Battikal and Gusalkhana there which this witness (P.W.69) wants to say. In our opinion, this is inconsequential because it is not necessary that every witness must state everything in details. P.W.69 says that the expert could trace out one metalic ring, some burnt clothes with two metallic buttons with rings attached to burnt clothes from Dhankheti Maidan. He (witness) seized those articles. He says that on 22.3.84 at 14-10 hours as per order of O.C., Homicide squad, he accompanied S.I., S. Bhattacharjee along with O.C., Homicide squad and other officers and men and accused Sk. Nanney in custody with two Doms, Narayan (P.W.41) and Bindeswari (P.W.40) and arrived at Garden Reach and on being led by the accused Nanney they went near a Kancha drain which was flowing in between premises No. G-13 Batttkal and F-55 Atabag Basti and also near premises No. G-222 Battikal. He says that the accused Nanney showed the spot inside the kancha drain having muddy water and stated that he and others dropped Incriminating articles there, about which he had made statement to the S.I. S. Bhattacharjee at that spot. He further says that being instructed by S.I. S. Bhattacharjee and O.C. Homicide Squad the accused got down inside the waist deep kancha nala and those two Doms also entered in the drain to assit the accused, If necessary, his evidence is that the accused (Nanney) then himself brought out from the said nala the following articles namely (1) one Dhal (shield) used by police, (2) one helmet, the front portion of which was partially dented and broken, with some hairs sticking inside the helmet. (3) one brown coloured leather belt having a nickel metal plate fitted with Inscription I.P.S. on it. (4) one black leather belt fitted with metallic emblam 'Calcutta Police', (5) one big sword about 30' in length, (6) piece of cloth partly torn and fitted with button, (7) one small sword about 20' length and (8) one brown coloured chappal of the right foot. P.W.69 further says that he seized those articles in presence of witnesses. He identifies Exl. 8 as that selzer list. He further says that thereafter he along with S.I. D.K. Dasgupta, as per instruction of I.O. and O.C. Homicide Squad, went to G-77 Batlikal which was a club room of Battikal Young Boys Committee and on search In presence of the witnesses certain articles were recovered and seized from that club room, namely, one pointed Iron red measuring about 29' In length including wooden handle, one bhojall, one book ofletter head pad and seized all those articles under the seizure list Ext. 17. He also says that he made certain other seizures from the road between premises Nos. G-227 & G-222, such as, Khaki coloured buttons and partly burnt pieces of cloths. Ext. 18 is the relevant seizure list. He also says that on that day between 5-30 and 5-40 p.m. he seized one wooden piri measuring about 15' X 8' having stains of blood from Inside the premises No. G-222 Battikal. The pirl, he says, was lying near the entrance door of the room situated at the north-east corner of that premises. Ext. 19 is the concerned seizure list. In his further cross-examination at the retrial he says that they arrived at premises No. G-222 Battikal at 15 hours on 22.3.84 and they stayed there for about 15 minutes and it was his first visit. He further says that F.S. Expert was with them up to 4-35 p.m. on that day. He says that the expert was with him while he was Inside premises No. G-222. It will thus appear lhat the expert was not with this police officer when he seized the wooden piri at G-222 Battikabetween 5-30--5-40 p.m. It may be noted here that the evidence of the P.W.s 40 & 41, the Doms, also corborate the evidence of P.W.69. P.S. Chakraborty, S.I. of police regarding the recovery of Incriminating articles from the drain by the concerned accused.</p><p style="text-align: justify;">19. P.W.64 Haripada Dutta is S.I. of police who was attached to Garden Reach P.S. in March, 1984. His evidence is that on 19.3.84 as per direction of the O.C.. Garden Reach P.S. he had been to premises No. G-229A Batllkal and took scrapplngs of dried up blood with few hairs from the door leaf of that premises, etc between 3-35 p.m. and 3-55 p.m. In presence of witnesses and prepared the seizure list, Ext. 10. in his cross-examination he says that FIR of Garden Reach Case No. 45. dated 18.3.84 Ext. A was written and signed by him. That FIR relates to the Incident that occurred in Fatepur Village Road and Mathorpara and Balsnabpara. He says that he took up the investigation initially of that case. That was a different case. The present appeal relates to the P.S. Case No. 46 dated 18.3.84. P.W.68 Sibaprasanna Dutta was posted as S.I. of police in Port Division in March, 1984. He had arrested Sanda Akatar @ Aktar Alam who was an accused in the Garden Reach P.S. Case No. 46 dated 18.3.84. He says that he arrested him on 20.7.84 at about 7-30 p.m. at the fly-over of Sealdah. P.W.70 Sudhlsh Ranjan Nag is S.I. of police who was attached to docolly and robbery squad D.D., Lalbazar. He says that on 19.3.84 the D.C., D.D. told him and S.I. U.S. Lahiri that the murder case of Mehta had been taken up by the Homicide Squad and S.I. S.K. Bhattacharjee was the I.O. of that case. and directed them to asslt him in apprehending the accused of that case and that the D.C. further told that he had Information that some of the accused persons namely, Sk. Nanney, Gorachand, Md. Halim, Sk. Nuru and Wahabuddln might be available at Surinam Jetty and asked them to keep watch over that place and to arrest the said accused persons. If possible. His evidence is that at about 6-20 p.m. they arrested those accused persons and took them to Garden Reach P.S. where D.C./D.D. and other officers were present and they placed the accused persons before them and I.O. took charge of those accused persons. He says that on being directed by D.C. D.D. to search for the other accused persons at Batllkal, Chlrlamore, Ramnagar and Mathorpara Complex, he. U.S. Lahiri and force had been to those places in search of the miscreants but none could be arrested and they returned to Lalbazar at about 10-10 p.m. and made over the supplementary caase diary to the i.O. S.K. Bhattacharjee, He further says that they had also arrested Md. Idris and Sakil Ahmed. In his cross-examination, he says that Idris was arrested from Gaya on 27.3.84. P.W.71 Samir Kr. Moltra was attached to Garden Reach P.S. as S.I. of police In March. 1984. He accompanied the Commissioner of Police in Ramnagar area on 18.3.84 In connection with the murder of D.C. Mehta and his body guard. Between 4-00 p.m. and 5-00 p.m. on that day he seized certain articles such as pieces of partly burnt bamboos, pieces of charred bone-like substance, pieces of charred cloth, burnt metallic button fitted with ring, belt, two swords etc from an open field in front of premises No. G.-100/1, Ramnagar Lane, also know as Dhanketl. The seizure list prepared by him is Ext. 5. He had also held the inquest of the deadbodles of V.K. Mehta and the body guard Moktar Ali and prepared inquest reports. In the inquest report relating to the dead-body of B.K. Mehta it is noted that the deadbody of Mehta was lying in front of premises No. G-221, Dhanketl. The witness however saysthat it was premises No G-221, Battikal and it was wrongly mentioned as G-221, Dhanketi in the inquest report. In his cross-examination he says that he had detected this mistake in court at the time of giving evidence. It seems to be a case of bona fide accidental mistake.</p><p style="text-align: justify;">20. P.W.80 Santi Ranjan Ganguli was attached to Garden Reach P.S. on 18.3.84 as S.I. of police. The FIR of this case was drawn up by him. His evidence Is that the fromal FIR was drawn up at 8-05 p.m. at Garden Reach P.S. on the basis of Statement of K.K. Sharma, Asstt. Commissioner of Police, Port Division. He says that the statement of Sri Sharma was also recorded by him as per the order of the O.C. of Garden Reach P.S. He also took up the investigation of the case under the order of the O.C., Garden Reach P.S. on that date at 8-05 p.m. He says that he then recorded the statements of the two witnesses namely Abdul Latif Khan (P.W.21) & Md. Khali Khan (P.W.19) under section 161 Cr.PC at Garden Reach P.S. and then at 11-00 p.m. he had been to Mathorpara, Rnmnagar Lane etc of the affected areas of Garden Reach with force and after contacting sources there he returned to the P.S. at 11-50 p.m. He says that on 19.3.84 at 6-40 p.m. he had shown formal arrest of four accused persons, namely Nanney Kosal, Gorachand, Halim and Nuru who were arrested by the police officers of the Detective Department. He further says that on 18.3.84 after returning to the P.S. from the affected area he prepared respective requisitions for postmortem examination of V.K. Mehta and his security guard. Moktar Ali and on 19.3.84 at 10-00 a.m. he sent those requisitions to the Prof. of Forensic and State Medicine and on that day at 7-40 p.m. he handed over the case diary to S.I. S.K. Bhattacharjee of Homicide Squad who had taken up the investigation and he also handed all other connected documents under the orders of his O.C. and the D.C.D.D. at Garden Reach P.S. In his cross-examination he says that on 18.3.84 he was in Garden Reach P.S. after mid-day and that he had also seen the G.D. Entry regarding the disturbances at Fatepur Village Road. He says that on that night i.e. on 18.3.84 another case being Garden Reach P.S. Case No. 45 dated 18.3.84 was also recorded and that FIR was recorded by S.I. H.P. Dutta(P.W.64). In his cross-examination he says that going to the locale he questioned some persons, but did not record their statements under section 161 Cr.PC and that he had tried to collect the names of the assailants but could not succeed to obtain the same from those persons. Much has been criticised by the learned Advocate for the appellants that if really the first I.O. (P.W.80) had recorded the statements of the constables P.W.19 Khalll Khan and P.W.21 Abdul Latif Khan on 18.3.84, he must have obtained from them the names of the assailants before he went to the locale in that night and therefore there was not question of trying to collect the names of the assailants at the locale in that night and this shows that the evidence of the said P.W. 19 and P.W.21 or for that matter the entire prosecution case implicating the appellants is a product of concoction. We however find ourselves unable to accept this critism. It is true that the I.O. got some names from P.W. 19 and P.W. 21 on 18.3.84, but obviously there was no reason to suppose that those were the only culprits involved in the occurrence. It Is therefore only natural that the I.O. while visiting the locale will try to obtain from persons the new names of other culprits as well as confirmation of the names of culprits already obtained by him from P.W.19 and P.W.21 before going to the locale.</p><p style="text-align: justify;">21. P.W.1 S.K. Bhattacharjee was attached to Homicide Squad, Detective Department as S.I. of police in 1984. He is the Second investigating Officer of this case. He says that under the order of the D.C.D.D. he took up the investigation of the Garden Reach P.S. Case No. 46 dated 18.3.84 and submitted charge-sheet against 43 accused persons after completion of investigation showing as many as 18 accused persons are absconders. He says that six of those 18 absconders were subsequently apprehended and 12 were still at large while he was deposing on 12.9.88. He was however examined further next on behalf of the prosecution on 11.4.89, He says that on 19.3.84 the D.C.. D.D. verbally ordered him at 5-00 p.m. to take up the investigation of the case and then at about 5-30 p.m. he, D.C., D.D., A.C. D.D.-1. O.C. Homicide Squad, S.I. P.S. Chakraborty of Homicide Squad and two constables of Homicide Squad started for Garden Reach P.S. He further says that prior to that D.C., D.D. told him that he had already sent two S.I.s of Detective Department, namely U.S. Lahiri and S.R. Nag (P.W.70) to work out an Information received by him in respect of some accused persons. He says that at 6-05 p.m. they all reached Garden Reach P.S. and met the O.C. of that P.S. there, he also says that at about 6-40 p.m. S.I. S.R. Nag (P.W.70) and S.I. U.S. Lahiri brought under arrest five accused persons namely Sk. Nanney, Md. Halim, Wahabuddln, Gorachand and Sk. Nuru to the Garden Reach P.S. and those five arrested persons were produced before the D.C., D.D. and the then I.O. of the case S.I. S.R. Ganguly (P.W.80) showed those accused persons as arrested in this case. He further says that at 7-45 p.m. he took charge of those arrested accused persons, case diary and other connected papers along with alamat from S.R. Ganguli, and under order of the D.C., D.D. he came to Lalbazar with those five accused persons, S.I. P.S. Chakraborty and two constables. His evidence shows that they left the Garden Reach P.S. at 8-10 p.m. and reached Lalbazar at 8-40 p.m. and then he started interrogation of those five arrested persons and thereafter he perused the case diary and other connected papers. He says that at 10-30 p.m. he received the supplementary case diary from S.I. S.R. Nag who arrested the five accused persons. His evidence is that on 20.3.84 he met D.C., D-D. in his office and received his instruction regarding the next follow up action. He says that he came to know (hat a team had been raised to assist him in the Investigation of the case. He also names the officers who were Included In the team. He also names Sanat Kr. Gupta, A.C. D.D. (I) as the persons who was placed as overall in-charge of the team. On 20.3.84 he produced all the five accused persons in the court of the S.D.J.M., Allpore and also prayed for their police remand, and then on that day at 2-30 p.m. he along with D.C., D.D., A.C. D.D. (1), O.C. Homicide Squad, S.I. Samir Ganguli left for the spot with force for investigation. According to his evidence they reached Garden Reach P.S. at 3-00 p.m. and then on being led by the O.C. Garden Reach P.S. under the order of D.C., D.D. they all went to Ramnagar Lane in front of the mosque where D.C., D.D. and others had allegedly taken shelter and stayed there upto 3-35 p.m. His further evidence is that then on being led by O.C. Garden Reach P.S. they went to a vacant plot of land at 4-00 p.m. wherefrom the charred body of the security guard had been allegedly recovered and he found some burnt substances there and from that place they went to the premises No. G-222, Battikal Second Lane and reached there at 4-25 P.M.and there he met Hadis Khan (P.W.24) and his mother, Kaflabibi and herecorded their statements there. According to his evidence then they wentto premises No. 228/3 Battikal Second Lane which is the house of Md.Naimullah (since deceased). He also then describes his further activities inthat locality. It appears from his evidence that on 21.3.84 he, O.C.,Homicide Squad, S.I. Samir Ganguli went to 222 Battikal Second Lane andfrom there he went to G-247 Ramnagar Lane. Then on being Informed byS.I. Samlr Gangull that the Commissioner of Police had already arrived atpremises No. 222 Battikal Second Lane with A.C. D.D. (1). he went to thatplace and as per direction of the Commissioner of Police, he seizedscrapplngs of blood looking stains with control from the outer wall of a roomof premises No. G-222 Batllkal Second Lane and prepared the seizure listext. 31. On 22.3.84. according to his evidence, he met the Director of F.S.L.and then the Director deputed H. Moltra (P.W.49) and P.K. Sengupta(P.W.78) both senior officers of F.S.L. to visit the P.O. He says that at thattime Mr. Moltra reported that he would visit the P.O. In the afternoon, andMr. P.K. Sengupta was out at that point of time and he (the witness)instructed S.I. P.S. Chakraborry to take Mr. Moltra and Mr. Sengupta tothe P.O. and he left for Lalbazar. His evidence shows that on that day heexamined Norman Merces (P.W.23) and Brion Merces (P.W.22) and recordedtheir statements and then they along with those two persons went to theresident of the absconding accused Naso and there they found the wife ofNaso Karolin and ascertained the particulars of Naso from her and fromthat place they again came to premises No. G-85 Battlkal First Lane andquestioned some Inmates and at that time S.I. P.S. Chakraborry came andreported that the F.S.L. experts had arrived and they were at G-222 BattlkalSecond Lane and then he (the witness) went there and met them. He saysthat the experts made Inspection at different places of that premises andthen requested to take them to the place wherefrom the charred body ofMoktar was recovered and they were taken there and the experts madethorough search in the burnt substances and ultimately discovered metallcring, a piece of burnt cloth fitted with metallic buttons with ring, and thosearticles were seized. His evidence is that on 23.3.84 he examined Sk. NanneyKosal who made a statement leading to the recovery of some Incriminatingarticles. He also speaks about recovery of Incriminating articles pursuantto the statement made by the accused Sk. Nanney Kosal. His evidence showsthat the accused Nanney made statement to him to the effect that he hadthrown one helmet, one dhal, two swords in the water of kancha drain andhe would be able to lead the police party to the spot where he and othersthrew away those weapons and other things and If those things were stillthere he would be able to bring them out. The evidence of the I.O. (P.W.I)shows that the accused Nanney was taken (on 23.3.84) to the concernedarea pursuant to the statements made by him and the accused Sk. Nancyled them in front of a kancha drain on the northern side of the premisesNo. G-221 Battlkal and G-213 Battlkal and the accused then pointed outa place inside the kancha drain to be the place where the articles as statedby him were thrown and then being asked the accused got down In the waistdeep water of the kancha drain and brought out one by one, one shieldmade of wire net, one helmet, two swords, two belts of which one hadmetallic plate having 'IPS' inscription, one black belt used by constable. Healso speaks about the recovery of a chappal of a right foot. The recovered articles were then seized. His evidence shows that on 26.3.84 also at night they conducted a raid in the concerned area and searched for certain accused persons Including Naso but could not trace them out. His evidence also shows that on 4.4.84 they went to G-85 Battikal Second Lane which is the residence of the father-in-law of the accused Naso but there also Naso was not found. His evidence is that on 30.5.84 the accused Lokman Shah and Osman Shah, two brothers, were arrested from their residence in a night raid between 1-40 a.m. and 2-00 a.m. He says that on 7.6.84 the accused Lokman Shah during Interrogation, stated that he wanted to make a confessional statement and so on 8.6.84 he (I.O.) forwarded Lokman to the learned S.D.J.M. with prayer for recording his confessional statement and his confessional statement was recorded by the learned S.D.J.M., 3rd Court Allpore on 9.6.84. It appears that the I.O. obtained an order of police remand for the accused Lokman after he was produced before the S.D.J.M. after arrest and the accused Lokman expressed his desire to make confessional statement to the I.O. on 7.6.84 while he was under police remand. The I.O. (P.W.I) says that on 16.6.84 he submitted charge-sheet against 43 accused persons of whom 24 were In custody and the rest were absconding. He further says that after the submission of the charge-sheet seven absconding accused persons had been arrested. He says that on 28.2.85 at 3-00 p.m. acting on a secret Information he with the help of S.I. Rajkumar Chatterjee of the Detective Department and others arrested Nasim Khan Naso from the station road near Kallghat Railway Station. He further says that the accused Naso was arrested with the revolver which was given to constable Moktar All for his duty, with three rounds of ammunition for which a specific case has been started on his complaint under section 25 and section 27 of the Arms Act. While confronted with this in examination under section 313 Cr.P.C. the accused Naso only says that the witness (P.W. 1) told lie that he (Naso) was absconding and he was arrested on 28.2.85 at 3-00 p.m. from the Station Road near Kallghat Railway Station or that he had any revolver in his possession at the time of his arrest. Besides such bare denial he however does not say anything as to on what date and wherefrom he was arrested.</p><p style="text-align: justify;">22. In his cross-examination P.W.I (the second I.O.) says that he did not go to Garden Reach area between 18.3.84 and 5-00 p.m. of 19.3.84. He says that on 20.3.84 the first witness he examined was Hadls Khan of G-222 Battikal Second Lane in that premises. His evidence shows that on 19.3.84 he first interrogated the five arrested accused persons (Including Sk. Nanney) but he did not record their statements. His evidence Is that on 20.3.84 he forwarded the five arrested accused to court with prayer for police remand upto 2.4.84 and the learned S.D.J.M. allowed the prayer for police remand. He says that he could not interrogate any of the accused persons on 20.3.84 as he had no time for such interrogation. He also says that on 20.3.84 he went to Garden Reach area along with his superiors, namely. D.C. D.D., A.C. D.D. (1) and O.C.. Homicide Squad and reached there at 3-25 p.m. His evidence Is that they first went to the Garden Reach P.S. and then the O.C. of the Garden Reach P.S. led them to the area where the Incident occured and there he examined Hadls Khan first and also Kaflabibi. the mother of Hadls Khan. He has however not shown Kaflabibias a witness in the charge-sheet. He says that on 20.3.84 he reached G-222 Battlkal Second Lane at 4-25 p.m. are remained there till 5-30 p.m. He also says that they were in Battlkal Second Lane area on 20.3.84 from 3-25 p.m. till 10-15 p.m. and that dusk to dawn curfew was imposed in that area and order under section 144 Cr.PC was also promulgated there and police picket was posted in different parts of that area. His evidence in cross-examination is that the blood looking stains were found on the outside wall of the western room of the premises No. G-222 Battlkal Second Lane, and he says so with reference to the seizure list, ext. 31. He says that the experts had arrived at premises No.G-222 Battlkal sometime before 3-00 p.m. and he went there at 3-05 p.m. and the experts H. Motlra and P.K. Sengupta of F.S.L. Inspected the premises and courtyard of G-222 Battlkal Second Lane and from that house, being accompanied by them, the experts went to open plot of land known as Dhankhell Maldan. He denies the defence suggestion that he had advised constable Latif Khan to procure persons of his choice who would support the prosecution case. He also denies the defence suggestion that Hadis Khan and Md. Mustafa gave statements at his tutoring. He says that the statement of Nanney Kosai was recorded by him on 23.3.84 between 8-50 a.m. and 10-10 a.m. and with the accused and other police of lines he left for the P.O. to verify the statement of the Nanney Kasal and reached in front of the kancha drain at 2-55 p.m. He says that the accused Lokman was forwarded to court on 8.6.84 with a prayer for recording his confessional statement. He has acknowledged that both the two accused Sk. Nanney and Lokman retracted their confessional statements by filing petitions but he cannot say the date on which such petition was filed after the submission of the charge-sheet. He cannot say whether those petition were filed on 14.8.84. In his cross-examination he denies the defence suggestion that Naso was arrested from the factory gate of Sultan Hossain.</p><p style="text-align: justify;">23. Of the medical witnesses, P.W. 44 Dr. Sunil Dey of the Calcutta Medical Research Institute examined Sr. K. Sharma (P.W.7). Asstt. Commissioner of Police on 18.3.84 at 12-30 p.m- In the Emergency. He also describes the Injury found and treated by him. P.W.66 Dr. Bhlbutlbhusan Blswas who was attached to Calcutta Police Hospital at the relevant time speaks about the Injuries of constable Ramshankar Singh (P.W.16) which were found by him. He says that the said constable was admitted on 18.3.84. He also describes the Injuries found by him. P.W.67 Dr. Gopi Ranjan Samanta was also attached to Calcutta Police Hospital at the relevant time. He proves the discharge certificate in respect of said Ramashankar Slngh. The patient, he says, was admitted on 18.3.84 with bomb injury on the lower thing of the right leg and was discharged from the hospital on 12.4.84. P.W. 46 Dr. Bhopal Mazumdar in the autopsy surgeon. On 19.3.84 he was posted as Demonstrator in the Department of Forensic and Slate Medicines, Medical College and Hospital. His medical qualifications are M.B.B.S. and M.D. In Forensic Medicine. He Joined the West Bengal Health Service on 25.2.75. On the date on which he deposed in court, that is, on the 1st February, 1989 he was posted as Assistant Professor and Head of the Department of the Forensic Science and Medicines, North Bengal Medical College. He held post-mortem examination on the dead-body of V.K. Mehta, D.C. Port Division on 19.3.84. He describesas many as 23 injuries found by him externally on the various parts of the deadbody including the face, head, etc. Injury No.9, as found by him. Is a lacerated would 3' x 1' X muscle X bone X meninges X brain on the right fronto-parletal region of the head, being placed half inch right to the mid line and 69 1/2 above the right heel. This is a head injury. He has also describes what he found on dissection. He says that all the Injuries were showing evidence of vital reaction. He openes that death was due to the effect of the injuries as mentioned by him which were ante-mortem and homicidal in nature. He also specifically says that he found 23 external and 4 internal injuries on the deadbody. According to his evidence the cumulative effects of the injuries were sufficient to cause death in the ordinary course of nature. He further says that Injury No.9 might be caused by any hard blunt weapon like iron rod or any other metallic rod and that the victim was in standing position when injury No.9 was Inflicted. He says that the said Injury No.9 was caused by the assailant from the front side of the victim. He further says that the Injury No.9 and the injury No.2 found on dissection were the vital Injuries. He also says that injury No.9 alone was sufficient to cause the death of the victim In the ordinary course of nature. However, the Injury No.9, he says, could not cause instantaneous death. He says that the injury No.23 was caused by pulling the body from leg side and that the injuries sustained by the victim were caused by more than one person. He also describes specifically as to which particular injury could be caused by what type of weapon. The possible weapons named by him include metallic rod, chopper, sword, napala, bhojall, brickbats etc. It may be noted here that the Injury No.9, according to the prosecution case, is connected with the assault made by the appellant-accused Naso on the head of V.K. Mehta with iron rod. The Autopsy Surgeon, P.W. 46 says that he held the post-mortem examination on the deadbody of V.K. Mehta on 19.3.84 at 12-00 noon at Calcutta Police Morgue and Prof. J.B. Mukherjee who was the professor and head of the Department of Forensic and State Medicines, Medical College, Calcutta was present when he held the postmortem examination and that Prof. J.B. Mukherjee supervised the examination. He says that Prof. J.B. Mukherjee concurred with his opinion and made the following remark: The post-mortem examination was conducted under my direct supervision and guidance. I fully concur with the findings and opinion of the Autopsy Surgeon, Dr. B. Mazumdar'. The post-mortem report was however prepared and signed by P.W. 46, Dr. B. Mazumdar and the same has been marked ext.tO. From his evidence the get that by that time he (P.W. 46) had gathered the experience of holding post-mortem examination on nearly four thousand deadbodies. He also held the postmortem examination 19.3.84 at 3-00 p.m. on the deadbody of the constable Moktar All who was the body guard of V.K. Mehta. He also describes the injuries found by him on the deadbody of Moktar All and gives the opinion regarding the effect of the injuries and the cause of death. In his cross-examination, he says that the Injury numbers 1,2,3,4,5,6.12,13,14,15,16 & 22 as found on the deadbody of V.K. Mehta were Incised injuries. The learned Advocate for the appellants contends that the opinion given by the Autopsy Surgeon, P.W.46 Dr. B. Mazumdar to the effect that the injury No.9 alone was sufficient to cause the death of the victim in the ordinary course of nature is not there specifically in the post-mortem report and this hasbeen stated by the Autopsy Surgeon Dr. Mazumdar as his own opinion while giving evidence in the court and this opinion of the Autopsy Surglon, P.W.46 is therefore not supported by the opinion of Prof. J.B. Mukherjee who supervised the post-mortem examination and therefore this opinion of P.W.46 should not be taken into consideration at all In judging the effect of the assault stated to have been made by the accused Naso on the head of the victim Mehta with iron rod. In our opinion this contention is however not acceptable. It is true that Prof. J.B. Mukherjee, obviously as a senior person, supervised the post-mortem examination held by P.W.46 Dr. Mazumdar but that does not mean that the opinion of Dr. Mazumdar on any point is of no merit or consequence unless the same is specifically endorsed by Prof. Mukherjee. P.W. 46, Dr. Mazumdar is also an expert in the matter and as we have seen he has a very rich experience in the matter of holding post-mortem examination. That being so, his opinion also given on the basis of the examination made by him, deserves due consideration and acceptance on merit unless the same otherwise stands discredited or condemned for any good and sufficient reason. Here there is absolutely no reason why we should not accept the opinion of the aulopsy surgeon P.W.46 regarding the effect of the injury No.9 which is a head injury allegedly caused by the accused Naso by inflicting assault on the head of the victim with rod. The learned Advocate for the appellants also submits that according to the evidence of the Autopsy Surgeon P.W. 46 all the Injuries had shown the evidence of vital reaction and therefore no disproportionate importance should be given to the effect of injury No.9. In this connection we are however to mention that even if all the injuries had shown evidence of vital reaction, that does not for that reason alone minimise the gravity of the effect of any particular Injury which according to the autopsy surgeon P.W.46 is alone sufficient to cause the death of the victim in the ordinary course of nature, even though such Injury could not have caused instanteneous death. It is needless to mention that causing of death is an ingradlent of the offence punishable under section 302 IPC and it is not necessary that death In all cases must be caused Instantaneously for bringing the case under section 302 IPC. That apart, when death is the result of a cumulative effect of all the injuries caused to the assailant in prosecution of the common object to commit the offence, each and every assailant is responsible for the offence in view of the section 149 IPC. The learned Advocate for the appellants also contends that the grounds of opinion of the expert are also relevant. Indeed there is no doubt that the autopsy surgeon in the present case has elaborately described all the injuries found by him and obviously his opinion is based on the findings recorded by him. No worthy ground has been brought out in the cross-examination of the autopsy surgeon nor successfully contended before us for which we could hold that the opinion of the autopsy surgeon is not acceptable. We reiterate that we have no reason or ground to discard or disregard the opinion given by the autopsy surgeon P.W.46.</p><p style="text-align: justify;">24. P.W.47 Kanchan Chatterjee is the Judicial Magistrate who held T.I. parade in respect of the accused Nanney Kosal at Allpore Central Jail on 30.5.84. He says that the witness K.K. Sharma (P.W.7) identified the suspect Nanney Kosal stating that he along with others were hurling bombs at Ramnagar Lane near mosque and further stated that while he along withD.C, V.K. Mehta reached the crossing of Ramnagar Lane and Mathorpara entrance while chasing a mob, he saw the suspect hurling bombs along with others.</p><p style="text-align: justify;">25. P.W.51, P.K. Deb is the Judicial Magistrate who recorded the confessional statements of the accused Nanney Kosal and the accused Lokman Shah on 3.4.84 and 9.6.84 respectively. He says that on 2.4.84 the accused Sk. Nanney was produced before him by constable Niranjan Das and the record was also laid before him. He was directed by the S.D.J.M. Allpore to record the confessional statements of Sk. Nanney. His evidence shows that on 2.4.84 the accused Sk. Nanney on being produced from judicial custody, was given cautions by him in open court and he was then sent to jail custody with the direction to the Jail authority, Alipore Central Jail that he should be kept in segregation so that he could get sufficient time for reflection. He says that on 3.4.84 the accused was again produced before him at about 3-00 p.m. In his court room and the accused was again given caution by him regarding the Implication of giving a confessional statement and the accused was kept in his chamber and was given time for an hour to reflect and ponder over the matter, and nobody was present In his chamber except the accused. He specifically says that no policeman was present in his chamber. He says that at 4-00 p.m. he asked the accused whether he was to make a confessional statement in his chamber and the accused Insisted on making a voluntary confessional statement and he recorded the same in his court room. He says that he was satisfied about the volunteriness of the accused in making the statement. The confessional statement of the accused Nanney Kosal as recorded by the Judicial Magistrate, P.K. Deb on 3.4.84 has been marked ext.13. He further says that the accused admitted that the statement had been correctly recorded and he also explained to the accused before he recorded his statement that he was free not make any statement and if he made any statement It might be used against him. He further says that nobody was present Inside the court room when the statement of the accused was recorded. The recording. according to his evidence, was complete by 4-40 p.m. It may be noted here that the accused Nanney Kosai was convicted and sentenced by the trial court in the original trial and reportedly he did not prefer any appeal against such conviction and sentence.</p><p style="text-align: justify;">26. The further evidence of the Judicial Magistrate, P.W. 51, P.K. Deb Is that on 8.6.84, the learned S.D.J.M. Alipore directed him to record the confessional statement of the accused (appellant) Lokman Shah. He says that on that date at about 1-15 p.m. the accused (Lokman) was produced before him and was identified by the constable P. Pramanlk In court room. He says that the accused was cautioned by him and the Implication of making the confessional statement was explained to him. He further says that the accused was produced from Judicial custody and he sent the accused to Jail custody and directed the superintendent of Allpore Central Jail to keep the accused In segregation so that he could get sufficient time for reflection, and directed his production before him on 9.6.84. The accused was produced before him on 9.6.84 at 2-00 p.m. by the constable Ramnarayan Goala in the court room and the accused was given warning and caution and was given one hour's time to think over the matter and was kept In the chamber of the Magistrate where none else was present. According to his evidence at 3-00 p.m. the accused insisted upon making a voluntary confessional statement and he (Magistrate) started recording his confessional statement in the court room at 3-00 p.m. where none else was present. He specifically says that no policeman was present at that time. He also deposes that before he started recording the statement he gave the accused all statutory cautions and started recording his statement after he was satisfied that the accused was making the statement voluntarily. The accused made the statement In Hindi and he recorded the statement in Bengali script. He further saya that after the statement was recorded It was explained to the accused in Hindi and the accused signed the statement in his presence. Ext. 14 is the confessional statement of the accused Lokman Shah as recorded by the Judicial Magistrate P.W.51 P.K. Deb. He further says that the accused admitted that the statement was correctly recorded after it was read over to him. In his cross-examination he says that he cannot say whether on 8.6.84 the accused was directly taken to the jail from his court room or he was taken to some other place before he was finally taken to Jail. It is needless to mention that the accused got sufficient time and opportunity for reflection in jail custody. In his cross-examination the Judicial Magistrate, P.W.51 specifically syas that he was fully satisfied after putting questions to the accused persons that they were voluntarily making statements and that he applied both his subjective and objective satisfactions. He specifically says that he put certain questions and he was satisfied that they were mentally prepared to make such statements. In his cross-examination he further says that he had cautioned Lokman that he would not be sent to police custody If he did not make any statement. It is suggested to him in his cross-examination that the statements were recorded In presence of the I.O. of the case. This is a preposterous suggestion, we must say, that a Judicial Magistrate while recording a confessional statement will allow the I.O. to be present there.</p><p style="text-align: justify;">27. Ext. 34 which is the ordersheet of the court of the S.D.J.M. Alipore shows that the accused Nanney Kosal along with others were produced in court in custody on 20.3.84 and they were all remanded to police custody till 2.4.84 after considering the prayer of the I.O. It also appears that while producing the accused persons before the learned S.D.J.M. from police custody on 2.4.84 the I.O. inter alia made a prayer for recording the confessional statement of Sk. Nanney Kosal under section 164 Cr.PC and the learned S.D.J.M. directed Sri P.K. Deb J.M., 3rd Court for recording the statement under section 164 Cr.PC. The order-sheet dated 30.5.84 shows that the accused Lokman Shah and accused Osman Shah were produced before the S.D.J.M. In custody on 30.5.84. According to the prosecution case the said two accused persons are brothers. On the prayer of the I.O. the S.D.J.M. remanded both the accused Lokman and Osman to police custody till 11.6.84. It also appears that the accused Lokman was produced in court from police custody in advance on 8.6.84 and on considering the prayer of the I.O. to record his confessional statement, the learned S.D.J.M. directed the Judicial Magistrate Sri P.K. Deb to record his confessional statement. On that very day Lokman who produced before P.K. Deb, J.M. and he was given necessary warnings and was remanded to Jail custody and was then produced before the J.M. concerned on 9.6.84 again and his confessional statement was recorded after giving him necessarycautions. It may be mentioned here that the accused Sk. Osman Shah was produced on 9.6.84 and he was remanded to jail custody for reflection but ultimately he declined to make any confessional statement when he was produced before the Magistrate on 11.6.84. It may be noted here that both the accused Nanney Kosal and Lokman Shah who made confessional statements before the Judicial Magistrate, however ultimately retracted such confessional statements by filing petitions before the court on 14.8.84. It has been submitted on behalf of the State that there is no bar in taking into consideration the confessional statements of those two accused persons although they ultimately retracted the same. It is also pointed out that they retracted their confessional statements as late as on 14th August, 1984 although their statements were recorded In the months of April, and June respectively and although they were produced in court a number of limes before 14th August, 1984.</p><p style="text-align: justify;">28. Ext. 3 is the statement of the accused Sk. Nanney recorded by the Judicial Magistrate under section 16A Cr.PC. In his statement under section 164 Cr.PC the accused Nanney Kosal has described some part of the Incident Implicating himself and certain other persons. We have already noted that Nanney Kosal has been convicted and sentenced in the original trial and he did not prefer any appeal against the same. It has been contended on behalf of the appellants that since Nanney Kosal was therefore not being tried Jointly alongwith present appellants in the retrial, his confessional statement recorded under section 164 Cr.PC cannot be taken into consideration against the present appellants under section 30 of the Evidence Act. The learned Advocate for the appellants has in this connection also relied upon certain decisions cited by him which we will refer to at a later stage. Ext. 14 is the statement of the appellant Lokman Shah recorded by the Judicial Magistrate under section 164 Cr.PC. The statement was made by the accused-appellant Lokman before the Judicial Magistrate In Hindi and the Magistrate recorded the same in Bengali script. The English translation of the relevant portion of the statement of the accused Lokman recorded under section 164 Cr.PC as appearing In the paper book is reproduced below :</p><p style="text-align: justify;">'Q. Tell what statement you will make?</p><p style="text-align: justify;"> Ans. On 18th date, Sunday (Holiday), the Incident took place. At 10 or 10-30 Naso, Puttan, Akhtar, Chowdhury came to me for price. I asked what you will do by money. They answered quarrel is going on in village road for that weapons are to be purchased by the money. Those persons have set fire to the mosque. If those persons make any trouble here we shall fight out. I said I shall also fight out. After that they fled away. At 11-45 a cry or quarrel came to my heralng. I came out and found that two police officers coming speedily. Many people threw brickbats towards those police officers. The police officer in white dress went towards the house of Mulla. The police officer In Khaki dress came straight. When he was crossing near me I also threw a brickbat. I cannot say whether it hit or not. The police officer In khaki dress entered In the house of Latif Sepot. Many persons entered following him. Amongst them Idris was there. From outside many people threw brickbats. I also threw 2/1 brickbats. I cannot say whether it hit him or not. Aftersometime I found that Naso, Puttan, Akhtar and Chowdhury were coming from the side of Battikal mosque. They took me Inside the house. I found the police officer In khaki dress was standing near the kitchen. (wrong translation). The correct translation is 'standing by the side of Gosalkhana'--'Gosalkhanaka pas khara hayal. That person said he was D.C. Some people said they do not know D.C. etc. After this all people in a batch caught that person. I also caught him. Naso hit by a rod on the head. For this the hard cap fell down. Again rod was used. It hit the head. Saheb fell down. Puttan, Akhtar and some other many people assaulted him on the face with deadly weapons, (wrong translation. The correct translation is 'Puttan, Akhtar & many other persons started assaulting on his face with sharp-cutting weapons--'dharwala hattar se chehar par marne laga'). I could not tolerate the blood-shed. For that I came out. I was then searching for my younger brother. After some time I found those 8/10 persons took D.C. Saheb and entered Inside the house, (wrong translation. The correct translation is 'after a while I saw that those 8/10 persons were going out from Inside the premises taking away D.C. Saheb--Thora der ke bad dekhta o at das admi D.C. Saheb ko le ke bari ke ondar se chala ja raha'). They proceeded towards the Mehar Manzil crossing the house of Israil. ('They took him away towards Mehar Manzil after crossing the house of Israil'--'Israilko par karke Meher Manzil ke taraf le giyal. After that I cannot understand what happened, ('what happened thereafter, I cannot say')--'Usko bad hamko nehi malum haya keya hua'). I worked under port. And I was present at home on that day.</p><p style="text-align: justify;"> 'Q. Do you want to say anything more?</p><p style="text-align: justify;"> Ans. No. I have forgotten to say one thing. Samsad and Abbas were also present in the Incident.'</p><p style="text-align: justify;">29. It may also be rioted here that from ext. 14 it will appear that the Judicial Magistrate before recording the statement of the accused Lokman Shah put various questions to the accused Lokman for ascertaining whether the accused was making the statement voluntarily and free from any outside influence. As we have seen, the statement was recorded by the Judicial Magistrate on 9.6.84 and on the preceding date i.e. 8.6.84 the accused was sent to jail custody for giving him proper opportunity for reflection. In answering the question put to the accused Lokman on 9.6.84 by the Judicial Magistrate as to whether he was kept in the jail in separate room or not, he said that he was kept In a separate room for thinking and realising. The Magistrate also tells him inter alia that he was not bound to confess and asked him to tell after thinking whether he will make the statement from his mind or not, to which the accused replies that he will make the statement. He also says that he was not terrorised by anyone nor was requested or assured for giving the statement. In answer to the specific question whether he was beaten by any police officer, he replied in the negative. The Judicial Magistrate also told him that he would not be kept under the custody of the police whether he told or not. Even then the accused staled before the Magistrate that he would make the statement willfully and he had come from jail and nobody had given any hope or assurance to him. The Magistrate also cautioned the accused that If any statement was made by him, he might be hanged for the same and thatwhat he would say could go against him. Inspite of that the accused stated to the Magistrate that he would confess according to his sweet will. The Magistrate also appended a certificate under the statement recorded by him to the effect that he believed that the confession was made voluntarily.</p><p style="text-align: justify;">30. The learned Advocate for the appellants has contended that the only evidence on which the prosecution has relied upon for bringing home the charge framed against the accused Lokman ts his alleged confessional statement, ext. 14. It is however contended by him that the law regarding use of confessional statement against maker of such statement is that the court must be satisfied that the confessional statement is truthful and is made voluntarily. He has also cited a number of decisions on this point such as Anathbandhu v. State of West Bengal, 1986(1) CHN. 229, State of West Bengal V. Prosenjit Tafadar 1991(1) CHN 331. Saran Singh v. State of Punjab, : 1957CriLJ1014 , etc. Indeed we are convinced that the same is true and voluntary. While examined under section 313 Cr.PC the accused Lokman even inter alia denies to have made such statement as recorded by the Magistrate and he even went to the absurd extent of telling that the I.O. was standing near him when he made the statement before the Magistrate. It may be noted here that at the retrial one defence witness being D.W.1 Sk. Mumtaz was examined on behalf of the defence. He claims to be an employee of Calcutta Port Trust. He says that he knows the accused Lokman, who was a class-IV staff in the department in which he was working. He says that there was continuous strike in all the ports of India including the Calcutta Port w.e.f. 16.3.84 and during the strike period he used to attend the gate No.8 of the workshop regularly and this gate is one of the entrance gales to the K.P. dock. He further says that like him other people also used to go in front of the gate during the strike. His evidence ts that on 18.3.84 he along with others went in front of that gate at about 8-30/9-00 a.m. and returned to his residence at about 12-45/1-00 p.m. He wants to say that on 18.3.84 when he went In front of that gate he found that the accused Lokman was sitting there. This defence witness has been examined to establish the plea of alibi taken by the accused Lokman. The evidence of this defence witness who was examined at the retrial in June, 1992 long after the occurrence however, does not inspire any confidence. No plausible explanation is coming as to why he was not examined at the time of the original trial if really Lokman was with him in front of the gate of the Calcutta Port Trust at the relevant time on 18.3.84. Also it is significant to note that the date of the Incident namely, 18.3.84 was not only a Sunday, but It was also the day on which the 'holi' festival was being celebrated. That being so, it is difficult to believe that he and other workers Including the accused Lokman would have gone there In front of the gate of their workshop on that day obviously without any purposeful object. Moreover it Is also quite unnatural that when riots and disturbances were going on in the concerned locality, the accused Lokman would have chosen to go and station himself in front of his closed factory gate without any meaningful purpose leaving aside the shelter of his own house, if realty he were a peace-loving person. Having regard to the facts and circumstances, we are not Inclined to place any reliance on the evidence of the defence witness D.W. 1 Sk. Mumtaz. The learned Advocate for the appellants submits that even if the defence plea of alibi falls and the court does not accept thesame, yet that by itself does not prove the prosecution case. In this connection he also refers to the decisions in Shared Blrdhtchand Sarda v. State of Maharashtra, 1984 SCC(Cr.l) 487 and Sk. Firoz v. State of West Bengal 1997. C.Cr.L.R. [Call 251. In connection with the question relating to the nature of use of a confessional statement he refers to the decisions in Pakal Narayan Swami v. Emperor AIR 1931 PC 47, PalblnderKatirv. State of Punjab : 1953CriLJ154 , Ompmkashv. State of Uttar Pradcsh : AIR1960SC409 . There is no doubt that a self exculpatory statement does not amount to confession. It is also true that the statement of the accused will have to be taken as a whole without making any 'pick and choose' of isolated sentences or words divorced or separated from the context in which they have been used. But in the present case on an Indeplh consideration of the statement of Lokman made before the Judicial Magistrate, we find no reason to hold that the same does not amount to a confessional statement. The learned Advocate for the appellants contends that the statement of Lokman as recorded under section 164 Cr.PC would show that he had only thrown some brickbats when the police officer in khaki dress entered in the house of LatlfSepol and he even did not care to notice whether the same hit the police office or not. He also contends that although the statement shows that Lokman caught the D.C. along with others when Naso hit him by a rod on his head as a result of which the cap fell down and Naso again hit the D.C. on his head and the D.C. fell down and other assailants assaulted him wllh sharp culling weapons, yet the statement shows that on seeing blood-shed as a result of assaults made by the assailants on the D.C. Lokman could not tolerate the situation and he withdrew himself and came out. It is submitted on behalf of the appellant Lokman that the conduct of Lokman shows his mental state at the relevant time and would suggest that he had no culpable object or Intention in respect of the commission of the offence. We are, however, unable to accept this defence contention. May be that the accused Lokman was comparatively a timid person and was unable to reconcile himself wllh blood-shed when the same occurred as a result of combined and concerted assault with various weapons upon the D.C. May be that the role played by the accused Lokman was not as aggressive as exhibited by many other more ferocious co-participants, yet the fact remains that when the D.C. was being chased by a mob and the D.C. was running away for safety, he, I.e.. the accused Lokman also threw brickbats at him and later even participated in catching hold of him along with others obviously for facilitating the assault by other persons with various weapons and in fact, the D.C. was assaulted with various lethal weapons Including rod used by the accused Naso on the head of the D.C. The admitted partlcipalion of Lokman in the operation and in the manner described by Lokman in his stalemenl clearly makes out that the statement of Lokman is nothing else but a confession of the commission of the offence and participation by himself in a culpable way in the commission of the same. We fall to understand why the statement of Lokman should be treated as something falling short of confession. We are rather of the opinion that the statement even when taken as a whole and without excluding anything therefrom amounts to a clear confession of the accused Lokman that he participated in the commission of the offence of severely assaulting the D.C. with various dangerous weapons in which the different assailants took part in a conjoint operation obviously with a common object to commit the offence which was being committed and tn that operation Lokman took part by catching hold of the victim along with others while some other assailants were assaulting the victim with various weapons. His withdrawal from the scene at a later stage on seeing blood-head does not exonerate him from the culpability of his act or state of mind which he displayed upto that stage and this is enough for the purpose of finding him guilty of the charge framed against him under section 302/149 IPC, Inasmuch as the D.C. was put to death as a result of a brutal assault perpetrated on him conjointly by the assailants. May be that the D.C. was further assaulted in continuation of the earlier assault even after Lokman withdrew himself from the scene after seeing the blood-shed but that does not, we reiterate, exonerate Lokman from his participative culpability in the commission of the offence till the stage of his withdrawal. We have seen from the evidence of the Autopsy Surgeon that the head injury sustained by the D.C. obviously as a result of assault made by Naso with rod on the head of the D.C. was alone sufficient to cause death and that was done while Lokman was catching the victim along with others obviously for facilitating conjoint assaults not only by the rod but also by other weapons used by the assailants. The statement of Lokman fully satisfies the requirements of a confessional statement and we are also of the opinion that the same is not only voluntary but is also true as the same receives substantial corroboratlon and also coroboratlon in material respects from the other evidence on record, namely, that the D.C. In khankl uniform and his body guard in while uniform were chased by a riotous mob there on that day and at that time, and the D.C. took shelter in that premises where he was attacked and assaulted by the assailants as stated by the eye witness P.W. 24, Md. Hadls. It is true that Lokman has not been specifically named by Md. Hadls but the other descriptions of the Incident as given by Md. Hadls, in our opinion, lends corroboratlon to the material aspects as to how and in what manner the occurrence took place at the concerned premises regarding assault on D.C. Mehta. Such corroboratlon tn respect of material aspects by the evidence of Md. Hadls Inspires sufficient confidence to accept the confessional statement of the accused Lokman as true. That being so, we have no hesitation in accepting the confessional statement of Lokman as voluntary and true. We will discuss more about the confessional statements at a later stage. Here we would like to note that the evidence of P.W.26 Md. Mustafa and P.W. 38 Md. Narln also supported the prosecution case regarding the Involvement of the accused Naso in the commission of the offence, but these two witnesses could not be produced for further cross-examination at the retrial and that is why their evidence was not pressed into service at the retrial. It has been submitted on behalf of the appellants that although the Division Bench while directing retrial directed the evidence already on record to be taken into consideration in writing out a fresh Judgment in the retrial, yet their evidence cannot be taken Into consideration because they could not be produced for further cross-examination at the time of retrial. It may be noted here that the Division Bench while remanding the case for retrial directed that the judgment is to be written on the basis of the evidence already on record, the evidence to be brought on record pursuant to the order of retrial, and the further statements of the appellants, if any, made under section 313 Cr.PC and also directed the trial Judge to give the appellants opportunity of further cross examining the prosecution witnesses. As we have seen, P.W.26 and P.W. 38 who support the prosecution case in respect of the Involvement of the appellant Naso however could not be produced for further cross-examination at the retrial Insplte of best efforts made by the prosecution as their whereabouts could not be traced out. In the circumstances it appears to us that section 33 of the Evidence Act would be attracted. Under section 33 of Evidence Act the evidence given by a witness in a Judicial proceeding is relevant for the purpose of proving in a subsequent Judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or his presence cannot be obtained without an amount of delay or expense which the court considers undesirable, etc., provided the proceeding was between the same parties or their representstive-In-Interest and the adverse party in the first proceeding had the right and opportunity to cross-examine, and the questions in Issue were substantially the same in the first and in the second proceeding. In the present case, at the original trial Involving the same Issue the appellants not only had the right and opportunity to cross-examine both P.W.26 and P.W.38, but in fact they were also cross-examined in extenso. That being so, when Insplte of efforts those two witnesses could not be traced out at the time of retrial plainly their earlier evidence was admissible in evidence at the retrial in view of section 33 of the Evidence Act. It is needless to say that the directions of the Division Bench concerning retrial do not have any connotation that a piece of evidence which is already on record will be excluded from consideration at the retrial even if the same is otherwise admissible in evidence in accordance with the provisions of law. Therefore we are of the opinion that the earlier evidence of P.W.26 and P.W.38 can be taken into consideration at the retrial under section 33 of the Evidence Act although they could not be produced for further cross-examination at the retrial as they could not be traced out after so many years inspile of efforts. In this back-ground it is Interesting to note the submission made by the learned Advocate for the appellants in respect of the question of admlsslbllly of the confessional statement of the accused Nanney Kosal for consideration at the retrial against the appellant Naso. it has been contended in this connection by the learned Advocate for the appellants that though the Division Bench while directing retrial permitted the trial court to take into consideration the evidence already on record, yet that direction is not Intended to nor does tt supersede any provision of law. It has been submitted by the learned Advocate for the appellants that under section 30 of the Evidence Act the confession of a co-accused can be taken into consideration against an accused only if both of them are Jointly tried for the same offence. It is submitted that since the accused Nanney Kosal who was convicted and sentenced in the original trial did not prefer any appeal and since he was not being Jointly tried with the present appellants at the retrial his confession cannot be taken Into consideration under section 30 of the Evidence Act at the retrial relating to the present appellants. In this connection the learned Advocate for the appellants has referred to certain decisions namely Emperor v. Keramot Sardar, 16 CHN 49, Assistant Collector of Customs. New Delhi v. Harbans Lal Sharaf 1980 Cr.LJ 681 (Delhi) and Suresh Budharmal Katati v. State of Mahamstra 1998 SCC(Cr.l.) 1625. The learned Advocate for the appellants thus contends that Inspite of the direction of the Division Bench for taking into consideration at the retrial the evidence already on record the confessional statement of Nanney Kosal cannot be taken Into consideration at the retrial as that Is, in effect, prohibited by section 30 of the Evidence Act and the direction of the Division Bench cannot be construed to supersede any provision of law. We accept this contention and we are also of the opinion that the confessional statement of Nanney Kosal cannot be taken Into consideration now in the retrial against the appellant Naso because Naso and Nanney Kosal were not facing Joint trial at the retrial. But we fall to understand why this same logic should not apply in respect of the earlier evidence of P.W.26 and P.W.38, both of whom were cross-examined at length at the earlier trial but who could not be traced out and produced at the retrial Insplte of efforts. The direction of the Division Bench to produce the witnesses for further cross-examination at the retrial obviously cannot be construed to exclude the operation of a statutory provision, namely, section 33 of the Evidence Act. No doubt that under the direction of the Division Bench both those witnesses were also required to be produced for further cros's-examlnallon at the retrial. But then, in our opinion, the law should take Its own course if in spite of efforts those two witnesses could not be traced out and produced after so many years for further cross-examination at the retrial. In our opinion, section 33 is attracted in the circumstances and there is nothing in the direction of the Division Bench which can be construed as excluding the operation of a statutory provision of law that may be attracted under the law Itself in a particular situation. In our opinion. In the circumstances the earlier evidence of P.W.26 and P.W.38 can be taken Into consideration at the retrial as a matter of law. However, as a matter of fact we keep their evidence out of consideration, and we examine whether even without taking into consideration the earlier evidence of those two witnesses, namely, P.W.26 and P.W.38 the prosecution have been able to establish the concerned charges against the present appellants.</p><p style="text-align: justify;">31. The learned Advocate for appellants contends that the appellants should have been examined under section 313 Cr.PC afresh in respect of the earlier evidence on record but that was not done and that being so, the entire earlier evidence in the case should be kept out of consideration and it should be held that the earlier evidence cannot be used against the appellants for finding them guilty of the concerned charges in the retrial. It may be mentioned here that in the retrial, after the further cross-examination of the witnesses produced by the prosecution were completed, the appellants were further examined under section 313 Cr.PC thereby giving them opportunity to tell whatever they wanted to tell yet. It may also be noted here that the prosecution did not adduce any fresh evidence in the retrial and only the witnesses who were earlier examined and whom the defence wanted for further cross-examination barring P.W.2G and P.W.38, were produced for further cross-examination and even then further examination under section 313 Cr.PC was done in the retrial so that the appellants might get further opportunity to say whatever they yet desired to say. There was absolutely no question of examining the appellants afresh under section 313 Cr.PC in respect of the entire evidence in respect of which they were earlier given opportunity to express their say under section 313 Cr.PC it is a desparate contention raised on behalf of the appellants in despair that the earlier examination of the appellants under section 313 Cr.PC should be altogether excluded and they should have been examined afresh under section 313 Cr.PC in the retrial even in respect of the evidence in respect of which they were given adequate opportunity earlier under section 313 Cr.PC The direction of the Division Bench in this connection also contalnes the expression 'thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure'. The Division Bench used the expression 'further examine' and not fresh examination and there is also absolutely no reason why the earlier examination under section 313 in respect of the evidence earlier adduced should be treated as a nullity in the retrial. The contention raised by the learned Advocate for the appellants in this respect is wholly unacceptable.</p><p style="text-align: justify;">32. The learned Advocate for the appellants contends inter alia that the unexplained delay in examination of P.W. 24 Hadis Khan renders it unsafe to rely on his evidence, The incident took place on 18.8.84 andP.W.24 Hadls Khan, we get it from the evidence of P.W. 1 S.K. Bhattacharjee. the second I.O., was examined by him in the afternoon of 20.8.84 at G-222 Battikal Second Lane. Both the earlier I.O. (P.W.80) and the second I.O.(P.W.l) have as we have seen, described what they did respectively after taking charge of the Investigation. Hadis Khan, as we have seen, was rounded up at about noon on the 19th and placed in a police van that patrolled in the locality and then he and others were in the police lock up at the P.S. from 7-00 p.m. and were later released in the evening of the same date. The second I.O. P.W. 1 took charge of the Investigation in the evening of the 19th and thereafter, as we have see, he took charge of some of the arrested accused persons in the evening and took them to Lalbazar and Interrogated them and on the next day he took steps for producing them before the court and then went to the concerned locality and there he examined Hadls Khan as the first witness to be examined by him and also the mother of the Hadis Khan in the concerned premises. Having regard to the facts and circumstances we cannot say that there was any delay or leapse in the matter of examining P.W.24 Hadls Khan. The learned Advocate for the appellants in this connection has referred to certain decisions namely, Balakrishna v. State of Orissa 1971 Cr LJ 670. Babull v. State of Orissa, 1974 SCC(Crl.) 104 and State of Orissa v. Brambhananda : 1976CriLJ1985 . It is needless to mention that all those decisions are confined in their effect to the particular facts of the respective cases. In Batakrishna v. State of Ortssa (supra) the concerned witness was examined by the I.O. 10/11 days after the incident which definitely is not so in our present case. In the other two cases namely Babull v. State of Orissa and Slate of Ortssa v. Brambhananda (supra) the concerned witnesses did not disclose the names of the assailants to anyone at the earliest available opportunity and there was no satisfactory explanation for the same. In our present case, as we have seen, P.W.24 Hadls disclosed what he saw at the earliest available opportunity on the very same day to P.W.19 Khalll Khan and P.W.21 Abdul Latlf Khan. Having regard to the facts, circumstances and evidence on record we find no reason to disbelieve the evidence of P.W.24 Hadis Khan.</p><p style="text-align: justify;">33. As regards the question whetehr the statement of appellant Lokman recorded under section 164 Cr PC amounts to confession we have earlier discussed and we reiterate our opinion that such statement amouns to confession. We have already discussed that the Magistrate gave all necessary cautions to the appelalnt Lokman before recording his confession and also gave adequate opporutnity for reflection in Jail custody as well as after the accused was produced before him and he recorded the confessional statement after he was fully satisfied that his confessional statement was made voluntarily and the same was true. We also find no reason to hold otherwise in this respect. H has been contended on behalf of the appellant Lokman that there is no other evidence against the said appeallant except his confessional statement and that, too the confessional statement was subsequently retracted by him and that being so no conviction can be based on the retracted confession alone. In this connection the learned Advocate for the appellants has referred to certain decisions of the Supreme Court, namely, Chandrafcant Chfnum Lal v. State of Gujarat 1992(1) Crime 233, Kashmlra Slngh v. State of M.P. : 1952CriLJ839 . It may be noted here that the decision in Chandrafcant Chfman Lal (supra) is virtually based on the earlier decision of the Supreme Court in Kashmlra S(ngh v. State of Madhya Pradesh (supra). In Kashmlra Sfngh (supra) the Supreme Court was concerned with the question how Tar the confession of an accused person can be used against a co-accused. It is evident from a reading of the said decision in Kashmir Stngh that the said decision was not laying down the law that an accused cannot be convicted on the basis of his own confession. Rather what was laid down in effect in that context in Koshmia Singh is that an accused cannot be convicted on the basis of the confessional statement of the co-accused. On the other hand, the learned Advocate for the Slate has referred to certain decisions which we mention below regarding the use of confession. In Sarwan Stngh v. State of Punjab. : 1957CriLJ1014 , it has been held that in law it is always open to the court to convict an accused on his confession Itself though he has retracted it at a later stage and that nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement and that what amount of corroboratton would be necessary in such a case would always be a question of fact to be determlend in the light of the circumstances of each case. In Madi Ganga v. State qj Orfssa 1981 SCC (Crl) 411 it has been held by the Supreme Court that the accused can be convicted on the basis of the confessional statement if the general trend of his confession is substantiated by other evidence. In Param Hans Yadav v. State of Bihar 1987 SCC(Crl) 322 it has been held that although the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial the same can only be used for lending assurance to any substantive evidence. The law on the point has been very succinctly laid down by the Supreme Court in Sfirfsfiad Waaeshl v. State of Maharastra 1985 Cr LJ 1173 where it has been held that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboratlon from other Independent sources and that it can not, however, be the basis for convicting the co-accused though it may be taken Into consideration against the co-accused also. That being the law, it is evident that the retracted confession of the appellant Lokman can form the basis of his conviction if it has received general corroboratlon from other Independent sources as it has in our present case. We have seen that the appellant Lokman made an elaborate statement as to how the offence was being committed upon V.K. Mehta, D.C. by a group of assailants, some of whom were armed with deadly weapons, and as to the place where it occurred and how he participated in that operation. The manner in which the offence was committed upon V.K. Mehla in the concerned premises and how he was chased in that premises and assaulted are in such details that the vivid description itself lends an assurance of credibility for the confessional version. These details, as we have seen, are again corroborated in material particulars by the evidence of P.W.24 Hadts Khan. We have also seen that there.was an Inordinate and unexplained delay in retracting the confession. Having regard to the facts and circumstances, we have therefore no hesitation in accepting that the confessional statement of Lokman as made voluntarily and the same is true and is corroborated generally as well as in material particulars by the other independent evidence, namely, the evidence of P.W.24 Hadis. He have also seen that the appellant Lokman participated in catching hold of the unfortunate victim D.C., Mehta while he was being assaulted by the accused Naso with rod on his head and by other assailants with various lethal weapons on the other vital parts of the body of the victim. There is therefore no escape from the conclusion that the appellant Lokman is guilty of the charge framed under section 302/149 IPC in spite of the fact that at certain stage of the operation he might have withdrawn himself from scene while the others were yet carrying on the operation.</p><p style="text-align: justify;">34. As regards the involvement of the appellant Naso we find no reason to discard the evidence of P.W. 24 Hadis. We have also seen how. Hadls reported to P.W. 19 and P.W.21 what he saw, on that very day. He clearly implicates the appellant Naso and from his evidence it appears that Naso delivered two blows with rod on the head of the D.C. Mehta while he was in unarmed condition. We have also seen that P.W. 16 Ramashankar Slngh has also deposed that he saw Naso amongst others in the mob with bombs. P.W.21 Abdul Latif Khan also saw Naso with others near deadbody and all were armed. We are therefore convinced that Naso was Involved in the commission of the offence along with others and this receives, additional assurance of truth when the confessional statement of the co-accused Lokman is taken into consideration under section 30 of the Evidence Act. We are also convinced from the evidence on record Including the postmortem doctor that the blow which Naso delivered on the head of V.K. Mehta with rod Itself was fatal. It is true that others also assaulted V.K. Mehta with various weapons and V.K, Mehta met with a tragic and as a result of all the assualts on him. The learned Advocate for the appellants submits that even if the prosecution evidence is taken at Its face value yet it is not clear whether the entire assault was held at premises No,G-222and whether some part of the assaults were carried on after taking away V.K. Mehta from that premises. In our opinion this is immaterial in view of the evidence of assault which is on record and the nature of the Injuries described by the Autopsy Surgeon. It is neither expected nor required that the prosecution must prove the entire operation second by second by a cinematographic display of the actions from the start to finish. The direct evidence of chasing of V.K. Mehta by the assailants and the participation of the appellant Naso in the concerned operation of assault on the victim with deadly weapons at premises No.G-222 and the description of the Injuries found by the autopsy surgeon on the deadbody of V.K. Mehta and his opinion about the effect of the same, are sufficient to hold the appellant Naso guilty of the charge framed against him under section 302/149 IPC for the murder of V.K. Mehta. Accordingly we hold both the appellants Naso and Lokman guilty of the charge framed against them under section 302/149 IPC for the murder of V.K. Mehta.</p><p style="text-align: justify;">35. As we have seen, it is in evidence that the deadbody of V.K. Mehta with Injuries was recovered on that very day by the police party from a drain in that locality. From the facts, circumstances and evidence on record there is no doubt that the assailants of V.K. Mehta had thrown the deadbody in the drain, obviously with a view to avoiding easy detection of the evidence of the crime. There is evidence, as we have seen, that Naso participated in assaulting V.K. Mehta. P.W.21 Abdul Latlf Khan, as we have seen, while coming back to his house and reached Battlkal Second Lane at about 12-30/12-45 p.m. noticed some persons armed with weapons present near a deadbody lying by the side of the kancha drain there and he also found the appellant Naso amongst those persons who were all armed. His evidence is that Naso was standing 2 cubits away from the deadbody. He also says that later at the police station he learnt that the deadbody of the Dy. Commissioner was recovered from the place where he had earlier seen the deadbody. Circumstantially the conclusion becomes irresistible that the deadbody was thrown Into the drain there and it must have been done by those persons who vere found present there beside the deadbody. And Naso was one of them, in the circumstances we are of the opinion that the conviction of the appellant Naso under section 201/149 1PC is justified. We are also of the opinion that his conviction under section 148 1PC is also warranted and Justified.</p><p style="text-align: justify;">36. Now we consider the question of sentence so far as the offence under section 302/149 IPC is concerned. Both the appellants Naso and Lokman have been sentenced to death by the trial court for their conviction under section 302/149 1PC in respect of the murder of V.K. Mehta, the Dy. Commissioner of Police, Port Division. The learned Advocate for the appellants contended, without prejudice to his other contention that the appellants were entitled to an order of acquittal, that this was not at all a fit case for death sentence even if the conviction were upheld. In this connection he referred to the decisions in Bachhan Stngh v. State of Punjab, : 1980CriLJ636 , Rajendra Prosad v. State of U.P. : 1979CriLJ792 , Digambar Gope v. State of West Bengal 1997 C.Cr.L.R.(Cal) 139 and Rabindra Prida v. State of West Bengal 1995 C.Cr.L.R (Cal) 210 etc. On the other hand, the learned Advocate for the State has referred to the decisions in Shlo Mohan Stngh v. State 1977 SCC(Cri) 324, Gayasi v. State of Uttar Pradesh. 1981 SCC(Cri) 590, Jay Kr. v. State of Madhya Pradesh 1999 111 AD(Cr.) SC 33 and 1987 SCC(Cri) 322. etc. Indeed it is now a settled law that for an offence of murder life Imprisonment is the normal sentence while the death sentence should be Imposed only in the rarest of rare cases. The guidelines for determining the case where death sentence can be Imposed are to be found in the decisions of the Supreme Court in Bachhan Singh : 1980CriLJ636 , Mechhi Singh v. State of Punjab : 1983CriLJ1457 , Kama Tewari v. State of Madhya Pradesh, 1996 Cr.L.J. 4158. etc. In going to decide whether in a particular case death sentence should be imposed or not the aggravating and the mitigating circumstances in respect of the concerned accused are required to be taken Into consideration. In Jay Kr. v. S(ate p/M.P,(supra) it has been observed by the Supreme Court that the law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment and that while it is true that a sentence disproportionately severe, ought not passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly Inadequate having due regard to the nature of the offence since an Inadequate sentence would fall to produce a deterrent effect on the society at large. It has been further observed therein that punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, but rather for having its due Impact on the society and that while undue harshness is not required yet Inadequate punishment may lead to sufferance of the community at large. In Shtv Mohcin Sfngh v. The State (supra), it has been Inter alia observed by the Supreme Court that the heinousness of the crime is a relevant factor in the choice of the sentence. In Gayasi v. State qfU.P. (supra), the Supreme Court while confirming the death sentence in a case where the victim was a public servant and was murdered while performing his public duties observed that such crimes committed against Public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.</p><p style="text-align: justify;">37. Now let us look to the circumstances in which the crime has been committed in the present case. On receiving information that a disturbance was going on in the concerned locality, V.K. Mehta, the Dy. Commissioner of the Port Division rushed to the spot and the other officers and force also joined him. He of course had no arms or weapon with him. He led the police party for restoring normalcy in the disturbed area. At that time the police party was attacked by the furious mob with brickbats, bombs and the policeparty headed by the Dy. Commissioner took shelter in a mosque. Underthe pressure of the violent and armed mob the Immam of the mosque askedthe police party to leave the mosque. In the circumstances the police partyhad to leave the mosque. As soon as they came out of the mosque theywere again attacked by the violent mob. The D.C. and his body guard MoktarAll proceeded in one direction while the Assistant Commisloner and theother members of the police party could retreat in a different direction. Whilethus retreating the members of the police party were attacked by themembers of the mob as a result of which the Assistant Commissioner andsome other members of the party sustained Injuries. Unfortunately, howeverthe Dy. Commissioner and his body Guard Moktar All proceeded in adifferent direction Isolated from the other members of the police party andthey were also chased by an armed mob. Both the D.C. and his body guardMoktar All were in police uniform. They were there to perform their officialduties to restore peace and maintain law and order. Insplte of that withoutany provocation from them they were hounded up by the ferocious mob asa result of which the D.C. and hts body guard also became separated fromeach other. The body guard was brutally killed by some of the assailants,and the D.C., while on the run for life and safely took shelter in G-222Battlkal Second Lane but there also the chasing mob followed him. In hishelpless bid the D.C. fervently disclosed to his assailants that he was D.C.of police hoping that the same would have a sobering effect on theassailants, but the assailants were in a devellsh mood and even proclaimedthat the they did not care for D.C. An isolated senior police officer of therank of a Deputy Commissioner who had been there for restoring peace andfor maintaining law and order in discharge of his official duty helplesslyfound himself pitiably doomed in a death trap under the devilish controlof the ferocious assailants while he himself was totally unarmed. There wasabsolutely no provocation from the side of the Deputy Commissioner. It wasthe bounden duly of everyone present there to assist the D.C, in discharge of his official duty to restore peace and maintain law and order but Instead, the assailants took devellsh pleasure in committing the diabolical murder of the D.C. In a dastardly manner. The brutality of the assailants on the helpless D.C. can be readily measured by the number and nature of Injuries found by the Autopsy Surgeon on the deadbody. The appellant Naso, as we found, took the lead role as the pioneer in the matter of actual assault on the D.C. after getting him in virtual capacity. Ignoring the appeal of the D.C. as reflected in the fervant disclosure of his Identity the appellant Naso delivered blow with rod on the head of the D.C. from the front side obviously with enormous force so much so that the helmet of the D.C. fell down from his head and the appellant Naso took that opportunity to deliver a second blow on the bare head of the D.C. with the rod and the beastly operation was followed by assaults by others with different other deadly weapons. The Impact of the assault made by the appellant Naso has been projected by the evidence of the Autopsy Surgeon. The head Injury sustained by the D.C. was sufficient to cause death in the normal course. The role played by the appellant Naso in making the dastardly and deadly assault on the helpless and unarmed D.C. who was on duty is studded with such mainfestatlon of depraved ferocity that the case unrringly comes within the arena of a rarest of rare cases. The tragic death of a brave and dutiful public servant in a circumstance like this is sure to have a macabre effect on the society at large and also a demoralising Impact on the public service in particular, unless the justice delivery system matchlngly responds to nuelralllse the same in the Interest of the peace-loving segment of the society. In our considered opinion, and having regard to the facts and circumstances we have no hesitation in holding that this is a fit case where the appellant Naso deserves death sentence in the Interest of the society at large. There is absolutely no mitigating circumstance for awarding the alternative sentence of life Imprisonment to the appellant Naso. In the result we confirm the death sentence Imposed by the trial court on the accused Naso for his conviction under section 302/149 1PC. However, having regard to the low-profile role played by the appellant Lokman Shah we are of the opinion that in his case death sentence need not be Imposed and the alternative sentence of Imprisonment for life for his conviction under section 302/149 1PC will meet the ends of justice. In the result the death referred in respect of the accused Naso is hereby accepted and the appeal filed by him is dismissed. The death sentence as well as the other sentences Imposed upon the appellant Naso by the trial court are all confirmed. The death reference relating to accused Lokman is however rejected and the death sentence Imposed on him by the trial court is set aside and Instead of death sentence, the sentence of imprisonment for life is imposed on the appellant Lokman for his conviction under section 302/149 IPC. Subject to above modification of sentence for conviction under section 302/149 IPC the appeal preferred by the appellant Lokman stands dismissed.</p><p style="text-align: justify;">M.K. Basu, J.</p><p style="text-align: justify;">38. I agree.</p><p style="text-align: justify;">39. Older accordingly<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '(2000)1CALLT107(HC),2000(1)CHN245',
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			'respondent' => 'State of West Bengal',
			'sub' => 'Criminal ',
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	'casename_url' => 'lokman-shah-anr-vs-state-west-bengal',
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		(int) 0 => '853066',
		(int) 1 => 'lokman-shah-anr-vs-state-west-bengal'
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$title_for_layout = 'Lokman Shah and anr Vs State of West Bengal - Citation 853066 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '853066',
		'acts' => ' <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 148, 149, 201 and 302;;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 16A, 144, 154, 161, 164, 313 and 366;;Evidence Act, 1972 - Sections 9, 30, 33 and 45;;<a href="/act/52009/arms-act-1959-complete-act">Arms Act, 1959</a> - Sections 25 and 27',
		'appealno' => 'Criminal Appellate Jurisdiction, Crl. Appeal No. 274 of 1992 with Death Reference No. 11 of 1996',
		'appellant' => 'Lokman Shah and anr.',
		'authreffered' => '',
		'casename' => 'Lokman Shah and anr. Vs. State of West Bengal',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Gayasi v. State;',
		'citingcases' => '',
		'counselplain' => ' Mr. Balai Chandra Roy, ;Mr. Sekhar Kumar Bose, ;Mr. Subrata Kumar Basu and ;Mr. Asim Kumar Roy, Advs.',
		'counseldef' => ' Mr. Tapan Roy Chowdhury and ;Mr. Thakurdas Roy Chowdhury, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-12-01',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Gitesh Ranjan Bhattacharjee and ;Malay Kumar Basu, JJ.',
		'judgement' => '<p>G.R. Bhattacharjee, J.</p><p>1. Both the above noted Death Reference and the criminal appeal are being dealt with and disposed of by this Judgment as they arise out of the same Judgment of the 3rd court of Additional Sessions Judge, Allpore. The trial court by its judgment and order dated 26-8-92 acquitted the accused Sanda Akhtar and the accused Hossaln Chowdhury but convicted the accused Naslm @ Naso and the accused Lokman Shah under section 302/149 IPC and further convicted the accused Naso under sections 148, 201/149 IPC. Subsequently after giving a hearing on the question of sentence the trial court by Its order dated 31-8-92 sentenced both the accused Naso @ Naslm and Lokman Shah to death for their conviction under section 302/149 IPC for the murder of V.K. Mehta and also sentenced the accused Nase to R.I. for 3 years and fine of Rs. 2.000/- i.d. to R.I. for 6 months for the offence of rioting punishable under section 148 IPC and also sentenced him to R.I. for 3 years and a fine of Rs. 2,000/-I.d. to R.I. for 6 months for the offence punishable under section 148 IPC and also sentenced him to R.I for 7 years and a fine of Rs.6000/- I.d. to R.I. for 1 year and 6th months for the offence punishable under section 201/149 IPC. The substantive sentences of Imprisonment were directed to run concurrently. The trial court then made a reference to this court under section 366 Cr.PC for consideration of confirmation of the death sentence Imposed upon the two accused Nase and Lokman. Correspondingly the said two accused have preferred appeal to this court against the judgment and orders of conviction and sentences passed by the trial court. As we have already noted both the death reference and the criminal appeal are being dealt with and disposed of simultaneously by this Judgment.</p><p>2. It may be noted here that on an earlier occasion the trial court In a trial on the same charges and others passed Judgment and orders of conviction and sentences In S.T. No. l(6)/88 and on that occasion four accused persons namely Naso and Lokman (the present appellants) along with the accused Akhtar (c) Sanda Akhtar and Hossaln Chowdhury were Inter alta convicted under section 302/149 IPC for the murder of V.K. Mehta and sentenced to death. There were also other sentences In respect of different accused persons on that occasion. It is however to be noted specifically here that on that occasion the accused Nanney Kasai was convicted under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and sentenced to R.I. for 6 years and he was further sentenced to R.l. for 2 years for conviction under section 148 IPC with the direction that both the sentences would run concurrently. The said accused Nanney Kasai. we are told, did not prefer any appeal against the conviction and sentences Imposed on him and he rather preferred to undergo the sentences imposed on him by the trial court The four accused named above who were sentenced to death however preferred appeals against their conviction and sentences which were all heard together by a Division Bench of this court along with the death reference for consideration of confirmation of death sentence Imposed upon them by the trial court. The Division Bench hearing the said death reference and the connected criminal appeals disposed of the same by Judgment dated 8-7-91 by which the death reference was rejected and the appeals were allowed and retrial of the said four appellants-accused persons by the trial court was directed to be held In respect of the charges for which they were found guilty by the trial court. The precise ground on which the retrial was directed was that the trial court allowed the prayer of amendmenl of certain heads of charges at the stage of argument at the behest of the learned Special Public Prosecutor, thereby making amendment In respect of the names of the places of occurrence in the concerned charges. In view of such amendment In the concerned charges at the stage of argument before the trial court, the Division Bench hearing the earlier appeals and the death reference felt that the accused persons ought to have been given an opportunity by the trial court to cross-examine the prosecution witnesses after alteration of charges, and only on that ground the Division Bench considered It proper, without entering Into the merit of the prosecution case, to direct retrial of the case by the trial court In the manner directed by the Division Bench which we will mention hereafter. But before that we briefly describe the nature of charges framed against the accused persons including the present appellants. The first charge was one under section 148 IPC for rioting. The second charge was one under section 302/149 IPC for the murder of Mokhtar All, a police constable In white uniform. The third charge was one under section 302/149 IPC for the murder of V.K. Mehta, D.C. Port Division., In Khanki uniform. The fourth and the fifth charges were under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and Mokhtar All respectively. The sixth and last charge was under section 324/149 IPC for causing hurt to K.K. Sharma, Asstt. Commissioner of Police (II), Port Division and to Rama Shankar Slngh, constable.</p><p>3. The direction of the Division Bench for retrial was couched In the following language :--</p><p>'On the conclusion as above, we set aside the order of convictions recorded and sentences Imposed upon the four appellants before us and direct their retrial only in respect of those charges for which they were found guilty by the learned trial Judge. In the retrial the learned Judge will give the appellants an opportunity of further cross-examining those witnesses of the prosecution, who had earlier deposed In respect of the above charges and thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure. The four appellants should then be given an opportunity to adduce evidence on their behalf. On the basis of the evidence already on record, evidence to be brought on record pursuant to this order, and the further statements of the appellants, If any, made under' section 313 of the Code of Criminal Procedure, the learned Judge will write out a fresh judgment after hearing the arguments of the parties. By way of abundant caution, we reiterate that the retrial, in terms of this order Is to be confined to the four appellants only and that too only in respect of the charges for which they were found guilty. Since the appellants are In custody for a pretty length of time, we direct the learned trial Judge to conclude the retrial as expedltiously as possible, preferably within a period of two months from the date of communication of this order. Till then, the four appellants shall continue to remain in custody.</p><p> The appeals are thus allowed and the reference made by the learned Judge under section 366 of the Code of Criminal Procedure is rejected.</p><p>Consequently the retrial was required to be confined to the charge under section 302/149 IPC against the four accused persons, namely, Naso, Lokman, Sanda Akhtar and Hossain Chowdhury, for the murder of V.K. Mehla and also against the accused Naso to the charge under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta as well as under section 148 IPC for rioting.</p><p>4. The trial court held the retrial pursuant to the above noted direction of the Division Bench. The witnesses whom the accused persons desired to further cross-examine In the retrial were produced by the prosecution and were cross-examined. However, at the retrial the prosecution could not produce two of their Important witnesses namely P.W. 26, Md. Mustafa and P.W. 38. Md. Narln as they were not traceable and this fact was recorded by the trial court In Its order No. 295 dated 28-2-92. Be that as It may, on retrial the accused Sanda Akhtar and the accused Hossaln Chowdhury were given the benefit of doubt and were acquitted and this had to be done, as it appears from paragraph 32 of the Judgment of the trial court, mainly because the evidence of the two prosecution witnesses, namely, P.W. 26 and P.W. 38 were not taken Into consideration as they could not be produced for further cross-examination at the retrial. In paragraph 33 of the Judgment of the trial court, it Is recorded in that connection that the learned Special Public Prosecutor after taking sufficient opportunity finally expressed his Inability to produce those two witnesses and also pointed out that after a lapse of nine years the whereabouts of those witnesses could not be ascertained and It may be that for fear of life they had absconded. However, at the retrial the trial court convicted and sentenced the appellants-accused Naso and Lokman as noted earlier and thereafter made this reference under section 366 Cr.PC for confirmation of death sentence Imposed on them. The said two appellants have also preferred criminal appeals against their conviction and sentences.</p><p>5. The prosecution case has been succinctly stated in the earlier judgment of the Division Bench and we restate the same. The prosecution case in a nutshell is that in the morning of March 18, 1984 communal disturbances broke out at Fathepur Village Road under the Garden Reach Police Station and its adjoining areas which fall within the Port Division of Calcutta Police. On getting information of the disturbances Sri Vinod Kr. Mehta, the then Dy. Commissioner of Police of the Port Division went there alongwlth his securily guard Moktar All. Sri K.K. Sharma (P.VV.7), who was the Asstt. Commissioner of Police of that Division then, also reached there along with his security guard R.S. Singh (P.W. 16) and other police officers. When the police personnel tried to restore peace and normalcy, they were attacked by a riotous mob with brick-bats, bombs etc. To avoid mob fury, Sri Mehta and others entered into a mosque but as they were not allowed to remain there by its [mam, they came out. Then they were again attacked with bombs and other lethal weapons and finding no other alternative Sri Mehta took shelter In the house of Abdul Latif Khan (P.W. 21). a constable attached to the Calcutta Police, at G.222 Battikal Second Lane. Moklar All. In his return, took shelter In a near-by house at Dhankhettl. Unfortunately, however they could not save their lives as they were hacked to death by the riotous mob. Subsequently, the charred body of Moktar All was found In an open space near the premises where he took shelter, while that of Sri Mehta bereft of his uniform, was found floating in a drain near premises No. F/59, Attabag with multiple Injuries on his person. Sri K.K. Sharma and his security guard were also attacked by the riotous mob and injured but fortunately they could save their lives by running away. Sri Sharma lodged an Information about the incident in the evening and on that information Garden Reach Police Station registered a case against 150/200 unknown persons for the murder of V.K. Mehta and Moktar All and for assault on Sri K.K. Sharma and other police personnel. S.I., S.R. Ganguly (P.W. 80) of Garden Reach Police Station took up investigation of the case but under orders of superiors Investigation was subsequently taken up by S.I., S.K. Bhattacharjee (P.W. 1) of the Detective Department (Homicide Squad) of Calcutta Police who submitted charge-sheet.</p><p>6. Having described above the genesis of the present appeal, the charges framed, the prosecution case in a nut-shell and the scope of retrial, we now proceed to examine the merit of the prosecution case on the basis of the facts, circumstances and evidence on record. It Is needless to mention that we are now concerned mainly with the case against the two appellants Nase and Lokman. At the very out set. we may mention here that ext. 3/1 Is the site plan which will be of great assistance in appreciating the facts, circumstances and evidence on record Including their co-relation in respect of different aspects of the matter. We may here also adumbrate a broad categorisation of the different types of prosecution witnesses. P.W. 80, Santl Ranjan Ganguly, S.I. of Police who was attached to Garden Reach Police Station at the relevant time is the first I.O. of the case. P.W. 1, SaroJ Kr. Bhattacharjee, S.I. of Police attached to Homicide Squad. Detective Department, Calcutta Police is the second I.O. who submitted charge-sheet after Investigation of the case. P.W. 2 Is the plan maker. P.Ws. 3, 4, 5 and 6 are photographers. They are all police personnel. P.W. 65 Is a private photographer. P.W. 7, K.K. Sharma is the Assistant Commissioner of Police, Port Division who lodged the FIR and P.Ws. 8, 9, 10, 11. 12, 13 and 16 are all police personnel who had been to the disturbed area for restoring law and order there. P.Ws. 15. 18, 20. 22, 23, 25. 27. 28, 29. 34. 35, 36. 37 and 48 were all declared hostile by the prosecution. However, of the said hostile witnesses, we may have to discuss the evidence of some, namely P.Ws. 15, 18, 20, 22, 23 and 25. The main prosecution witnesses Implicating the present appellant Nase are P.Ws..16, 19,21 and 24. The other two vital witnesses P.Ws. 26 and 38 however, could not be produced for further cross-examination at the retrial. P.W. 46 Is the Autopsy Surgeon who held the post-mortem examination on the dead-body of V.K. Mehta. P.Ws. 44, 66 and 67 are also medical witnesses. P.W. 47 is the Judicial Magistrate who held T.I. parade. P.W. 51 is the Judicial Magistrate who recorded the confessional statements of the two accused Nanney Kosal and Lokman Shah on 3-4-84 and 9-6-84 respectively (vide ext. 13 and ext. 14).</p><p>7. We will now discuss the evidence of some witnesses from which we will get an Idea of the nature of the Incident that took place on 18-3-84 in the concerned locality. P.W. 7, Sri K. K. Sharma was posted at the relevant time as Assistant Commissioner of Police (II). Port Division. He says that late V.K. Mehta was his Dy. Commissioner and he died on 18-3-84. It may be noted here that It is In evidence that 18-3-84 was a Sunday and It was the day on which 'hoiI' festival.was being celebrated. It is the evidence of Sri K. K. Sharma (P.W.7) that on that day while he was at his house he received a telephone from Port Division. Telephone Exchange at about 10-45 a.m. to the effect that a trouble was going on at the Junction of Falherpur Village Road and Paharpur Road and that the D.C. Mr, Mehta wanted his presence there. Then he proceeded to the place In a Jeep accompanied by his body guard Rama Shankar (P.W. 16) who was well acquainted with that place and they reached there at about 11 -30 a.m. and found brick-bats lying on the roads and remants of exploded bombs and he also saw a huge gathering. He also heard nofsy sounds. He says that he saw some local police officers standing there and seen D.C. Port accompanied by one Mr. Sen and local leader came to that place accompanied by some agitated persons and the D.C. told him that they would go out and see what was going on and then he, his guard, D.C., his guard Moktar All and 5/6 armed constables proceeded along the Fatherpur Village Road and entered the Mathorpara Basil and found agitated crowd on both sides of Mathorpara Bastl Lane. According to his evidence they proceeded further and came near Ramnagore Lane when brick-bats, bombs etc. were hurled at them and It was about 11-45 a.m. at that time. He says that there Is a mosque near the place where the Mathorpara Bast! approach meets Ramnagore Lane. His evidence is that due to heavy brick batting and bomb throwing D.C. asked them to take shelter Inside the mosque and In order to save themselves they entered Inside the mosque. He describes that there Is a collapsible gale at the back portion of the mosque and they entered the mosque through the front gate and after some time they noticed that a riotous mob of about 40/50 persons were trying to break open collapsible gale of the mosque and those persons were armed with brick-bals, bombs, swords, daggers etc. and Ihen the Imam of the mosque told them to leave the mosque and then the D.C. told him that they would have to leave the place and to go out and had also some discussion regarding their future course of acllon and also told him lhal they were to disparse the violent mobs. According to him the D.C. further told him that he (A.C.) should try to disperse the mob from Mathorpara Bastl approach and Ramnagore Lane junction while D.C. would disperse the mob from eastern side of the mosque. He estimates that there were about 400/500 persons around the mosque, and say that when they came out he noticed the D.C. In the midst of a crowd and was going towards the east. His evidence is that bombs and brickbats were thrown at them and he was surrounded by some persons and they forced him to sit on the ground and someone took off the helmet from his head and he was praying to God for his life and one person started hitting on his head with a full brick ('then if). He also noticed that some persons had daggers and swords with them. He says that he received bleeding Injury on his head and he was more or less senseless at that time and after some time somehow he managed to get up and could, with difficulties, reach the place wherefrom they had earlier proceeded towards the mob. He says that when he was made to sit forcibly by the mob, the situation was such that he could notice where his security guard was and where the other armed constables were. He also did not see his security guard subsequently on that date. His evidence Is that he met the D.C. Head Quarters, D.C. S.B.-I who were standing there at the place where he returned after sustaining injury, namely, near the junction of Paharpur Road and Fathepur Village Road and on seeing his condition the D.C. Head Quarters advised him to go to Calcutta Hospital for treatment and also ordered one sergeant to accompany him to the hospital and he then went to the Calcutta Medical Research Institute and was treated there. His evidence Is that he reached the hospital at about 12-15 p.m. and his Injury on the head was stitched and from there, Ignoring the advice of the doctor to take admission in the hospital, he went to Lalbazar and reached there at about 2-00 p.m. and met the Commissioner of Police (C.P.) and other high officials and narrated the Incident and from Lalbazar he went home as per the direction of the C.P. His further evidence Is that while at home he got a message that Police Commissioner had gone to the spot and he should go there and then he went to the spot and met the superior officers and came to know that the dismembered charred body of the body-guard of D.C. Mehta had been found in an open space and he also saw the charred body which was beyond recognition to him. He gave the name of the body-guard as Moktar All. He says that he also noticed that metallic buttons used by police constables were lying near the charred body and also found remnants of white uniform used by Calcutta Police Constables. According to his evidence D.C., Port Division V.K. Mehta was still untraced and they conducted search for him and on search the body of V.K. Mehta was recovered from a Kancha Nala and it was found that socks were on his feet and both legs were tied with a rope and he was wearing only one Jangea and the Galnjee was rolled up to his chest and the body had multiple marks of injuries In the eyes, face, chest and other parts and the body was sent to morgue for post-mortem examination. From his evidence it appears that In the T.I. parade he Identified the accused Sk. Nanney and in his evidence he says that he saw the said accused (Nanney) when they were coming out of the mosque. In a very violent and aggreslve mood with a bomb In his hand and he was shouting. His evidence is that after the bodies were sent to morgue, he went to Garden Reach Police Station and there S.I., Santf Ranjan Ganguly (P.W. 80) recorded his statement which was signed by him after going through the same. His statement which was recorded and treated as FIR was marked Ext. 4. In his cross-examination he says that he made the statement to the S.I. at about 8-05 p.m. He also clarifies that the statement fn the FIR (Ext.4) 'after seeing Commissioner of Police I came back to the spot at about 15 hours' is not correct, because he went home from Lalbazar and from home he went to the spot. This he has said In his examination-in-chief and we do not think that there is any substantial discrepancy In the matter. In his cross-examination he says that the police vehicles were parked near the crossing of Paharpur Road and Fatherpur Village Road since the vehicles could not got through Mathorpara. He also says that he was assaulted at Ramnagore Lane near a place where Mathorpara Road meets Ramnagore Lane and after the assault he went to the crossing of Fathepur Village Road via Mathorpara Lane. He says that at Lalbazar he came to know that V.K. Mehta and his body guard were still missing. He also says that dusk to dawn carfew was Imposed in that area on 18-3-84 and he was Informed at the P.S. that section 144 Cr.P.C. had been also promulgated in that area. He says that after the incident due to his Injuries he was completely on bed rest for two months. In his cross-examination in the retrial, he says that the dead body of V.K. Mehta was recovered from a Kanchha Nala and he saw It when it was taken out from that Nala. He however did not see the actual bringing out of the body from the Nala. He first saw the dead body, he says, by the side of the road where It was kept after bringing the same out from the nala. His further evidence Is that about 8 to 10 police personnel Including himself and D.C. Mehta were Inside the mosque and while some of the police personnel were not armed, some were carrying muskets and gas shells. It may be noted here that Ext.4 which Is the statement of P. W. 7, K.K. Sharma that was recorded as FIR on 18-3-84 stands In substantial conformity with the evidence of P.W.7. Sri K.K. Sharma as given in court.</p><p>8. P.W. 8, Sayed All Reza Is an armed constable of police. His evidence is that on 18-3-84 he reported to Lalbazar for duty at 6 a.m. and his duty was allotted to Watgunge P.S. and he went there with a gas gun, and that while he was In that P.S. on standby duty at about 10/10-15 a.m. the Subedar reported that a trouble was going on In Garden Reach area and they were required to go there and accordingly they left for Garden Reach and reached there at about 10-30/10-45 a.m. He says that he saw D.C. Mehta, A.C. and olher police forces and police officers present there and then D.C. Mehta proceeded Inside the bastl along with A.C.. the witness (P.W.8), guards of D.C. and A.C., 5 armed constables, 2 plain clothed constables and 3 police officers In plain cloth. He says that after entering Inside the basti they found a dead body lying there and D.C. asked two police men to guard the dead body and three police officers In civil dress were asked to bring a vehicle and pick up the body. He says that they heard noise coming from Inside the bastl and also heard sounds of bombs and then D.C. Mehta alongwith A.C. proceeded Inside towards that direction and they were with them and when they reached the road through the lane near the mosque they were attacked from both sides of the road and they took shelter in that mosque with the help of a Moulabl and members of the mob were throwing bombs, brick-bats and they had lathi, rods also with them. He says that he noticed that about 20/25 bombs were hurled towards them and when they took shelter In the mosque, a violent mob being armed with weapons were trying to break open the back side collapsible gate of the mosque and the Moulabl was also threatened by the mob with dire consequence if he did not drive out the police parly from the mosque and then on being asked by Moulabl they came out of the mosque and they were attacked with bomb and brick-bats and then the A.C. ran inside the lane through which they had reached the road and they also followed him. He says that as soon as he entered inside the lane he saw that the A.C. was being assaulted on his head With a brick and his helmet was missing. According to his evidence he tried to fire gas from his gun but the gun did not work and then using the gun as a lathi he gave a blow to a boy who was assaulting the A.C. He further says that when he hit that boy with the gun the gas shell burst out. He however says that he could not recognise the boy who assaulted the A.C. with the brick on his head as trouble was going. He further says that when the gas shell burst out, all of the persons fled away from the place and A.C. then stood up and started walking slowly with bleeding Injuries on his head. P.W.8 says that he also received a brickbat blow on his leg when he was going to enter inside the lane after coming out of the mosque. His evidence is that he followed the A.C. keeping watch on the back side and In this way they reached the place where they had come from watgunge P.S. and at that time he noticed the presence of D.C. Headquarters at that place alongwith other police officers and constables and they had a talk with the A.C. His evidence Is that he reported to one police officer that D.C. Mehta had been separated from them and on hearing this the D.C. Headquarters proceeded inside the basti alongwith them in order to ascertain the situation. He says that it was then about 1/1-30 p.m. and he took the D.C. and the others to the mosque and on his way he reported the entire incident to the D.C. Headquarters. He says that the D.C. Headquarters started asking the people of the locality regarding the whereabouts of D.C. Metha and on receiving one information they went to an open space on Ramnagore Lane and saw that a human body was burning. He further says that they noticed a piece of white uniform and a nickel button used by constables lying near that place and so he guessed that It was the body of the guard of D.C.Mehta. That place, he says, is near the mosque. His evidence is that then he and other police constables remained at that place where the dead body was burning and the other police officers went to other place and then at about 5-30/6-00 p.m. they come to know that the dead body of V.K. Mehta had been traced out. His further evidence is that he saw that a dead body was placed by the side of a drain in a lane and the dead body was covered with a white cloth and a police officer lifted that cloth and he found that it was the dead body of Mehta with marks of injuries. In his cross-examination he says that he was 3/4 cubits behind the A.C. when the A.C. was being assaulted and as he was threatening the mob with the gas gun he was not assaulted by any person of that mob. He gives the time as 2/2-30 p.m. when he noticed that the dead body was burning. P.W.9 is also an armed constable attached to the 5th Battalion. He was also sent on duty to Garden Reach area on 18-3-84 after 10-00 a.m. He says that in their party there were 4 armed constables and four had gas guns and some others had lathies and one inspector was with them. His evidence Is that on reaching Paharpur they found a gathering and also heard shouts and D.C. Port, A.C. and other police officers were present at that place. His further evidence Is that D.C. Port, asked four armed constables and four constables with gas guns to accompany him in the adjacent lane and they entered in the lane and after going some distance found a house in blaze and the D.C. placed two armed constables to guard that house and then they along with D.C. were proceeding through an adjacent baeti area and noticed a dead body and D.C. ordered two local police men to guard the dead body and they proceeded further and came to a road near a mosque and when they were on that road they were attacked from both sides with brick-bats, bombs and on being attacked they entered inside the mosque. He says that there were 60/70 persons on both sides of the road. His evidence is that then some persons were trying to break open the gate of the mosque and the Moulabl asked them to get out of the mosque and they came out of the mosque and they were attacked with bombs and brick-bats. He says that he took shelter in a chala and also threw his gas granade but the granade did not burst. He says that from the Chala he came out and started running and he met the A.C. and other police men. He says that A.C. had bleeding injury on his head and finally he boarded the lorry. in his cross-examination he says that D.C., A.C., himself and other police men were together up to the mosque of Paharpur.</p><p>9. P.W.10 is another armed police constable. He was also sent on duty to that place on that day. His evidence is that when they came to the Junction of Paharpur Road and Fathepur Village Road, D.C. Port, V.K. Mehta, his guard, A.C. Port Mr. Sharma, his guard, O.C. Garden Reach P.S. and some local police officers and constables were present there. He says that a house was burning some distance away and a vehicle of Fire Brigade was there. His evidence is that they along with D.C. and A.C. proceeded towards the northern direction and D.C. posted two armed constables near the burning house and proceeding further they found a dead body and D.C. posted the constable of local P.S. there and they proceeded further and noticed an agitated mob and also heard sounds of bombs. He says that they reached Ramnagore Lane near the mosque and up till then the D.C. did not order them to fire. He further says that the D.C. did not pass any order to fire. His evidence-is that when they reached near the mosque, bombs were thrown and they entered inside the mosque. He further says that 20/ 25 persons armed with sharp weapons such as sword, tangi like weapon, klrlch etc. tried to break open the gate of the mosque and when they then all came out of the mosque bombs, brick-bats were thrown at them. He also speaks of assault by one person on A.C. Mr. Sharma and says that his helmet had fallen on the ground and his head was bleeding. He says that at that stage he did not see the D.C. He further says that on their way back he had fired two rounds in the air in order to save themselves as bombs were being hurled from roof-top. He also speaks about the burning of a house and says that Mr. Sharma told the D.C. Headquarters that the D.C. Mehta had been separated from them and then Sharma left for hospital as he has injury on his head and they boarded the lorry. His cross-examination shows that the D.C- Port Division had a shield in his hand at certain stage. P.W. 11, Ashlm Chakraborty is also an armed constable of Calcutta police who was sent on duly there on that day. He says that he was carrying gas gun. He also speaks about the mob found on reaching Fathepur Road arid Paharpur Road crossing. He testified to the presence of D.C. Port. A.C., Port and their guards and officers of Garden Reach P.S. as well as police men of that P.S. He says that they could hear shoutings and sounds of bombs coming from northern side and the D.C. asked them to follow him and than D.C., A.C., their guards and they including the witness along with police officers of the local P.S. and constables proceeded towards north through Fathepur Village Road and through a narrow lane in the basti when they heard sounds of bombs and noise in the Bastt and also they found a deadbody near a two storyed building covered with cloth. He says that the D.C. ordered the two constables of the local P.S. who had muskets to guard the deadbody and also directed the two officers of the local P.S. to make arrangement for removal of the deadbody and then he along with D.C., A.C., their body guards, two armed constables and four gas constables including himself proceeded towards further north and reached Ramnagar Lane near a mosque. He says that many people were shouting, standing on sides of Ramnagar Lane and they were attacked with bombs and brickbats from both sides of the road and then they all entered (n the mosque. His evidence shows that a mob armed with swords, bhojalis were trying to break open the collapsible gate and the D.C. ordered them to come out of the mosque and then they all came out and they were again attacked with bombs and brickbats from both sides of the road. He says that he was hit on his leg with a brickbat. He further says that he fired one round of tear gas shell but it did not explode and then out of fear and to save himself, he took shelter in a tileshed and another constable also took shelter there. He noticed that the A.C. Port Division was going back. He also speaks about the bleeding injury on the head of the A.C. Port Division Then they reached the crossing of Paharpur and Fathepur Village Road where D.C. Headquarters was present. He says that A.C., Port Division talked to the D.C. Headquarters. P.W. 12 Naba Ranjan Dutta is an armed police constable. He says that from Lalbazar they were sent to Garden Reach area and they went there in a lorry and reached Paharpur Road at about 11/11-15 a.m. and found V.K. Mehta. D.C., Port and A.C., Port present there. His evidence also shows that when they reached the road near the mosque a mob of about 150 persons or so on both sides of the road started throwing bombs and brickbats towards them and then they entered inside the mosque and then some persons were trying to break open the collapsible gate of the mosque and were shouting for driving them out of the mosque. He further says that D.C. and A.C. had some conversation with the Moulabl of the mosque and thereafter they all came out and when they came on the road they were again attacked with brickbats and bombs from both sides on the road. He says that he was also hit on his hand and feet by brickbats. He of course cannot say as to which of his companions had gone in what direction but he noticed that the A.C. and 2/3 armed policemen were going towards the lane through which he had come earlier and he followed them. P.W. 13 Ajit Kr. Malty, a constable of Calcutta Police who was in the police party at the relevant time also speaks about that part of the incident which the other police witnesses have described as discussed above.</p><p>10. P.W. 16 Rama Shankar Singh who is a police constable was the security guard of K.K. Sharma (P.W.7), the A.C.-11 (Port) at the relevant time. He went to the spot with the A.C.-II (P.D.) on the relevant date. He says that they reached Fathepur Village Road and Paharpur crossing at about 11-00 a.m. and found the D.C.. Port. Vinod Kr. Mehta and his body guard, both in police uniform, present there as well as the O.C. Garden Reach P.S. and three police officers of South Port Police Station. He also speaks about the presence of some constables of Garden Reach P-S. and police force there. His evidence shows that the people of that locality were in very agitated mood and the D.C. was trying to pacify them and at that time they heard uproars and sounds of bombs coming from Mathorpara side and then the D.C., Port, his body guard, Mr. Sharma, he (the witness), three police officers, two constables of Garden Reach P.S. and six armed constables, [two carrying muskets, two with gas guns and two with gas granades) proceeded towards Mathorpara under the leadership of D.C., Mehta and on reaching Mathorpara they noticed one deadbody lying on the ground near the house of one idrlsh and then the D.C. told the three police officers to make arrangement for removal of the deadbody in a vehicle and the D.C. also posted two Garden Reach P.S. constables near that deadbody. His further evidence is that they then heard roars coming from Ramnagar Lane side and then D.C. Mehta, his body guard. Mr. Sharma, the witness himself and six armed constables proceeded towards that direction and as soon as they reached Ramnagar Lane from Mathorpara they were attacked from the eastern and the western sides of the Ramnogar Lane with brickbats, bombs etc and in order to save their lives they entered in a mosque situated on Ramnagar Lane and they noticed a mob standing behind the collapsible gate of the mosque and trying to break open the gate. He further says that the mob was shouting and asking the imam of the mosque ot drive them out of the mosque and then the Moulabi asked the D.C. to leave the mosque and then the D.C., Mehta had some talks with Mr. Sharma and thereafter they left the mosque. As soon as they came out of the mosque, he says, they were attacked from both sides of the road with bombs, brickbats etc. He says that he received bleeding-injury on his right leg as he was hit with a splinter of bomb and with a brickbat when he was on Ramnagar Lane. He says that he received bleeding injury on the thigh of his right leg and he fell down on the ground and got up within two minutes. His evidence is that at first he could not see any of his companions but subsequently he noticed that the D.C. Mehta and his body guard were running towards the eastern side and a (SIC)b was chasing them with swords, brickbats and bombs. it is to be noted here that from this witness, namely, the body guard of the A.C.. Sri Sharma we get that on being chased by the armed mob, the D.C., Mehta and his body guard ran towards the eastern side. His evidence is that in order to save him he himself started running towards the western side and reached Paharpur road. His evidence read with the evidence of the police witnesses discussed earlier thus indicates how D.C. Mehta and his body guard at that point of time were separated from the other members of the police party on the face of the attack made by the furious and armed mob, and at that point of time when the other members of the police party retreated towards the western side, the D.C., Mehta and his body guard were running in the other direction, namely, the eastern side on being chased by the mob and thus they became isolated from the other members of the police party. P.W.16 says that when he reached Paharpur Road on running away from the place of the trouble, he found a taxi there and he went to Garden Reach P.S. in that taxi and there he reported the incident to one A.S.I, of the P.S. and from the P.S. he went to Calcutta Police Hospital for treatment and was admitted there and he was in the hospital for 26 days. A significant part of his evidence is that he speaks about the presence of Nannay Kasal and Naso (an appellant) and Puttan in the mob having bombs with them when the police parly was attacked by the mob on Ramnagar lane as soon as they reached there from Mathorpara. He also says that he had seen Nannay Kasal to throw bombs towards them. He further says that at that time he also saw Hallm, Naru, Gorachand and llllas, all asked with brickbats and also idrish Rahaman, Kallu armed with bombs. He further says that he had also seen Kasrln in that mob. He says that he knew them previously. in court he also identifies the accused Naso and certain other accused persons. His evidence is that the mob which was throwing bombs etc towards them and the -mob that chased the D.C. and his body guard as well as the mob that was trying to break open the gate were all in angry mood. The evidence of this witness is thus significant as he testifies to the presence of the accused Naso, an appellant herein, with bomb in his hand in the furicus mob that attacked the police parly. in his cross-examination he says that the distance between the mosque and the Paharpur road along Ramnagar Lane will be five to ten minutes walk and the crossing of Ramnagar Lane and Paharpur Road will be about 5 to 10 minutes walk from the crossing of Fathepur village Road and Paharpur Road. He says that they wereinslde the mosque for about 5/ 6 minutes. He also says that both the D.C. and his body guard were in uniform. From his cross-examination we get that the distance between Ramnagar mosque and the Ramnagar oulpost will be less than a mile. He further says that on that day there was trouble in alomost all parts of that area. His evidence is that on that day there was disturbance between Hindu and Muslims. in his cross-examination during retrial he says that after coming out of the mosque he sustained injury on his right leg from a splinter and he fell down and thereafter he managed to go towards Paharpur Road and he went to the Garden Reach P.S. at about 12-45 p.m. and he narrated before the duty officer how he sustained injury and thereafter taking sick report he went to the police hospital. He further says that excepting the disturbance infront of the mosque he had no occasion to see any other disturbance on that day. He also says that when he was in the hospital for 26 days the Police Officer from Lalbazar vlslled him for interrogation. From him we get that he was posted in Garden Reach P.S. for one year from 1980 to 1981.</p><p>11. P.W. 73 Sewnath Slngh was the O.C. of Garden Reach P.S. on 18.3.84. His evidence is that on that day at about 10-15 a.m. S.I.. O.K. Sikdar of Garden Reach P.S. received a massage from Lalbazar Control Room that a disturbance of communal nature was going on in Falhepur village Road area and that information was recorded in the G.D. of the Garden Reach P.S. and thereafter he along wllh S.I., H.P. Dutla. S.I., O.K. Sikdar left the P.S. with available force. He says that he was in his Jeep and the force was in a police vehicle and they reached the concerned area at about 10-30 a.m. and noticed that two groups of agitated mob numbering about 800 or so were throwing brickbats, bombs etc at each other and then he along with his officer and staff chased the crowd and the crowd melted and entered in the lanes and by-lanes. He says that two buildings were on fire and they tried to put off the fire. His further evidence is that the D.C. Port and some other police officers also arrived there, namely, O.C. iqbalpur P.S., O.C. SPPS, S.i. A. Cope, S.i. S. Gupta, Sergeant S. Banerjee and other police men. He also speaks about the presence of the armed body guard of the D.C. He says that when the D.C. came he had his guard Muktar All with him. The D.C., he says, was in his Khaki uniform and his guard was in white uniform. His evidence is that he showed the D.C. the affected place and the D.C. also chased the crowd. He says that other houses were set on fire and they tried to extinguish the fire with the help of local people and the Fire Brigade also arrived there and at that time on receiving and information that a man had been killed on Paharpur Road, he left for Paharpur Road with one or two constables on foot and on arriving there he found that the people were very much agitated and the dead body of one Subrata Bhattacharjee, whom he knew, was lying infront of the premises No.J-146. Paharpur Road and thereafter he pacified the people and came back to Fathepur village Road to make arrangement for the removal of the deadbody. His evidence is that the T.C. Head-quarters S.K. Dasgupta arrived at Fathepur village Road and at that time A.C. (ii) Port Division K.K. Sharma came there with injury on his head and thereafter he himself along with D.C. Headquarters and force proceeded towards Ramnagar Lane through Azhar Motla Bagan as they had no trace about the D.C. Port and his guard. His evidence is that they were searching for the D.C. and his guard at Ramnagar Lane and adjacent areas and K.K. Sharma, A.C. (ii) Port Division was sent to hospital accompanied by Sergeant J.L. Roy. His further evidence is that when they were continuing the search for D.C. and his bodyguard, they found at about 2-30 p.m. a deadbody which was on fire lit by bomboo pieces and other elements in an open plot in front of Mirza Galllb School and a burnt khankl cloth piece and one metal button were found near that place. He says that the fire was extinguished and the charred body was taken charge of by them and he asked his officer to hold inquest of the charred body and the inquest was held by S.i. S. Moitra. His further evidence is that they continued their search for Mr. Mehta and at about 5-30 p.m. the deadbody of Mr. Mohta was found floating in a kancha drain behind the premises No. F-59 and F-201, Atabag. The deadbody, he says, was floating on its back with legs towards north and head towards south with only under-wear on and the body was smeared wllh mud. He clarifies that by underwear he means under-garment. He also speaks of the presence of a pair of socks on legs and a rolled vest on the body. He says that there were injuries on the deadbody of Mehta, mostly on the face and the right part of the head. The body, he says, was taken out from the drain and S.I. S. Moitra prepared the inquest report of the deadbody of V.K. Mehta in their presence and then the charred body and the body of Mr. Mehta were sent to Calcutta Police Morgue for post-mortem examination. He says that the charred body was the body of Moktar All, the security guard of D.C. His evidence is that after the deadbodles were sent to Calcutta Police Morgue, they returned to Garden Reach P.S. at about 8-05 p.m. He further says that the D.C. Port did not carry any revolver on that day. His evidence is that when the security guards go for duty they carry service revolver and ammunallon. in his cross-examination he says that the charred body had no hands and legs and the head was also missing except the occipital region of the skull. He also says that the open space where the charred body was found is situated at the junction of Ramnagar Lane and Battlkal. He says that Ramnagar Lane runs from east to west and Battlkal runs from north to south and the open space extends up to Mirza Galib School from the junction of those two roads and the school is to the north of that junction. He further says in his cross-examination that from Lalbazar Control Room a massage was received that deadbody was floating in the kancha drain. He says that as the situation was abnormal, he cannot remember everything in details and it is difficult for him to say who detected the floating body first as there were many olflcers together in search of the deadbody. He further says that S.J., S.R. Gangull (P.W.80) was the l.O. of the case at the initial stage and thereafter the case was taken over by the Detective Department, Lalbazar. He says in his cross-examination that the D.C. D.D. Mr. H.A. Safwi also came to Ramnagar area a bit late and he was all through with them and curfew was imposed in that area and some persons were apprehended in that area on 18th and 19th March and were challanged in petty cases but he cannot tell the number of the arrested persons now. He also cannot tell in details whether all the arrested persons were challaned in petty cases or some were released after interrogation. He says that curfew was imposed on 18.3.84 in that area and so far he remembers the curfew was in that area for 10/12 days. He also says that as he did not witness all the incidents so he did not start any FiR suomotu. He says that the open plot where the charred body was found was at the Junction of Ramnagar Lane ?,nd Battlkal. He also says that they had been to Ramnagar Mosque at about 12-30 p.m. on that day and at that time there was no gathering there.</p><p>12. P.W.15 Farha Juvoll is the iman of the Dhankhetibari Masjid where the policeparty took shelter on being attacked by the violent mob. This witness, it seems, was treated as hostile by the prosecution. But even then he testifies to the fact that the police party entered in the mosque and had been there for some time. P.W. 17 Abul Hassan is a resident of G-246 Ramnagar Lane. He says that the Maidan to the north of their house is known as Dhankhetl Maidan. in March, 1984, he was working in the wheat grinding shop of his cousin brother Makbul Ahmed at G-247 Ramnagar Lane. He says that on 18.3.84 as usual he went to the shop for his work at 7 a.m. and at about 9-45/10-00 a.m. while he was working in that shop he heard sounds of bombs coming from Mathorpara side and Fathepur village Road side and he found that people were running here and there and he came to know that riot had started between Hindus and Muslims and being afraid he closed the shop and went home at about 10-30/10-40 a.m. He says that he again heard sounds of bombs coming from Ramnagar Lane Dhankheti mosque side and he also heard uproars and he felt that the uproars and sounds of bombs were moving towards their house and he then opened his window partially and noticed that two policemen were running speedily towards Battlkal side, one policeman being in khaki uniform and the other in white uniform. He noticed one wire-net shield in the hand of that policeman who was in khaki uniform, and that brickbats were being thrown at him and he was blocking the blows with his shield. He further noticed that 20/25 persons were chasing the policeman and were hurling brickbats at him. He says that he could recognise some of thepersons in that mob who were throwing brickbats and chasing those policemen and he names Rahamat, Nanney. Corachand, Halim and Matin as the persons whom he could recognise. He says that the mob chased those policemen towards Batlikal side and he become afraid and closed the window. His evidence thus lends support to the prosecution case as well as the other evidence adduced by the prosecution in that behalf that the D.C. V.K. Mehta and his body guard Moktar All were being chased by a violent mob. He further says that at about 12-30 p.m. he heard sounds and uproars coming from Batukal side and subsequently it appeared to him that the roars were coming from Dhankheti Maidan and he again opened his window partly and noticed that a policeman in white uniform was lying on the ground and about 15/20 persons were there around that body. He further noticed that four persons were chopping the hands and legs of that policeman with chopper like weapons and he could recognise Rahamat and Matin who along with two others were chopping the hands and legs of that policeman. He also could recognise Gorachand and Hallm amongst the persons who were standing near the body of the constable. He noticed that some persons were placing bamboo pieces near that body, and he says that being afraid he closed the window. His further evidence Is that at aboul 7/8 p.m. In that night he came to know that D.C. Port had been murdered and his body guard was also murdered and his body was burnt down. He restifies that by the dress of that body he could recognise that he was a police sepoy. His evidence thus lends support to the prosecution case that the body of Moktar Ali, the body guard of D.C. Mehta was dismembered by cutting its limbs and was burnt by fire by the miscreants, and he also could identify some of the miscreants named by him. In his cross-examination he says that curfew was imposed in that area in the afternoon of 18.3.84. He further saus that his father was arrested by police at about 4/4-30 p.m. on 19.3.84 from the crossing of Barttikal and Ramnagar Lane and his father returned in that night at about 7-30/8-00 p.m. He says that In their locality the number of muslims is more than that of the Hindus. He denies the defence suggestion that his father was released by the police on the understanding that he would give evidence on behalf of the prosecution as tutored by the police. P.W. 18. Makbul Ahmed is a resident of premises No. 247 Ramnagar Lane. He testifies to the fact that on 18th March, there was huge mob and people were running here and there at about 10/10-10a.m. He was however treated as hostile by the prosecution. He says that on that day he. Mansoor, TaJ All and 30 others were arrested by police and taken to Garden Reach P.S. and they were released at about 11-00 p.m. P.W.19, Khalil Khan was resident of G-230, Batlikal at the relevant time as a tenant. He Is a police constable who was posted at Lalbazar Headquarters, R.C. Office In March, 1984. From his evidence we get that P.W.21 Abdul Latif Khan is his cousin brother and P.W.24 Hadis Khan Is the son of the said Abdul Latif Khan and that In March, 1984 Hadis was residing at G-222 Batlikal. It may be mentioned here that Abdul Latlf Khan is also a police constable. P.W.19, Khalil Khan says that in March. 1984 Hadis Khan had no employment and he used to keep 2/3 cows and sell milk. He says that the uniform of Calcutta Police constable is white shirt and white pant and also they used buttons on their shirt which were made of brass. He also testifies that the emblom 'C.P.' is also made of brass. He knows Moktar All. He says that 18.3.84 was a holiday and he was In his house and at about 10/10-30 a.m. he heard a huge row coming from Fathepur village Road side and he also heard a row coming from Battikal side and he came out of his house and stood on the road very close to his house and while he was standing near the corner of the house of Kayum which is 228/2 Battikal, he saw that D.C. Mehta and his body guard constable Moktar All were being chased by a mob from the southern side to the northern side and they were throwing brickbats at those two police persons and were shouting 'maro, maro police lokko maro'. He says that the mob and those two police persons were 30/40 yards away from the place where he was standing, He testifies to the fact that the D.C. was in a khaki uniform and Moktar was in white uniform. He says that the house of Nalmmullah Is opposite to his house at a distance of 30/35 yards, the number of that house being G-228/3 Battikal. He saw that the security guard Moktar All entered in the house of Nalmmullah and 30/40 persons were chasing Moktar Ali. He says that he Intervened and stated to them not to assault the police otherwise they would feel the consequence. He says that in the mob some were carrying choppers and some were carrying swords. He also says that he was dashed down by the mob on the ground. He could recognise Gorachand. Sagir, Rahamat, Halim, Wahob and Kallu amongst the persons who were chasing the police constable Moktar Ali. He says that he was dashed down by Rahamat, and Kallu was with Rahamat at that time and that being afraid he then went Inside his house. His further evidence is that 20/25 minutes thereafter his brother's son Hadls (P.W.24) came to his house and reported that Naso and his associates had assaulted the D.C. very serious by in the house of Hadls, and that Hadis also stated that a sepoy was also being assaulted by Rahamat and Kallu on the road. Hadls, he says, was very much purturbed and he was trembling and Hadls told that he was leaving for his father-in-law's house. P.W. 19 Khalil says that he also became afraid apprehending attack on him and the members of his family as he was a police constable and so he along with his family members went to Ramnagar Police Camp. In his cross-examination he says that on that day at about 8-30/9-00 p.m. he went to Garden Reach P.S. after leaving the members of his family at Ramnagar Police Camp and made a statement to the police officer about the Incident seen by him. He says that he made the statement to the duty officer who recorded it in english. He says that his two brothers are also working as Calcutta Police constables and his cousin brother Latif (P.W.21) is also a constable of Calcutta Police. He further says that on that day latif Khan had duty. He says that his office was closed on that day being a Sunday and that the R.O. office remains closed on Sunday and other holidays. He says that he reached Ramnagar Police Camp with his family members at about 2/2-30 p.m. after locking his house. His evidence in cross-examination is that as soon as he came out of his house hearing the row he noticed that D.C. and Moktar crossed him from southern side to northern side speedily. He denies the defence suggestion that his brother's son Aktar was arrested by police and was made an accused but subsequently he was let off and in his place another Aktar was made accused. He however does not remember whether Hadls was arrested by the police. He also denies the defence suggestion that as he is a police constable so he is deposing falsely on being pressurised by hissuperior officers. He says that from Garden Reach P.S. he returned to Ramnagar Camp and stayed there with hts family for the night and in the next morning he returned home at about 8-00 a.m. Hadls, he says, came to his house at about 12/12-30 p.m., and reported to him what he had seen. He denies the defence suggestion that his relations were taken in custody by the police and when he and Latif asked the police officers to release them, they told that they would be released provided they would give evidence. in his cross-examination at the retrial he says that his statement was recorded by the police at the P.S. at about 8/8-30 p.m. on the date of the Incident.</p><p>13. P.W.20 Akil Ahmed is a resident of G-223 Battlkal. He, it seems, was however treated as a hostile witness by the prosecution. From his examination-in-chief we however get that Latif Khan (P.W.21) and P.W.24 Hadls Khan (son of P.W.21) reside in the tileshed house which is adjacent to the house of this witness (P.W.20). We get it from P.W.21 and P.W.24 that the premises in which they reside is G-222 Battikal Second Lane. It is also to be mentioned here that according to the prosecution the incident of assault on D.C. Mehta took place in the said premises No. G-222. Battlkal Second Lane. P.W.20, Akil Ahmed says in his cross-examination that Hadis Khan (P.W.24) used to keep cows and sell milk and he used to keep cows in the courtyard. The prosecution expected this witness to give positive evidence about attack on two police persons but he belled that expectlon. From his examination-in-chief it however appears that their house is a two storied building and one can see the rooms of the tileshed (where Latif Khan and his son Hadls used to reside) from his house (the house of P.W.20) on leaning. However, what the prosecution inter alia suggested to this witness is that he stated to the I.O. during investigation that he found that some minor boys were pouring water In the room where D.C. entered and also on the courtyard, which however he disowns to have made. By this suggestion the prosecution possibly wanted to project a case that blood which had fallen there as a result of assault on D.C. Mehta was washed away with water. P.W.20 wants to say that on the date of the indicent he was not in his house and therefore he did not see anything. In his cross-examination on behalf of the defence he says that he returned home on 19.3.84 and on that day police had arrested Abut Hossain, Sallm and many others. He however, did not see Hadls Khan on 19.3.84. The evidence of this hostile witness thus shows that on 19.3.84 many pesons were arrested or picked up by the police. We will find from the evidence of P.W.24. Hadls Khan that he was also picked up by the police on 19.3.84 which we will discuss later. P.W.20 says in cross-examination that on 19.3.84 he stayed in the house for 2/3 hours and thereafter fled away from that area and went to his sister's house and stayed there for some days. The evidence of this hostile witness P.W.20, we find, lends support to the prosecution case that Latlf and his son Hadls were his neighbours at the relevant time and Hadls used to maintain cows and sell milk and that on 19.3.84 police arrested many persons of that locality.</p><p>14. P.W.21 Abdul Latlf Khan was residing with his family at G-222 Baltikal Second Lane as a tenant at the relevant time and Hadis Khan (P.W.24) is his son. He says that In March, 1984 Hadls used to keep cows and sell milk and that he used to keep his cows in the said premises. Hisevidence is that on 18.3.84 which was the 'holiday' he had stand-by duty to be performed from 12 noon to 8-00 p.m. at P.T.S. Barrack and that at about 12 noon he got the information that a riot had started between the Hindus and Muslims in their area and he then started for his house from P.T.S. Barrack In order to see the members of his family. He says that at about 12-30/12-45 p.m. he reached Battlkal Second Lane and when he advanced ten steps or so he found that 6/7 persons were standing ahead of him and amongst them he could recognise Naso (an appellant), Puttan. Samsad and Abbas who were all armed. He says that some of them had swords, some had choppers, some had Napalas etc and they were standing by the side of kancha drain in Battikal Second Lane. According to his evidence the house of Dr. Hikmat All Mondal was situated near that place and he also noticed that one deadbody was lying by the side of that kancha drain but not inside the drain. He says that he knew those persons named by him as they were his neighbours. He also idenlified the accused Naso in court. He says that those persons were standing very close to that deadbody and that Naso was standing two cubits away from that deadbody which was at a distance of about 30/35 yeards from the place where he (the witness) was standing. He says that so far as he could see, blood was coming from head and the deadbody was smeared with blood. According to his evidence he stopped there and thought that it would not be proper for him to advance further and he became alarmed and then returning back he entered In the premises No. G-350 where his father was residing with his step-mother and he learnt from his father that there was trouble in Battlkal area and his wife and other members of the family had left that area and that he then went to his brother's house at Alif Nagar and came to know that his wife and sons and daughters had not come there and he then went to Kazlpara in the house of the father-in-law of his son. Md. Hadis and there he met Hadls and the other members of the family. Then he says that his son Hadls reported to him that a mob had chased D.C. Port and the D.C., Port took shelter Inside their house and then Naso, Puttan Samsad and some other persons started assaulting D.C. and that Hadis also reported to him that he had seen some miscreants assaulting one constable in front of the house of Naimullah. He testifies to the fact that at that time Mr. Mehta was the D.C., Port. His evidence is that thereafter from Kazipara he went to Garden Reach P.S. at about 8-00 p.m. and at that time there were many police officers who were very busy and at about 9-30 p.m. he could state to a police officer about the Incident seen by him and also heard by him from his son, and his statement was recorded. He also says that he found his brother Md. Khalil (P.W. 19) in the P.S. and his statement was also recorded by the police officer. He further says that at the P.S. he learnt that the deadbody of D.C. was recovered from the place where he had seen the deadbody of a person as stated by him and lhat the deadbody of police constable Moktar was recovered from Dhankheti Maidan. He says that he is residing at G-222 Battikal Second Lane for the last 25/28 years. In his cross-examination he also gives the names of certain other tenents who were living at G-222 Ballikal Second Lane with family. He says that the accused Naso at that time used to reside occasionally in the house of one Nazi Saheb in Battikal Second Lane and occasionally in the house near Match factory by the river side. In his cross-examination he says that he had seen 6/7persons including the persons named by him by the side of the Kancha drain and he became afraid when he saw those persons and he stood there for one minute when he saw those persons but none of them approached him. He specifically says that he became panicky as soon as he noticed the deadbody and those persons and he stood ther for one minute. Dr. Molla. he says, is known as Dr. Hlkmat All Mondal. He says that he was very much unnerved on seeing the deadbody all on a sudden. In his cross-examination he says that he reached Garden Reach P.S. at 8-00 p.m. and after his statement and the statement of his cousing brother Md. Khalil (P.W.19) were recorded, they left Garden Reach P.S. at 10-00 p.m. and he went to P.T.S. and his brother went to Ramnagar Camp. Khalll, he says, is also a Police constable of Calcutta Police. He says that when he reached Garden Reach P.S. he found many senior police officers Including Commissioner of Police and Jt. Commissioner of Police etc. present there. He says they he stated that he had seen something and heard something but no police officer was listening to him and so he could not report as soon as he reached the P.S. and finally he could make statement to the police officer at 9-30 p.m. and it was recorded In English and read over and explained to him. Much has been criticised by the learned Advocate for the appellants that according to this witness he reached Garden Reach P.S. at about 8-00 p.m. but his statement was not recorded by the police till 19-30 p.m. although this witness claims to have seen and heard about some very important facts specifically Involving some accused persons and this, according to the learned Advocate for the appellants, shows that the evidence of this police constables P.W.21 and of other concerned witnesses is the product of concoction and subsequent manupulatlon at the Instance of police. On the other hand, it is submitted by the learned Special Public Prosecutor representing the State that after such a shocking and gruesome Incident resulting In the death of a very senior police officer like Dy. Commissioner and also his constable guard, it was only natural that there would be many top police officers at the concerned P.S., namely. Garden Reach P.S. to take stock of the situation and also to take necessary follow up measures demanded by the situation and in such a state of affairs, it is quite possible that a police person of the rank of a constable like P.W.21 or P.W. 19 could not succeed readily in contacting the proper officer who would Immediately attend to his statements. Having regard to the facts and circumstances we also do not think that In a situation like this there was really any Improbability that the statement of these witnesses were recorded at about 9-30 P.M. at the P.S. although they went there at about 8-00 p.m. In his cross-examination during retrial, he says that uptil now he cannot say, whose deadbody It was, which he saw on that date. We may note here that if the evidence of this witness was really a product of concoction he would have possibly satd that the deadbody which he saw was recognised by him as the deadbody of D.C. Mehta. But he did not say so. He indeed knew D.C. Mehta, as he says but it is nothing unnatural that at that point of time when he suddenly saw the deadbody from a distance of 30/35 yards in the presence of some armed persons and the deadbody was smeared with blood, he did not naturally bother to engage himself In minute observation for detecting the identity of the deadbody, and Instead he left the place being naturally panicky but he was, as we have seen, very specific about the presence of certain armed miscreants named by him Including the appellant Naso.</p><p>15. We now proceed to discuss the evidence of the next vital witness P.W.24, Hadis Khan, the son of P.W.21 Abdul Latif. He says that they reside at G-222 Battikal Second Lane as tenant and in March, 1984 he used to sell cow milk and had four cows and he used to keep two cows in their house and two in another place. He says that he himself and Mustafa, his helper (P.W.26) used to look after the Cows. His evidence is that on 18.3.84, sometime In the morning he came to know that a not between the Hindus and Muslims had started and that at about 11-30/11-40 a.m. again he heard sounds of bombs coming from Ramnagar Lane side when he was in his courtyard and his mother and Mustafa were in the house, but his father had gone for his duty. He next says that at about 12 noon he heard a huge row coming from Southern side when he was in his courtyard and on hearing the same he came out along with Mustafa from his house and stood on the road and notice that many persons were chasing two policemen towards South and one policeman was In a white uniform and the other was in Khaki uniform and the policeman in while uniform entered in the house of Naimullah and some persons also entered that house and those persons were hurling brickbats. His evidence is that the house of Naimullah was at a distance of 50/60 yards from the place where he was standing. He however could not recognise any of the persons who were hurling brickbats and chasing that policeman in white uniform and entered in the house of Naimullah. But his specific evidence is that the other policeman in khaki dress was being chased by the mob and when that policeman came near him he entered in the courtyard of his house and that policeman too entered in that courtyard and the policeman told him that he was D.C. Port and then on his pointing out the D.C. entered into the bathroom (Gasalkhana). The Gasolkhana, he says, was 9/10 cubits away from the place where he was standing and that simultaneously Idris and some other persons armed with brickbats etc. entered Into the courtyard and they were throwing brickbats aiming at the bathroom and simultaneously Naso (an appellant). Puttan, Samsad, Abbas, Mukim entered in the courtyard. He says that Naso had a rod in his hand and others had swords, nepala etc in their hands. He says that he knew those persons from before. The D.C., he says, became frightened on seeing those persons and requested them not to assault him after disclosing his identity as the D.C. of Police but some of those persons replied that they did not know D.C. and then ordered 'maro' and then Naso, Puttan, Samsad, Ahmed, Mukim and some others entered instde the bathroom and then Naso gave a rod-blow on the helmet of D.C. and there was dashing and pushing and the helmet fell down and Naso again assaulted D.C. with the rod on his head. P.W.24, Hadis says that then he came out from the courtyard and went out of the house and some people were throwing brickbats on the tiles of their roof but he cannot tell their names. He says that he then proceeded towards his uncle Khalll Khan's house but on his way when he came near the house of Naimullah he noticed that a pojiceman In white uniform was being assaulted on the road by Gorachand and some other persons and then he entered Inside the house of his uncle and reported the entire Incident to his uncle (meaning P.W.19) and he also reported that he was not going to stay and was going to his father-in-law's place and then he went to his father-in-law's place at Kazlpara at Howrah along with his mother. He says that after sometime hisfather Abdul Latif (P.W.21) came to his father-in-law's place and he reported the entire Incident to his father. He says that his father said that he would be staying in the P.T.S. barrack. He says that he used to keep two cows out of four cows near the power house gate commonly known as 28 number. In his cross-examination he says that he left for his father-in-law's place from his house at 12-30/1-00 p.m. and reached his father-in-law's house at about 2-00/2-30 p.m. His evidence Is that his wife and children had gone to his father-in-law's house on 15.3.84. He says that he and his mother returned home on 19.3.84 at about 6-30/7-00 a.m. from his father-in-law's place and he noticed that many police persons were roaming In their locality. He says that he was examined by the I.O. on 20.3.84 In their house. He further says that on 19.3.94 at about 12-00 noon police arrested him and placed in the van and the van patrolled in their locality and then at about 6-30/7-00 p.m. he was taken to Garden Reach P.S. and many people of their locality were also brought to Garden Reach P.S. on that day. He further says that he was released by the police in that night at about 9/10 p.m. and they were kept in the lock-up of Garden Reach P.S. from 7-00 p.m. till they were released. Much has been criticised by the learned Advocate for the appellants that when the police from the statements of P.W. 19 & P.W.21 could come to know In the very evening of the 18th March that Hadis had seen a vital part of the occurrence and also had named some of the culprits to them, there was no reason why his statement should have been recorded as late as on 20.3.84 in his house inspite of the fact that he was in the custody of police in police van and P.S. Hazat for quite a long time upto about 9-00/10-00 p.m. on the 19th March. This, according to the learned Advocate for the appellants, Indicates thai the prosecution case that Hadls saw a vital part of the incident is a concocted story. We are however not convinced by this submission. The enormity of the Incident, the involvement of a large number of persons and the complexities Inherently Involved In an Investigation of a case of this nature as well as the change of investigating officer on 19th March are indeed some of the factors which have to be taken Into consideration in this context. And that being so, we do not think that there really exists any reason to doubt the veracity of the evidence of this witness Hadls (PW.24). P.W.24, Hadls says in his cross-examination that the bathroom is used by the female inmates of the house and that the size of the bathroom would be about 8 cubits X 8 cubits. He says that the latrine is not inside that bathroom. He further says that the D.C. was Inside the bathroom when he came out from their house. Hefurther says that he came out from their house 6/7 minutes after the D.C. had entered In their courtyard. He also says that when he came out of his house the D.C. was being assaulted and he noticed about 50/60 persons on the road in front of their house. He however does not remember whether he had seen blood coming out from the head of D.C. when he was assaulted on the head by the iron road. His evidence is however clear that the D.C. was assaulted on his head by Iron rod. He denies the defence suggestion that Naso did not give blow with iron rod on the head of D.C. He makes it specific that the bathroom is used for washing hand and feet by the femalefolk of the premises before 'oozu' He says lhat there are no door and walls of that bathroom. Much has been commented upon by the learned Advocate for the appellants as to whether a bathroomof that size could have accommodated so many assailants who are said to have assaulted the D.C. at the relevant time. In this connection we may mention that P. W.2, Ashoke Kr. Bhattacharjee, S.I. of police and official plan maker has given the area of the Gosulkhana (bathroom) as 5m.x4m. Since the Gosulkhana has no walls as we find it from P.W. 24 Hadis, we do not think that there is any improbability in sustaining of assaults by D.C. there from the assallents who chased and cornered him there. He (P.W.24) denies the defence suggestion that he has been tutored by police to give false evidence because his father and uncle are working as police constables. In his further cross-examination during retrial in February, 1932 he however says that his statement was recorded by the police while he was in police lock-up. This, it is submitted on behalf of the appellants, is not insistent with the prosecution case inasmuch as it is the prosecution case that his statement was recorded on 20.3.84 as earlier stated by the witness. He also says in his such further cross-examination that his father went to the P.S. for his release and he talked to his father before release from the P.S. lockup. But he says that at that time his statement was not recorded by the police. This, therefore, lends support to the fact that his slatement was recorded not on 19th but on 20th. He says that his statement was recorded, as he remembers, after his. talk with his father. In his such further cross-examination at the retrial he says that he returned from Kazlpara to his Garden Reach residence three days after the Incident. It should be remembered that he was facing further cross-examination at the retrial In February, 1992. about eight years after the Incident and therefore some minor inconsistencies and confusion in the deposition at such distance of time cannot be ruled out. Whatever may be the confused statement of P.W.24 Hadls eight years after the incident at the time of further cross-examination at the retrial, it may be noted here that even the hostile witness P.W.22 Brion Merces who is the brother-in-law of the appellant Naso testifies to the fact that police arrested him on 19.3.84 and Hadls, Mustafa, and Alamgir also were arrested by the police. Such statement of this hostile witness therefore lends support to the prosecution case that Hadis was arrested from his house on 19th March, at noon after he returned from Kazlpara on that day in the morning, and this fact does not get obliterated by any statement of Hadis which he might have made In a confused state of memory in course of his further cross-examination eight years after the Incident.</p><p>16. P.W.22 Brlon Merces is a resident of C-85, Battlkal. Their balcony faces Battlkal Second Lane. From him we get that the appellant Naso Is his sister's husband. He was however treated as a hostile witness by the prosecution. He says in his examinatlon-in-chief that on 18th March. 1984, which was a Sunday, at about 10-00 a.m. he heard from the people that a not between Hindus and Muslims had started and at about 12 noon they heard great row and then he and his parents came to their balcony. He says that the Hindus and the Muslims were fighting and quarrelling and the Muslims started running shouting, that the Hindus had come to their locality, and that being frightened they (witness and his parents) all came Inside their room and closed the door. His evidence shows that some children and women had taken shelter Inside their house and they were saying that policemen had died. He saw nothing else. As we have alreadynoted, in his cross-examination he says that he was arrested by police on 19.3.84 and Hadis, Mustafa and Alamgir were also arrested by police. P.W.23 Narman Merces is the father of P.W.22 Brion Merces. He was also treated as a hostile witness by the prosecution. In his examination-in-chtef he says that on 18th March, 1984-which was a holiday, at about 10-00 a.m. they heard from the people of their locality that a trouble had broken out at Fathepur and they also heard some sounds of bombs and learnt that a riot had started between Hindus and Muslims. He says that then at about 12 noon he, his wife and his son came out of the room and stood on the balcony and noticed a huge mob on Battlkal Second Lane which was at a distance of 60 to 80 ft. from the balcony. He also speaks about throwing of breakbats. He says that he then came Inside the room and locked the door from Inside and after half an hour the area became very quiet. The accused Naso, he says is his son-in-law. P.W.25 Sakll Ahmed is the brother of P.W.20 Akil Ahmed and a resident of G-223 Batllkal Second Lane. He was however treated as a hostile witness by the prosecution. In his cross-examination on behalf of the defence he says that G-222 Battlkal Is to the north of his house where Latif constable (P.W.21) resides and he knows Hadls, the son of Latif constable. He says that he occasionally goes to G-222 Battlkal to Hadls for bringing cow milk. In his further cross-examination at the time of retrial he says that Aki-ka-Kurbani can be performed on any day of the year and after performance of this Kurbani a marking by palm with the blood of the sacrifice is given on the outer wall of the residence or on the outer door and some times this marking is also given in interior wall or door. This has been possibly taken in cross-examination to explain away blood marks. P.W.S 27, 28, 29, 34, 35, 36, 37 & 48 were all treated as hostile witnesses by the prosecution.</p><p>17. P.W.14 Mansoor Ali is a resident of C-247 Ramnagar Lane and he is the owner of the ration shop situated on the ground floor of the same premises. His evidence is that on 18.3.84 at about 10-00/10-30 a.m. while he was in his house he heard sounds of bombs and he opened the windows and noticed that people were running hither and thither. These people, he says, were 200 yards away from his building, and he gives the number of the people as 150 or so. He says that he came down the stairs and closed the ration shop and again went up along with his brother. He says that he noticed that 3/4 police constable came out of the mosque and that many people went to the western side of the mosque and some people went to the eastern side and those people were running probably out of fear as police had come. He also speaks about throwing of brickbats upon the police party. He says that the police were in the middle part and on both sides there were mobs. He also heard sounds of firing and he closed the window and went inside the room. His evidence shows that after some time he heard row near his house and also sounds coming from the northern side of the mosque. They went to the roof of their house and noticed that a constable in white uniform was lying with his face and chest on the ground and many people were standing surrounding the constable and amongst those persons he could recognise Rahamat, Gorachand, Idris, Haltm, Nanney Kosal, Wahab, Saglr and Matil. He says that It appeared to him that the constable who was lying on the ground was dead. He further says that thereafter the mob burnt the deadbody of the constable with split bamboos. He also namesRahamat, Gorachand, Idris, Wahab, Halim and Nanney Kosai as some of the persons who were burning the deadbody of the constable. He says that after burning the deadbody of the constable all the miscreants fled away from the place and police came at about 3-00 p.m. He also says that the police had seized one button with ring, piece of burnt cloth, etc under a seizure list which was signed by him (Ext. 5/1). He says that the mob was armed with brickbats when they were throwing brickbats at the police party. He further says that he was in his house when police came at 3-00 p.m. and called him. He also says that the body of the constable which was lying on the open space was at a distance of forty yards from his residence. He further says that he noticed that Rahamat. Matil and 2/3 others whom he could not recognise were cutting the hands and legs of that constable with choppers. In his cross-examination he says that as the incident occurred long ago, he does not remember everything vividly but he remembers that Idris and Nanney Kosai were hurling bombs at the police.</p><p>18. P.W.49 Haridas Mollra is the Senior Scientific Officer-curn-Asslt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He says that on 22.3.84 as per the direction of D.C.. D.D., Calcutta, he visited Ramnagar area with his colleague P.K. Sengupta. Sr. Scientific Officer. He says that he visited the place which is an open field near a school building and he collected from the debris some partly burnt pieces of cloths, some metallic buttons with rings and one ring. He says that he asked the Investigating officer who was with them to collect those articles, and those articles were seized by the I.O. and a seizure list was prepared In his presence and he signed the seizure list. He Identifies his signature, Ext. 12/1. It has been criticised on behalf of the appellants that those articles were seized only on 22.3.84 when the Scientific Officer of the Forensic Science Laboratory went there with the I.O., but the police could not seize those articles earlier although the police had been to all those places in the meantime after the date of occurrence. In our opinion, this Is inconsequential in view of the totality of the facts, circumstances and evidence on record. P.W.78, Prasanta Kr. Sengupta is the other Senior Scientific Offlcer-cum-Asstt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He examined in his laboratory certain articles which were sent to him for examination and he submitted his report which is Ext. 29. In his cross-examination at the retrial he says that he accompanied the expert. P.W.49 Haridas Moitra to Garden Reach, that Is, the place of occurrence In connection with this case and from that area they came back together. P.W.69 Pradip Shankar Chakraborly was an S.I. of police in March, 1984. attached to Homicides Squad. Detective Department. Lalbazar. He says that on 22.3.84 as per the direction of S.I. S.K. Bhattacharjee. the I.O., he accompanied him to Forensic Science Laboratory to bring the experts and they reached the laboratory at about 10-30 a.m. He says that after giving some directions the I.O. left and he (the witness) brought Sri H. Moitra (P.W.49). Expert to Garden Reach area and showed him the place where constable Moktar All was burnt and the murders of V.K. Mehta and his body guard were committed. He says that the expert examined the premises No. G-222 Battikal including the Gusalkhana and from there they went to the open place known as Dhanketl Maldan. The learned Advocate for theappellants submits that the expert (P.W.49) does not say that he went to the premises No. G. 222 Battikal and Gusalkhana there which this witness (P.W.69) wants to say. In our opinion, this is inconsequential because it is not necessary that every witness must state everything in details. P.W.69 says that the expert could trace out one metalic ring, some burnt clothes with two metallic buttons with rings attached to burnt clothes from Dhankheti Maidan. He (witness) seized those articles. He says that on 22.3.84 at 14-10 hours as per order of O.C., Homicide squad, he accompanied S.I., S. Bhattacharjee along with O.C., Homicide squad and other officers and men and accused Sk. Nanney in custody with two Doms, Narayan (P.W.41) and Bindeswari (P.W.40) and arrived at Garden Reach and on being led by the accused Nanney they went near a Kancha drain which was flowing in between premises No. G-13 Batttkal and F-55 Atabag Basti and also near premises No. G-222 Battikal. He says that the accused Nanney showed the spot inside the kancha drain having muddy water and stated that he and others dropped Incriminating articles there, about which he had made statement to the S.I. S. Bhattacharjee at that spot. He further says that being instructed by S.I. S. Bhattacharjee and O.C. Homicide Squad the accused got down inside the waist deep kancha nala and those two Doms also entered in the drain to assit the accused, If necessary, his evidence is that the accused (Nanney) then himself brought out from the said nala the following articles namely (1) one Dhal (shield) used by police, (2) one helmet, the front portion of which was partially dented and broken, with some hairs sticking inside the helmet. (3) one brown coloured leather belt having a nickel metal plate fitted with Inscription I.P.S. on it. (4) one black leather belt fitted with metallic emblam 'Calcutta Police', (5) one big sword about 30' in length, (6) piece of cloth partly torn and fitted with button, (7) one small sword about 20' length and (8) one brown coloured chappal of the right foot. P.W.69 further says that he seized those articles in presence of witnesses. He identifies Exl. 8 as that selzer list. He further says that thereafter he along with S.I. D.K. Dasgupta, as per instruction of I.O. and O.C. Homicide Squad, went to G-77 Batlikal which was a club room of Battikal Young Boys Committee and on search In presence of the witnesses certain articles were recovered and seized from that club room, namely, one pointed Iron red measuring about 29' In length including wooden handle, one bhojall, one book ofletter head pad and seized all those articles under the seizure list Ext. 17. He also says that he made certain other seizures from the road between premises Nos. G-227 & G-222, such as, Khaki coloured buttons and partly burnt pieces of cloths. Ext. 18 is the relevant seizure list. He also says that on that day between 5-30 and 5-40 p.m. he seized one wooden piri measuring about 15' X 8' having stains of blood from Inside the premises No. G-222 Battikal. The pirl, he says, was lying near the entrance door of the room situated at the north-east corner of that premises. Ext. 19 is the concerned seizure list. In his further cross-examination at the retrial he says that they arrived at premises No. G-222 Battikal at 15 hours on 22.3.84 and they stayed there for about 15 minutes and it was his first visit. He further says that F.S. Expert was with them up to 4-35 p.m. on that day. He says that the expert was with him while he was Inside premises No. G-222. It will thus appear lhat the expert was not with this police officer when he seized the wooden piri at G-222 Battikabetween 5-30--5-40 p.m. It may be noted here that the evidence of the P.W.s 40 & 41, the Doms, also corborate the evidence of P.W.69. P.S. Chakraborty, S.I. of police regarding the recovery of Incriminating articles from the drain by the concerned accused.</p><p>19. P.W.64 Haripada Dutta is S.I. of police who was attached to Garden Reach P.S. in March, 1984. His evidence is that on 19.3.84 as per direction of the O.C.. Garden Reach P.S. he had been to premises No. G-229A Batllkal and took scrapplngs of dried up blood with few hairs from the door leaf of that premises, etc between 3-35 p.m. and 3-55 p.m. In presence of witnesses and prepared the seizure list, Ext. 10. in his cross-examination he says that FIR of Garden Reach Case No. 45. dated 18.3.84 Ext. A was written and signed by him. That FIR relates to the Incident that occurred in Fatepur Village Road and Mathorpara and Balsnabpara. He says that he took up the investigation initially of that case. That was a different case. The present appeal relates to the P.S. Case No. 46 dated 18.3.84. P.W.68 Sibaprasanna Dutta was posted as S.I. of police in Port Division in March, 1984. He had arrested Sanda Akatar @ Aktar Alam who was an accused in the Garden Reach P.S. Case No. 46 dated 18.3.84. He says that he arrested him on 20.7.84 at about 7-30 p.m. at the fly-over of Sealdah. P.W.70 Sudhlsh Ranjan Nag is S.I. of police who was attached to docolly and robbery squad D.D., Lalbazar. He says that on 19.3.84 the D.C., D.D. told him and S.I. U.S. Lahiri that the murder case of Mehta had been taken up by the Homicide Squad and S.I. S.K. Bhattacharjee was the I.O. of that case. and directed them to asslt him in apprehending the accused of that case and that the D.C. further told that he had Information that some of the accused persons namely, Sk. Nanney, Gorachand, Md. Halim, Sk. Nuru and Wahabuddln might be available at Surinam Jetty and asked them to keep watch over that place and to arrest the said accused persons. If possible. His evidence is that at about 6-20 p.m. they arrested those accused persons and took them to Garden Reach P.S. where D.C./D.D. and other officers were present and they placed the accused persons before them and I.O. took charge of those accused persons. He says that on being directed by D.C. D.D. to search for the other accused persons at Batllkal, Chlrlamore, Ramnagar and Mathorpara Complex, he. U.S. Lahiri and force had been to those places in search of the miscreants but none could be arrested and they returned to Lalbazar at about 10-10 p.m. and made over the supplementary caase diary to the i.O. S.K. Bhattacharjee, He further says that they had also arrested Md. Idris and Sakil Ahmed. In his cross-examination, he says that Idris was arrested from Gaya on 27.3.84. P.W.71 Samir Kr. Moltra was attached to Garden Reach P.S. as S.I. of police In March. 1984. He accompanied the Commissioner of Police in Ramnagar area on 18.3.84 In connection with the murder of D.C. Mehta and his body guard. Between 4-00 p.m. and 5-00 p.m. on that day he seized certain articles such as pieces of partly burnt bamboos, pieces of charred bone-like substance, pieces of charred cloth, burnt metallic button fitted with ring, belt, two swords etc from an open field in front of premises No. G.-100/1, Ramnagar Lane, also know as Dhanketl. The seizure list prepared by him is Ext. 5. He had also held the inquest of the deadbodles of V.K. Mehta and the body guard Moktar Ali and prepared inquest reports. In the inquest report relating to the dead-body of B.K. Mehta it is noted that the deadbody of Mehta was lying in front of premises No. G-221, Dhanketl. The witness however saysthat it was premises No G-221, Battikal and it was wrongly mentioned as G-221, Dhanketi in the inquest report. In his cross-examination he says that he had detected this mistake in court at the time of giving evidence. It seems to be a case of bona fide accidental mistake.</p><p>20. P.W.80 Santi Ranjan Ganguli was attached to Garden Reach P.S. on 18.3.84 as S.I. of police. The FIR of this case was drawn up by him. His evidence Is that the fromal FIR was drawn up at 8-05 p.m. at Garden Reach P.S. on the basis of Statement of K.K. Sharma, Asstt. Commissioner of Police, Port Division. He says that the statement of Sri Sharma was also recorded by him as per the order of the O.C. of Garden Reach P.S. He also took up the investigation of the case under the order of the O.C., Garden Reach P.S. on that date at 8-05 p.m. He says that he then recorded the statements of the two witnesses namely Abdul Latif Khan (P.W.21) & Md. Khali Khan (P.W.19) under section 161 Cr.PC at Garden Reach P.S. and then at 11-00 p.m. he had been to Mathorpara, Rnmnagar Lane etc of the affected areas of Garden Reach with force and after contacting sources there he returned to the P.S. at 11-50 p.m. He says that on 19.3.84 at 6-40 p.m. he had shown formal arrest of four accused persons, namely Nanney Kosal, Gorachand, Halim and Nuru who were arrested by the police officers of the Detective Department. He further says that on 18.3.84 after returning to the P.S. from the affected area he prepared respective requisitions for postmortem examination of V.K. Mehta and his security guard. Moktar Ali and on 19.3.84 at 10-00 a.m. he sent those requisitions to the Prof. of Forensic and State Medicine and on that day at 7-40 p.m. he handed over the case diary to S.I. S.K. Bhattacharjee of Homicide Squad who had taken up the investigation and he also handed all other connected documents under the orders of his O.C. and the D.C.D.D. at Garden Reach P.S. In his cross-examination he says that on 18.3.84 he was in Garden Reach P.S. after mid-day and that he had also seen the G.D. Entry regarding the disturbances at Fatepur Village Road. He says that on that night i.e. on 18.3.84 another case being Garden Reach P.S. Case No. 45 dated 18.3.84 was also recorded and that FIR was recorded by S.I. H.P. Dutta(P.W.64). In his cross-examination he says that going to the locale he questioned some persons, but did not record their statements under section 161 Cr.PC and that he had tried to collect the names of the assailants but could not succeed to obtain the same from those persons. Much has been criticised by the learned Advocate for the appellants that if really the first I.O. (P.W.80) had recorded the statements of the constables P.W.19 Khalll Khan and P.W.21 Abdul Latif Khan on 18.3.84, he must have obtained from them the names of the assailants before he went to the locale in that night and therefore there was not question of trying to collect the names of the assailants at the locale in that night and this shows that the evidence of the said P.W. 19 and P.W.21 or for that matter the entire prosecution case implicating the appellants is a product of concoction. We however find ourselves unable to accept this critism. It is true that the I.O. got some names from P.W. 19 and P.W. 21 on 18.3.84, but obviously there was no reason to suppose that those were the only culprits involved in the occurrence. It Is therefore only natural that the I.O. while visiting the locale will try to obtain from persons the new names of other culprits as well as confirmation of the names of culprits already obtained by him from P.W.19 and P.W.21 before going to the locale.</p><p>21. P.W.1 S.K. Bhattacharjee was attached to Homicide Squad, Detective Department as S.I. of police in 1984. He is the Second investigating Officer of this case. He says that under the order of the D.C.D.D. he took up the investigation of the Garden Reach P.S. Case No. 46 dated 18.3.84 and submitted charge-sheet against 43 accused persons after completion of investigation showing as many as 18 accused persons are absconders. He says that six of those 18 absconders were subsequently apprehended and 12 were still at large while he was deposing on 12.9.88. He was however examined further next on behalf of the prosecution on 11.4.89, He says that on 19.3.84 the D.C.. D.D. verbally ordered him at 5-00 p.m. to take up the investigation of the case and then at about 5-30 p.m. he, D.C., D.D., A.C. D.D.-1. O.C. Homicide Squad, S.I. P.S. Chakraborty of Homicide Squad and two constables of Homicide Squad started for Garden Reach P.S. He further says that prior to that D.C., D.D. told him that he had already sent two S.I.s of Detective Department, namely U.S. Lahiri and S.R. Nag (P.W.70) to work out an Information received by him in respect of some accused persons. He says that at 6-05 p.m. they all reached Garden Reach P.S. and met the O.C. of that P.S. there, he also says that at about 6-40 p.m. S.I. S.R. Nag (P.W.70) and S.I. U.S. Lahiri brought under arrest five accused persons namely Sk. Nanney, Md. Halim, Wahabuddln, Gorachand and Sk. Nuru to the Garden Reach P.S. and those five arrested persons were produced before the D.C., D.D. and the then I.O. of the case S.I. S.R. Ganguly (P.W.80) showed those accused persons as arrested in this case. He further says that at 7-45 p.m. he took charge of those arrested accused persons, case diary and other connected papers along with alamat from S.R. Ganguli, and under order of the D.C., D.D. he came to Lalbazar with those five accused persons, S.I. P.S. Chakraborty and two constables. His evidence shows that they left the Garden Reach P.S. at 8-10 p.m. and reached Lalbazar at 8-40 p.m. and then he started interrogation of those five arrested persons and thereafter he perused the case diary and other connected papers. He says that at 10-30 p.m. he received the supplementary case diary from S.I. S.R. Nag who arrested the five accused persons. His evidence is that on 20.3.84 he met D.C., D-D. in his office and received his instruction regarding the next follow up action. He says that he came to know (hat a team had been raised to assist him in the Investigation of the case. He also names the officers who were Included In the team. He also names Sanat Kr. Gupta, A.C. D.D. (I) as the persons who was placed as overall in-charge of the team. On 20.3.84 he produced all the five accused persons in the court of the S.D.J.M., Allpore and also prayed for their police remand, and then on that day at 2-30 p.m. he along with D.C., D.D., A.C. D.D. (1), O.C. Homicide Squad, S.I. Samir Ganguli left for the spot with force for investigation. According to his evidence they reached Garden Reach P.S. at 3-00 p.m. and then on being led by the O.C. Garden Reach P.S. under the order of D.C., D.D. they all went to Ramnagar Lane in front of the mosque where D.C., D.D. and others had allegedly taken shelter and stayed there upto 3-35 p.m. His further evidence is that then on being led by O.C. Garden Reach P.S. they went to a vacant plot of land at 4-00 p.m. wherefrom the charred body of the security guard had been allegedly recovered and he found some burnt substances there and from that place they went to the premises No. G-222, Battikal Second Lane and reached there at 4-25 P.M.and there he met Hadis Khan (P.W.24) and his mother, Kaflabibi and herecorded their statements there. According to his evidence then they wentto premises No. 228/3 Battikal Second Lane which is the house of Md.Naimullah (since deceased). He also then describes his further activities inthat locality. It appears from his evidence that on 21.3.84 he, O.C.,Homicide Squad, S.I. Samir Ganguli went to 222 Battikal Second Lane andfrom there he went to G-247 Ramnagar Lane. Then on being Informed byS.I. Samlr Gangull that the Commissioner of Police had already arrived atpremises No. 222 Battikal Second Lane with A.C. D.D. (1). he went to thatplace and as per direction of the Commissioner of Police, he seizedscrapplngs of blood looking stains with control from the outer wall of a roomof premises No. G-222 Batllkal Second Lane and prepared the seizure listext. 31. On 22.3.84. according to his evidence, he met the Director of F.S.L.and then the Director deputed H. Moltra (P.W.49) and P.K. Sengupta(P.W.78) both senior officers of F.S.L. to visit the P.O. He says that at thattime Mr. Moltra reported that he would visit the P.O. In the afternoon, andMr. P.K. Sengupta was out at that point of time and he (the witness)instructed S.I. P.S. Chakraborry to take Mr. Moltra and Mr. Sengupta tothe P.O. and he left for Lalbazar. His evidence shows that on that day heexamined Norman Merces (P.W.23) and Brion Merces (P.W.22) and recordedtheir statements and then they along with those two persons went to theresident of the absconding accused Naso and there they found the wife ofNaso Karolin and ascertained the particulars of Naso from her and fromthat place they again came to premises No. G-85 Battlkal First Lane andquestioned some Inmates and at that time S.I. P.S. Chakraborry came andreported that the F.S.L. experts had arrived and they were at G-222 BattlkalSecond Lane and then he (the witness) went there and met them. He saysthat the experts made Inspection at different places of that premises andthen requested to take them to the place wherefrom the charred body ofMoktar was recovered and they were taken there and the experts madethorough search in the burnt substances and ultimately discovered metallcring, a piece of burnt cloth fitted with metallic buttons with ring, and thosearticles were seized. His evidence is that on 23.3.84 he examined Sk. NanneyKosal who made a statement leading to the recovery of some Incriminatingarticles. He also speaks about recovery of Incriminating articles pursuantto the statement made by the accused Sk. Nanney Kosal. His evidence showsthat the accused Nanney made statement to him to the effect that he hadthrown one helmet, one dhal, two swords in the water of kancha drain andhe would be able to lead the police party to the spot where he and othersthrew away those weapons and other things and If those things were stillthere he would be able to bring them out. The evidence of the I.O. (P.W.I)shows that the accused Nanney was taken (on 23.3.84) to the concernedarea pursuant to the statements made by him and the accused Sk. Nancyled them in front of a kancha drain on the northern side of the premisesNo. G-221 Battlkal and G-213 Battlkal and the accused then pointed outa place inside the kancha drain to be the place where the articles as statedby him were thrown and then being asked the accused got down In the waistdeep water of the kancha drain and brought out one by one, one shieldmade of wire net, one helmet, two swords, two belts of which one hadmetallic plate having 'IPS' inscription, one black belt used by constable. Healso speaks about the recovery of a chappal of a right foot. The recovered articles were then seized. His evidence shows that on 26.3.84 also at night they conducted a raid in the concerned area and searched for certain accused persons Including Naso but could not trace them out. His evidence also shows that on 4.4.84 they went to G-85 Battikal Second Lane which is the residence of the father-in-law of the accused Naso but there also Naso was not found. His evidence is that on 30.5.84 the accused Lokman Shah and Osman Shah, two brothers, were arrested from their residence in a night raid between 1-40 a.m. and 2-00 a.m. He says that on 7.6.84 the accused Lokman Shah during Interrogation, stated that he wanted to make a confessional statement and so on 8.6.84 he (I.O.) forwarded Lokman to the learned S.D.J.M. with prayer for recording his confessional statement and his confessional statement was recorded by the learned S.D.J.M., 3rd Court Allpore on 9.6.84. It appears that the I.O. obtained an order of police remand for the accused Lokman after he was produced before the S.D.J.M. after arrest and the accused Lokman expressed his desire to make confessional statement to the I.O. on 7.6.84 while he was under police remand. The I.O. (P.W.I) says that on 16.6.84 he submitted charge-sheet against 43 accused persons of whom 24 were In custody and the rest were absconding. He further says that after the submission of the charge-sheet seven absconding accused persons had been arrested. He says that on 28.2.85 at 3-00 p.m. acting on a secret Information he with the help of S.I. Rajkumar Chatterjee of the Detective Department and others arrested Nasim Khan Naso from the station road near Kallghat Railway Station. He further says that the accused Naso was arrested with the revolver which was given to constable Moktar All for his duty, with three rounds of ammunition for which a specific case has been started on his complaint under section 25 and section 27 of the Arms Act. While confronted with this in examination under section 313 Cr.P.C. the accused Naso only says that the witness (P.W. 1) told lie that he (Naso) was absconding and he was arrested on 28.2.85 at 3-00 p.m. from the Station Road near Kallghat Railway Station or that he had any revolver in his possession at the time of his arrest. Besides such bare denial he however does not say anything as to on what date and wherefrom he was arrested.</p><p>22. In his cross-examination P.W.I (the second I.O.) says that he did not go to Garden Reach area between 18.3.84 and 5-00 p.m. of 19.3.84. He says that on 20.3.84 the first witness he examined was Hadls Khan of G-222 Battikal Second Lane in that premises. His evidence shows that on 19.3.84 he first interrogated the five arrested accused persons (Including Sk. Nanney) but he did not record their statements. His evidence Is that on 20.3.84 he forwarded the five arrested accused to court with prayer for police remand upto 2.4.84 and the learned S.D.J.M. allowed the prayer for police remand. He says that he could not interrogate any of the accused persons on 20.3.84 as he had no time for such interrogation. He also says that on 20.3.84 he went to Garden Reach area along with his superiors, namely. D.C. D.D., A.C. D.D. (1) and O.C.. Homicide Squad and reached there at 3-25 p.m. His evidence Is that they first went to the Garden Reach P.S. and then the O.C. of the Garden Reach P.S. led them to the area where the Incident occured and there he examined Hadls Khan first and also Kaflabibi. the mother of Hadls Khan. He has however not shown Kaflabibias a witness in the charge-sheet. He says that on 20.3.84 he reached G-222 Battlkal Second Lane at 4-25 p.m. are remained there till 5-30 p.m. He also says that they were in Battlkal Second Lane area on 20.3.84 from 3-25 p.m. till 10-15 p.m. and that dusk to dawn curfew was imposed in that area and order under section 144 Cr.PC was also promulgated there and police picket was posted in different parts of that area. His evidence in cross-examination is that the blood looking stains were found on the outside wall of the western room of the premises No. G-222 Battlkal Second Lane, and he says so with reference to the seizure list, ext. 31. He says that the experts had arrived at premises No.G-222 Battlkal sometime before 3-00 p.m. and he went there at 3-05 p.m. and the experts H. Motlra and P.K. Sengupta of F.S.L. Inspected the premises and courtyard of G-222 Battlkal Second Lane and from that house, being accompanied by them, the experts went to open plot of land known as Dhankhell Maldan. He denies the defence suggestion that he had advised constable Latif Khan to procure persons of his choice who would support the prosecution case. He also denies the defence suggestion that Hadis Khan and Md. Mustafa gave statements at his tutoring. He says that the statement of Nanney Kosai was recorded by him on 23.3.84 between 8-50 a.m. and 10-10 a.m. and with the accused and other police of lines he left for the P.O. to verify the statement of the Nanney Kasal and reached in front of the kancha drain at 2-55 p.m. He says that the accused Lokman was forwarded to court on 8.6.84 with a prayer for recording his confessional statement. He has acknowledged that both the two accused Sk. Nanney and Lokman retracted their confessional statements by filing petitions but he cannot say the date on which such petition was filed after the submission of the charge-sheet. He cannot say whether those petition were filed on 14.8.84. In his cross-examination he denies the defence suggestion that Naso was arrested from the factory gate of Sultan Hossain.</p><p>23. Of the medical witnesses, P.W. 44 Dr. Sunil Dey of the Calcutta Medical Research Institute examined Sr. K. Sharma (P.W.7). Asstt. Commissioner of Police on 18.3.84 at 12-30 p.m- In the Emergency. He also describes the Injury found and treated by him. P.W.66 Dr. Bhlbutlbhusan Blswas who was attached to Calcutta Police Hospital at the relevant time speaks about the Injuries of constable Ramshankar Singh (P.W.16) which were found by him. He says that the said constable was admitted on 18.3.84. He also describes the Injuries found by him. P.W.67 Dr. Gopi Ranjan Samanta was also attached to Calcutta Police Hospital at the relevant time. He proves the discharge certificate in respect of said Ramashankar Slngh. The patient, he says, was admitted on 18.3.84 with bomb injury on the lower thing of the right leg and was discharged from the hospital on 12.4.84. P.W. 46 Dr. Bhopal Mazumdar in the autopsy surgeon. On 19.3.84 he was posted as Demonstrator in the Department of Forensic and Slate Medicines, Medical College and Hospital. His medical qualifications are M.B.B.S. and M.D. In Forensic Medicine. He Joined the West Bengal Health Service on 25.2.75. On the date on which he deposed in court, that is, on the 1st February, 1989 he was posted as Assistant Professor and Head of the Department of the Forensic Science and Medicines, North Bengal Medical College. He held post-mortem examination on the dead-body of V.K. Mehta, D.C. Port Division on 19.3.84. He describesas many as 23 injuries found by him externally on the various parts of the deadbody including the face, head, etc. Injury No.9, as found by him. Is a lacerated would 3' x 1' X muscle X bone X meninges X brain on the right fronto-parletal region of the head, being placed half inch right to the mid line and 69 1/2 above the right heel. This is a head injury. He has also describes what he found on dissection. He says that all the Injuries were showing evidence of vital reaction. He openes that death was due to the effect of the injuries as mentioned by him which were ante-mortem and homicidal in nature. He also specifically says that he found 23 external and 4 internal injuries on the deadbody. According to his evidence the cumulative effects of the injuries were sufficient to cause death in the ordinary course of nature. He further says that Injury No.9 might be caused by any hard blunt weapon like iron rod or any other metallic rod and that the victim was in standing position when injury No.9 was Inflicted. He says that the said Injury No.9 was caused by the assailant from the front side of the victim. He further says that the Injury No.9 and the injury No.2 found on dissection were the vital Injuries. He also says that injury No.9 alone was sufficient to cause the death of the victim In the ordinary course of nature. However, the Injury No.9, he says, could not cause instantaneous death. He says that the injury No.23 was caused by pulling the body from leg side and that the injuries sustained by the victim were caused by more than one person. He also describes specifically as to which particular injury could be caused by what type of weapon. The possible weapons named by him include metallic rod, chopper, sword, napala, bhojall, brickbats etc. It may be noted here that the Injury No.9, according to the prosecution case, is connected with the assault made by the appellant-accused Naso on the head of V.K. Mehta with iron rod. The Autopsy Surgeon, P.W. 46 says that he held the post-mortem examination on the deadbody of V.K. Mehta on 19.3.84 at 12-00 noon at Calcutta Police Morgue and Prof. J.B. Mukherjee who was the professor and head of the Department of Forensic and State Medicines, Medical College, Calcutta was present when he held the postmortem examination and that Prof. J.B. Mukherjee supervised the examination. He says that Prof. J.B. Mukherjee concurred with his opinion and made the following remark: The post-mortem examination was conducted under my direct supervision and guidance. I fully concur with the findings and opinion of the Autopsy Surgeon, Dr. B. Mazumdar'. The post-mortem report was however prepared and signed by P.W. 46, Dr. B. Mazumdar and the same has been marked ext.tO. From his evidence the get that by that time he (P.W. 46) had gathered the experience of holding post-mortem examination on nearly four thousand deadbodies. He also held the postmortem examination 19.3.84 at 3-00 p.m. on the deadbody of the constable Moktar All who was the body guard of V.K. Mehta. He also describes the injuries found by him on the deadbody of Moktar All and gives the opinion regarding the effect of the injuries and the cause of death. In his cross-examination, he says that the Injury numbers 1,2,3,4,5,6.12,13,14,15,16 & 22 as found on the deadbody of V.K. Mehta were Incised injuries. The learned Advocate for the appellants contends that the opinion given by the Autopsy Surgeon, P.W.46 Dr. B. Mazumdar to the effect that the injury No.9 alone was sufficient to cause the death of the victim in the ordinary course of nature is not there specifically in the post-mortem report and this hasbeen stated by the Autopsy Surgeon Dr. Mazumdar as his own opinion while giving evidence in the court and this opinion of the Autopsy Surglon, P.W.46 is therefore not supported by the opinion of Prof. J.B. Mukherjee who supervised the post-mortem examination and therefore this opinion of P.W.46 should not be taken into consideration at all In judging the effect of the assault stated to have been made by the accused Naso on the head of the victim Mehta with iron rod. In our opinion this contention is however not acceptable. It is true that Prof. J.B. Mukherjee, obviously as a senior person, supervised the post-mortem examination held by P.W.46 Dr. Mazumdar but that does not mean that the opinion of Dr. Mazumdar on any point is of no merit or consequence unless the same is specifically endorsed by Prof. Mukherjee. P.W. 46, Dr. Mazumdar is also an expert in the matter and as we have seen he has a very rich experience in the matter of holding post-mortem examination. That being so, his opinion also given on the basis of the examination made by him, deserves due consideration and acceptance on merit unless the same otherwise stands discredited or condemned for any good and sufficient reason. Here there is absolutely no reason why we should not accept the opinion of the aulopsy surgeon P.W.46 regarding the effect of the injury No.9 which is a head injury allegedly caused by the accused Naso by inflicting assault on the head of the victim with rod. The learned Advocate for the appellants also submits that according to the evidence of the Autopsy Surgeon P.W. 46 all the Injuries had shown the evidence of vital reaction and therefore no disproportionate importance should be given to the effect of injury No.9. In this connection we are however to mention that even if all the injuries had shown evidence of vital reaction, that does not for that reason alone minimise the gravity of the effect of any particular Injury which according to the autopsy surgeon P.W.46 is alone sufficient to cause the death of the victim in the ordinary course of nature, even though such Injury could not have caused instanteneous death. It is needless to mention that causing of death is an ingradlent of the offence punishable under section 302 IPC and it is not necessary that death In all cases must be caused Instantaneously for bringing the case under section 302 IPC. That apart, when death is the result of a cumulative effect of all the injuries caused to the assailant in prosecution of the common object to commit the offence, each and every assailant is responsible for the offence in view of the section 149 IPC. The learned Advocate for the appellants also contends that the grounds of opinion of the expert are also relevant. Indeed there is no doubt that the autopsy surgeon in the present case has elaborately described all the injuries found by him and obviously his opinion is based on the findings recorded by him. No worthy ground has been brought out in the cross-examination of the autopsy surgeon nor successfully contended before us for which we could hold that the opinion of the autopsy surgeon is not acceptable. We reiterate that we have no reason or ground to discard or disregard the opinion given by the autopsy surgeon P.W.46.</p><p>24. P.W.47 Kanchan Chatterjee is the Judicial Magistrate who held T.I. parade in respect of the accused Nanney Kosal at Allpore Central Jail on 30.5.84. He says that the witness K.K. Sharma (P.W.7) identified the suspect Nanney Kosal stating that he along with others were hurling bombs at Ramnagar Lane near mosque and further stated that while he along withD.C, V.K. Mehta reached the crossing of Ramnagar Lane and Mathorpara entrance while chasing a mob, he saw the suspect hurling bombs along with others.</p><p>25. P.W.51, P.K. Deb is the Judicial Magistrate who recorded the confessional statements of the accused Nanney Kosal and the accused Lokman Shah on 3.4.84 and 9.6.84 respectively. He says that on 2.4.84 the accused Sk. Nanney was produced before him by constable Niranjan Das and the record was also laid before him. He was directed by the S.D.J.M. Allpore to record the confessional statements of Sk. Nanney. His evidence shows that on 2.4.84 the accused Sk. Nanney on being produced from judicial custody, was given cautions by him in open court and he was then sent to jail custody with the direction to the Jail authority, Alipore Central Jail that he should be kept in segregation so that he could get sufficient time for reflection. He says that on 3.4.84 the accused was again produced before him at about 3-00 p.m. In his court room and the accused was again given caution by him regarding the Implication of giving a confessional statement and the accused was kept in his chamber and was given time for an hour to reflect and ponder over the matter, and nobody was present In his chamber except the accused. He specifically says that no policeman was present in his chamber. He says that at 4-00 p.m. he asked the accused whether he was to make a confessional statement in his chamber and the accused Insisted on making a voluntary confessional statement and he recorded the same in his court room. He says that he was satisfied about the volunteriness of the accused in making the statement. The confessional statement of the accused Nanney Kosal as recorded by the Judicial Magistrate, P.K. Deb on 3.4.84 has been marked ext.13. He further says that the accused admitted that the statement had been correctly recorded and he also explained to the accused before he recorded his statement that he was free not make any statement and if he made any statement It might be used against him. He further says that nobody was present Inside the court room when the statement of the accused was recorded. The recording. according to his evidence, was complete by 4-40 p.m. It may be noted here that the accused Nanney Kosai was convicted and sentenced by the trial court in the original trial and reportedly he did not prefer any appeal against such conviction and sentence.</p><p>26. The further evidence of the Judicial Magistrate, P.W. 51, P.K. Deb Is that on 8.6.84, the learned S.D.J.M. Alipore directed him to record the confessional statement of the accused (appellant) Lokman Shah. He says that on that date at about 1-15 p.m. the accused (Lokman) was produced before him and was identified by the constable P. Pramanlk In court room. He says that the accused was cautioned by him and the Implication of making the confessional statement was explained to him. He further says that the accused was produced from Judicial custody and he sent the accused to Jail custody and directed the superintendent of Allpore Central Jail to keep the accused In segregation so that he could get sufficient time for reflection, and directed his production before him on 9.6.84. The accused was produced before him on 9.6.84 at 2-00 p.m. by the constable Ramnarayan Goala in the court room and the accused was given warning and caution and was given one hour's time to think over the matter and was kept In the chamber of the Magistrate where none else was present. According to his evidence at 3-00 p.m. the accused insisted upon making a voluntary confessional statement and he (Magistrate) started recording his confessional statement in the court room at 3-00 p.m. where none else was present. He specifically says that no policeman was present at that time. He also deposes that before he started recording the statement he gave the accused all statutory cautions and started recording his statement after he was satisfied that the accused was making the statement voluntarily. The accused made the statement In Hindi and he recorded the statement in Bengali script. He further saya that after the statement was recorded It was explained to the accused in Hindi and the accused signed the statement in his presence. Ext. 14 is the confessional statement of the accused Lokman Shah as recorded by the Judicial Magistrate P.W.51 P.K. Deb. He further says that the accused admitted that the statement was correctly recorded after it was read over to him. In his cross-examination he says that he cannot say whether on 8.6.84 the accused was directly taken to the jail from his court room or he was taken to some other place before he was finally taken to Jail. It is needless to mention that the accused got sufficient time and opportunity for reflection in jail custody. In his cross-examination the Judicial Magistrate, P.W.51 specifically syas that he was fully satisfied after putting questions to the accused persons that they were voluntarily making statements and that he applied both his subjective and objective satisfactions. He specifically says that he put certain questions and he was satisfied that they were mentally prepared to make such statements. In his cross-examination he further says that he had cautioned Lokman that he would not be sent to police custody If he did not make any statement. It is suggested to him in his cross-examination that the statements were recorded In presence of the I.O. of the case. This is a preposterous suggestion, we must say, that a Judicial Magistrate while recording a confessional statement will allow the I.O. to be present there.</p><p>27. Ext. 34 which is the ordersheet of the court of the S.D.J.M. Alipore shows that the accused Nanney Kosal along with others were produced in court in custody on 20.3.84 and they were all remanded to police custody till 2.4.84 after considering the prayer of the I.O. It also appears that while producing the accused persons before the learned S.D.J.M. from police custody on 2.4.84 the I.O. inter alia made a prayer for recording the confessional statement of Sk. Nanney Kosal under section 164 Cr.PC and the learned S.D.J.M. directed Sri P.K. Deb J.M., 3rd Court for recording the statement under section 164 Cr.PC. The order-sheet dated 30.5.84 shows that the accused Lokman Shah and accused Osman Shah were produced before the S.D.J.M. In custody on 30.5.84. According to the prosecution case the said two accused persons are brothers. On the prayer of the I.O. the S.D.J.M. remanded both the accused Lokman and Osman to police custody till 11.6.84. It also appears that the accused Lokman was produced in court from police custody in advance on 8.6.84 and on considering the prayer of the I.O. to record his confessional statement, the learned S.D.J.M. directed the Judicial Magistrate Sri P.K. Deb to record his confessional statement. On that very day Lokman who produced before P.K. Deb, J.M. and he was given necessary warnings and was remanded to Jail custody and was then produced before the J.M. concerned on 9.6.84 again and his confessional statement was recorded after giving him necessarycautions. It may be mentioned here that the accused Sk. Osman Shah was produced on 9.6.84 and he was remanded to jail custody for reflection but ultimately he declined to make any confessional statement when he was produced before the Magistrate on 11.6.84. It may be noted here that both the accused Nanney Kosal and Lokman Shah who made confessional statements before the Judicial Magistrate, however ultimately retracted such confessional statements by filing petitions before the court on 14.8.84. It has been submitted on behalf of the State that there is no bar in taking into consideration the confessional statements of those two accused persons although they ultimately retracted the same. It is also pointed out that they retracted their confessional statements as late as on 14th August, 1984 although their statements were recorded In the months of April, and June respectively and although they were produced in court a number of limes before 14th August, 1984.</p><p>28. Ext. 3 is the statement of the accused Sk. Nanney recorded by the Judicial Magistrate under section 16A Cr.PC. In his statement under section 164 Cr.PC the accused Nanney Kosal has described some part of the Incident Implicating himself and certain other persons. We have already noted that Nanney Kosal has been convicted and sentenced in the original trial and he did not prefer any appeal against the same. It has been contended on behalf of the appellants that since Nanney Kosal was therefore not being tried Jointly alongwith present appellants in the retrial, his confessional statement recorded under section 164 Cr.PC cannot be taken into consideration against the present appellants under section 30 of the Evidence Act. The learned Advocate for the appellants has in this connection also relied upon certain decisions cited by him which we will refer to at a later stage. Ext. 14 is the statement of the appellant Lokman Shah recorded by the Judicial Magistrate under section 164 Cr.PC. The statement was made by the accused-appellant Lokman before the Judicial Magistrate In Hindi and the Magistrate recorded the same in Bengali script. The English translation of the relevant portion of the statement of the accused Lokman recorded under section 164 Cr.PC as appearing In the paper book is reproduced below :</p><p>'Q. Tell what statement you will make?</p><p> Ans. On 18th date, Sunday (Holiday), the Incident took place. At 10 or 10-30 Naso, Puttan, Akhtar, Chowdhury came to me for price. I asked what you will do by money. They answered quarrel is going on in village road for that weapons are to be purchased by the money. Those persons have set fire to the mosque. If those persons make any trouble here we shall fight out. I said I shall also fight out. After that they fled away. At 11-45 a cry or quarrel came to my heralng. I came out and found that two police officers coming speedily. Many people threw brickbats towards those police officers. The police officer in white dress went towards the house of Mulla. The police officer In Khaki dress came straight. When he was crossing near me I also threw a brickbat. I cannot say whether it hit or not. The police officer In khaki dress entered In the house of Latif Sepot. Many persons entered following him. Amongst them Idris was there. From outside many people threw brickbats. I also threw 2/1 brickbats. I cannot say whether it hit him or not. Aftersometime I found that Naso, Puttan, Akhtar and Chowdhury were coming from the side of Battikal mosque. They took me Inside the house. I found the police officer In khaki dress was standing near the kitchen. (wrong translation). The correct translation is 'standing by the side of Gosalkhana'--'Gosalkhanaka pas khara hayal. That person said he was D.C. Some people said they do not know D.C. etc. After this all people in a batch caught that person. I also caught him. Naso hit by a rod on the head. For this the hard cap fell down. Again rod was used. It hit the head. Saheb fell down. Puttan, Akhtar and some other many people assaulted him on the face with deadly weapons, (wrong translation. The correct translation is 'Puttan, Akhtar & many other persons started assaulting on his face with sharp-cutting weapons--'dharwala hattar se chehar par marne laga'). I could not tolerate the blood-shed. For that I came out. I was then searching for my younger brother. After some time I found those 8/10 persons took D.C. Saheb and entered Inside the house, (wrong translation. The correct translation is 'after a while I saw that those 8/10 persons were going out from Inside the premises taking away D.C. Saheb--Thora der ke bad dekhta o at das admi D.C. Saheb ko le ke bari ke ondar se chala ja raha'). They proceeded towards the Mehar Manzil crossing the house of Israil. ('They took him away towards Mehar Manzil after crossing the house of Israil'--'Israilko par karke Meher Manzil ke taraf le giyal. After that I cannot understand what happened, ('what happened thereafter, I cannot say')--'Usko bad hamko nehi malum haya keya hua'). I worked under port. And I was present at home on that day.</p><p> 'Q. Do you want to say anything more?</p><p> Ans. No. I have forgotten to say one thing. Samsad and Abbas were also present in the Incident.'</p><p>29. It may also be rioted here that from ext. 14 it will appear that the Judicial Magistrate before recording the statement of the accused Lokman Shah put various questions to the accused Lokman for ascertaining whether the accused was making the statement voluntarily and free from any outside influence. As we have seen, the statement was recorded by the Judicial Magistrate on 9.6.84 and on the preceding date i.e. 8.6.84 the accused was sent to jail custody for giving him proper opportunity for reflection. In answering the question put to the accused Lokman on 9.6.84 by the Judicial Magistrate as to whether he was kept in the jail in separate room or not, he said that he was kept In a separate room for thinking and realising. The Magistrate also tells him inter alia that he was not bound to confess and asked him to tell after thinking whether he will make the statement from his mind or not, to which the accused replies that he will make the statement. He also says that he was not terrorised by anyone nor was requested or assured for giving the statement. In answer to the specific question whether he was beaten by any police officer, he replied in the negative. The Judicial Magistrate also told him that he would not be kept under the custody of the police whether he told or not. Even then the accused staled before the Magistrate that he would make the statement willfully and he had come from jail and nobody had given any hope or assurance to him. The Magistrate also cautioned the accused that If any statement was made by him, he might be hanged for the same and thatwhat he would say could go against him. Inspite of that the accused stated to the Magistrate that he would confess according to his sweet will. The Magistrate also appended a certificate under the statement recorded by him to the effect that he believed that the confession was made voluntarily.</p><p>30. The learned Advocate for the appellants has contended that the only evidence on which the prosecution has relied upon for bringing home the charge framed against the accused Lokman ts his alleged confessional statement, ext. 14. It is however contended by him that the law regarding use of confessional statement against maker of such statement is that the court must be satisfied that the confessional statement is truthful and is made voluntarily. He has also cited a number of decisions on this point such as Anathbandhu v. State of West Bengal, 1986(1) CHN. 229, State of West Bengal V. Prosenjit Tafadar 1991(1) CHN 331. Saran Singh v. State of Punjab, : 1957CriLJ1014 , etc. Indeed we are convinced that the same is true and voluntary. While examined under section 313 Cr.PC the accused Lokman even inter alia denies to have made such statement as recorded by the Magistrate and he even went to the absurd extent of telling that the I.O. was standing near him when he made the statement before the Magistrate. It may be noted here that at the retrial one defence witness being D.W.1 Sk. Mumtaz was examined on behalf of the defence. He claims to be an employee of Calcutta Port Trust. He says that he knows the accused Lokman, who was a class-IV staff in the department in which he was working. He says that there was continuous strike in all the ports of India including the Calcutta Port w.e.f. 16.3.84 and during the strike period he used to attend the gate No.8 of the workshop regularly and this gate is one of the entrance gales to the K.P. dock. He further says that like him other people also used to go in front of the gate during the strike. His evidence ts that on 18.3.84 he along with others went in front of that gate at about 8-30/9-00 a.m. and returned to his residence at about 12-45/1-00 p.m. He wants to say that on 18.3.84 when he went In front of that gate he found that the accused Lokman was sitting there. This defence witness has been examined to establish the plea of alibi taken by the accused Lokman. The evidence of this defence witness who was examined at the retrial in June, 1992 long after the occurrence however, does not inspire any confidence. No plausible explanation is coming as to why he was not examined at the time of the original trial if really Lokman was with him in front of the gate of the Calcutta Port Trust at the relevant time on 18.3.84. Also it is significant to note that the date of the Incident namely, 18.3.84 was not only a Sunday, but It was also the day on which the 'holi' festival was being celebrated. That being so, it is difficult to believe that he and other workers Including the accused Lokman would have gone there In front of the gate of their workshop on that day obviously without any purposeful object. Moreover it Is also quite unnatural that when riots and disturbances were going on in the concerned locality, the accused Lokman would have chosen to go and station himself in front of his closed factory gate without any meaningful purpose leaving aside the shelter of his own house, if realty he were a peace-loving person. Having regard to the facts and circumstances, we are not Inclined to place any reliance on the evidence of the defence witness D.W. 1 Sk. Mumtaz. The learned Advocate for the appellants submits that even if the defence plea of alibi falls and the court does not accept thesame, yet that by itself does not prove the prosecution case. In this connection he also refers to the decisions in Shared Blrdhtchand Sarda v. State of Maharashtra, 1984 SCC(Cr.l) 487 and Sk. Firoz v. State of West Bengal 1997. C.Cr.L.R. [Call 251. In connection with the question relating to the nature of use of a confessional statement he refers to the decisions in Pakal Narayan Swami v. Emperor AIR 1931 PC 47, PalblnderKatirv. State of Punjab : 1953CriLJ154 , Ompmkashv. State of Uttar Pradcsh : AIR1960SC409 . There is no doubt that a self exculpatory statement does not amount to confession. It is also true that the statement of the accused will have to be taken as a whole without making any 'pick and choose' of isolated sentences or words divorced or separated from the context in which they have been used. But in the present case on an Indeplh consideration of the statement of Lokman made before the Judicial Magistrate, we find no reason to hold that the same does not amount to a confessional statement. The learned Advocate for the appellants contends that the statement of Lokman as recorded under section 164 Cr.PC would show that he had only thrown some brickbats when the police officer in khaki dress entered in the house of LatlfSepol and he even did not care to notice whether the same hit the police office or not. He also contends that although the statement shows that Lokman caught the D.C. along with others when Naso hit him by a rod on his head as a result of which the cap fell down and Naso again hit the D.C. on his head and the D.C. fell down and other assailants assaulted him wllh sharp culling weapons, yet the statement shows that on seeing blood-shed as a result of assaults made by the assailants on the D.C. Lokman could not tolerate the situation and he withdrew himself and came out. It is submitted on behalf of the appellant Lokman that the conduct of Lokman shows his mental state at the relevant time and would suggest that he had no culpable object or Intention in respect of the commission of the offence. We are, however, unable to accept this defence contention. May be that the accused Lokman was comparatively a timid person and was unable to reconcile himself wllh blood-shed when the same occurred as a result of combined and concerted assault with various weapons upon the D.C. May be that the role played by the accused Lokman was not as aggressive as exhibited by many other more ferocious co-participants, yet the fact remains that when the D.C. was being chased by a mob and the D.C. was running away for safety, he, I.e.. the accused Lokman also threw brickbats at him and later even participated in catching hold of him along with others obviously for facilitating the assault by other persons with various weapons and in fact, the D.C. was assaulted with various lethal weapons Including rod used by the accused Naso on the head of the D.C. The admitted partlcipalion of Lokman in the operation and in the manner described by Lokman in his stalemenl clearly makes out that the statement of Lokman is nothing else but a confession of the commission of the offence and participation by himself in a culpable way in the commission of the same. We fall to understand why the statement of Lokman should be treated as something falling short of confession. We are rather of the opinion that the statement even when taken as a whole and without excluding anything therefrom amounts to a clear confession of the accused Lokman that he participated in the commission of the offence of severely assaulting the D.C. with various dangerous weapons in which the different assailants took part in a conjoint operation obviously with a common object to commit the offence which was being committed and tn that operation Lokman took part by catching hold of the victim along with others while some other assailants were assaulting the victim with various weapons. His withdrawal from the scene at a later stage on seeing blood-head does not exonerate him from the culpability of his act or state of mind which he displayed upto that stage and this is enough for the purpose of finding him guilty of the charge framed against him under section 302/149 IPC, Inasmuch as the D.C. was put to death as a result of a brutal assault perpetrated on him conjointly by the assailants. May be that the D.C. was further assaulted in continuation of the earlier assault even after Lokman withdrew himself from the scene after seeing the blood-shed but that does not, we reiterate, exonerate Lokman from his participative culpability in the commission of the offence till the stage of his withdrawal. We have seen from the evidence of the Autopsy Surgeon that the head injury sustained by the D.C. obviously as a result of assault made by Naso with rod on the head of the D.C. was alone sufficient to cause death and that was done while Lokman was catching the victim along with others obviously for facilitating conjoint assaults not only by the rod but also by other weapons used by the assailants. The statement of Lokman fully satisfies the requirements of a confessional statement and we are also of the opinion that the same is not only voluntary but is also true as the same receives substantial corroboratlon and also coroboratlon in material respects from the other evidence on record, namely, that the D.C. In khankl uniform and his body guard in while uniform were chased by a riotous mob there on that day and at that time, and the D.C. took shelter in that premises where he was attacked and assaulted by the assailants as stated by the eye witness P.W. 24, Md. Hadls. It is true that Lokman has not been specifically named by Md. Hadls but the other descriptions of the Incident as given by Md. Hadls, in our opinion, lends corroboratlon to the material aspects as to how and in what manner the occurrence took place at the concerned premises regarding assault on D.C. Mehta. Such corroboratlon tn respect of material aspects by the evidence of Md. Hadls Inspires sufficient confidence to accept the confessional statement of the accused Lokman as true. That being so, we have no hesitation in accepting the confessional statement of Lokman as voluntary and true. We will discuss more about the confessional statements at a later stage. Here we would like to note that the evidence of P.W.26 Md. Mustafa and P.W. 38 Md. Narln also supported the prosecution case regarding the Involvement of the accused Naso in the commission of the offence, but these two witnesses could not be produced for further cross-examination at the retrial and that is why their evidence was not pressed into service at the retrial. It has been submitted on behalf of the appellants that although the Division Bench while directing retrial directed the evidence already on record to be taken into consideration in writing out a fresh Judgment in the retrial, yet their evidence cannot be taken Into consideration because they could not be produced for further cross-examination at the time of retrial. It may be noted here that the Division Bench while remanding the case for retrial directed that the judgment is to be written on the basis of the evidence already on record, the evidence to be brought on record pursuant to the order of retrial, and the further statements of the appellants, if any, made under section 313 Cr.PC and also directed the trial Judge to give the appellants opportunity of further cross examining the prosecution witnesses. As we have seen, P.W.26 and P.W. 38 who support the prosecution case in respect of the Involvement of the appellant Naso however could not be produced for further cross-examination at the retrial Insplte of best efforts made by the prosecution as their whereabouts could not be traced out. In the circumstances it appears to us that section 33 of the Evidence Act would be attracted. Under section 33 of Evidence Act the evidence given by a witness in a Judicial proceeding is relevant for the purpose of proving in a subsequent Judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or his presence cannot be obtained without an amount of delay or expense which the court considers undesirable, etc., provided the proceeding was between the same parties or their representstive-In-Interest and the adverse party in the first proceeding had the right and opportunity to cross-examine, and the questions in Issue were substantially the same in the first and in the second proceeding. In the present case, at the original trial Involving the same Issue the appellants not only had the right and opportunity to cross-examine both P.W.26 and P.W.38, but in fact they were also cross-examined in extenso. That being so, when Insplte of efforts those two witnesses could not be traced out at the time of retrial plainly their earlier evidence was admissible in evidence at the retrial in view of section 33 of the Evidence Act. It is needless to say that the directions of the Division Bench concerning retrial do not have any connotation that a piece of evidence which is already on record will be excluded from consideration at the retrial even if the same is otherwise admissible in evidence in accordance with the provisions of law. Therefore we are of the opinion that the earlier evidence of P.W.26 and P.W.38 can be taken into consideration at the retrial under section 33 of the Evidence Act although they could not be produced for further cross-examination at the retrial as they could not be traced out after so many years inspile of efforts. In this back-ground it is Interesting to note the submission made by the learned Advocate for the appellants in respect of the question of admlsslbllly of the confessional statement of the accused Nanney Kosal for consideration at the retrial against the appellant Naso. it has been contended in this connection by the learned Advocate for the appellants that though the Division Bench while directing retrial permitted the trial court to take into consideration the evidence already on record, yet that direction is not Intended to nor does tt supersede any provision of law. It has been submitted by the learned Advocate for the appellants that under section 30 of the Evidence Act the confession of a co-accused can be taken into consideration against an accused only if both of them are Jointly tried for the same offence. It is submitted that since the accused Nanney Kosal who was convicted and sentenced in the original trial did not prefer any appeal and since he was not being Jointly tried with the present appellants at the retrial his confession cannot be taken Into consideration under section 30 of the Evidence Act at the retrial relating to the present appellants. In this connection the learned Advocate for the appellants has referred to certain decisions namely Emperor v. Keramot Sardar, 16 CHN 49, Assistant Collector of Customs. New Delhi v. Harbans Lal Sharaf 1980 Cr.LJ 681 (Delhi) and Suresh Budharmal Katati v. State of Mahamstra 1998 SCC(Cr.l.) 1625. The learned Advocate for the appellants thus contends that Inspite of the direction of the Division Bench for taking into consideration at the retrial the evidence already on record the confessional statement of Nanney Kosal cannot be taken Into consideration at the retrial as that Is, in effect, prohibited by section 30 of the Evidence Act and the direction of the Division Bench cannot be construed to supersede any provision of law. We accept this contention and we are also of the opinion that the confessional statement of Nanney Kosal cannot be taken Into consideration now in the retrial against the appellant Naso because Naso and Nanney Kosal were not facing Joint trial at the retrial. But we fall to understand why this same logic should not apply in respect of the earlier evidence of P.W.26 and P.W.38, both of whom were cross-examined at length at the earlier trial but who could not be traced out and produced at the retrial Insplte of efforts. The direction of the Division Bench to produce the witnesses for further cross-examination at the retrial obviously cannot be construed to exclude the operation of a statutory provision, namely, section 33 of the Evidence Act. No doubt that under the direction of the Division Bench both those witnesses were also required to be produced for further cros's-examlnallon at the retrial. But then, in our opinion, the law should take Its own course if in spite of efforts those two witnesses could not be traced out and produced after so many years for further cross-examination at the retrial. In our opinion, section 33 is attracted in the circumstances and there is nothing in the direction of the Division Bench which can be construed as excluding the operation of a statutory provision of law that may be attracted under the law Itself in a particular situation. In our opinion. In the circumstances the earlier evidence of P.W.26 and P.W.38 can be taken Into consideration at the retrial as a matter of law. However, as a matter of fact we keep their evidence out of consideration, and we examine whether even without taking into consideration the earlier evidence of those two witnesses, namely, P.W.26 and P.W.38 the prosecution have been able to establish the concerned charges against the present appellants.</p><p>31. The learned Advocate for appellants contends that the appellants should have been examined under section 313 Cr.PC afresh in respect of the earlier evidence on record but that was not done and that being so, the entire earlier evidence in the case should be kept out of consideration and it should be held that the earlier evidence cannot be used against the appellants for finding them guilty of the concerned charges in the retrial. It may be mentioned here that in the retrial, after the further cross-examination of the witnesses produced by the prosecution were completed, the appellants were further examined under section 313 Cr.PC thereby giving them opportunity to tell whatever they wanted to tell yet. It may also be noted here that the prosecution did not adduce any fresh evidence in the retrial and only the witnesses who were earlier examined and whom the defence wanted for further cross-examination barring P.W.2G and P.W.38, were produced for further cross-examination and even then further examination under section 313 Cr.PC was done in the retrial so that the appellants might get further opportunity to say whatever they yet desired to say. There was absolutely no question of examining the appellants afresh under section 313 Cr.PC in respect of the entire evidence in respect of which they were earlier given opportunity to express their say under section 313 Cr.PC it is a desparate contention raised on behalf of the appellants in despair that the earlier examination of the appellants under section 313 Cr.PC should be altogether excluded and they should have been examined afresh under section 313 Cr.PC in the retrial even in respect of the evidence in respect of which they were given adequate opportunity earlier under section 313 Cr.PC The direction of the Division Bench in this connection also contalnes the expression 'thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure'. The Division Bench used the expression 'further examine' and not fresh examination and there is also absolutely no reason why the earlier examination under section 313 in respect of the evidence earlier adduced should be treated as a nullity in the retrial. The contention raised by the learned Advocate for the appellants in this respect is wholly unacceptable.</p><p>32. The learned Advocate for the appellants contends inter alia that the unexplained delay in examination of P.W. 24 Hadis Khan renders it unsafe to rely on his evidence, The incident took place on 18.8.84 andP.W.24 Hadls Khan, we get it from the evidence of P.W. 1 S.K. Bhattacharjee. the second I.O., was examined by him in the afternoon of 20.8.84 at G-222 Battikal Second Lane. Both the earlier I.O. (P.W.80) and the second I.O.(P.W.l) have as we have seen, described what they did respectively after taking charge of the Investigation. Hadis Khan, as we have seen, was rounded up at about noon on the 19th and placed in a police van that patrolled in the locality and then he and others were in the police lock up at the P.S. from 7-00 p.m. and were later released in the evening of the same date. The second I.O. P.W. 1 took charge of the Investigation in the evening of the 19th and thereafter, as we have see, he took charge of some of the arrested accused persons in the evening and took them to Lalbazar and Interrogated them and on the next day he took steps for producing them before the court and then went to the concerned locality and there he examined Hadls Khan as the first witness to be examined by him and also the mother of the Hadis Khan in the concerned premises. Having regard to the facts and circumstances we cannot say that there was any delay or leapse in the matter of examining P.W.24 Hadls Khan. The learned Advocate for the appellants in this connection has referred to certain decisions namely, Balakrishna v. State of Orissa 1971 Cr LJ 670. Babull v. State of Orissa, 1974 SCC(Crl.) 104 and State of Orissa v. Brambhananda : 1976CriLJ1985 . It is needless to mention that all those decisions are confined in their effect to the particular facts of the respective cases. In Batakrishna v. State of Ortssa (supra) the concerned witness was examined by the I.O. 10/11 days after the incident which definitely is not so in our present case. In the other two cases namely Babull v. State of Orissa and Slate of Ortssa v. Brambhananda (supra) the concerned witnesses did not disclose the names of the assailants to anyone at the earliest available opportunity and there was no satisfactory explanation for the same. In our present case, as we have seen, P.W.24 Hadls disclosed what he saw at the earliest available opportunity on the very same day to P.W.19 Khalll Khan and P.W.21 Abdul Latlf Khan. Having regard to the facts, circumstances and evidence on record we find no reason to disbelieve the evidence of P.W.24 Hadis Khan.</p><p>33. As regards the question whetehr the statement of appellant Lokman recorded under section 164 Cr PC amounts to confession we have earlier discussed and we reiterate our opinion that such statement amouns to confession. We have already discussed that the Magistrate gave all necessary cautions to the appelalnt Lokman before recording his confession and also gave adequate opporutnity for reflection in Jail custody as well as after the accused was produced before him and he recorded the confessional statement after he was fully satisfied that his confessional statement was made voluntarily and the same was true. We also find no reason to hold otherwise in this respect. H has been contended on behalf of the appellant Lokman that there is no other evidence against the said appeallant except his confessional statement and that, too the confessional statement was subsequently retracted by him and that being so no conviction can be based on the retracted confession alone. In this connection the learned Advocate for the appellants has referred to certain decisions of the Supreme Court, namely, Chandrafcant Chfnum Lal v. State of Gujarat 1992(1) Crime 233, Kashmlra Slngh v. State of M.P. : 1952CriLJ839 . It may be noted here that the decision in Chandrafcant Chfman Lal (supra) is virtually based on the earlier decision of the Supreme Court in Kashmlra S(ngh v. State of Madhya Pradesh (supra). In Kashmlra Sfngh (supra) the Supreme Court was concerned with the question how Tar the confession of an accused person can be used against a co-accused. It is evident from a reading of the said decision in Kashmir Stngh that the said decision was not laying down the law that an accused cannot be convicted on the basis of his own confession. Rather what was laid down in effect in that context in Koshmia Singh is that an accused cannot be convicted on the basis of the confessional statement of the co-accused. On the other hand, the learned Advocate for the Slate has referred to certain decisions which we mention below regarding the use of confession. In Sarwan Stngh v. State of Punjab. : 1957CriLJ1014 , it has been held that in law it is always open to the court to convict an accused on his confession Itself though he has retracted it at a later stage and that nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement and that what amount of corroboratton would be necessary in such a case would always be a question of fact to be determlend in the light of the circumstances of each case. In Madi Ganga v. State qj Orfssa 1981 SCC (Crl) 411 it has been held by the Supreme Court that the accused can be convicted on the basis of the confessional statement if the general trend of his confession is substantiated by other evidence. In Param Hans Yadav v. State of Bihar 1987 SCC(Crl) 322 it has been held that although the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial the same can only be used for lending assurance to any substantive evidence. The law on the point has been very succinctly laid down by the Supreme Court in Sfirfsfiad Waaeshl v. State of Maharastra 1985 Cr LJ 1173 where it has been held that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboratlon from other Independent sources and that it can not, however, be the basis for convicting the co-accused though it may be taken Into consideration against the co-accused also. That being the law, it is evident that the retracted confession of the appellant Lokman can form the basis of his conviction if it has received general corroboratlon from other Independent sources as it has in our present case. We have seen that the appellant Lokman made an elaborate statement as to how the offence was being committed upon V.K. Mehta, D.C. by a group of assailants, some of whom were armed with deadly weapons, and as to the place where it occurred and how he participated in that operation. The manner in which the offence was committed upon V.K. Mehla in the concerned premises and how he was chased in that premises and assaulted are in such details that the vivid description itself lends an assurance of credibility for the confessional version. These details, as we have seen, are again corroborated in material particulars by the evidence of P.W.24 Hadts Khan. We have also seen that there.was an Inordinate and unexplained delay in retracting the confession. Having regard to the facts and circumstances, we have therefore no hesitation in accepting that the confessional statement of Lokman as made voluntarily and the same is true and is corroborated generally as well as in material particulars by the other independent evidence, namely, the evidence of P.W.24 Hadis. He have also seen that the appellant Lokman participated in catching hold of the unfortunate victim D.C., Mehta while he was being assaulted by the accused Naso with rod on his head and by other assailants with various lethal weapons on the other vital parts of the body of the victim. There is therefore no escape from the conclusion that the appellant Lokman is guilty of the charge framed under section 302/149 IPC in spite of the fact that at certain stage of the operation he might have withdrawn himself from scene while the others were yet carrying on the operation.</p><p>34. As regards the involvement of the appellant Naso we find no reason to discard the evidence of P.W. 24 Hadis. We have also seen how. Hadls reported to P.W. 19 and P.W.21 what he saw, on that very day. He clearly implicates the appellant Naso and from his evidence it appears that Naso delivered two blows with rod on the head of the D.C. Mehta while he was in unarmed condition. We have also seen that P.W. 16 Ramashankar Slngh has also deposed that he saw Naso amongst others in the mob with bombs. P.W.21 Abdul Latif Khan also saw Naso with others near deadbody and all were armed. We are therefore convinced that Naso was Involved in the commission of the offence along with others and this receives, additional assurance of truth when the confessional statement of the co-accused Lokman is taken into consideration under section 30 of the Evidence Act. We are also convinced from the evidence on record Including the postmortem doctor that the blow which Naso delivered on the head of V.K. Mehta with rod Itself was fatal. It is true that others also assaulted V.K. Mehta with various weapons and V.K, Mehta met with a tragic and as a result of all the assualts on him. The learned Advocate for the appellants submits that even if the prosecution evidence is taken at Its face value yet it is not clear whether the entire assault was held at premises No,G-222and whether some part of the assaults were carried on after taking away V.K. Mehta from that premises. In our opinion this is immaterial in view of the evidence of assault which is on record and the nature of the Injuries described by the Autopsy Surgeon. It is neither expected nor required that the prosecution must prove the entire operation second by second by a cinematographic display of the actions from the start to finish. The direct evidence of chasing of V.K. Mehta by the assailants and the participation of the appellant Naso in the concerned operation of assault on the victim with deadly weapons at premises No.G-222 and the description of the Injuries found by the autopsy surgeon on the deadbody of V.K. Mehta and his opinion about the effect of the same, are sufficient to hold the appellant Naso guilty of the charge framed against him under section 302/149 IPC for the murder of V.K. Mehta. Accordingly we hold both the appellants Naso and Lokman guilty of the charge framed against them under section 302/149 IPC for the murder of V.K. Mehta.</p><p>35. As we have seen, it is in evidence that the deadbody of V.K. Mehta with Injuries was recovered on that very day by the police party from a drain in that locality. From the facts, circumstances and evidence on record there is no doubt that the assailants of V.K. Mehta had thrown the deadbody in the drain, obviously with a view to avoiding easy detection of the evidence of the crime. There is evidence, as we have seen, that Naso participated in assaulting V.K. Mehta. P.W.21 Abdul Latlf Khan, as we have seen, while coming back to his house and reached Battlkal Second Lane at about 12-30/12-45 p.m. noticed some persons armed with weapons present near a deadbody lying by the side of the kancha drain there and he also found the appellant Naso amongst those persons who were all armed. His evidence is that Naso was standing 2 cubits away from the deadbody. He also says that later at the police station he learnt that the deadbody of the Dy. Commissioner was recovered from the place where he had earlier seen the deadbody. Circumstantially the conclusion becomes irresistible that the deadbody was thrown Into the drain there and it must have been done by those persons who vere found present there beside the deadbody. And Naso was one of them, in the circumstances we are of the opinion that the conviction of the appellant Naso under section 201/149 1PC is justified. We are also of the opinion that his conviction under section 148 1PC is also warranted and Justified.</p><p>36. Now we consider the question of sentence so far as the offence under section 302/149 IPC is concerned. Both the appellants Naso and Lokman have been sentenced to death by the trial court for their conviction under section 302/149 1PC in respect of the murder of V.K. Mehta, the Dy. Commissioner of Police, Port Division. The learned Advocate for the appellants contended, without prejudice to his other contention that the appellants were entitled to an order of acquittal, that this was not at all a fit case for death sentence even if the conviction were upheld. In this connection he referred to the decisions in Bachhan Stngh v. State of Punjab, : 1980CriLJ636 , Rajendra Prosad v. State of U.P. : 1979CriLJ792 , Digambar Gope v. State of West Bengal 1997 C.Cr.L.R.(Cal) 139 and Rabindra Prida v. State of West Bengal 1995 C.Cr.L.R (Cal) 210 etc. On the other hand, the learned Advocate for the State has referred to the decisions in Shlo Mohan Stngh v. State 1977 SCC(Cri) 324, Gayasi v. State of Uttar Pradesh. 1981 SCC(Cri) 590, Jay Kr. v. State of Madhya Pradesh 1999 111 AD(Cr.) SC 33 and 1987 SCC(Cri) 322. etc. Indeed it is now a settled law that for an offence of murder life Imprisonment is the normal sentence while the death sentence should be Imposed only in the rarest of rare cases. The guidelines for determining the case where death sentence can be Imposed are to be found in the decisions of the Supreme Court in Bachhan Singh : 1980CriLJ636 , Mechhi Singh v. State of Punjab : 1983CriLJ1457 , Kama Tewari v. State of Madhya Pradesh, 1996 Cr.L.J. 4158. etc. In going to decide whether in a particular case death sentence should be imposed or not the aggravating and the mitigating circumstances in respect of the concerned accused are required to be taken Into consideration. In Jay Kr. v. S(ate p/M.P,(supra) it has been observed by the Supreme Court that the law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment and that while it is true that a sentence disproportionately severe, ought not passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly Inadequate having due regard to the nature of the offence since an Inadequate sentence would fall to produce a deterrent effect on the society at large. It has been further observed therein that punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, but rather for having its due Impact on the society and that while undue harshness is not required yet Inadequate punishment may lead to sufferance of the community at large. In Shtv Mohcin Sfngh v. The State (supra), it has been Inter alia observed by the Supreme Court that the heinousness of the crime is a relevant factor in the choice of the sentence. In Gayasi v. State qfU.P. (supra), the Supreme Court while confirming the death sentence in a case where the victim was a public servant and was murdered while performing his public duties observed that such crimes committed against Public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.</p><p>37. Now let us look to the circumstances in which the crime has been committed in the present case. On receiving information that a disturbance was going on in the concerned locality, V.K. Mehta, the Dy. Commissioner of the Port Division rushed to the spot and the other officers and force also joined him. He of course had no arms or weapon with him. He led the police party for restoring normalcy in the disturbed area. At that time the police party was attacked by the furious mob with brickbats, bombs and the policeparty headed by the Dy. Commissioner took shelter in a mosque. Underthe pressure of the violent and armed mob the Immam of the mosque askedthe police party to leave the mosque. In the circumstances the police partyhad to leave the mosque. As soon as they came out of the mosque theywere again attacked by the violent mob. The D.C. and his body guard MoktarAll proceeded in one direction while the Assistant Commisloner and theother members of the police party could retreat in a different direction. Whilethus retreating the members of the police party were attacked by themembers of the mob as a result of which the Assistant Commissioner andsome other members of the party sustained Injuries. Unfortunately, howeverthe Dy. Commissioner and his body Guard Moktar All proceeded in adifferent direction Isolated from the other members of the police party andthey were also chased by an armed mob. Both the D.C. and his body guardMoktar All were in police uniform. They were there to perform their officialduties to restore peace and maintain law and order. Insplte of that withoutany provocation from them they were hounded up by the ferocious mob asa result of which the D.C. and hts body guard also became separated fromeach other. The body guard was brutally killed by some of the assailants,and the D.C., while on the run for life and safely took shelter in G-222Battlkal Second Lane but there also the chasing mob followed him. In hishelpless bid the D.C. fervently disclosed to his assailants that he was D.C.of police hoping that the same would have a sobering effect on theassailants, but the assailants were in a devellsh mood and even proclaimedthat the they did not care for D.C. An isolated senior police officer of therank of a Deputy Commissioner who had been there for restoring peace andfor maintaining law and order in discharge of his official duty helplesslyfound himself pitiably doomed in a death trap under the devilish controlof the ferocious assailants while he himself was totally unarmed. There wasabsolutely no provocation from the side of the Deputy Commissioner. It wasthe bounden duly of everyone present there to assist the D.C, in discharge of his official duty to restore peace and maintain law and order but Instead, the assailants took devellsh pleasure in committing the diabolical murder of the D.C. In a dastardly manner. The brutality of the assailants on the helpless D.C. can be readily measured by the number and nature of Injuries found by the Autopsy Surgeon on the deadbody. The appellant Naso, as we found, took the lead role as the pioneer in the matter of actual assault on the D.C. after getting him in virtual capacity. Ignoring the appeal of the D.C. as reflected in the fervant disclosure of his Identity the appellant Naso delivered blow with rod on the head of the D.C. from the front side obviously with enormous force so much so that the helmet of the D.C. fell down from his head and the appellant Naso took that opportunity to deliver a second blow on the bare head of the D.C. with the rod and the beastly operation was followed by assaults by others with different other deadly weapons. The Impact of the assault made by the appellant Naso has been projected by the evidence of the Autopsy Surgeon. The head Injury sustained by the D.C. was sufficient to cause death in the normal course. The role played by the appellant Naso in making the dastardly and deadly assault on the helpless and unarmed D.C. who was on duty is studded with such mainfestatlon of depraved ferocity that the case unrringly comes within the arena of a rarest of rare cases. The tragic death of a brave and dutiful public servant in a circumstance like this is sure to have a macabre effect on the society at large and also a demoralising Impact on the public service in particular, unless the justice delivery system matchlngly responds to nuelralllse the same in the Interest of the peace-loving segment of the society. In our considered opinion, and having regard to the facts and circumstances we have no hesitation in holding that this is a fit case where the appellant Naso deserves death sentence in the Interest of the society at large. There is absolutely no mitigating circumstance for awarding the alternative sentence of life Imprisonment to the appellant Naso. In the result we confirm the death sentence Imposed by the trial court on the accused Naso for his conviction under section 302/149 1PC. However, having regard to the low-profile role played by the appellant Lokman Shah we are of the opinion that in his case death sentence need not be Imposed and the alternative sentence of Imprisonment for life for his conviction under section 302/149 1PC will meet the ends of justice. In the result the death referred in respect of the accused Naso is hereby accepted and the appeal filed by him is dismissed. The death sentence as well as the other sentences Imposed upon the appellant Naso by the trial court are all confirmed. The death reference relating to accused Lokman is however rejected and the death sentence Imposed on him by the trial court is set aside and Instead of death sentence, the sentence of imprisonment for life is imposed on the appellant Lokman for his conviction under section 302/149 IPC. Subject to above modification of sentence for conviction under section 302/149 IPC the appeal preferred by the appellant Lokman stands dismissed.</p><p>M.K. Basu, J.</p><p>38. I agree.</p><p>39. Older accordingly<p></p><p>',
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		'pubs' => '(2000)1CALLT107(HC),2000(1)CHN245',
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	'title_for_layout' => 'Lokman Shah and anr Vs State of West Bengal - Citation 853066 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '853066',
			'acts' => ' <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 148, 149, 201 and 302;;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 16A, 144, 154, 161, 164, 313 and 366;;Evidence Act, 1972 - Sections 9, 30, 33 and 45;;<a href="/act/52009/arms-act-1959-complete-act">Arms Act, 1959</a> - Sections 25 and 27',
			'appealno' => 'Criminal Appellate Jurisdiction, Crl. Appeal No. 274 of 1992 with Death Reference No. 11 of 1996',
			'appellant' => 'Lokman Shah and anr.',
			'authreffered' => '',
			'casename' => 'Lokman Shah and anr. Vs. State of West Bengal',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'In Gayasi v. State;',
			'citingcases' => '',
			'counselplain' => ' Mr. Balai Chandra Roy, ;Mr. Sekhar Kumar Bose, ;Mr. Subrata Kumar Basu and ;Mr. Asim Kumar Roy, Advs.',
			'counseldef' => ' Mr. Tapan Roy Chowdhury and ;Mr. Thakurdas Roy Chowdhury, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-12-01',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Gitesh Ranjan Bhattacharjee and ;Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">G.R. Bhattacharjee, J.</p><p style="text-align: justify;">1. Both the above noted Death Reference and the criminal appeal are being dealt with and disposed of by this Judgment as they arise out of the same Judgment of the 3rd court of Additional Sessions Judge, Allpore. The trial court by its judgment and order dated 26-8-92 acquitted the accused Sanda Akhtar and the accused Hossaln Chowdhury but convicted the accused Naslm @ Naso and the accused Lokman Shah under section 302/149 IPC and further convicted the accused Naso under sections 148, 201/149 IPC. Subsequently after giving a hearing on the question of sentence the trial court by Its order dated 31-8-92 sentenced both the accused Naso @ Naslm and Lokman Shah to death for their conviction under section 302/149 IPC for the murder of V.K. Mehta and also sentenced the accused Nase to R.I. for 3 years and fine of Rs. 2.000/- i.d. to R.I. for 6 months for the offence of rioting punishable under section 148 IPC and also sentenced him to R.I. for 3 years and a fine of Rs. 2,000/-I.d. to R.I. for 6 months for the offence punishable under section 148 IPC and also sentenced him to R.I for 7 years and a fine of Rs.6000/- I.d. to R.I. for 1 year and 6th months for the offence punishable under section 201/149 IPC. The substantive sentences of Imprisonment were directed to run concurrently. The trial court then made a reference to this court under section 366 Cr.PC for consideration of confirmation of the death sentence Imposed upon the two accused Nase and Lokman. Correspondingly the said two accused have preferred appeal to this court against the judgment and orders of conviction and sentences passed by the trial court. As we have already noted both the death reference and the criminal appeal are being dealt with and disposed of simultaneously by this Judgment.</p><p style="text-align: justify;">2. It may be noted here that on an earlier occasion the trial court In a trial on the same charges and others passed Judgment and orders of conviction and sentences In S.T. No. l(6)/88 and on that occasion four accused persons namely Naso and Lokman (the present appellants) along with the accused Akhtar (c) Sanda Akhtar and Hossaln Chowdhury were Inter alta convicted under section 302/149 IPC for the murder of V.K. Mehta and sentenced to death. There were also other sentences In respect of different accused persons on that occasion. It is however to be noted specifically here that on that occasion the accused Nanney Kasai was convicted under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and sentenced to R.I. for 6 years and he was further sentenced to R.l. for 2 years for conviction under section 148 IPC with the direction that both the sentences would run concurrently. The said accused Nanney Kasai. we are told, did not prefer any appeal against the conviction and sentences Imposed on him and he rather preferred to undergo the sentences imposed on him by the trial court The four accused named above who were sentenced to death however preferred appeals against their conviction and sentences which were all heard together by a Division Bench of this court along with the death reference for consideration of confirmation of death sentence Imposed upon them by the trial court. The Division Bench hearing the said death reference and the connected criminal appeals disposed of the same by Judgment dated 8-7-91 by which the death reference was rejected and the appeals were allowed and retrial of the said four appellants-accused persons by the trial court was directed to be held In respect of the charges for which they were found guilty by the trial court. The precise ground on which the retrial was directed was that the trial court allowed the prayer of amendmenl of certain heads of charges at the stage of argument at the behest of the learned Special Public Prosecutor, thereby making amendment In respect of the names of the places of occurrence in the concerned charges. In view of such amendment In the concerned charges at the stage of argument before the trial court, the Division Bench hearing the earlier appeals and the death reference felt that the accused persons ought to have been given an opportunity by the trial court to cross-examine the prosecution witnesses after alteration of charges, and only on that ground the Division Bench considered It proper, without entering Into the merit of the prosecution case, to direct retrial of the case by the trial court In the manner directed by the Division Bench which we will mention hereafter. But before that we briefly describe the nature of charges framed against the accused persons including the present appellants. The first charge was one under section 148 IPC for rioting. The second charge was one under section 302/149 IPC for the murder of Mokhtar All, a police constable In white uniform. The third charge was one under section 302/149 IPC for the murder of V.K. Mehta, D.C. Port Division., In Khanki uniform. The fourth and the fifth charges were under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and Mokhtar All respectively. The sixth and last charge was under section 324/149 IPC for causing hurt to K.K. Sharma, Asstt. Commissioner of Police (II), Port Division and to Rama Shankar Slngh, constable.</p><p style="text-align: justify;">3. The direction of the Division Bench for retrial was couched In the following language :--</p><p style="text-align: justify;">'On the conclusion as above, we set aside the order of convictions recorded and sentences Imposed upon the four appellants before us and direct their retrial only in respect of those charges for which they were found guilty by the learned trial Judge. In the retrial the learned Judge will give the appellants an opportunity of further cross-examining those witnesses of the prosecution, who had earlier deposed In respect of the above charges and thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure. The four appellants should then be given an opportunity to adduce evidence on their behalf. On the basis of the evidence already on record, evidence to be brought on record pursuant to this order, and the further statements of the appellants, If any, made under' section 313 of the Code of Criminal Procedure, the learned Judge will write out a fresh judgment after hearing the arguments of the parties. By way of abundant caution, we reiterate that the retrial, in terms of this order Is to be confined to the four appellants only and that too only in respect of the charges for which they were found guilty. Since the appellants are In custody for a pretty length of time, we direct the learned trial Judge to conclude the retrial as expedltiously as possible, preferably within a period of two months from the date of communication of this order. Till then, the four appellants shall continue to remain in custody.</p><p style="text-align: justify;"> The appeals are thus allowed and the reference made by the learned Judge under section 366 of the Code of Criminal Procedure is rejected.</p><p style="text-align: justify;">Consequently the retrial was required to be confined to the charge under section 302/149 IPC against the four accused persons, namely, Naso, Lokman, Sanda Akhtar and Hossain Chowdhury, for the murder of V.K. Mehla and also against the accused Naso to the charge under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta as well as under section 148 IPC for rioting.</p><p style="text-align: justify;">4. The trial court held the retrial pursuant to the above noted direction of the Division Bench. The witnesses whom the accused persons desired to further cross-examine In the retrial were produced by the prosecution and were cross-examined. However, at the retrial the prosecution could not produce two of their Important witnesses namely P.W. 26, Md. Mustafa and P.W. 38. Md. Narln as they were not traceable and this fact was recorded by the trial court In Its order No. 295 dated 28-2-92. Be that as It may, on retrial the accused Sanda Akhtar and the accused Hossaln Chowdhury were given the benefit of doubt and were acquitted and this had to be done, as it appears from paragraph 32 of the Judgment of the trial court, mainly because the evidence of the two prosecution witnesses, namely, P.W. 26 and P.W. 38 were not taken Into consideration as they could not be produced for further cross-examination at the retrial. In paragraph 33 of the Judgment of the trial court, it Is recorded in that connection that the learned Special Public Prosecutor after taking sufficient opportunity finally expressed his Inability to produce those two witnesses and also pointed out that after a lapse of nine years the whereabouts of those witnesses could not be ascertained and It may be that for fear of life they had absconded. However, at the retrial the trial court convicted and sentenced the appellants-accused Naso and Lokman as noted earlier and thereafter made this reference under section 366 Cr.PC for confirmation of death sentence Imposed on them. The said two appellants have also preferred criminal appeals against their conviction and sentences.</p><p style="text-align: justify;">5. The prosecution case has been succinctly stated in the earlier judgment of the Division Bench and we restate the same. The prosecution case in a nutshell is that in the morning of March 18, 1984 communal disturbances broke out at Fathepur Village Road under the Garden Reach Police Station and its adjoining areas which fall within the Port Division of Calcutta Police. On getting information of the disturbances Sri Vinod Kr. Mehta, the then Dy. Commissioner of Police of the Port Division went there alongwlth his securily guard Moktar All. Sri K.K. Sharma (P.VV.7), who was the Asstt. Commissioner of Police of that Division then, also reached there along with his security guard R.S. Singh (P.W. 16) and other police officers. When the police personnel tried to restore peace and normalcy, they were attacked by a riotous mob with brick-bats, bombs etc. To avoid mob fury, Sri Mehta and others entered into a mosque but as they were not allowed to remain there by its [mam, they came out. Then they were again attacked with bombs and other lethal weapons and finding no other alternative Sri Mehta took shelter In the house of Abdul Latif Khan (P.W. 21). a constable attached to the Calcutta Police, at G.222 Battikal Second Lane. Moklar All. In his return, took shelter In a near-by house at Dhankhettl. Unfortunately, however they could not save their lives as they were hacked to death by the riotous mob. Subsequently, the charred body of Moktar All was found In an open space near the premises where he took shelter, while that of Sri Mehta bereft of his uniform, was found floating in a drain near premises No. F/59, Attabag with multiple Injuries on his person. Sri K.K. Sharma and his security guard were also attacked by the riotous mob and injured but fortunately they could save their lives by running away. Sri Sharma lodged an Information about the incident in the evening and on that information Garden Reach Police Station registered a case against 150/200 unknown persons for the murder of V.K. Mehta and Moktar All and for assault on Sri K.K. Sharma and other police personnel. S.I., S.R. Ganguly (P.W. 80) of Garden Reach Police Station took up investigation of the case but under orders of superiors Investigation was subsequently taken up by S.I., S.K. Bhattacharjee (P.W. 1) of the Detective Department (Homicide Squad) of Calcutta Police who submitted charge-sheet.</p><p style="text-align: justify;">6. Having described above the genesis of the present appeal, the charges framed, the prosecution case in a nut-shell and the scope of retrial, we now proceed to examine the merit of the prosecution case on the basis of the facts, circumstances and evidence on record. It Is needless to mention that we are now concerned mainly with the case against the two appellants Nase and Lokman. At the very out set. we may mention here that ext. 3/1 Is the site plan which will be of great assistance in appreciating the facts, circumstances and evidence on record Including their co-relation in respect of different aspects of the matter. We may here also adumbrate a broad categorisation of the different types of prosecution witnesses. P.W. 80, Santl Ranjan Ganguly, S.I. of Police who was attached to Garden Reach Police Station at the relevant time is the first I.O. of the case. P.W. 1, SaroJ Kr. Bhattacharjee, S.I. of Police attached to Homicide Squad. Detective Department, Calcutta Police is the second I.O. who submitted charge-sheet after Investigation of the case. P.W. 2 Is the plan maker. P.Ws. 3, 4, 5 and 6 are photographers. They are all police personnel. P.W. 65 Is a private photographer. P.W. 7, K.K. Sharma is the Assistant Commissioner of Police, Port Division who lodged the FIR and P.Ws. 8, 9, 10, 11. 12, 13 and 16 are all police personnel who had been to the disturbed area for restoring law and order there. P.Ws. 15. 18, 20. 22, 23, 25. 27. 28, 29. 34. 35, 36. 37 and 48 were all declared hostile by the prosecution. However, of the said hostile witnesses, we may have to discuss the evidence of some, namely P.Ws. 15, 18, 20, 22, 23 and 25. The main prosecution witnesses Implicating the present appellant Nase are P.Ws..16, 19,21 and 24. The other two vital witnesses P.Ws. 26 and 38 however, could not be produced for further cross-examination at the retrial. P.W. 46 Is the Autopsy Surgeon who held the post-mortem examination on the dead-body of V.K. Mehta. P.Ws. 44, 66 and 67 are also medical witnesses. P.W. 47 is the Judicial Magistrate who held T.I. parade. P.W. 51 is the Judicial Magistrate who recorded the confessional statements of the two accused Nanney Kosal and Lokman Shah on 3-4-84 and 9-6-84 respectively (vide ext. 13 and ext. 14).</p><p style="text-align: justify;">7. We will now discuss the evidence of some witnesses from which we will get an Idea of the nature of the Incident that took place on 18-3-84 in the concerned locality. P.W. 7, Sri K. K. Sharma was posted at the relevant time as Assistant Commissioner of Police (II). Port Division. He says that late V.K. Mehta was his Dy. Commissioner and he died on 18-3-84. It may be noted here that It is In evidence that 18-3-84 was a Sunday and It was the day on which 'hoiI' festival.was being celebrated. It is the evidence of Sri K. K. Sharma (P.W.7) that on that day while he was at his house he received a telephone from Port Division. Telephone Exchange at about 10-45 a.m. to the effect that a trouble was going on at the Junction of Falherpur Village Road and Paharpur Road and that the D.C. Mr, Mehta wanted his presence there. Then he proceeded to the place In a Jeep accompanied by his body guard Rama Shankar (P.W. 16) who was well acquainted with that place and they reached there at about 11 -30 a.m. and found brick-bats lying on the roads and remants of exploded bombs and he also saw a huge gathering. He also heard nofsy sounds. He says that he saw some local police officers standing there and seen D.C. Port accompanied by one Mr. Sen and local leader came to that place accompanied by some agitated persons and the D.C. told him that they would go out and see what was going on and then he, his guard, D.C., his guard Moktar All and 5/6 armed constables proceeded along the Fatherpur Village Road and entered the Mathorpara Basil and found agitated crowd on both sides of Mathorpara Bastl Lane. According to his evidence they proceeded further and came near Ramnagore Lane when brick-bats, bombs etc. were hurled at them and It was about 11-45 a.m. at that time. He says that there Is a mosque near the place where the Mathorpara Bast! approach meets Ramnagore Lane. His evidence is that due to heavy brick batting and bomb throwing D.C. asked them to take shelter Inside the mosque and In order to save themselves they entered Inside the mosque. He describes that there Is a collapsible gale at the back portion of the mosque and they entered the mosque through the front gate and after some time they noticed that a riotous mob of about 40/50 persons were trying to break open collapsible gale of the mosque and those persons were armed with brick-bals, bombs, swords, daggers etc. and Ihen the Imam of the mosque told them to leave the mosque and then the D.C. told him that they would have to leave the place and to go out and had also some discussion regarding their future course of acllon and also told him lhal they were to disparse the violent mobs. According to him the D.C. further told him that he (A.C.) should try to disperse the mob from Mathorpara Bastl approach and Ramnagore Lane junction while D.C. would disperse the mob from eastern side of the mosque. He estimates that there were about 400/500 persons around the mosque, and say that when they came out he noticed the D.C. In the midst of a crowd and was going towards the east. His evidence is that bombs and brickbats were thrown at them and he was surrounded by some persons and they forced him to sit on the ground and someone took off the helmet from his head and he was praying to God for his life and one person started hitting on his head with a full brick ('then if). He also noticed that some persons had daggers and swords with them. He says that he received bleeding Injury on his head and he was more or less senseless at that time and after some time somehow he managed to get up and could, with difficulties, reach the place wherefrom they had earlier proceeded towards the mob. He says that when he was made to sit forcibly by the mob, the situation was such that he could notice where his security guard was and where the other armed constables were. He also did not see his security guard subsequently on that date. His evidence Is that he met the D.C. Head Quarters, D.C. S.B.-I who were standing there at the place where he returned after sustaining injury, namely, near the junction of Paharpur Road and Fathepur Village Road and on seeing his condition the D.C. Head Quarters advised him to go to Calcutta Hospital for treatment and also ordered one sergeant to accompany him to the hospital and he then went to the Calcutta Medical Research Institute and was treated there. His evidence Is that he reached the hospital at about 12-15 p.m. and his Injury on the head was stitched and from there, Ignoring the advice of the doctor to take admission in the hospital, he went to Lalbazar and reached there at about 2-00 p.m. and met the Commissioner of Police (C.P.) and other high officials and narrated the Incident and from Lalbazar he went home as per the direction of the C.P. His further evidence Is that while at home he got a message that Police Commissioner had gone to the spot and he should go there and then he went to the spot and met the superior officers and came to know that the dismembered charred body of the body-guard of D.C. Mehta had been found in an open space and he also saw the charred body which was beyond recognition to him. He gave the name of the body-guard as Moktar All. He says that he also noticed that metallic buttons used by police constables were lying near the charred body and also found remnants of white uniform used by Calcutta Police Constables. According to his evidence D.C., Port Division V.K. Mehta was still untraced and they conducted search for him and on search the body of V.K. Mehta was recovered from a Kancha Nala and it was found that socks were on his feet and both legs were tied with a rope and he was wearing only one Jangea and the Galnjee was rolled up to his chest and the body had multiple marks of injuries In the eyes, face, chest and other parts and the body was sent to morgue for post-mortem examination. From his evidence it appears that In the T.I. parade he Identified the accused Sk. Nanney and in his evidence he says that he saw the said accused (Nanney) when they were coming out of the mosque. In a very violent and aggreslve mood with a bomb In his hand and he was shouting. His evidence is that after the bodies were sent to morgue, he went to Garden Reach Police Station and there S.I., Santf Ranjan Ganguly (P.W. 80) recorded his statement which was signed by him after going through the same. His statement which was recorded and treated as FIR was marked Ext. 4. In his cross-examination he says that he made the statement to the S.I. at about 8-05 p.m. He also clarifies that the statement fn the FIR (Ext.4) 'after seeing Commissioner of Police I came back to the spot at about 15 hours' is not correct, because he went home from Lalbazar and from home he went to the spot. This he has said In his examination-in-chief and we do not think that there is any substantial discrepancy In the matter. In his cross-examination he says that the police vehicles were parked near the crossing of Paharpur Road and Fatherpur Village Road since the vehicles could not got through Mathorpara. He also says that he was assaulted at Ramnagore Lane near a place where Mathorpara Road meets Ramnagore Lane and after the assault he went to the crossing of Fathepur Village Road via Mathorpara Lane. He says that at Lalbazar he came to know that V.K. Mehta and his body guard were still missing. He also says that dusk to dawn carfew was Imposed in that area on 18-3-84 and he was Informed at the P.S. that section 144 Cr.P.C. had been also promulgated in that area. He says that after the incident due to his Injuries he was completely on bed rest for two months. In his cross-examination in the retrial, he says that the dead body of V.K. Mehta was recovered from a Kanchha Nala and he saw It when it was taken out from that Nala. He however did not see the actual bringing out of the body from the Nala. He first saw the dead body, he says, by the side of the road where It was kept after bringing the same out from the nala. His further evidence Is that about 8 to 10 police personnel Including himself and D.C. Mehta were Inside the mosque and while some of the police personnel were not armed, some were carrying muskets and gas shells. It may be noted here that Ext.4 which Is the statement of P. W. 7, K.K. Sharma that was recorded as FIR on 18-3-84 stands In substantial conformity with the evidence of P.W.7. Sri K.K. Sharma as given in court.</p><p style="text-align: justify;">8. P.W. 8, Sayed All Reza Is an armed constable of police. His evidence is that on 18-3-84 he reported to Lalbazar for duty at 6 a.m. and his duty was allotted to Watgunge P.S. and he went there with a gas gun, and that while he was In that P.S. on standby duty at about 10/10-15 a.m. the Subedar reported that a trouble was going on In Garden Reach area and they were required to go there and accordingly they left for Garden Reach and reached there at about 10-30/10-45 a.m. He says that he saw D.C. Mehta, A.C. and olher police forces and police officers present there and then D.C. Mehta proceeded Inside the bastl along with A.C.. the witness (P.W.8), guards of D.C. and A.C., 5 armed constables, 2 plain clothed constables and 3 police officers In plain cloth. He says that after entering Inside the basti they found a dead body lying there and D.C. asked two police men to guard the dead body and three police officers In civil dress were asked to bring a vehicle and pick up the body. He says that they heard noise coming from Inside the bastl and also heard sounds of bombs and then D.C. Mehta alongwith A.C. proceeded Inside towards that direction and they were with them and when they reached the road through the lane near the mosque they were attacked from both sides of the road and they took shelter in that mosque with the help of a Moulabl and members of the mob were throwing bombs, brick-bats and they had lathi, rods also with them. He says that he noticed that about 20/25 bombs were hurled towards them and when they took shelter In the mosque, a violent mob being armed with weapons were trying to break open the back side collapsible gate of the mosque and the Moulabl was also threatened by the mob with dire consequence if he did not drive out the police parly from the mosque and then on being asked by Moulabl they came out of the mosque and they were attacked with bomb and brick-bats and then the A.C. ran inside the lane through which they had reached the road and they also followed him. He says that as soon as he entered inside the lane he saw that the A.C. was being assaulted on his head With a brick and his helmet was missing. According to his evidence he tried to fire gas from his gun but the gun did not work and then using the gun as a lathi he gave a blow to a boy who was assaulting the A.C. He further says that when he hit that boy with the gun the gas shell burst out. He however says that he could not recognise the boy who assaulted the A.C. with the brick on his head as trouble was going. He further says that when the gas shell burst out, all of the persons fled away from the place and A.C. then stood up and started walking slowly with bleeding Injuries on his head. P.W.8 says that he also received a brickbat blow on his leg when he was going to enter inside the lane after coming out of the mosque. His evidence is that he followed the A.C. keeping watch on the back side and In this way they reached the place where they had come from watgunge P.S. and at that time he noticed the presence of D.C. Headquarters at that place alongwith other police officers and constables and they had a talk with the A.C. His evidence Is that he reported to one police officer that D.C. Mehta had been separated from them and on hearing this the D.C. Headquarters proceeded inside the basti alongwith them in order to ascertain the situation. He says that it was then about 1/1-30 p.m. and he took the D.C. and the others to the mosque and on his way he reported the entire incident to the D.C. Headquarters. He says that the D.C. Headquarters started asking the people of the locality regarding the whereabouts of D.C. Metha and on receiving one information they went to an open space on Ramnagore Lane and saw that a human body was burning. He further says that they noticed a piece of white uniform and a nickel button used by constables lying near that place and so he guessed that It was the body of the guard of D.C.Mehta. That place, he says, is near the mosque. His evidence is that then he and other police constables remained at that place where the dead body was burning and the other police officers went to other place and then at about 5-30/6-00 p.m. they come to know that the dead body of V.K. Mehta had been traced out. His further evidence is that he saw that a dead body was placed by the side of a drain in a lane and the dead body was covered with a white cloth and a police officer lifted that cloth and he found that it was the dead body of Mehta with marks of injuries. In his cross-examination he says that he was 3/4 cubits behind the A.C. when the A.C. was being assaulted and as he was threatening the mob with the gas gun he was not assaulted by any person of that mob. He gives the time as 2/2-30 p.m. when he noticed that the dead body was burning. P.W.9 is also an armed constable attached to the 5th Battalion. He was also sent on duty to Garden Reach area on 18-3-84 after 10-00 a.m. He says that in their party there were 4 armed constables and four had gas guns and some others had lathies and one inspector was with them. His evidence Is that on reaching Paharpur they found a gathering and also heard shouts and D.C. Port, A.C. and other police officers were present at that place. His further evidence Is that D.C. Port, asked four armed constables and four constables with gas guns to accompany him in the adjacent lane and they entered in the lane and after going some distance found a house in blaze and the D.C. placed two armed constables to guard that house and then they along with D.C. were proceeding through an adjacent baeti area and noticed a dead body and D.C. ordered two local police men to guard the dead body and they proceeded further and came to a road near a mosque and when they were on that road they were attacked from both sides with brick-bats, bombs and on being attacked they entered inside the mosque. He says that there were 60/70 persons on both sides of the road. His evidence is that then some persons were trying to break open the gate of the mosque and the Moulabl asked them to get out of the mosque and they came out of the mosque and they were attacked with bombs and brick-bats. He says that he took shelter in a chala and also threw his gas granade but the granade did not burst. He says that from the Chala he came out and started running and he met the A.C. and other police men. He says that A.C. had bleeding injury on his head and finally he boarded the lorry. in his cross-examination he says that D.C., A.C., himself and other police men were together up to the mosque of Paharpur.</p><p style="text-align: justify;">9. P.W.10 is another armed police constable. He was also sent on duty to that place on that day. His evidence is that when they came to the Junction of Paharpur Road and Fathepur Village Road, D.C. Port, V.K. Mehta, his guard, A.C. Port Mr. Sharma, his guard, O.C. Garden Reach P.S. and some local police officers and constables were present there. He says that a house was burning some distance away and a vehicle of Fire Brigade was there. His evidence is that they along with D.C. and A.C. proceeded towards the northern direction and D.C. posted two armed constables near the burning house and proceeding further they found a dead body and D.C. posted the constable of local P.S. there and they proceeded further and noticed an agitated mob and also heard sounds of bombs. He says that they reached Ramnagore Lane near the mosque and up till then the D.C. did not order them to fire. He further says that the D.C. did not pass any order to fire. His evidence-is that when they reached near the mosque, bombs were thrown and they entered inside the mosque. He further says that 20/ 25 persons armed with sharp weapons such as sword, tangi like weapon, klrlch etc. tried to break open the gate of the mosque and when they then all came out of the mosque bombs, brick-bats were thrown at them. He also speaks of assault by one person on A.C. Mr. Sharma and says that his helmet had fallen on the ground and his head was bleeding. He says that at that stage he did not see the D.C. He further says that on their way back he had fired two rounds in the air in order to save themselves as bombs were being hurled from roof-top. He also speaks about the burning of a house and says that Mr. Sharma told the D.C. Headquarters that the D.C. Mehta had been separated from them and then Sharma left for hospital as he has injury on his head and they boarded the lorry. His cross-examination shows that the D.C- Port Division had a shield in his hand at certain stage. P.W. 11, Ashlm Chakraborty is also an armed constable of Calcutta police who was sent on duly there on that day. He says that he was carrying gas gun. He also speaks about the mob found on reaching Fathepur Road arid Paharpur Road crossing. He testified to the presence of D.C. Port. A.C., Port and their guards and officers of Garden Reach P.S. as well as police men of that P.S. He says that they could hear shoutings and sounds of bombs coming from northern side and the D.C. asked them to follow him and than D.C., A.C., their guards and they including the witness along with police officers of the local P.S. and constables proceeded towards north through Fathepur Village Road and through a narrow lane in the basti when they heard sounds of bombs and noise in the Bastt and also they found a deadbody near a two storyed building covered with cloth. He says that the D.C. ordered the two constables of the local P.S. who had muskets to guard the deadbody and also directed the two officers of the local P.S. to make arrangement for removal of the deadbody and then he along with D.C., A.C., their body guards, two armed constables and four gas constables including himself proceeded towards further north and reached Ramnagar Lane near a mosque. He says that many people were shouting, standing on sides of Ramnagar Lane and they were attacked with bombs and brickbats from both sides of the road and then they all entered (n the mosque. His evidence shows that a mob armed with swords, bhojalis were trying to break open the collapsible gate and the D.C. ordered them to come out of the mosque and then they all came out and they were again attacked with bombs and brickbats from both sides of the road. He says that he was hit on his leg with a brickbat. He further says that he fired one round of tear gas shell but it did not explode and then out of fear and to save himself, he took shelter in a tileshed and another constable also took shelter there. He noticed that the A.C. Port Division was going back. He also speaks about the bleeding injury on the head of the A.C. Port Division Then they reached the crossing of Paharpur and Fathepur Village Road where D.C. Headquarters was present. He says that A.C., Port Division talked to the D.C. Headquarters. P.W. 12 Naba Ranjan Dutta is an armed police constable. He says that from Lalbazar they were sent to Garden Reach area and they went there in a lorry and reached Paharpur Road at about 11/11-15 a.m. and found V.K. Mehta. D.C., Port and A.C., Port present there. His evidence also shows that when they reached the road near the mosque a mob of about 150 persons or so on both sides of the road started throwing bombs and brickbats towards them and then they entered inside the mosque and then some persons were trying to break open the collapsible gate of the mosque and were shouting for driving them out of the mosque. He further says that D.C. and A.C. had some conversation with the Moulabl of the mosque and thereafter they all came out and when they came on the road they were again attacked with brickbats and bombs from both sides on the road. He says that he was also hit on his hand and feet by brickbats. He of course cannot say as to which of his companions had gone in what direction but he noticed that the A.C. and 2/3 armed policemen were going towards the lane through which he had come earlier and he followed them. P.W. 13 Ajit Kr. Malty, a constable of Calcutta Police who was in the police party at the relevant time also speaks about that part of the incident which the other police witnesses have described as discussed above.</p><p style="text-align: justify;">10. P.W. 16 Rama Shankar Singh who is a police constable was the security guard of K.K. Sharma (P.W.7), the A.C.-11 (Port) at the relevant time. He went to the spot with the A.C.-II (P.D.) on the relevant date. He says that they reached Fathepur Village Road and Paharpur crossing at about 11-00 a.m. and found the D.C.. Port. Vinod Kr. Mehta and his body guard, both in police uniform, present there as well as the O.C. Garden Reach P.S. and three police officers of South Port Police Station. He also speaks about the presence of some constables of Garden Reach P-S. and police force there. His evidence shows that the people of that locality were in very agitated mood and the D.C. was trying to pacify them and at that time they heard uproars and sounds of bombs coming from Mathorpara side and then the D.C., Port, his body guard, Mr. Sharma, he (the witness), three police officers, two constables of Garden Reach P.S. and six armed constables, [two carrying muskets, two with gas guns and two with gas granades) proceeded towards Mathorpara under the leadership of D.C., Mehta and on reaching Mathorpara they noticed one deadbody lying on the ground near the house of one idrlsh and then the D.C. told the three police officers to make arrangement for removal of the deadbody in a vehicle and the D.C. also posted two Garden Reach P.S. constables near that deadbody. His further evidence is that they then heard roars coming from Ramnagar Lane side and then D.C. Mehta, his body guard. Mr. Sharma, the witness himself and six armed constables proceeded towards that direction and as soon as they reached Ramnagar Lane from Mathorpara they were attacked from the eastern and the western sides of the Ramnogar Lane with brickbats, bombs etc and in order to save their lives they entered in a mosque situated on Ramnagar Lane and they noticed a mob standing behind the collapsible gate of the mosque and trying to break open the gate. He further says that the mob was shouting and asking the imam of the mosque ot drive them out of the mosque and then the Moulabi asked the D.C. to leave the mosque and then the D.C., Mehta had some talks with Mr. Sharma and thereafter they left the mosque. As soon as they came out of the mosque, he says, they were attacked from both sides of the road with bombs, brickbats etc. He says that he received bleeding-injury on his right leg as he was hit with a splinter of bomb and with a brickbat when he was on Ramnagar Lane. He says that he received bleeding injury on the thigh of his right leg and he fell down on the ground and got up within two minutes. His evidence is that at first he could not see any of his companions but subsequently he noticed that the D.C. Mehta and his body guard were running towards the eastern side and a (SIC)b was chasing them with swords, brickbats and bombs. it is to be noted here that from this witness, namely, the body guard of the A.C.. Sri Sharma we get that on being chased by the armed mob, the D.C., Mehta and his body guard ran towards the eastern side. His evidence is that in order to save him he himself started running towards the western side and reached Paharpur road. His evidence read with the evidence of the police witnesses discussed earlier thus indicates how D.C. Mehta and his body guard at that point of time were separated from the other members of the police party on the face of the attack made by the furious and armed mob, and at that point of time when the other members of the police party retreated towards the western side, the D.C., Mehta and his body guard were running in the other direction, namely, the eastern side on being chased by the mob and thus they became isolated from the other members of the police party. P.W.16 says that when he reached Paharpur Road on running away from the place of the trouble, he found a taxi there and he went to Garden Reach P.S. in that taxi and there he reported the incident to one A.S.I, of the P.S. and from the P.S. he went to Calcutta Police Hospital for treatment and was admitted there and he was in the hospital for 26 days. A significant part of his evidence is that he speaks about the presence of Nannay Kasal and Naso (an appellant) and Puttan in the mob having bombs with them when the police parly was attacked by the mob on Ramnagar lane as soon as they reached there from Mathorpara. He also says that he had seen Nannay Kasal to throw bombs towards them. He further says that at that time he also saw Hallm, Naru, Gorachand and llllas, all asked with brickbats and also idrish Rahaman, Kallu armed with bombs. He further says that he had also seen Kasrln in that mob. He says that he knew them previously. in court he also identifies the accused Naso and certain other accused persons. His evidence is that the mob which was throwing bombs etc towards them and the -mob that chased the D.C. and his body guard as well as the mob that was trying to break open the gate were all in angry mood. The evidence of this witness is thus significant as he testifies to the presence of the accused Naso, an appellant herein, with bomb in his hand in the furicus mob that attacked the police parly. in his cross-examination he says that the distance between the mosque and the Paharpur road along Ramnagar Lane will be five to ten minutes walk and the crossing of Ramnagar Lane and Paharpur Road will be about 5 to 10 minutes walk from the crossing of Fathepur village Road and Paharpur Road. He says that they wereinslde the mosque for about 5/ 6 minutes. He also says that both the D.C. and his body guard were in uniform. From his cross-examination we get that the distance between Ramnagar mosque and the Ramnagar oulpost will be less than a mile. He further says that on that day there was trouble in alomost all parts of that area. His evidence is that on that day there was disturbance between Hindu and Muslims. in his cross-examination during retrial he says that after coming out of the mosque he sustained injury on his right leg from a splinter and he fell down and thereafter he managed to go towards Paharpur Road and he went to the Garden Reach P.S. at about 12-45 p.m. and he narrated before the duty officer how he sustained injury and thereafter taking sick report he went to the police hospital. He further says that excepting the disturbance infront of the mosque he had no occasion to see any other disturbance on that day. He also says that when he was in the hospital for 26 days the Police Officer from Lalbazar vlslled him for interrogation. From him we get that he was posted in Garden Reach P.S. for one year from 1980 to 1981.</p><p style="text-align: justify;">11. P.W. 73 Sewnath Slngh was the O.C. of Garden Reach P.S. on 18.3.84. His evidence is that on that day at about 10-15 a.m. S.I.. O.K. Sikdar of Garden Reach P.S. received a massage from Lalbazar Control Room that a disturbance of communal nature was going on in Falhepur village Road area and that information was recorded in the G.D. of the Garden Reach P.S. and thereafter he along wllh S.I., H.P. Dutla. S.I., O.K. Sikdar left the P.S. with available force. He says that he was in his Jeep and the force was in a police vehicle and they reached the concerned area at about 10-30 a.m. and noticed that two groups of agitated mob numbering about 800 or so were throwing brickbats, bombs etc at each other and then he along with his officer and staff chased the crowd and the crowd melted and entered in the lanes and by-lanes. He says that two buildings were on fire and they tried to put off the fire. His further evidence is that the D.C. Port and some other police officers also arrived there, namely, O.C. iqbalpur P.S., O.C. SPPS, S.i. A. Cope, S.i. S. Gupta, Sergeant S. Banerjee and other police men. He also speaks about the presence of the armed body guard of the D.C. He says that when the D.C. came he had his guard Muktar All with him. The D.C., he says, was in his Khaki uniform and his guard was in white uniform. His evidence is that he showed the D.C. the affected place and the D.C. also chased the crowd. He says that other houses were set on fire and they tried to extinguish the fire with the help of local people and the Fire Brigade also arrived there and at that time on receiving and information that a man had been killed on Paharpur Road, he left for Paharpur Road with one or two constables on foot and on arriving there he found that the people were very much agitated and the dead body of one Subrata Bhattacharjee, whom he knew, was lying infront of the premises No.J-146. Paharpur Road and thereafter he pacified the people and came back to Fathepur village Road to make arrangement for the removal of the deadbody. His evidence is that the T.C. Head-quarters S.K. Dasgupta arrived at Fathepur village Road and at that time A.C. (ii) Port Division K.K. Sharma came there with injury on his head and thereafter he himself along with D.C. Headquarters and force proceeded towards Ramnagar Lane through Azhar Motla Bagan as they had no trace about the D.C. Port and his guard. His evidence is that they were searching for the D.C. and his guard at Ramnagar Lane and adjacent areas and K.K. Sharma, A.C. (ii) Port Division was sent to hospital accompanied by Sergeant J.L. Roy. His further evidence is that when they were continuing the search for D.C. and his bodyguard, they found at about 2-30 p.m. a deadbody which was on fire lit by bomboo pieces and other elements in an open plot in front of Mirza Galllb School and a burnt khankl cloth piece and one metal button were found near that place. He says that the fire was extinguished and the charred body was taken charge of by them and he asked his officer to hold inquest of the charred body and the inquest was held by S.i. S. Moitra. His further evidence is that they continued their search for Mr. Mehta and at about 5-30 p.m. the deadbody of Mr. Mohta was found floating in a kancha drain behind the premises No. F-59 and F-201, Atabag. The deadbody, he says, was floating on its back with legs towards north and head towards south with only under-wear on and the body was smeared wllh mud. He clarifies that by underwear he means under-garment. He also speaks of the presence of a pair of socks on legs and a rolled vest on the body. He says that there were injuries on the deadbody of Mehta, mostly on the face and the right part of the head. The body, he says, was taken out from the drain and S.I. S. Moitra prepared the inquest report of the deadbody of V.K. Mehta in their presence and then the charred body and the body of Mr. Mehta were sent to Calcutta Police Morgue for post-mortem examination. He says that the charred body was the body of Moktar All, the security guard of D.C. His evidence is that after the deadbodles were sent to Calcutta Police Morgue, they returned to Garden Reach P.S. at about 8-05 p.m. He further says that the D.C. Port did not carry any revolver on that day. His evidence is that when the security guards go for duty they carry service revolver and ammunallon. in his cross-examination he says that the charred body had no hands and legs and the head was also missing except the occipital region of the skull. He also says that the open space where the charred body was found is situated at the junction of Ramnagar Lane and Battlkal. He says that Ramnagar Lane runs from east to west and Battlkal runs from north to south and the open space extends up to Mirza Galib School from the junction of those two roads and the school is to the north of that junction. He further says in his cross-examination that from Lalbazar Control Room a massage was received that deadbody was floating in the kancha drain. He says that as the situation was abnormal, he cannot remember everything in details and it is difficult for him to say who detected the floating body first as there were many olflcers together in search of the deadbody. He further says that S.J., S.R. Gangull (P.W.80) was the l.O. of the case at the initial stage and thereafter the case was taken over by the Detective Department, Lalbazar. He says in his cross-examination that the D.C. D.D. Mr. H.A. Safwi also came to Ramnagar area a bit late and he was all through with them and curfew was imposed in that area and some persons were apprehended in that area on 18th and 19th March and were challanged in petty cases but he cannot tell the number of the arrested persons now. He also cannot tell in details whether all the arrested persons were challaned in petty cases or some were released after interrogation. He says that curfew was imposed on 18.3.84 in that area and so far he remembers the curfew was in that area for 10/12 days. He also says that as he did not witness all the incidents so he did not start any FiR suomotu. He says that the open plot where the charred body was found was at the Junction of Ramnagar Lane ?,nd Battlkal. He also says that they had been to Ramnagar Mosque at about 12-30 p.m. on that day and at that time there was no gathering there.</p><p style="text-align: justify;">12. P.W.15 Farha Juvoll is the iman of the Dhankhetibari Masjid where the policeparty took shelter on being attacked by the violent mob. This witness, it seems, was treated as hostile by the prosecution. But even then he testifies to the fact that the police party entered in the mosque and had been there for some time. P.W. 17 Abul Hassan is a resident of G-246 Ramnagar Lane. He says that the Maidan to the north of their house is known as Dhankhetl Maidan. in March, 1984, he was working in the wheat grinding shop of his cousin brother Makbul Ahmed at G-247 Ramnagar Lane. He says that on 18.3.84 as usual he went to the shop for his work at 7 a.m. and at about 9-45/10-00 a.m. while he was working in that shop he heard sounds of bombs coming from Mathorpara side and Fathepur village Road side and he found that people were running here and there and he came to know that riot had started between Hindus and Muslims and being afraid he closed the shop and went home at about 10-30/10-40 a.m. He says that he again heard sounds of bombs coming from Ramnagar Lane Dhankheti mosque side and he also heard uproars and he felt that the uproars and sounds of bombs were moving towards their house and he then opened his window partially and noticed that two policemen were running speedily towards Battlkal side, one policeman being in khaki uniform and the other in white uniform. He noticed one wire-net shield in the hand of that policeman who was in khaki uniform, and that brickbats were being thrown at him and he was blocking the blows with his shield. He further noticed that 20/25 persons were chasing the policeman and were hurling brickbats at him. He says that he could recognise some of thepersons in that mob who were throwing brickbats and chasing those policemen and he names Rahamat, Nanney. Corachand, Halim and Matin as the persons whom he could recognise. He says that the mob chased those policemen towards Batlikal side and he become afraid and closed the window. His evidence thus lends support to the prosecution case as well as the other evidence adduced by the prosecution in that behalf that the D.C. V.K. Mehta and his body guard Moktar All were being chased by a violent mob. He further says that at about 12-30 p.m. he heard sounds and uproars coming from Batukal side and subsequently it appeared to him that the roars were coming from Dhankheti Maidan and he again opened his window partly and noticed that a policeman in white uniform was lying on the ground and about 15/20 persons were there around that body. He further noticed that four persons were chopping the hands and legs of that policeman with chopper like weapons and he could recognise Rahamat and Matin who along with two others were chopping the hands and legs of that policeman. He also could recognise Gorachand and Hallm amongst the persons who were standing near the body of the constable. He noticed that some persons were placing bamboo pieces near that body, and he says that being afraid he closed the window. His further evidence Is that at aboul 7/8 p.m. In that night he came to know that D.C. Port had been murdered and his body guard was also murdered and his body was burnt down. He restifies that by the dress of that body he could recognise that he was a police sepoy. His evidence thus lends support to the prosecution case that the body of Moktar Ali, the body guard of D.C. Mehta was dismembered by cutting its limbs and was burnt by fire by the miscreants, and he also could identify some of the miscreants named by him. In his cross-examination he says that curfew was imposed in that area in the afternoon of 18.3.84. He further saus that his father was arrested by police at about 4/4-30 p.m. on 19.3.84 from the crossing of Barttikal and Ramnagar Lane and his father returned in that night at about 7-30/8-00 p.m. He says that In their locality the number of muslims is more than that of the Hindus. He denies the defence suggestion that his father was released by the police on the understanding that he would give evidence on behalf of the prosecution as tutored by the police. P.W. 18. Makbul Ahmed is a resident of premises No. 247 Ramnagar Lane. He testifies to the fact that on 18th March, there was huge mob and people were running here and there at about 10/10-10a.m. He was however treated as hostile by the prosecution. He says that on that day he. Mansoor, TaJ All and 30 others were arrested by police and taken to Garden Reach P.S. and they were released at about 11-00 p.m. P.W.19, Khalil Khan was resident of G-230, Batlikal at the relevant time as a tenant. He Is a police constable who was posted at Lalbazar Headquarters, R.C. Office In March, 1984. From his evidence we get that P.W.21 Abdul Latif Khan is his cousin brother and P.W.24 Hadis Khan Is the son of the said Abdul Latif Khan and that In March, 1984 Hadis was residing at G-222 Batlikal. It may be mentioned here that Abdul Latlf Khan is also a police constable. P.W.19, Khalil Khan says that in March. 1984 Hadis Khan had no employment and he used to keep 2/3 cows and sell milk. He says that the uniform of Calcutta Police constable is white shirt and white pant and also they used buttons on their shirt which were made of brass. He also testifies that the emblom 'C.P.' is also made of brass. He knows Moktar All. He says that 18.3.84 was a holiday and he was In his house and at about 10/10-30 a.m. he heard a huge row coming from Fathepur village Road side and he also heard a row coming from Battikal side and he came out of his house and stood on the road very close to his house and while he was standing near the corner of the house of Kayum which is 228/2 Battikal, he saw that D.C. Mehta and his body guard constable Moktar All were being chased by a mob from the southern side to the northern side and they were throwing brickbats at those two police persons and were shouting 'maro, maro police lokko maro'. He says that the mob and those two police persons were 30/40 yards away from the place where he was standing, He testifies to the fact that the D.C. was in a khaki uniform and Moktar was in white uniform. He says that the house of Nalmmullah Is opposite to his house at a distance of 30/35 yards, the number of that house being G-228/3 Battikal. He saw that the security guard Moktar All entered in the house of Nalmmullah and 30/40 persons were chasing Moktar Ali. He says that he Intervened and stated to them not to assault the police otherwise they would feel the consequence. He says that in the mob some were carrying choppers and some were carrying swords. He also says that he was dashed down by the mob on the ground. He could recognise Gorachand. Sagir, Rahamat, Halim, Wahob and Kallu amongst the persons who were chasing the police constable Moktar Ali. He says that he was dashed down by Rahamat, and Kallu was with Rahamat at that time and that being afraid he then went Inside his house. His further evidence is that 20/25 minutes thereafter his brother's son Hadls (P.W.24) came to his house and reported that Naso and his associates had assaulted the D.C. very serious by in the house of Hadls, and that Hadis also stated that a sepoy was also being assaulted by Rahamat and Kallu on the road. Hadls, he says, was very much purturbed and he was trembling and Hadls told that he was leaving for his father-in-law's house. P.W. 19 Khalil says that he also became afraid apprehending attack on him and the members of his family as he was a police constable and so he along with his family members went to Ramnagar Police Camp. In his cross-examination he says that on that day at about 8-30/9-00 p.m. he went to Garden Reach P.S. after leaving the members of his family at Ramnagar Police Camp and made a statement to the police officer about the Incident seen by him. He says that he made the statement to the duty officer who recorded it in english. He says that his two brothers are also working as Calcutta Police constables and his cousin brother Latif (P.W.21) is also a constable of Calcutta Police. He further says that on that day latif Khan had duty. He says that his office was closed on that day being a Sunday and that the R.O. office remains closed on Sunday and other holidays. He says that he reached Ramnagar Police Camp with his family members at about 2/2-30 p.m. after locking his house. His evidence in cross-examination is that as soon as he came out of his house hearing the row he noticed that D.C. and Moktar crossed him from southern side to northern side speedily. He denies the defence suggestion that his brother's son Aktar was arrested by police and was made an accused but subsequently he was let off and in his place another Aktar was made accused. He however does not remember whether Hadls was arrested by the police. He also denies the defence suggestion that as he is a police constable so he is deposing falsely on being pressurised by hissuperior officers. He says that from Garden Reach P.S. he returned to Ramnagar Camp and stayed there with hts family for the night and in the next morning he returned home at about 8-00 a.m. Hadls, he says, came to his house at about 12/12-30 p.m., and reported to him what he had seen. He denies the defence suggestion that his relations were taken in custody by the police and when he and Latif asked the police officers to release them, they told that they would be released provided they would give evidence. in his cross-examination at the retrial he says that his statement was recorded by the police at the P.S. at about 8/8-30 p.m. on the date of the Incident.</p><p style="text-align: justify;">13. P.W.20 Akil Ahmed is a resident of G-223 Battlkal. He, it seems, was however treated as a hostile witness by the prosecution. From his examination-in-chief we however get that Latif Khan (P.W.21) and P.W.24 Hadls Khan (son of P.W.21) reside in the tileshed house which is adjacent to the house of this witness (P.W.20). We get it from P.W.21 and P.W.24 that the premises in which they reside is G-222 Battikal Second Lane. It is also to be mentioned here that according to the prosecution the incident of assault on D.C. Mehta took place in the said premises No. G-222. Battlkal Second Lane. P.W.20, Akil Ahmed says in his cross-examination that Hadis Khan (P.W.24) used to keep cows and sell milk and he used to keep cows in the courtyard. The prosecution expected this witness to give positive evidence about attack on two police persons but he belled that expectlon. From his examination-in-chief it however appears that their house is a two storied building and one can see the rooms of the tileshed (where Latif Khan and his son Hadls used to reside) from his house (the house of P.W.20) on leaning. However, what the prosecution inter alia suggested to this witness is that he stated to the I.O. during investigation that he found that some minor boys were pouring water In the room where D.C. entered and also on the courtyard, which however he disowns to have made. By this suggestion the prosecution possibly wanted to project a case that blood which had fallen there as a result of assault on D.C. Mehta was washed away with water. P.W.20 wants to say that on the date of the indicent he was not in his house and therefore he did not see anything. In his cross-examination on behalf of the defence he says that he returned home on 19.3.84 and on that day police had arrested Abut Hossain, Sallm and many others. He however, did not see Hadls Khan on 19.3.84. The evidence of this hostile witness thus shows that on 19.3.84 many pesons were arrested or picked up by the police. We will find from the evidence of P.W.24. Hadls Khan that he was also picked up by the police on 19.3.84 which we will discuss later. P.W.20 says in cross-examination that on 19.3.84 he stayed in the house for 2/3 hours and thereafter fled away from that area and went to his sister's house and stayed there for some days. The evidence of this hostile witness P.W.20, we find, lends support to the prosecution case that Latlf and his son Hadls were his neighbours at the relevant time and Hadls used to maintain cows and sell milk and that on 19.3.84 police arrested many persons of that locality.</p><p style="text-align: justify;">14. P.W.21 Abdul Latlf Khan was residing with his family at G-222 Baltikal Second Lane as a tenant at the relevant time and Hadis Khan (P.W.24) is his son. He says that In March, 1984 Hadls used to keep cows and sell milk and that he used to keep his cows in the said premises. Hisevidence is that on 18.3.84 which was the 'holiday' he had stand-by duty to be performed from 12 noon to 8-00 p.m. at P.T.S. Barrack and that at about 12 noon he got the information that a riot had started between the Hindus and Muslims in their area and he then started for his house from P.T.S. Barrack In order to see the members of his family. He says that at about 12-30/12-45 p.m. he reached Battlkal Second Lane and when he advanced ten steps or so he found that 6/7 persons were standing ahead of him and amongst them he could recognise Naso (an appellant), Puttan. Samsad and Abbas who were all armed. He says that some of them had swords, some had choppers, some had Napalas etc and they were standing by the side of kancha drain in Battikal Second Lane. According to his evidence the house of Dr. Hikmat All Mondal was situated near that place and he also noticed that one deadbody was lying by the side of that kancha drain but not inside the drain. He says that he knew those persons named by him as they were his neighbours. He also idenlified the accused Naso in court. He says that those persons were standing very close to that deadbody and that Naso was standing two cubits away from that deadbody which was at a distance of about 30/35 yeards from the place where he (the witness) was standing. He says that so far as he could see, blood was coming from head and the deadbody was smeared with blood. According to his evidence he stopped there and thought that it would not be proper for him to advance further and he became alarmed and then returning back he entered In the premises No. G-350 where his father was residing with his step-mother and he learnt from his father that there was trouble in Battlkal area and his wife and other members of the family had left that area and that he then went to his brother's house at Alif Nagar and came to know that his wife and sons and daughters had not come there and he then went to Kazlpara in the house of the father-in-law of his son. Md. Hadis and there he met Hadls and the other members of the family. Then he says that his son Hadls reported to him that a mob had chased D.C. Port and the D.C., Port took shelter Inside their house and then Naso, Puttan Samsad and some other persons started assaulting D.C. and that Hadis also reported to him that he had seen some miscreants assaulting one constable in front of the house of Naimullah. He testifies to the fact that at that time Mr. Mehta was the D.C., Port. His evidence is that thereafter from Kazipara he went to Garden Reach P.S. at about 8-00 p.m. and at that time there were many police officers who were very busy and at about 9-30 p.m. he could state to a police officer about the Incident seen by him and also heard by him from his son, and his statement was recorded. He also says that he found his brother Md. Khalil (P.W. 19) in the P.S. and his statement was also recorded by the police officer. He further says that at the P.S. he learnt that the deadbody of D.C. was recovered from the place where he had seen the deadbody of a person as stated by him and lhat the deadbody of police constable Moktar was recovered from Dhankheti Maidan. He says that he is residing at G-222 Battikal Second Lane for the last 25/28 years. In his cross-examination he also gives the names of certain other tenents who were living at G-222 Ballikal Second Lane with family. He says that the accused Naso at that time used to reside occasionally in the house of one Nazi Saheb in Battikal Second Lane and occasionally in the house near Match factory by the river side. In his cross-examination he says that he had seen 6/7persons including the persons named by him by the side of the Kancha drain and he became afraid when he saw those persons and he stood there for one minute when he saw those persons but none of them approached him. He specifically says that he became panicky as soon as he noticed the deadbody and those persons and he stood ther for one minute. Dr. Molla. he says, is known as Dr. Hlkmat All Mondal. He says that he was very much unnerved on seeing the deadbody all on a sudden. In his cross-examination he says that he reached Garden Reach P.S. at 8-00 p.m. and after his statement and the statement of his cousing brother Md. Khalil (P.W.19) were recorded, they left Garden Reach P.S. at 10-00 p.m. and he went to P.T.S. and his brother went to Ramnagar Camp. Khalll, he says, is also a Police constable of Calcutta Police. He says that when he reached Garden Reach P.S. he found many senior police officers Including Commissioner of Police and Jt. Commissioner of Police etc. present there. He says they he stated that he had seen something and heard something but no police officer was listening to him and so he could not report as soon as he reached the P.S. and finally he could make statement to the police officer at 9-30 p.m. and it was recorded In English and read over and explained to him. Much has been criticised by the learned Advocate for the appellants that according to this witness he reached Garden Reach P.S. at about 8-00 p.m. but his statement was not recorded by the police till 19-30 p.m. although this witness claims to have seen and heard about some very important facts specifically Involving some accused persons and this, according to the learned Advocate for the appellants, shows that the evidence of this police constables P.W.21 and of other concerned witnesses is the product of concoction and subsequent manupulatlon at the Instance of police. On the other hand, it is submitted by the learned Special Public Prosecutor representing the State that after such a shocking and gruesome Incident resulting In the death of a very senior police officer like Dy. Commissioner and also his constable guard, it was only natural that there would be many top police officers at the concerned P.S., namely. Garden Reach P.S. to take stock of the situation and also to take necessary follow up measures demanded by the situation and in such a state of affairs, it is quite possible that a police person of the rank of a constable like P.W.21 or P.W. 19 could not succeed readily in contacting the proper officer who would Immediately attend to his statements. Having regard to the facts and circumstances we also do not think that In a situation like this there was really any Improbability that the statement of these witnesses were recorded at about 9-30 P.M. at the P.S. although they went there at about 8-00 p.m. In his cross-examination during retrial, he says that uptil now he cannot say, whose deadbody It was, which he saw on that date. We may note here that if the evidence of this witness was really a product of concoction he would have possibly satd that the deadbody which he saw was recognised by him as the deadbody of D.C. Mehta. But he did not say so. He indeed knew D.C. Mehta, as he says but it is nothing unnatural that at that point of time when he suddenly saw the deadbody from a distance of 30/35 yards in the presence of some armed persons and the deadbody was smeared with blood, he did not naturally bother to engage himself In minute observation for detecting the identity of the deadbody, and Instead he left the place being naturally panicky but he was, as we have seen, very specific about the presence of certain armed miscreants named by him Including the appellant Naso.</p><p style="text-align: justify;">15. We now proceed to discuss the evidence of the next vital witness P.W.24, Hadis Khan, the son of P.W.21 Abdul Latif. He says that they reside at G-222 Battikal Second Lane as tenant and in March, 1984 he used to sell cow milk and had four cows and he used to keep two cows in their house and two in another place. He says that he himself and Mustafa, his helper (P.W.26) used to look after the Cows. His evidence is that on 18.3.84, sometime In the morning he came to know that a not between the Hindus and Muslims had started and that at about 11-30/11-40 a.m. again he heard sounds of bombs coming from Ramnagar Lane side when he was in his courtyard and his mother and Mustafa were in the house, but his father had gone for his duty. He next says that at about 12 noon he heard a huge row coming from Southern side when he was in his courtyard and on hearing the same he came out along with Mustafa from his house and stood on the road and notice that many persons were chasing two policemen towards South and one policeman was In a white uniform and the other was in Khaki uniform and the policeman in while uniform entered in the house of Naimullah and some persons also entered that house and those persons were hurling brickbats. His evidence is that the house of Naimullah was at a distance of 50/60 yards from the place where he was standing. He however could not recognise any of the persons who were hurling brickbats and chasing that policeman in white uniform and entered in the house of Naimullah. But his specific evidence is that the other policeman in khaki dress was being chased by the mob and when that policeman came near him he entered in the courtyard of his house and that policeman too entered in that courtyard and the policeman told him that he was D.C. Port and then on his pointing out the D.C. entered into the bathroom (Gasalkhana). The Gasolkhana, he says, was 9/10 cubits away from the place where he was standing and that simultaneously Idris and some other persons armed with brickbats etc. entered Into the courtyard and they were throwing brickbats aiming at the bathroom and simultaneously Naso (an appellant). Puttan, Samsad, Abbas, Mukim entered in the courtyard. He says that Naso had a rod in his hand and others had swords, nepala etc in their hands. He says that he knew those persons from before. The D.C., he says, became frightened on seeing those persons and requested them not to assault him after disclosing his identity as the D.C. of Police but some of those persons replied that they did not know D.C. and then ordered 'maro' and then Naso, Puttan, Samsad, Ahmed, Mukim and some others entered instde the bathroom and then Naso gave a rod-blow on the helmet of D.C. and there was dashing and pushing and the helmet fell down and Naso again assaulted D.C. with the rod on his head. P.W.24, Hadis says that then he came out from the courtyard and went out of the house and some people were throwing brickbats on the tiles of their roof but he cannot tell their names. He says that he then proceeded towards his uncle Khalll Khan's house but on his way when he came near the house of Naimullah he noticed that a pojiceman In white uniform was being assaulted on the road by Gorachand and some other persons and then he entered Inside the house of his uncle and reported the entire Incident to his uncle (meaning P.W.19) and he also reported that he was not going to stay and was going to his father-in-law's place and then he went to his father-in-law's place at Kazlpara at Howrah along with his mother. He says that after sometime hisfather Abdul Latif (P.W.21) came to his father-in-law's place and he reported the entire Incident to his father. He says that his father said that he would be staying in the P.T.S. barrack. He says that he used to keep two cows out of four cows near the power house gate commonly known as 28 number. In his cross-examination he says that he left for his father-in-law's place from his house at 12-30/1-00 p.m. and reached his father-in-law's house at about 2-00/2-30 p.m. His evidence Is that his wife and children had gone to his father-in-law's house on 15.3.84. He says that he and his mother returned home on 19.3.84 at about 6-30/7-00 a.m. from his father-in-law's place and he noticed that many police persons were roaming In their locality. He says that he was examined by the I.O. on 20.3.84 In their house. He further says that on 19.3.94 at about 12-00 noon police arrested him and placed in the van and the van patrolled in their locality and then at about 6-30/7-00 p.m. he was taken to Garden Reach P.S. and many people of their locality were also brought to Garden Reach P.S. on that day. He further says that he was released by the police in that night at about 9/10 p.m. and they were kept in the lock-up of Garden Reach P.S. from 7-00 p.m. till they were released. Much has been criticised by the learned Advocate for the appellants that when the police from the statements of P.W. 19 & P.W.21 could come to know In the very evening of the 18th March that Hadis had seen a vital part of the occurrence and also had named some of the culprits to them, there was no reason why his statement should have been recorded as late as on 20.3.84 in his house inspite of the fact that he was in the custody of police in police van and P.S. Hazat for quite a long time upto about 9-00/10-00 p.m. on the 19th March. This, according to the learned Advocate for the appellants, Indicates thai the prosecution case that Hadls saw a vital part of the incident is a concocted story. We are however not convinced by this submission. The enormity of the Incident, the involvement of a large number of persons and the complexities Inherently Involved In an Investigation of a case of this nature as well as the change of investigating officer on 19th March are indeed some of the factors which have to be taken Into consideration in this context. And that being so, we do not think that there really exists any reason to doubt the veracity of the evidence of this witness Hadls (PW.24). P.W.24, Hadls says in his cross-examination that the bathroom is used by the female inmates of the house and that the size of the bathroom would be about 8 cubits X 8 cubits. He says that the latrine is not inside that bathroom. He further says that the D.C. was Inside the bathroom when he came out from their house. Hefurther says that he came out from their house 6/7 minutes after the D.C. had entered In their courtyard. He also says that when he came out of his house the D.C. was being assaulted and he noticed about 50/60 persons on the road in front of their house. He however does not remember whether he had seen blood coming out from the head of D.C. when he was assaulted on the head by the iron road. His evidence is however clear that the D.C. was assaulted on his head by Iron rod. He denies the defence suggestion that Naso did not give blow with iron rod on the head of D.C. He makes it specific that the bathroom is used for washing hand and feet by the femalefolk of the premises before 'oozu' He says lhat there are no door and walls of that bathroom. Much has been commented upon by the learned Advocate for the appellants as to whether a bathroomof that size could have accommodated so many assailants who are said to have assaulted the D.C. at the relevant time. In this connection we may mention that P. W.2, Ashoke Kr. Bhattacharjee, S.I. of police and official plan maker has given the area of the Gosulkhana (bathroom) as 5m.x4m. Since the Gosulkhana has no walls as we find it from P.W. 24 Hadis, we do not think that there is any improbability in sustaining of assaults by D.C. there from the assallents who chased and cornered him there. He (P.W.24) denies the defence suggestion that he has been tutored by police to give false evidence because his father and uncle are working as police constables. In his further cross-examination during retrial in February, 1932 he however says that his statement was recorded by the police while he was in police lock-up. This, it is submitted on behalf of the appellants, is not insistent with the prosecution case inasmuch as it is the prosecution case that his statement was recorded on 20.3.84 as earlier stated by the witness. He also says in his such further cross-examination that his father went to the P.S. for his release and he talked to his father before release from the P.S. lockup. But he says that at that time his statement was not recorded by the police. This, therefore, lends support to the fact that his slatement was recorded not on 19th but on 20th. He says that his statement was recorded, as he remembers, after his. talk with his father. In his such further cross-examination at the retrial he says that he returned from Kazlpara to his Garden Reach residence three days after the Incident. It should be remembered that he was facing further cross-examination at the retrial In February, 1992. about eight years after the Incident and therefore some minor inconsistencies and confusion in the deposition at such distance of time cannot be ruled out. Whatever may be the confused statement of P.W.24 Hadls eight years after the incident at the time of further cross-examination at the retrial, it may be noted here that even the hostile witness P.W.22 Brion Merces who is the brother-in-law of the appellant Naso testifies to the fact that police arrested him on 19.3.84 and Hadls, Mustafa, and Alamgir also were arrested by the police. Such statement of this hostile witness therefore lends support to the prosecution case that Hadis was arrested from his house on 19th March, at noon after he returned from Kazlpara on that day in the morning, and this fact does not get obliterated by any statement of Hadis which he might have made In a confused state of memory in course of his further cross-examination eight years after the Incident.</p><p style="text-align: justify;">16. P.W.22 Brlon Merces is a resident of C-85, Battlkal. Their balcony faces Battlkal Second Lane. From him we get that the appellant Naso Is his sister's husband. He was however treated as a hostile witness by the prosecution. He says in his examinatlon-in-chief that on 18th March. 1984, which was a Sunday, at about 10-00 a.m. he heard from the people that a not between Hindus and Muslims had started and at about 12 noon they heard great row and then he and his parents came to their balcony. He says that the Hindus and the Muslims were fighting and quarrelling and the Muslims started running shouting, that the Hindus had come to their locality, and that being frightened they (witness and his parents) all came Inside their room and closed the door. His evidence shows that some children and women had taken shelter Inside their house and they were saying that policemen had died. He saw nothing else. As we have alreadynoted, in his cross-examination he says that he was arrested by police on 19.3.84 and Hadis, Mustafa and Alamgir were also arrested by police. P.W.23 Narman Merces is the father of P.W.22 Brion Merces. He was also treated as a hostile witness by the prosecution. In his examination-in-chtef he says that on 18th March, 1984-which was a holiday, at about 10-00 a.m. they heard from the people of their locality that a trouble had broken out at Fathepur and they also heard some sounds of bombs and learnt that a riot had started between Hindus and Muslims. He says that then at about 12 noon he, his wife and his son came out of the room and stood on the balcony and noticed a huge mob on Battlkal Second Lane which was at a distance of 60 to 80 ft. from the balcony. He also speaks about throwing of breakbats. He says that he then came Inside the room and locked the door from Inside and after half an hour the area became very quiet. The accused Naso, he says is his son-in-law. P.W.25 Sakll Ahmed is the brother of P.W.20 Akil Ahmed and a resident of G-223 Batllkal Second Lane. He was however treated as a hostile witness by the prosecution. In his cross-examination on behalf of the defence he says that G-222 Battlkal Is to the north of his house where Latif constable (P.W.21) resides and he knows Hadls, the son of Latif constable. He says that he occasionally goes to G-222 Battlkal to Hadls for bringing cow milk. In his further cross-examination at the time of retrial he says that Aki-ka-Kurbani can be performed on any day of the year and after performance of this Kurbani a marking by palm with the blood of the sacrifice is given on the outer wall of the residence or on the outer door and some times this marking is also given in interior wall or door. This has been possibly taken in cross-examination to explain away blood marks. P.W.S 27, 28, 29, 34, 35, 36, 37 & 48 were all treated as hostile witnesses by the prosecution.</p><p style="text-align: justify;">17. P.W.14 Mansoor Ali is a resident of C-247 Ramnagar Lane and he is the owner of the ration shop situated on the ground floor of the same premises. His evidence is that on 18.3.84 at about 10-00/10-30 a.m. while he was in his house he heard sounds of bombs and he opened the windows and noticed that people were running hither and thither. These people, he says, were 200 yards away from his building, and he gives the number of the people as 150 or so. He says that he came down the stairs and closed the ration shop and again went up along with his brother. He says that he noticed that 3/4 police constable came out of the mosque and that many people went to the western side of the mosque and some people went to the eastern side and those people were running probably out of fear as police had come. He also speaks about throwing of brickbats upon the police party. He says that the police were in the middle part and on both sides there were mobs. He also heard sounds of firing and he closed the window and went inside the room. His evidence shows that after some time he heard row near his house and also sounds coming from the northern side of the mosque. They went to the roof of their house and noticed that a constable in white uniform was lying with his face and chest on the ground and many people were standing surrounding the constable and amongst those persons he could recognise Rahamat, Gorachand, Idris, Haltm, Nanney Kosal, Wahab, Saglr and Matil. He says that It appeared to him that the constable who was lying on the ground was dead. He further says that thereafter the mob burnt the deadbody of the constable with split bamboos. He also namesRahamat, Gorachand, Idris, Wahab, Halim and Nanney Kosai as some of the persons who were burning the deadbody of the constable. He says that after burning the deadbody of the constable all the miscreants fled away from the place and police came at about 3-00 p.m. He also says that the police had seized one button with ring, piece of burnt cloth, etc under a seizure list which was signed by him (Ext. 5/1). He says that the mob was armed with brickbats when they were throwing brickbats at the police party. He further says that he was in his house when police came at 3-00 p.m. and called him. He also says that the body of the constable which was lying on the open space was at a distance of forty yards from his residence. He further says that he noticed that Rahamat. Matil and 2/3 others whom he could not recognise were cutting the hands and legs of that constable with choppers. In his cross-examination he says that as the incident occurred long ago, he does not remember everything vividly but he remembers that Idris and Nanney Kosai were hurling bombs at the police.</p><p style="text-align: justify;">18. P.W.49 Haridas Mollra is the Senior Scientific Officer-curn-Asslt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He says that on 22.3.84 as per the direction of D.C.. D.D., Calcutta, he visited Ramnagar area with his colleague P.K. Sengupta. Sr. Scientific Officer. He says that he visited the place which is an open field near a school building and he collected from the debris some partly burnt pieces of cloths, some metallic buttons with rings and one ring. He says that he asked the Investigating officer who was with them to collect those articles, and those articles were seized by the I.O. and a seizure list was prepared In his presence and he signed the seizure list. He Identifies his signature, Ext. 12/1. It has been criticised on behalf of the appellants that those articles were seized only on 22.3.84 when the Scientific Officer of the Forensic Science Laboratory went there with the I.O., but the police could not seize those articles earlier although the police had been to all those places in the meantime after the date of occurrence. In our opinion, this Is inconsequential in view of the totality of the facts, circumstances and evidence on record. P.W.78, Prasanta Kr. Sengupta is the other Senior Scientific Offlcer-cum-Asstt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He examined in his laboratory certain articles which were sent to him for examination and he submitted his report which is Ext. 29. In his cross-examination at the retrial he says that he accompanied the expert. P.W.49 Haridas Moitra to Garden Reach, that Is, the place of occurrence In connection with this case and from that area they came back together. P.W.69 Pradip Shankar Chakraborly was an S.I. of police in March, 1984. attached to Homicides Squad. Detective Department. Lalbazar. He says that on 22.3.84 as per the direction of S.I. S.K. Bhattacharjee. the I.O., he accompanied him to Forensic Science Laboratory to bring the experts and they reached the laboratory at about 10-30 a.m. He says that after giving some directions the I.O. left and he (the witness) brought Sri H. Moitra (P.W.49). Expert to Garden Reach area and showed him the place where constable Moktar All was burnt and the murders of V.K. Mehta and his body guard were committed. He says that the expert examined the premises No. G-222 Battikal including the Gusalkhana and from there they went to the open place known as Dhanketl Maldan. The learned Advocate for theappellants submits that the expert (P.W.49) does not say that he went to the premises No. G. 222 Battikal and Gusalkhana there which this witness (P.W.69) wants to say. In our opinion, this is inconsequential because it is not necessary that every witness must state everything in details. P.W.69 says that the expert could trace out one metalic ring, some burnt clothes with two metallic buttons with rings attached to burnt clothes from Dhankheti Maidan. He (witness) seized those articles. He says that on 22.3.84 at 14-10 hours as per order of O.C., Homicide squad, he accompanied S.I., S. Bhattacharjee along with O.C., Homicide squad and other officers and men and accused Sk. Nanney in custody with two Doms, Narayan (P.W.41) and Bindeswari (P.W.40) and arrived at Garden Reach and on being led by the accused Nanney they went near a Kancha drain which was flowing in between premises No. G-13 Batttkal and F-55 Atabag Basti and also near premises No. G-222 Battikal. He says that the accused Nanney showed the spot inside the kancha drain having muddy water and stated that he and others dropped Incriminating articles there, about which he had made statement to the S.I. S. Bhattacharjee at that spot. He further says that being instructed by S.I. S. Bhattacharjee and O.C. Homicide Squad the accused got down inside the waist deep kancha nala and those two Doms also entered in the drain to assit the accused, If necessary, his evidence is that the accused (Nanney) then himself brought out from the said nala the following articles namely (1) one Dhal (shield) used by police, (2) one helmet, the front portion of which was partially dented and broken, with some hairs sticking inside the helmet. (3) one brown coloured leather belt having a nickel metal plate fitted with Inscription I.P.S. on it. (4) one black leather belt fitted with metallic emblam 'Calcutta Police', (5) one big sword about 30' in length, (6) piece of cloth partly torn and fitted with button, (7) one small sword about 20' length and (8) one brown coloured chappal of the right foot. P.W.69 further says that he seized those articles in presence of witnesses. He identifies Exl. 8 as that selzer list. He further says that thereafter he along with S.I. D.K. Dasgupta, as per instruction of I.O. and O.C. Homicide Squad, went to G-77 Batlikal which was a club room of Battikal Young Boys Committee and on search In presence of the witnesses certain articles were recovered and seized from that club room, namely, one pointed Iron red measuring about 29' In length including wooden handle, one bhojall, one book ofletter head pad and seized all those articles under the seizure list Ext. 17. He also says that he made certain other seizures from the road between premises Nos. G-227 & G-222, such as, Khaki coloured buttons and partly burnt pieces of cloths. Ext. 18 is the relevant seizure list. He also says that on that day between 5-30 and 5-40 p.m. he seized one wooden piri measuring about 15' X 8' having stains of blood from Inside the premises No. G-222 Battikal. The pirl, he says, was lying near the entrance door of the room situated at the north-east corner of that premises. Ext. 19 is the concerned seizure list. In his further cross-examination at the retrial he says that they arrived at premises No. G-222 Battikal at 15 hours on 22.3.84 and they stayed there for about 15 minutes and it was his first visit. He further says that F.S. Expert was with them up to 4-35 p.m. on that day. He says that the expert was with him while he was Inside premises No. G-222. It will thus appear lhat the expert was not with this police officer when he seized the wooden piri at G-222 Battikabetween 5-30--5-40 p.m. It may be noted here that the evidence of the P.W.s 40 & 41, the Doms, also corborate the evidence of P.W.69. P.S. Chakraborty, S.I. of police regarding the recovery of Incriminating articles from the drain by the concerned accused.</p><p style="text-align: justify;">19. P.W.64 Haripada Dutta is S.I. of police who was attached to Garden Reach P.S. in March, 1984. His evidence is that on 19.3.84 as per direction of the O.C.. Garden Reach P.S. he had been to premises No. G-229A Batllkal and took scrapplngs of dried up blood with few hairs from the door leaf of that premises, etc between 3-35 p.m. and 3-55 p.m. In presence of witnesses and prepared the seizure list, Ext. 10. in his cross-examination he says that FIR of Garden Reach Case No. 45. dated 18.3.84 Ext. A was written and signed by him. That FIR relates to the Incident that occurred in Fatepur Village Road and Mathorpara and Balsnabpara. He says that he took up the investigation initially of that case. That was a different case. The present appeal relates to the P.S. Case No. 46 dated 18.3.84. P.W.68 Sibaprasanna Dutta was posted as S.I. of police in Port Division in March, 1984. He had arrested Sanda Akatar @ Aktar Alam who was an accused in the Garden Reach P.S. Case No. 46 dated 18.3.84. He says that he arrested him on 20.7.84 at about 7-30 p.m. at the fly-over of Sealdah. P.W.70 Sudhlsh Ranjan Nag is S.I. of police who was attached to docolly and robbery squad D.D., Lalbazar. He says that on 19.3.84 the D.C., D.D. told him and S.I. U.S. Lahiri that the murder case of Mehta had been taken up by the Homicide Squad and S.I. S.K. Bhattacharjee was the I.O. of that case. and directed them to asslt him in apprehending the accused of that case and that the D.C. further told that he had Information that some of the accused persons namely, Sk. Nanney, Gorachand, Md. Halim, Sk. Nuru and Wahabuddln might be available at Surinam Jetty and asked them to keep watch over that place and to arrest the said accused persons. If possible. His evidence is that at about 6-20 p.m. they arrested those accused persons and took them to Garden Reach P.S. where D.C./D.D. and other officers were present and they placed the accused persons before them and I.O. took charge of those accused persons. He says that on being directed by D.C. D.D. to search for the other accused persons at Batllkal, Chlrlamore, Ramnagar and Mathorpara Complex, he. U.S. Lahiri and force had been to those places in search of the miscreants but none could be arrested and they returned to Lalbazar at about 10-10 p.m. and made over the supplementary caase diary to the i.O. S.K. Bhattacharjee, He further says that they had also arrested Md. Idris and Sakil Ahmed. In his cross-examination, he says that Idris was arrested from Gaya on 27.3.84. P.W.71 Samir Kr. Moltra was attached to Garden Reach P.S. as S.I. of police In March. 1984. He accompanied the Commissioner of Police in Ramnagar area on 18.3.84 In connection with the murder of D.C. Mehta and his body guard. Between 4-00 p.m. and 5-00 p.m. on that day he seized certain articles such as pieces of partly burnt bamboos, pieces of charred bone-like substance, pieces of charred cloth, burnt metallic button fitted with ring, belt, two swords etc from an open field in front of premises No. G.-100/1, Ramnagar Lane, also know as Dhanketl. The seizure list prepared by him is Ext. 5. He had also held the inquest of the deadbodles of V.K. Mehta and the body guard Moktar Ali and prepared inquest reports. In the inquest report relating to the dead-body of B.K. Mehta it is noted that the deadbody of Mehta was lying in front of premises No. G-221, Dhanketl. The witness however saysthat it was premises No G-221, Battikal and it was wrongly mentioned as G-221, Dhanketi in the inquest report. In his cross-examination he says that he had detected this mistake in court at the time of giving evidence. It seems to be a case of bona fide accidental mistake.</p><p style="text-align: justify;">20. P.W.80 Santi Ranjan Ganguli was attached to Garden Reach P.S. on 18.3.84 as S.I. of police. The FIR of this case was drawn up by him. His evidence Is that the fromal FIR was drawn up at 8-05 p.m. at Garden Reach P.S. on the basis of Statement of K.K. Sharma, Asstt. Commissioner of Police, Port Division. He says that the statement of Sri Sharma was also recorded by him as per the order of the O.C. of Garden Reach P.S. He also took up the investigation of the case under the order of the O.C., Garden Reach P.S. on that date at 8-05 p.m. He says that he then recorded the statements of the two witnesses namely Abdul Latif Khan (P.W.21) & Md. Khali Khan (P.W.19) under section 161 Cr.PC at Garden Reach P.S. and then at 11-00 p.m. he had been to Mathorpara, Rnmnagar Lane etc of the affected areas of Garden Reach with force and after contacting sources there he returned to the P.S. at 11-50 p.m. He says that on 19.3.84 at 6-40 p.m. he had shown formal arrest of four accused persons, namely Nanney Kosal, Gorachand, Halim and Nuru who were arrested by the police officers of the Detective Department. He further says that on 18.3.84 after returning to the P.S. from the affected area he prepared respective requisitions for postmortem examination of V.K. Mehta and his security guard. Moktar Ali and on 19.3.84 at 10-00 a.m. he sent those requisitions to the Prof. of Forensic and State Medicine and on that day at 7-40 p.m. he handed over the case diary to S.I. S.K. Bhattacharjee of Homicide Squad who had taken up the investigation and he also handed all other connected documents under the orders of his O.C. and the D.C.D.D. at Garden Reach P.S. In his cross-examination he says that on 18.3.84 he was in Garden Reach P.S. after mid-day and that he had also seen the G.D. Entry regarding the disturbances at Fatepur Village Road. He says that on that night i.e. on 18.3.84 another case being Garden Reach P.S. Case No. 45 dated 18.3.84 was also recorded and that FIR was recorded by S.I. H.P. Dutta(P.W.64). In his cross-examination he says that going to the locale he questioned some persons, but did not record their statements under section 161 Cr.PC and that he had tried to collect the names of the assailants but could not succeed to obtain the same from those persons. Much has been criticised by the learned Advocate for the appellants that if really the first I.O. (P.W.80) had recorded the statements of the constables P.W.19 Khalll Khan and P.W.21 Abdul Latif Khan on 18.3.84, he must have obtained from them the names of the assailants before he went to the locale in that night and therefore there was not question of trying to collect the names of the assailants at the locale in that night and this shows that the evidence of the said P.W. 19 and P.W.21 or for that matter the entire prosecution case implicating the appellants is a product of concoction. We however find ourselves unable to accept this critism. It is true that the I.O. got some names from P.W. 19 and P.W. 21 on 18.3.84, but obviously there was no reason to suppose that those were the only culprits involved in the occurrence. It Is therefore only natural that the I.O. while visiting the locale will try to obtain from persons the new names of other culprits as well as confirmation of the names of culprits already obtained by him from P.W.19 and P.W.21 before going to the locale.</p><p style="text-align: justify;">21. P.W.1 S.K. Bhattacharjee was attached to Homicide Squad, Detective Department as S.I. of police in 1984. He is the Second investigating Officer of this case. He says that under the order of the D.C.D.D. he took up the investigation of the Garden Reach P.S. Case No. 46 dated 18.3.84 and submitted charge-sheet against 43 accused persons after completion of investigation showing as many as 18 accused persons are absconders. He says that six of those 18 absconders were subsequently apprehended and 12 were still at large while he was deposing on 12.9.88. He was however examined further next on behalf of the prosecution on 11.4.89, He says that on 19.3.84 the D.C.. D.D. verbally ordered him at 5-00 p.m. to take up the investigation of the case and then at about 5-30 p.m. he, D.C., D.D., A.C. D.D.-1. O.C. Homicide Squad, S.I. P.S. Chakraborty of Homicide Squad and two constables of Homicide Squad started for Garden Reach P.S. He further says that prior to that D.C., D.D. told him that he had already sent two S.I.s of Detective Department, namely U.S. Lahiri and S.R. Nag (P.W.70) to work out an Information received by him in respect of some accused persons. He says that at 6-05 p.m. they all reached Garden Reach P.S. and met the O.C. of that P.S. there, he also says that at about 6-40 p.m. S.I. S.R. Nag (P.W.70) and S.I. U.S. Lahiri brought under arrest five accused persons namely Sk. Nanney, Md. Halim, Wahabuddln, Gorachand and Sk. Nuru to the Garden Reach P.S. and those five arrested persons were produced before the D.C., D.D. and the then I.O. of the case S.I. S.R. Ganguly (P.W.80) showed those accused persons as arrested in this case. He further says that at 7-45 p.m. he took charge of those arrested accused persons, case diary and other connected papers along with alamat from S.R. Ganguli, and under order of the D.C., D.D. he came to Lalbazar with those five accused persons, S.I. P.S. Chakraborty and two constables. His evidence shows that they left the Garden Reach P.S. at 8-10 p.m. and reached Lalbazar at 8-40 p.m. and then he started interrogation of those five arrested persons and thereafter he perused the case diary and other connected papers. He says that at 10-30 p.m. he received the supplementary case diary from S.I. S.R. Nag who arrested the five accused persons. His evidence is that on 20.3.84 he met D.C., D-D. in his office and received his instruction regarding the next follow up action. He says that he came to know (hat a team had been raised to assist him in the Investigation of the case. He also names the officers who were Included In the team. He also names Sanat Kr. Gupta, A.C. D.D. (I) as the persons who was placed as overall in-charge of the team. On 20.3.84 he produced all the five accused persons in the court of the S.D.J.M., Allpore and also prayed for their police remand, and then on that day at 2-30 p.m. he along with D.C., D.D., A.C. D.D. (1), O.C. Homicide Squad, S.I. Samir Ganguli left for the spot with force for investigation. According to his evidence they reached Garden Reach P.S. at 3-00 p.m. and then on being led by the O.C. Garden Reach P.S. under the order of D.C., D.D. they all went to Ramnagar Lane in front of the mosque where D.C., D.D. and others had allegedly taken shelter and stayed there upto 3-35 p.m. His further evidence is that then on being led by O.C. Garden Reach P.S. they went to a vacant plot of land at 4-00 p.m. wherefrom the charred body of the security guard had been allegedly recovered and he found some burnt substances there and from that place they went to the premises No. G-222, Battikal Second Lane and reached there at 4-25 P.M.and there he met Hadis Khan (P.W.24) and his mother, Kaflabibi and herecorded their statements there. According to his evidence then they wentto premises No. 228/3 Battikal Second Lane which is the house of Md.Naimullah (since deceased). He also then describes his further activities inthat locality. It appears from his evidence that on 21.3.84 he, O.C.,Homicide Squad, S.I. Samir Ganguli went to 222 Battikal Second Lane andfrom there he went to G-247 Ramnagar Lane. Then on being Informed byS.I. Samlr Gangull that the Commissioner of Police had already arrived atpremises No. 222 Battikal Second Lane with A.C. D.D. (1). he went to thatplace and as per direction of the Commissioner of Police, he seizedscrapplngs of blood looking stains with control from the outer wall of a roomof premises No. G-222 Batllkal Second Lane and prepared the seizure listext. 31. On 22.3.84. according to his evidence, he met the Director of F.S.L.and then the Director deputed H. Moltra (P.W.49) and P.K. Sengupta(P.W.78) both senior officers of F.S.L. to visit the P.O. He says that at thattime Mr. Moltra reported that he would visit the P.O. In the afternoon, andMr. P.K. Sengupta was out at that point of time and he (the witness)instructed S.I. P.S. Chakraborry to take Mr. Moltra and Mr. Sengupta tothe P.O. and he left for Lalbazar. His evidence shows that on that day heexamined Norman Merces (P.W.23) and Brion Merces (P.W.22) and recordedtheir statements and then they along with those two persons went to theresident of the absconding accused Naso and there they found the wife ofNaso Karolin and ascertained the particulars of Naso from her and fromthat place they again came to premises No. G-85 Battlkal First Lane andquestioned some Inmates and at that time S.I. P.S. Chakraborry came andreported that the F.S.L. experts had arrived and they were at G-222 BattlkalSecond Lane and then he (the witness) went there and met them. He saysthat the experts made Inspection at different places of that premises andthen requested to take them to the place wherefrom the charred body ofMoktar was recovered and they were taken there and the experts madethorough search in the burnt substances and ultimately discovered metallcring, a piece of burnt cloth fitted with metallic buttons with ring, and thosearticles were seized. His evidence is that on 23.3.84 he examined Sk. NanneyKosal who made a statement leading to the recovery of some Incriminatingarticles. He also speaks about recovery of Incriminating articles pursuantto the statement made by the accused Sk. Nanney Kosal. His evidence showsthat the accused Nanney made statement to him to the effect that he hadthrown one helmet, one dhal, two swords in the water of kancha drain andhe would be able to lead the police party to the spot where he and othersthrew away those weapons and other things and If those things were stillthere he would be able to bring them out. The evidence of the I.O. (P.W.I)shows that the accused Nanney was taken (on 23.3.84) to the concernedarea pursuant to the statements made by him and the accused Sk. Nancyled them in front of a kancha drain on the northern side of the premisesNo. G-221 Battlkal and G-213 Battlkal and the accused then pointed outa place inside the kancha drain to be the place where the articles as statedby him were thrown and then being asked the accused got down In the waistdeep water of the kancha drain and brought out one by one, one shieldmade of wire net, one helmet, two swords, two belts of which one hadmetallic plate having 'IPS' inscription, one black belt used by constable. Healso speaks about the recovery of a chappal of a right foot. The recovered articles were then seized. His evidence shows that on 26.3.84 also at night they conducted a raid in the concerned area and searched for certain accused persons Including Naso but could not trace them out. His evidence also shows that on 4.4.84 they went to G-85 Battikal Second Lane which is the residence of the father-in-law of the accused Naso but there also Naso was not found. His evidence is that on 30.5.84 the accused Lokman Shah and Osman Shah, two brothers, were arrested from their residence in a night raid between 1-40 a.m. and 2-00 a.m. He says that on 7.6.84 the accused Lokman Shah during Interrogation, stated that he wanted to make a confessional statement and so on 8.6.84 he (I.O.) forwarded Lokman to the learned S.D.J.M. with prayer for recording his confessional statement and his confessional statement was recorded by the learned S.D.J.M., 3rd Court Allpore on 9.6.84. It appears that the I.O. obtained an order of police remand for the accused Lokman after he was produced before the S.D.J.M. after arrest and the accused Lokman expressed his desire to make confessional statement to the I.O. on 7.6.84 while he was under police remand. The I.O. (P.W.I) says that on 16.6.84 he submitted charge-sheet against 43 accused persons of whom 24 were In custody and the rest were absconding. He further says that after the submission of the charge-sheet seven absconding accused persons had been arrested. He says that on 28.2.85 at 3-00 p.m. acting on a secret Information he with the help of S.I. Rajkumar Chatterjee of the Detective Department and others arrested Nasim Khan Naso from the station road near Kallghat Railway Station. He further says that the accused Naso was arrested with the revolver which was given to constable Moktar All for his duty, with three rounds of ammunition for which a specific case has been started on his complaint under section 25 and section 27 of the Arms Act. While confronted with this in examination under section 313 Cr.P.C. the accused Naso only says that the witness (P.W. 1) told lie that he (Naso) was absconding and he was arrested on 28.2.85 at 3-00 p.m. from the Station Road near Kallghat Railway Station or that he had any revolver in his possession at the time of his arrest. Besides such bare denial he however does not say anything as to on what date and wherefrom he was arrested.</p><p style="text-align: justify;">22. In his cross-examination P.W.I (the second I.O.) says that he did not go to Garden Reach area between 18.3.84 and 5-00 p.m. of 19.3.84. He says that on 20.3.84 the first witness he examined was Hadls Khan of G-222 Battikal Second Lane in that premises. His evidence shows that on 19.3.84 he first interrogated the five arrested accused persons (Including Sk. Nanney) but he did not record their statements. His evidence Is that on 20.3.84 he forwarded the five arrested accused to court with prayer for police remand upto 2.4.84 and the learned S.D.J.M. allowed the prayer for police remand. He says that he could not interrogate any of the accused persons on 20.3.84 as he had no time for such interrogation. He also says that on 20.3.84 he went to Garden Reach area along with his superiors, namely. D.C. D.D., A.C. D.D. (1) and O.C.. Homicide Squad and reached there at 3-25 p.m. His evidence Is that they first went to the Garden Reach P.S. and then the O.C. of the Garden Reach P.S. led them to the area where the Incident occured and there he examined Hadls Khan first and also Kaflabibi. the mother of Hadls Khan. He has however not shown Kaflabibias a witness in the charge-sheet. He says that on 20.3.84 he reached G-222 Battlkal Second Lane at 4-25 p.m. are remained there till 5-30 p.m. He also says that they were in Battlkal Second Lane area on 20.3.84 from 3-25 p.m. till 10-15 p.m. and that dusk to dawn curfew was imposed in that area and order under section 144 Cr.PC was also promulgated there and police picket was posted in different parts of that area. His evidence in cross-examination is that the blood looking stains were found on the outside wall of the western room of the premises No. G-222 Battlkal Second Lane, and he says so with reference to the seizure list, ext. 31. He says that the experts had arrived at premises No.G-222 Battlkal sometime before 3-00 p.m. and he went there at 3-05 p.m. and the experts H. Motlra and P.K. Sengupta of F.S.L. Inspected the premises and courtyard of G-222 Battlkal Second Lane and from that house, being accompanied by them, the experts went to open plot of land known as Dhankhell Maldan. He denies the defence suggestion that he had advised constable Latif Khan to procure persons of his choice who would support the prosecution case. He also denies the defence suggestion that Hadis Khan and Md. Mustafa gave statements at his tutoring. He says that the statement of Nanney Kosai was recorded by him on 23.3.84 between 8-50 a.m. and 10-10 a.m. and with the accused and other police of lines he left for the P.O. to verify the statement of the Nanney Kasal and reached in front of the kancha drain at 2-55 p.m. He says that the accused Lokman was forwarded to court on 8.6.84 with a prayer for recording his confessional statement. He has acknowledged that both the two accused Sk. Nanney and Lokman retracted their confessional statements by filing petitions but he cannot say the date on which such petition was filed after the submission of the charge-sheet. He cannot say whether those petition were filed on 14.8.84. In his cross-examination he denies the defence suggestion that Naso was arrested from the factory gate of Sultan Hossain.</p><p style="text-align: justify;">23. Of the medical witnesses, P.W. 44 Dr. Sunil Dey of the Calcutta Medical Research Institute examined Sr. K. Sharma (P.W.7). Asstt. Commissioner of Police on 18.3.84 at 12-30 p.m- In the Emergency. He also describes the Injury found and treated by him. P.W.66 Dr. Bhlbutlbhusan Blswas who was attached to Calcutta Police Hospital at the relevant time speaks about the Injuries of constable Ramshankar Singh (P.W.16) which were found by him. He says that the said constable was admitted on 18.3.84. He also describes the Injuries found by him. P.W.67 Dr. Gopi Ranjan Samanta was also attached to Calcutta Police Hospital at the relevant time. He proves the discharge certificate in respect of said Ramashankar Slngh. The patient, he says, was admitted on 18.3.84 with bomb injury on the lower thing of the right leg and was discharged from the hospital on 12.4.84. P.W. 46 Dr. Bhopal Mazumdar in the autopsy surgeon. On 19.3.84 he was posted as Demonstrator in the Department of Forensic and Slate Medicines, Medical College and Hospital. His medical qualifications are M.B.B.S. and M.D. In Forensic Medicine. He Joined the West Bengal Health Service on 25.2.75. On the date on which he deposed in court, that is, on the 1st February, 1989 he was posted as Assistant Professor and Head of the Department of the Forensic Science and Medicines, North Bengal Medical College. He held post-mortem examination on the dead-body of V.K. Mehta, D.C. Port Division on 19.3.84. He describesas many as 23 injuries found by him externally on the various parts of the deadbody including the face, head, etc. Injury No.9, as found by him. Is a lacerated would 3' x 1' X muscle X bone X meninges X brain on the right fronto-parletal region of the head, being placed half inch right to the mid line and 69 1/2 above the right heel. This is a head injury. He has also describes what he found on dissection. He says that all the Injuries were showing evidence of vital reaction. He openes that death was due to the effect of the injuries as mentioned by him which were ante-mortem and homicidal in nature. He also specifically says that he found 23 external and 4 internal injuries on the deadbody. According to his evidence the cumulative effects of the injuries were sufficient to cause death in the ordinary course of nature. He further says that Injury No.9 might be caused by any hard blunt weapon like iron rod or any other metallic rod and that the victim was in standing position when injury No.9 was Inflicted. He says that the said Injury No.9 was caused by the assailant from the front side of the victim. He further says that the Injury No.9 and the injury No.2 found on dissection were the vital Injuries. He also says that injury No.9 alone was sufficient to cause the death of the victim In the ordinary course of nature. However, the Injury No.9, he says, could not cause instantaneous death. He says that the injury No.23 was caused by pulling the body from leg side and that the injuries sustained by the victim were caused by more than one person. He also describes specifically as to which particular injury could be caused by what type of weapon. The possible weapons named by him include metallic rod, chopper, sword, napala, bhojall, brickbats etc. It may be noted here that the Injury No.9, according to the prosecution case, is connected with the assault made by the appellant-accused Naso on the head of V.K. Mehta with iron rod. The Autopsy Surgeon, P.W. 46 says that he held the post-mortem examination on the deadbody of V.K. Mehta on 19.3.84 at 12-00 noon at Calcutta Police Morgue and Prof. J.B. Mukherjee who was the professor and head of the Department of Forensic and State Medicines, Medical College, Calcutta was present when he held the postmortem examination and that Prof. J.B. Mukherjee supervised the examination. He says that Prof. J.B. Mukherjee concurred with his opinion and made the following remark: The post-mortem examination was conducted under my direct supervision and guidance. I fully concur with the findings and opinion of the Autopsy Surgeon, Dr. B. Mazumdar'. The post-mortem report was however prepared and signed by P.W. 46, Dr. B. Mazumdar and the same has been marked ext.tO. From his evidence the get that by that time he (P.W. 46) had gathered the experience of holding post-mortem examination on nearly four thousand deadbodies. He also held the postmortem examination 19.3.84 at 3-00 p.m. on the deadbody of the constable Moktar All who was the body guard of V.K. Mehta. He also describes the injuries found by him on the deadbody of Moktar All and gives the opinion regarding the effect of the injuries and the cause of death. In his cross-examination, he says that the Injury numbers 1,2,3,4,5,6.12,13,14,15,16 & 22 as found on the deadbody of V.K. Mehta were Incised injuries. The learned Advocate for the appellants contends that the opinion given by the Autopsy Surgeon, P.W.46 Dr. B. Mazumdar to the effect that the injury No.9 alone was sufficient to cause the death of the victim in the ordinary course of nature is not there specifically in the post-mortem report and this hasbeen stated by the Autopsy Surgeon Dr. Mazumdar as his own opinion while giving evidence in the court and this opinion of the Autopsy Surglon, P.W.46 is therefore not supported by the opinion of Prof. J.B. Mukherjee who supervised the post-mortem examination and therefore this opinion of P.W.46 should not be taken into consideration at all In judging the effect of the assault stated to have been made by the accused Naso on the head of the victim Mehta with iron rod. In our opinion this contention is however not acceptable. It is true that Prof. J.B. Mukherjee, obviously as a senior person, supervised the post-mortem examination held by P.W.46 Dr. Mazumdar but that does not mean that the opinion of Dr. Mazumdar on any point is of no merit or consequence unless the same is specifically endorsed by Prof. Mukherjee. P.W. 46, Dr. Mazumdar is also an expert in the matter and as we have seen he has a very rich experience in the matter of holding post-mortem examination. That being so, his opinion also given on the basis of the examination made by him, deserves due consideration and acceptance on merit unless the same otherwise stands discredited or condemned for any good and sufficient reason. Here there is absolutely no reason why we should not accept the opinion of the aulopsy surgeon P.W.46 regarding the effect of the injury No.9 which is a head injury allegedly caused by the accused Naso by inflicting assault on the head of the victim with rod. The learned Advocate for the appellants also submits that according to the evidence of the Autopsy Surgeon P.W. 46 all the Injuries had shown the evidence of vital reaction and therefore no disproportionate importance should be given to the effect of injury No.9. In this connection we are however to mention that even if all the injuries had shown evidence of vital reaction, that does not for that reason alone minimise the gravity of the effect of any particular Injury which according to the autopsy surgeon P.W.46 is alone sufficient to cause the death of the victim in the ordinary course of nature, even though such Injury could not have caused instanteneous death. It is needless to mention that causing of death is an ingradlent of the offence punishable under section 302 IPC and it is not necessary that death In all cases must be caused Instantaneously for bringing the case under section 302 IPC. That apart, when death is the result of a cumulative effect of all the injuries caused to the assailant in prosecution of the common object to commit the offence, each and every assailant is responsible for the offence in view of the section 149 IPC. The learned Advocate for the appellants also contends that the grounds of opinion of the expert are also relevant. Indeed there is no doubt that the autopsy surgeon in the present case has elaborately described all the injuries found by him and obviously his opinion is based on the findings recorded by him. No worthy ground has been brought out in the cross-examination of the autopsy surgeon nor successfully contended before us for which we could hold that the opinion of the autopsy surgeon is not acceptable. We reiterate that we have no reason or ground to discard or disregard the opinion given by the autopsy surgeon P.W.46.</p><p style="text-align: justify;">24. P.W.47 Kanchan Chatterjee is the Judicial Magistrate who held T.I. parade in respect of the accused Nanney Kosal at Allpore Central Jail on 30.5.84. He says that the witness K.K. Sharma (P.W.7) identified the suspect Nanney Kosal stating that he along with others were hurling bombs at Ramnagar Lane near mosque and further stated that while he along withD.C, V.K. Mehta reached the crossing of Ramnagar Lane and Mathorpara entrance while chasing a mob, he saw the suspect hurling bombs along with others.</p><p style="text-align: justify;">25. P.W.51, P.K. Deb is the Judicial Magistrate who recorded the confessional statements of the accused Nanney Kosal and the accused Lokman Shah on 3.4.84 and 9.6.84 respectively. He says that on 2.4.84 the accused Sk. Nanney was produced before him by constable Niranjan Das and the record was also laid before him. He was directed by the S.D.J.M. Allpore to record the confessional statements of Sk. Nanney. His evidence shows that on 2.4.84 the accused Sk. Nanney on being produced from judicial custody, was given cautions by him in open court and he was then sent to jail custody with the direction to the Jail authority, Alipore Central Jail that he should be kept in segregation so that he could get sufficient time for reflection. He says that on 3.4.84 the accused was again produced before him at about 3-00 p.m. In his court room and the accused was again given caution by him regarding the Implication of giving a confessional statement and the accused was kept in his chamber and was given time for an hour to reflect and ponder over the matter, and nobody was present In his chamber except the accused. He specifically says that no policeman was present in his chamber. He says that at 4-00 p.m. he asked the accused whether he was to make a confessional statement in his chamber and the accused Insisted on making a voluntary confessional statement and he recorded the same in his court room. He says that he was satisfied about the volunteriness of the accused in making the statement. The confessional statement of the accused Nanney Kosal as recorded by the Judicial Magistrate, P.K. Deb on 3.4.84 has been marked ext.13. He further says that the accused admitted that the statement had been correctly recorded and he also explained to the accused before he recorded his statement that he was free not make any statement and if he made any statement It might be used against him. He further says that nobody was present Inside the court room when the statement of the accused was recorded. The recording. according to his evidence, was complete by 4-40 p.m. It may be noted here that the accused Nanney Kosai was convicted and sentenced by the trial court in the original trial and reportedly he did not prefer any appeal against such conviction and sentence.</p><p style="text-align: justify;">26. The further evidence of the Judicial Magistrate, P.W. 51, P.K. Deb Is that on 8.6.84, the learned S.D.J.M. Alipore directed him to record the confessional statement of the accused (appellant) Lokman Shah. He says that on that date at about 1-15 p.m. the accused (Lokman) was produced before him and was identified by the constable P. Pramanlk In court room. He says that the accused was cautioned by him and the Implication of making the confessional statement was explained to him. He further says that the accused was produced from Judicial custody and he sent the accused to Jail custody and directed the superintendent of Allpore Central Jail to keep the accused In segregation so that he could get sufficient time for reflection, and directed his production before him on 9.6.84. The accused was produced before him on 9.6.84 at 2-00 p.m. by the constable Ramnarayan Goala in the court room and the accused was given warning and caution and was given one hour's time to think over the matter and was kept In the chamber of the Magistrate where none else was present. According to his evidence at 3-00 p.m. the accused insisted upon making a voluntary confessional statement and he (Magistrate) started recording his confessional statement in the court room at 3-00 p.m. where none else was present. He specifically says that no policeman was present at that time. He also deposes that before he started recording the statement he gave the accused all statutory cautions and started recording his statement after he was satisfied that the accused was making the statement voluntarily. The accused made the statement In Hindi and he recorded the statement in Bengali script. He further saya that after the statement was recorded It was explained to the accused in Hindi and the accused signed the statement in his presence. Ext. 14 is the confessional statement of the accused Lokman Shah as recorded by the Judicial Magistrate P.W.51 P.K. Deb. He further says that the accused admitted that the statement was correctly recorded after it was read over to him. In his cross-examination he says that he cannot say whether on 8.6.84 the accused was directly taken to the jail from his court room or he was taken to some other place before he was finally taken to Jail. It is needless to mention that the accused got sufficient time and opportunity for reflection in jail custody. In his cross-examination the Judicial Magistrate, P.W.51 specifically syas that he was fully satisfied after putting questions to the accused persons that they were voluntarily making statements and that he applied both his subjective and objective satisfactions. He specifically says that he put certain questions and he was satisfied that they were mentally prepared to make such statements. In his cross-examination he further says that he had cautioned Lokman that he would not be sent to police custody If he did not make any statement. It is suggested to him in his cross-examination that the statements were recorded In presence of the I.O. of the case. This is a preposterous suggestion, we must say, that a Judicial Magistrate while recording a confessional statement will allow the I.O. to be present there.</p><p style="text-align: justify;">27. Ext. 34 which is the ordersheet of the court of the S.D.J.M. Alipore shows that the accused Nanney Kosal along with others were produced in court in custody on 20.3.84 and they were all remanded to police custody till 2.4.84 after considering the prayer of the I.O. It also appears that while producing the accused persons before the learned S.D.J.M. from police custody on 2.4.84 the I.O. inter alia made a prayer for recording the confessional statement of Sk. Nanney Kosal under section 164 Cr.PC and the learned S.D.J.M. directed Sri P.K. Deb J.M., 3rd Court for recording the statement under section 164 Cr.PC. The order-sheet dated 30.5.84 shows that the accused Lokman Shah and accused Osman Shah were produced before the S.D.J.M. In custody on 30.5.84. According to the prosecution case the said two accused persons are brothers. On the prayer of the I.O. the S.D.J.M. remanded both the accused Lokman and Osman to police custody till 11.6.84. It also appears that the accused Lokman was produced in court from police custody in advance on 8.6.84 and on considering the prayer of the I.O. to record his confessional statement, the learned S.D.J.M. directed the Judicial Magistrate Sri P.K. Deb to record his confessional statement. On that very day Lokman who produced before P.K. Deb, J.M. and he was given necessary warnings and was remanded to Jail custody and was then produced before the J.M. concerned on 9.6.84 again and his confessional statement was recorded after giving him necessarycautions. It may be mentioned here that the accused Sk. Osman Shah was produced on 9.6.84 and he was remanded to jail custody for reflection but ultimately he declined to make any confessional statement when he was produced before the Magistrate on 11.6.84. It may be noted here that both the accused Nanney Kosal and Lokman Shah who made confessional statements before the Judicial Magistrate, however ultimately retracted such confessional statements by filing petitions before the court on 14.8.84. It has been submitted on behalf of the State that there is no bar in taking into consideration the confessional statements of those two accused persons although they ultimately retracted the same. It is also pointed out that they retracted their confessional statements as late as on 14th August, 1984 although their statements were recorded In the months of April, and June respectively and although they were produced in court a number of limes before 14th August, 1984.</p><p style="text-align: justify;">28. Ext. 3 is the statement of the accused Sk. Nanney recorded by the Judicial Magistrate under section 16A Cr.PC. In his statement under section 164 Cr.PC the accused Nanney Kosal has described some part of the Incident Implicating himself and certain other persons. We have already noted that Nanney Kosal has been convicted and sentenced in the original trial and he did not prefer any appeal against the same. It has been contended on behalf of the appellants that since Nanney Kosal was therefore not being tried Jointly alongwith present appellants in the retrial, his confessional statement recorded under section 164 Cr.PC cannot be taken into consideration against the present appellants under section 30 of the Evidence Act. The learned Advocate for the appellants has in this connection also relied upon certain decisions cited by him which we will refer to at a later stage. Ext. 14 is the statement of the appellant Lokman Shah recorded by the Judicial Magistrate under section 164 Cr.PC. The statement was made by the accused-appellant Lokman before the Judicial Magistrate In Hindi and the Magistrate recorded the same in Bengali script. The English translation of the relevant portion of the statement of the accused Lokman recorded under section 164 Cr.PC as appearing In the paper book is reproduced below :</p><p style="text-align: justify;">'Q. Tell what statement you will make?</p><p style="text-align: justify;"> Ans. On 18th date, Sunday (Holiday), the Incident took place. At 10 or 10-30 Naso, Puttan, Akhtar, Chowdhury came to me for price. I asked what you will do by money. They answered quarrel is going on in village road for that weapons are to be purchased by the money. Those persons have set fire to the mosque. If those persons make any trouble here we shall fight out. I said I shall also fight out. After that they fled away. At 11-45 a cry or quarrel came to my heralng. I came out and found that two police officers coming speedily. Many people threw brickbats towards those police officers. The police officer in white dress went towards the house of Mulla. The police officer In Khaki dress came straight. When he was crossing near me I also threw a brickbat. I cannot say whether it hit or not. The police officer In khaki dress entered In the house of Latif Sepot. Many persons entered following him. Amongst them Idris was there. From outside many people threw brickbats. I also threw 2/1 brickbats. I cannot say whether it hit him or not. Aftersometime I found that Naso, Puttan, Akhtar and Chowdhury were coming from the side of Battikal mosque. They took me Inside the house. I found the police officer In khaki dress was standing near the kitchen. (wrong translation). The correct translation is 'standing by the side of Gosalkhana'--'Gosalkhanaka pas khara hayal. That person said he was D.C. Some people said they do not know D.C. etc. After this all people in a batch caught that person. I also caught him. Naso hit by a rod on the head. For this the hard cap fell down. Again rod was used. It hit the head. Saheb fell down. Puttan, Akhtar and some other many people assaulted him on the face with deadly weapons, (wrong translation. The correct translation is 'Puttan, Akhtar & many other persons started assaulting on his face with sharp-cutting weapons--'dharwala hattar se chehar par marne laga'). I could not tolerate the blood-shed. For that I came out. I was then searching for my younger brother. After some time I found those 8/10 persons took D.C. Saheb and entered Inside the house, (wrong translation. The correct translation is 'after a while I saw that those 8/10 persons were going out from Inside the premises taking away D.C. Saheb--Thora der ke bad dekhta o at das admi D.C. Saheb ko le ke bari ke ondar se chala ja raha'). They proceeded towards the Mehar Manzil crossing the house of Israil. ('They took him away towards Mehar Manzil after crossing the house of Israil'--'Israilko par karke Meher Manzil ke taraf le giyal. After that I cannot understand what happened, ('what happened thereafter, I cannot say')--'Usko bad hamko nehi malum haya keya hua'). I worked under port. And I was present at home on that day.</p><p style="text-align: justify;"> 'Q. Do you want to say anything more?</p><p style="text-align: justify;"> Ans. No. I have forgotten to say one thing. Samsad and Abbas were also present in the Incident.'</p><p style="text-align: justify;">29. It may also be rioted here that from ext. 14 it will appear that the Judicial Magistrate before recording the statement of the accused Lokman Shah put various questions to the accused Lokman for ascertaining whether the accused was making the statement voluntarily and free from any outside influence. As we have seen, the statement was recorded by the Judicial Magistrate on 9.6.84 and on the preceding date i.e. 8.6.84 the accused was sent to jail custody for giving him proper opportunity for reflection. In answering the question put to the accused Lokman on 9.6.84 by the Judicial Magistrate as to whether he was kept in the jail in separate room or not, he said that he was kept In a separate room for thinking and realising. The Magistrate also tells him inter alia that he was not bound to confess and asked him to tell after thinking whether he will make the statement from his mind or not, to which the accused replies that he will make the statement. He also says that he was not terrorised by anyone nor was requested or assured for giving the statement. In answer to the specific question whether he was beaten by any police officer, he replied in the negative. The Judicial Magistrate also told him that he would not be kept under the custody of the police whether he told or not. Even then the accused staled before the Magistrate that he would make the statement willfully and he had come from jail and nobody had given any hope or assurance to him. The Magistrate also cautioned the accused that If any statement was made by him, he might be hanged for the same and thatwhat he would say could go against him. Inspite of that the accused stated to the Magistrate that he would confess according to his sweet will. The Magistrate also appended a certificate under the statement recorded by him to the effect that he believed that the confession was made voluntarily.</p><p style="text-align: justify;">30. The learned Advocate for the appellants has contended that the only evidence on which the prosecution has relied upon for bringing home the charge framed against the accused Lokman ts his alleged confessional statement, ext. 14. It is however contended by him that the law regarding use of confessional statement against maker of such statement is that the court must be satisfied that the confessional statement is truthful and is made voluntarily. He has also cited a number of decisions on this point such as Anathbandhu v. State of West Bengal, 1986(1) CHN. 229, State of West Bengal V. Prosenjit Tafadar 1991(1) CHN 331. Saran Singh v. State of Punjab, : 1957CriLJ1014 , etc. Indeed we are convinced that the same is true and voluntary. While examined under section 313 Cr.PC the accused Lokman even inter alia denies to have made such statement as recorded by the Magistrate and he even went to the absurd extent of telling that the I.O. was standing near him when he made the statement before the Magistrate. It may be noted here that at the retrial one defence witness being D.W.1 Sk. Mumtaz was examined on behalf of the defence. He claims to be an employee of Calcutta Port Trust. He says that he knows the accused Lokman, who was a class-IV staff in the department in which he was working. He says that there was continuous strike in all the ports of India including the Calcutta Port w.e.f. 16.3.84 and during the strike period he used to attend the gate No.8 of the workshop regularly and this gate is one of the entrance gales to the K.P. dock. He further says that like him other people also used to go in front of the gate during the strike. His evidence ts that on 18.3.84 he along with others went in front of that gate at about 8-30/9-00 a.m. and returned to his residence at about 12-45/1-00 p.m. He wants to say that on 18.3.84 when he went In front of that gate he found that the accused Lokman was sitting there. This defence witness has been examined to establish the plea of alibi taken by the accused Lokman. The evidence of this defence witness who was examined at the retrial in June, 1992 long after the occurrence however, does not inspire any confidence. No plausible explanation is coming as to why he was not examined at the time of the original trial if really Lokman was with him in front of the gate of the Calcutta Port Trust at the relevant time on 18.3.84. Also it is significant to note that the date of the Incident namely, 18.3.84 was not only a Sunday, but It was also the day on which the 'holi' festival was being celebrated. That being so, it is difficult to believe that he and other workers Including the accused Lokman would have gone there In front of the gate of their workshop on that day obviously without any purposeful object. Moreover it Is also quite unnatural that when riots and disturbances were going on in the concerned locality, the accused Lokman would have chosen to go and station himself in front of his closed factory gate without any meaningful purpose leaving aside the shelter of his own house, if realty he were a peace-loving person. Having regard to the facts and circumstances, we are not Inclined to place any reliance on the evidence of the defence witness D.W. 1 Sk. Mumtaz. The learned Advocate for the appellants submits that even if the defence plea of alibi falls and the court does not accept thesame, yet that by itself does not prove the prosecution case. In this connection he also refers to the decisions in Shared Blrdhtchand Sarda v. State of Maharashtra, 1984 SCC(Cr.l) 487 and Sk. Firoz v. State of West Bengal 1997. C.Cr.L.R. [Call 251. In connection with the question relating to the nature of use of a confessional statement he refers to the decisions in Pakal Narayan Swami v. Emperor AIR 1931 PC 47, PalblnderKatirv. State of Punjab : 1953CriLJ154 , Ompmkashv. State of Uttar Pradcsh : AIR1960SC409 . There is no doubt that a self exculpatory statement does not amount to confession. It is also true that the statement of the accused will have to be taken as a whole without making any 'pick and choose' of isolated sentences or words divorced or separated from the context in which they have been used. But in the present case on an Indeplh consideration of the statement of Lokman made before the Judicial Magistrate, we find no reason to hold that the same does not amount to a confessional statement. The learned Advocate for the appellants contends that the statement of Lokman as recorded under section 164 Cr.PC would show that he had only thrown some brickbats when the police officer in khaki dress entered in the house of LatlfSepol and he even did not care to notice whether the same hit the police office or not. He also contends that although the statement shows that Lokman caught the D.C. along with others when Naso hit him by a rod on his head as a result of which the cap fell down and Naso again hit the D.C. on his head and the D.C. fell down and other assailants assaulted him wllh sharp culling weapons, yet the statement shows that on seeing blood-shed as a result of assaults made by the assailants on the D.C. Lokman could not tolerate the situation and he withdrew himself and came out. It is submitted on behalf of the appellant Lokman that the conduct of Lokman shows his mental state at the relevant time and would suggest that he had no culpable object or Intention in respect of the commission of the offence. We are, however, unable to accept this defence contention. May be that the accused Lokman was comparatively a timid person and was unable to reconcile himself wllh blood-shed when the same occurred as a result of combined and concerted assault with various weapons upon the D.C. May be that the role played by the accused Lokman was not as aggressive as exhibited by many other more ferocious co-participants, yet the fact remains that when the D.C. was being chased by a mob and the D.C. was running away for safety, he, I.e.. the accused Lokman also threw brickbats at him and later even participated in catching hold of him along with others obviously for facilitating the assault by other persons with various weapons and in fact, the D.C. was assaulted with various lethal weapons Including rod used by the accused Naso on the head of the D.C. The admitted partlcipalion of Lokman in the operation and in the manner described by Lokman in his stalemenl clearly makes out that the statement of Lokman is nothing else but a confession of the commission of the offence and participation by himself in a culpable way in the commission of the same. We fall to understand why the statement of Lokman should be treated as something falling short of confession. We are rather of the opinion that the statement even when taken as a whole and without excluding anything therefrom amounts to a clear confession of the accused Lokman that he participated in the commission of the offence of severely assaulting the D.C. with various dangerous weapons in which the different assailants took part in a conjoint operation obviously with a common object to commit the offence which was being committed and tn that operation Lokman took part by catching hold of the victim along with others while some other assailants were assaulting the victim with various weapons. His withdrawal from the scene at a later stage on seeing blood-head does not exonerate him from the culpability of his act or state of mind which he displayed upto that stage and this is enough for the purpose of finding him guilty of the charge framed against him under section 302/149 IPC, Inasmuch as the D.C. was put to death as a result of a brutal assault perpetrated on him conjointly by the assailants. May be that the D.C. was further assaulted in continuation of the earlier assault even after Lokman withdrew himself from the scene after seeing the blood-shed but that does not, we reiterate, exonerate Lokman from his participative culpability in the commission of the offence till the stage of his withdrawal. We have seen from the evidence of the Autopsy Surgeon that the head injury sustained by the D.C. obviously as a result of assault made by Naso with rod on the head of the D.C. was alone sufficient to cause death and that was done while Lokman was catching the victim along with others obviously for facilitating conjoint assaults not only by the rod but also by other weapons used by the assailants. The statement of Lokman fully satisfies the requirements of a confessional statement and we are also of the opinion that the same is not only voluntary but is also true as the same receives substantial corroboratlon and also coroboratlon in material respects from the other evidence on record, namely, that the D.C. In khankl uniform and his body guard in while uniform were chased by a riotous mob there on that day and at that time, and the D.C. took shelter in that premises where he was attacked and assaulted by the assailants as stated by the eye witness P.W. 24, Md. Hadls. It is true that Lokman has not been specifically named by Md. Hadls but the other descriptions of the Incident as given by Md. Hadls, in our opinion, lends corroboratlon to the material aspects as to how and in what manner the occurrence took place at the concerned premises regarding assault on D.C. Mehta. Such corroboratlon tn respect of material aspects by the evidence of Md. Hadls Inspires sufficient confidence to accept the confessional statement of the accused Lokman as true. That being so, we have no hesitation in accepting the confessional statement of Lokman as voluntary and true. We will discuss more about the confessional statements at a later stage. Here we would like to note that the evidence of P.W.26 Md. Mustafa and P.W. 38 Md. Narln also supported the prosecution case regarding the Involvement of the accused Naso in the commission of the offence, but these two witnesses could not be produced for further cross-examination at the retrial and that is why their evidence was not pressed into service at the retrial. It has been submitted on behalf of the appellants that although the Division Bench while directing retrial directed the evidence already on record to be taken into consideration in writing out a fresh Judgment in the retrial, yet their evidence cannot be taken Into consideration because they could not be produced for further cross-examination at the time of retrial. It may be noted here that the Division Bench while remanding the case for retrial directed that the judgment is to be written on the basis of the evidence already on record, the evidence to be brought on record pursuant to the order of retrial, and the further statements of the appellants, if any, made under section 313 Cr.PC and also directed the trial Judge to give the appellants opportunity of further cross examining the prosecution witnesses. As we have seen, P.W.26 and P.W. 38 who support the prosecution case in respect of the Involvement of the appellant Naso however could not be produced for further cross-examination at the retrial Insplte of best efforts made by the prosecution as their whereabouts could not be traced out. In the circumstances it appears to us that section 33 of the Evidence Act would be attracted. Under section 33 of Evidence Act the evidence given by a witness in a Judicial proceeding is relevant for the purpose of proving in a subsequent Judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or his presence cannot be obtained without an amount of delay or expense which the court considers undesirable, etc., provided the proceeding was between the same parties or their representstive-In-Interest and the adverse party in the first proceeding had the right and opportunity to cross-examine, and the questions in Issue were substantially the same in the first and in the second proceeding. In the present case, at the original trial Involving the same Issue the appellants not only had the right and opportunity to cross-examine both P.W.26 and P.W.38, but in fact they were also cross-examined in extenso. That being so, when Insplte of efforts those two witnesses could not be traced out at the time of retrial plainly their earlier evidence was admissible in evidence at the retrial in view of section 33 of the Evidence Act. It is needless to say that the directions of the Division Bench concerning retrial do not have any connotation that a piece of evidence which is already on record will be excluded from consideration at the retrial even if the same is otherwise admissible in evidence in accordance with the provisions of law. Therefore we are of the opinion that the earlier evidence of P.W.26 and P.W.38 can be taken into consideration at the retrial under section 33 of the Evidence Act although they could not be produced for further cross-examination at the retrial as they could not be traced out after so many years inspile of efforts. In this back-ground it is Interesting to note the submission made by the learned Advocate for the appellants in respect of the question of admlsslbllly of the confessional statement of the accused Nanney Kosal for consideration at the retrial against the appellant Naso. it has been contended in this connection by the learned Advocate for the appellants that though the Division Bench while directing retrial permitted the trial court to take into consideration the evidence already on record, yet that direction is not Intended to nor does tt supersede any provision of law. It has been submitted by the learned Advocate for the appellants that under section 30 of the Evidence Act the confession of a co-accused can be taken into consideration against an accused only if both of them are Jointly tried for the same offence. It is submitted that since the accused Nanney Kosal who was convicted and sentenced in the original trial did not prefer any appeal and since he was not being Jointly tried with the present appellants at the retrial his confession cannot be taken Into consideration under section 30 of the Evidence Act at the retrial relating to the present appellants. In this connection the learned Advocate for the appellants has referred to certain decisions namely Emperor v. Keramot Sardar, 16 CHN 49, Assistant Collector of Customs. New Delhi v. Harbans Lal Sharaf 1980 Cr.LJ 681 (Delhi) and Suresh Budharmal Katati v. State of Mahamstra 1998 SCC(Cr.l.) 1625. The learned Advocate for the appellants thus contends that Inspite of the direction of the Division Bench for taking into consideration at the retrial the evidence already on record the confessional statement of Nanney Kosal cannot be taken Into consideration at the retrial as that Is, in effect, prohibited by section 30 of the Evidence Act and the direction of the Division Bench cannot be construed to supersede any provision of law. We accept this contention and we are also of the opinion that the confessional statement of Nanney Kosal cannot be taken Into consideration now in the retrial against the appellant Naso because Naso and Nanney Kosal were not facing Joint trial at the retrial. But we fall to understand why this same logic should not apply in respect of the earlier evidence of P.W.26 and P.W.38, both of whom were cross-examined at length at the earlier trial but who could not be traced out and produced at the retrial Insplte of efforts. The direction of the Division Bench to produce the witnesses for further cross-examination at the retrial obviously cannot be construed to exclude the operation of a statutory provision, namely, section 33 of the Evidence Act. No doubt that under the direction of the Division Bench both those witnesses were also required to be produced for further cros's-examlnallon at the retrial. But then, in our opinion, the law should take Its own course if in spite of efforts those two witnesses could not be traced out and produced after so many years for further cross-examination at the retrial. In our opinion, section 33 is attracted in the circumstances and there is nothing in the direction of the Division Bench which can be construed as excluding the operation of a statutory provision of law that may be attracted under the law Itself in a particular situation. In our opinion. In the circumstances the earlier evidence of P.W.26 and P.W.38 can be taken Into consideration at the retrial as a matter of law. However, as a matter of fact we keep their evidence out of consideration, and we examine whether even without taking into consideration the earlier evidence of those two witnesses, namely, P.W.26 and P.W.38 the prosecution have been able to establish the concerned charges against the present appellants.</p><p style="text-align: justify;">31. The learned Advocate for appellants contends that the appellants should have been examined under section 313 Cr.PC afresh in respect of the earlier evidence on record but that was not done and that being so, the entire earlier evidence in the case should be kept out of consideration and it should be held that the earlier evidence cannot be used against the appellants for finding them guilty of the concerned charges in the retrial. It may be mentioned here that in the retrial, after the further cross-examination of the witnesses produced by the prosecution were completed, the appellants were further examined under section 313 Cr.PC thereby giving them opportunity to tell whatever they wanted to tell yet. It may also be noted here that the prosecution did not adduce any fresh evidence in the retrial and only the witnesses who were earlier examined and whom the defence wanted for further cross-examination barring P.W.2G and P.W.38, were produced for further cross-examination and even then further examination under section 313 Cr.PC was done in the retrial so that the appellants might get further opportunity to say whatever they yet desired to say. There was absolutely no question of examining the appellants afresh under section 313 Cr.PC in respect of the entire evidence in respect of which they were earlier given opportunity to express their say under section 313 Cr.PC it is a desparate contention raised on behalf of the appellants in despair that the earlier examination of the appellants under section 313 Cr.PC should be altogether excluded and they should have been examined afresh under section 313 Cr.PC in the retrial even in respect of the evidence in respect of which they were given adequate opportunity earlier under section 313 Cr.PC The direction of the Division Bench in this connection also contalnes the expression 'thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure'. The Division Bench used the expression 'further examine' and not fresh examination and there is also absolutely no reason why the earlier examination under section 313 in respect of the evidence earlier adduced should be treated as a nullity in the retrial. The contention raised by the learned Advocate for the appellants in this respect is wholly unacceptable.</p><p style="text-align: justify;">32. The learned Advocate for the appellants contends inter alia that the unexplained delay in examination of P.W. 24 Hadis Khan renders it unsafe to rely on his evidence, The incident took place on 18.8.84 andP.W.24 Hadls Khan, we get it from the evidence of P.W. 1 S.K. Bhattacharjee. the second I.O., was examined by him in the afternoon of 20.8.84 at G-222 Battikal Second Lane. Both the earlier I.O. (P.W.80) and the second I.O.(P.W.l) have as we have seen, described what they did respectively after taking charge of the Investigation. Hadis Khan, as we have seen, was rounded up at about noon on the 19th and placed in a police van that patrolled in the locality and then he and others were in the police lock up at the P.S. from 7-00 p.m. and were later released in the evening of the same date. The second I.O. P.W. 1 took charge of the Investigation in the evening of the 19th and thereafter, as we have see, he took charge of some of the arrested accused persons in the evening and took them to Lalbazar and Interrogated them and on the next day he took steps for producing them before the court and then went to the concerned locality and there he examined Hadls Khan as the first witness to be examined by him and also the mother of the Hadis Khan in the concerned premises. Having regard to the facts and circumstances we cannot say that there was any delay or leapse in the matter of examining P.W.24 Hadls Khan. The learned Advocate for the appellants in this connection has referred to certain decisions namely, Balakrishna v. State of Orissa 1971 Cr LJ 670. Babull v. State of Orissa, 1974 SCC(Crl.) 104 and State of Orissa v. Brambhananda : 1976CriLJ1985 . It is needless to mention that all those decisions are confined in their effect to the particular facts of the respective cases. In Batakrishna v. State of Ortssa (supra) the concerned witness was examined by the I.O. 10/11 days after the incident which definitely is not so in our present case. In the other two cases namely Babull v. State of Orissa and Slate of Ortssa v. Brambhananda (supra) the concerned witnesses did not disclose the names of the assailants to anyone at the earliest available opportunity and there was no satisfactory explanation for the same. In our present case, as we have seen, P.W.24 Hadls disclosed what he saw at the earliest available opportunity on the very same day to P.W.19 Khalll Khan and P.W.21 Abdul Latlf Khan. Having regard to the facts, circumstances and evidence on record we find no reason to disbelieve the evidence of P.W.24 Hadis Khan.</p><p style="text-align: justify;">33. As regards the question whetehr the statement of appellant Lokman recorded under section 164 Cr PC amounts to confession we have earlier discussed and we reiterate our opinion that such statement amouns to confession. We have already discussed that the Magistrate gave all necessary cautions to the appelalnt Lokman before recording his confession and also gave adequate opporutnity for reflection in Jail custody as well as after the accused was produced before him and he recorded the confessional statement after he was fully satisfied that his confessional statement was made voluntarily and the same was true. We also find no reason to hold otherwise in this respect. H has been contended on behalf of the appellant Lokman that there is no other evidence against the said appeallant except his confessional statement and that, too the confessional statement was subsequently retracted by him and that being so no conviction can be based on the retracted confession alone. In this connection the learned Advocate for the appellants has referred to certain decisions of the Supreme Court, namely, Chandrafcant Chfnum Lal v. State of Gujarat 1992(1) Crime 233, Kashmlra Slngh v. State of M.P. : 1952CriLJ839 . It may be noted here that the decision in Chandrafcant Chfman Lal (supra) is virtually based on the earlier decision of the Supreme Court in Kashmlra S(ngh v. State of Madhya Pradesh (supra). In Kashmlra Sfngh (supra) the Supreme Court was concerned with the question how Tar the confession of an accused person can be used against a co-accused. It is evident from a reading of the said decision in Kashmir Stngh that the said decision was not laying down the law that an accused cannot be convicted on the basis of his own confession. Rather what was laid down in effect in that context in Koshmia Singh is that an accused cannot be convicted on the basis of the confessional statement of the co-accused. On the other hand, the learned Advocate for the Slate has referred to certain decisions which we mention below regarding the use of confession. In Sarwan Stngh v. State of Punjab. : 1957CriLJ1014 , it has been held that in law it is always open to the court to convict an accused on his confession Itself though he has retracted it at a later stage and that nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement and that what amount of corroboratton would be necessary in such a case would always be a question of fact to be determlend in the light of the circumstances of each case. In Madi Ganga v. State qj Orfssa 1981 SCC (Crl) 411 it has been held by the Supreme Court that the accused can be convicted on the basis of the confessional statement if the general trend of his confession is substantiated by other evidence. In Param Hans Yadav v. State of Bihar 1987 SCC(Crl) 322 it has been held that although the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial the same can only be used for lending assurance to any substantive evidence. The law on the point has been very succinctly laid down by the Supreme Court in Sfirfsfiad Waaeshl v. State of Maharastra 1985 Cr LJ 1173 where it has been held that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboratlon from other Independent sources and that it can not, however, be the basis for convicting the co-accused though it may be taken Into consideration against the co-accused also. That being the law, it is evident that the retracted confession of the appellant Lokman can form the basis of his conviction if it has received general corroboratlon from other Independent sources as it has in our present case. We have seen that the appellant Lokman made an elaborate statement as to how the offence was being committed upon V.K. Mehta, D.C. by a group of assailants, some of whom were armed with deadly weapons, and as to the place where it occurred and how he participated in that operation. The manner in which the offence was committed upon V.K. Mehla in the concerned premises and how he was chased in that premises and assaulted are in such details that the vivid description itself lends an assurance of credibility for the confessional version. These details, as we have seen, are again corroborated in material particulars by the evidence of P.W.24 Hadts Khan. We have also seen that there.was an Inordinate and unexplained delay in retracting the confession. Having regard to the facts and circumstances, we have therefore no hesitation in accepting that the confessional statement of Lokman as made voluntarily and the same is true and is corroborated generally as well as in material particulars by the other independent evidence, namely, the evidence of P.W.24 Hadis. He have also seen that the appellant Lokman participated in catching hold of the unfortunate victim D.C., Mehta while he was being assaulted by the accused Naso with rod on his head and by other assailants with various lethal weapons on the other vital parts of the body of the victim. There is therefore no escape from the conclusion that the appellant Lokman is guilty of the charge framed under section 302/149 IPC in spite of the fact that at certain stage of the operation he might have withdrawn himself from scene while the others were yet carrying on the operation.</p><p style="text-align: justify;">34. As regards the involvement of the appellant Naso we find no reason to discard the evidence of P.W. 24 Hadis. We have also seen how. Hadls reported to P.W. 19 and P.W.21 what he saw, on that very day. He clearly implicates the appellant Naso and from his evidence it appears that Naso delivered two blows with rod on the head of the D.C. Mehta while he was in unarmed condition. We have also seen that P.W. 16 Ramashankar Slngh has also deposed that he saw Naso amongst others in the mob with bombs. P.W.21 Abdul Latif Khan also saw Naso with others near deadbody and all were armed. We are therefore convinced that Naso was Involved in the commission of the offence along with others and this receives, additional assurance of truth when the confessional statement of the co-accused Lokman is taken into consideration under section 30 of the Evidence Act. We are also convinced from the evidence on record Including the postmortem doctor that the blow which Naso delivered on the head of V.K. Mehta with rod Itself was fatal. It is true that others also assaulted V.K. Mehta with various weapons and V.K, Mehta met with a tragic and as a result of all the assualts on him. The learned Advocate for the appellants submits that even if the prosecution evidence is taken at Its face value yet it is not clear whether the entire assault was held at premises No,G-222and whether some part of the assaults were carried on after taking away V.K. Mehta from that premises. In our opinion this is immaterial in view of the evidence of assault which is on record and the nature of the Injuries described by the Autopsy Surgeon. It is neither expected nor required that the prosecution must prove the entire operation second by second by a cinematographic display of the actions from the start to finish. The direct evidence of chasing of V.K. Mehta by the assailants and the participation of the appellant Naso in the concerned operation of assault on the victim with deadly weapons at premises No.G-222 and the description of the Injuries found by the autopsy surgeon on the deadbody of V.K. Mehta and his opinion about the effect of the same, are sufficient to hold the appellant Naso guilty of the charge framed against him under section 302/149 IPC for the murder of V.K. Mehta. Accordingly we hold both the appellants Naso and Lokman guilty of the charge framed against them under section 302/149 IPC for the murder of V.K. Mehta.</p><p style="text-align: justify;">35. As we have seen, it is in evidence that the deadbody of V.K. Mehta with Injuries was recovered on that very day by the police party from a drain in that locality. From the facts, circumstances and evidence on record there is no doubt that the assailants of V.K. Mehta had thrown the deadbody in the drain, obviously with a view to avoiding easy detection of the evidence of the crime. There is evidence, as we have seen, that Naso participated in assaulting V.K. Mehta. P.W.21 Abdul Latlf Khan, as we have seen, while coming back to his house and reached Battlkal Second Lane at about 12-30/12-45 p.m. noticed some persons armed with weapons present near a deadbody lying by the side of the kancha drain there and he also found the appellant Naso amongst those persons who were all armed. His evidence is that Naso was standing 2 cubits away from the deadbody. He also says that later at the police station he learnt that the deadbody of the Dy. Commissioner was recovered from the place where he had earlier seen the deadbody. Circumstantially the conclusion becomes irresistible that the deadbody was thrown Into the drain there and it must have been done by those persons who vere found present there beside the deadbody. And Naso was one of them, in the circumstances we are of the opinion that the conviction of the appellant Naso under section 201/149 1PC is justified. We are also of the opinion that his conviction under section 148 1PC is also warranted and Justified.</p><p style="text-align: justify;">36. Now we consider the question of sentence so far as the offence under section 302/149 IPC is concerned. Both the appellants Naso and Lokman have been sentenced to death by the trial court for their conviction under section 302/149 1PC in respect of the murder of V.K. Mehta, the Dy. Commissioner of Police, Port Division. The learned Advocate for the appellants contended, without prejudice to his other contention that the appellants were entitled to an order of acquittal, that this was not at all a fit case for death sentence even if the conviction were upheld. In this connection he referred to the decisions in Bachhan Stngh v. State of Punjab, : 1980CriLJ636 , Rajendra Prosad v. State of U.P. : 1979CriLJ792 , Digambar Gope v. State of West Bengal 1997 C.Cr.L.R.(Cal) 139 and Rabindra Prida v. State of West Bengal 1995 C.Cr.L.R (Cal) 210 etc. On the other hand, the learned Advocate for the State has referred to the decisions in Shlo Mohan Stngh v. State 1977 SCC(Cri) 324, Gayasi v. State of Uttar Pradesh. 1981 SCC(Cri) 590, Jay Kr. v. State of Madhya Pradesh 1999 111 AD(Cr.) SC 33 and 1987 SCC(Cri) 322. etc. Indeed it is now a settled law that for an offence of murder life Imprisonment is the normal sentence while the death sentence should be Imposed only in the rarest of rare cases. The guidelines for determining the case where death sentence can be Imposed are to be found in the decisions of the Supreme Court in Bachhan Singh : 1980CriLJ636 , Mechhi Singh v. State of Punjab : 1983CriLJ1457 , Kama Tewari v. State of Madhya Pradesh, 1996 Cr.L.J. 4158. etc. In going to decide whether in a particular case death sentence should be imposed or not the aggravating and the mitigating circumstances in respect of the concerned accused are required to be taken Into consideration. In Jay Kr. v. S(ate p/M.P,(supra) it has been observed by the Supreme Court that the law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment and that while it is true that a sentence disproportionately severe, ought not passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly Inadequate having due regard to the nature of the offence since an Inadequate sentence would fall to produce a deterrent effect on the society at large. It has been further observed therein that punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, but rather for having its due Impact on the society and that while undue harshness is not required yet Inadequate punishment may lead to sufferance of the community at large. In Shtv Mohcin Sfngh v. The State (supra), it has been Inter alia observed by the Supreme Court that the heinousness of the crime is a relevant factor in the choice of the sentence. In Gayasi v. State qfU.P. (supra), the Supreme Court while confirming the death sentence in a case where the victim was a public servant and was murdered while performing his public duties observed that such crimes committed against Public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.</p><p style="text-align: justify;">37. Now let us look to the circumstances in which the crime has been committed in the present case. On receiving information that a disturbance was going on in the concerned locality, V.K. Mehta, the Dy. Commissioner of the Port Division rushed to the spot and the other officers and force also joined him. He of course had no arms or weapon with him. He led the police party for restoring normalcy in the disturbed area. At that time the police party was attacked by the furious mob with brickbats, bombs and the policeparty headed by the Dy. Commissioner took shelter in a mosque. Underthe pressure of the violent and armed mob the Immam of the mosque askedthe police party to leave the mosque. In the circumstances the police partyhad to leave the mosque. As soon as they came out of the mosque theywere again attacked by the violent mob. The D.C. and his body guard MoktarAll proceeded in one direction while the Assistant Commisloner and theother members of the police party could retreat in a different direction. Whilethus retreating the members of the police party were attacked by themembers of the mob as a result of which the Assistant Commissioner andsome other members of the party sustained Injuries. Unfortunately, howeverthe Dy. Commissioner and his body Guard Moktar All proceeded in adifferent direction Isolated from the other members of the police party andthey were also chased by an armed mob. Both the D.C. and his body guardMoktar All were in police uniform. They were there to perform their officialduties to restore peace and maintain law and order. Insplte of that withoutany provocation from them they were hounded up by the ferocious mob asa result of which the D.C. and hts body guard also became separated fromeach other. The body guard was brutally killed by some of the assailants,and the D.C., while on the run for life and safely took shelter in G-222Battlkal Second Lane but there also the chasing mob followed him. In hishelpless bid the D.C. fervently disclosed to his assailants that he was D.C.of police hoping that the same would have a sobering effect on theassailants, but the assailants were in a devellsh mood and even proclaimedthat the they did not care for D.C. An isolated senior police officer of therank of a Deputy Commissioner who had been there for restoring peace andfor maintaining law and order in discharge of his official duty helplesslyfound himself pitiably doomed in a death trap under the devilish controlof the ferocious assailants while he himself was totally unarmed. There wasabsolutely no provocation from the side of the Deputy Commissioner. It wasthe bounden duly of everyone present there to assist the D.C, in discharge of his official duty to restore peace and maintain law and order but Instead, the assailants took devellsh pleasure in committing the diabolical murder of the D.C. In a dastardly manner. The brutality of the assailants on the helpless D.C. can be readily measured by the number and nature of Injuries found by the Autopsy Surgeon on the deadbody. The appellant Naso, as we found, took the lead role as the pioneer in the matter of actual assault on the D.C. after getting him in virtual capacity. Ignoring the appeal of the D.C. as reflected in the fervant disclosure of his Identity the appellant Naso delivered blow with rod on the head of the D.C. from the front side obviously with enormous force so much so that the helmet of the D.C. fell down from his head and the appellant Naso took that opportunity to deliver a second blow on the bare head of the D.C. with the rod and the beastly operation was followed by assaults by others with different other deadly weapons. The Impact of the assault made by the appellant Naso has been projected by the evidence of the Autopsy Surgeon. The head Injury sustained by the D.C. was sufficient to cause death in the normal course. The role played by the appellant Naso in making the dastardly and deadly assault on the helpless and unarmed D.C. who was on duty is studded with such mainfestatlon of depraved ferocity that the case unrringly comes within the arena of a rarest of rare cases. The tragic death of a brave and dutiful public servant in a circumstance like this is sure to have a macabre effect on the society at large and also a demoralising Impact on the public service in particular, unless the justice delivery system matchlngly responds to nuelralllse the same in the Interest of the peace-loving segment of the society. In our considered opinion, and having regard to the facts and circumstances we have no hesitation in holding that this is a fit case where the appellant Naso deserves death sentence in the Interest of the society at large. There is absolutely no mitigating circumstance for awarding the alternative sentence of life Imprisonment to the appellant Naso. In the result we confirm the death sentence Imposed by the trial court on the accused Naso for his conviction under section 302/149 1PC. However, having regard to the low-profile role played by the appellant Lokman Shah we are of the opinion that in his case death sentence need not be Imposed and the alternative sentence of Imprisonment for life for his conviction under section 302/149 1PC will meet the ends of justice. In the result the death referred in respect of the accused Naso is hereby accepted and the appeal filed by him is dismissed. The death sentence as well as the other sentences Imposed upon the appellant Naso by the trial court are all confirmed. The death reference relating to accused Lokman is however rejected and the death sentence Imposed on him by the trial court is set aside and Instead of death sentence, the sentence of imprisonment for life is imposed on the appellant Lokman for his conviction under section 302/149 IPC. Subject to above modification of sentence for conviction under section 302/149 IPC the appeal preferred by the appellant Lokman stands dismissed.</p><p style="text-align: justify;">M.K. Basu, J.</p><p style="text-align: justify;">38. I agree.</p><p style="text-align: justify;">39. Older accordingly<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '(2000)1CALLT107(HC),2000(1)CHN245',
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			'respondent' => 'State of West Bengal',
			'sub' => 'Criminal ',
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	'casename_url' => 'lokman-shah-anr-vs-state-west-bengal',
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		(int) 0 => '853066',
		(int) 1 => 'lokman-shah-anr-vs-state-west-bengal'
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$title_for_layout = 'Lokman Shah and anr Vs State of West Bengal - Citation 853066 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '853066',
		'acts' => ' <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 148, 149, 201 and 302;;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 16A, 144, 154, 161, 164, 313 and 366;;Evidence Act, 1972 - Sections 9, 30, 33 and 45;;<a href="/act/52009/arms-act-1959-complete-act">Arms Act, 1959</a> - Sections 25 and 27',
		'appealno' => 'Criminal Appellate Jurisdiction, Crl. Appeal No. 274 of 1992 with Death Reference No. 11 of 1996',
		'appellant' => 'Lokman Shah and anr.',
		'authreffered' => '',
		'casename' => 'Lokman Shah and anr. Vs. State of West Bengal',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Gayasi v. State;',
		'citingcases' => '',
		'counselplain' => ' Mr. Balai Chandra Roy, ;Mr. Sekhar Kumar Bose, ;Mr. Subrata Kumar Basu and ;Mr. Asim Kumar Roy, Advs.',
		'counseldef' => ' Mr. Tapan Roy Chowdhury and ;Mr. Thakurdas Roy Chowdhury, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-12-01',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Gitesh Ranjan Bhattacharjee and ;Malay Kumar Basu, JJ.',
		'judgement' => '<p>G.R. Bhattacharjee, J.</p><p>1. Both the above noted Death Reference and the criminal appeal are being dealt with and disposed of by this Judgment as they arise out of the same Judgment of the 3rd court of Additional Sessions Judge, Allpore. The trial court by its judgment and order dated 26-8-92 acquitted the accused Sanda Akhtar and the accused Hossaln Chowdhury but convicted the accused Naslm @ Naso and the accused Lokman Shah under section 302/149 IPC and further convicted the accused Naso under sections 148, 201/149 IPC. Subsequently after giving a hearing on the question of sentence the trial court by Its order dated 31-8-92 sentenced both the accused Naso @ Naslm and Lokman Shah to death for their conviction under section 302/149 IPC for the murder of V.K. Mehta and also sentenced the accused Nase to R.I. for 3 years and fine of Rs. 2.000/- i.d. to R.I. for 6 months for the offence of rioting punishable under section 148 IPC and also sentenced him to R.I. for 3 years and a fine of Rs. 2,000/-I.d. to R.I. for 6 months for the offence punishable under section 148 IPC and also sentenced him to R.I for 7 years and a fine of Rs.6000/- I.d. to R.I. for 1 year and 6th months for the offence punishable under section 201/149 IPC. The substantive sentences of Imprisonment were directed to run concurrently. The trial court then made a reference to this court under section 366 Cr.PC for consideration of confirmation of the death sentence Imposed upon the two accused Nase and Lokman. Correspondingly the said two accused have preferred appeal to this court against the judgment and orders of conviction and sentences passed by the trial court. As we have already noted both the death reference and the criminal appeal are being dealt with and disposed of simultaneously by this Judgment.</p><p>2. It may be noted here that on an earlier occasion the trial court In a trial on the same charges and others passed Judgment and orders of conviction and sentences In S.T. No. l(6)/88 and on that occasion four accused persons namely Naso and Lokman (the present appellants) along with the accused Akhtar (c) Sanda Akhtar and Hossaln Chowdhury were Inter alta convicted under section 302/149 IPC for the murder of V.K. Mehta and sentenced to death. There were also other sentences In respect of different accused persons on that occasion. It is however to be noted specifically here that on that occasion the accused Nanney Kasai was convicted under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and sentenced to R.I. for 6 years and he was further sentenced to R.l. for 2 years for conviction under section 148 IPC with the direction that both the sentences would run concurrently. The said accused Nanney Kasai. we are told, did not prefer any appeal against the conviction and sentences Imposed on him and he rather preferred to undergo the sentences imposed on him by the trial court The four accused named above who were sentenced to death however preferred appeals against their conviction and sentences which were all heard together by a Division Bench of this court along with the death reference for consideration of confirmation of death sentence Imposed upon them by the trial court. The Division Bench hearing the said death reference and the connected criminal appeals disposed of the same by Judgment dated 8-7-91 by which the death reference was rejected and the appeals were allowed and retrial of the said four appellants-accused persons by the trial court was directed to be held In respect of the charges for which they were found guilty by the trial court. The precise ground on which the retrial was directed was that the trial court allowed the prayer of amendmenl of certain heads of charges at the stage of argument at the behest of the learned Special Public Prosecutor, thereby making amendment In respect of the names of the places of occurrence in the concerned charges. In view of such amendment In the concerned charges at the stage of argument before the trial court, the Division Bench hearing the earlier appeals and the death reference felt that the accused persons ought to have been given an opportunity by the trial court to cross-examine the prosecution witnesses after alteration of charges, and only on that ground the Division Bench considered It proper, without entering Into the merit of the prosecution case, to direct retrial of the case by the trial court In the manner directed by the Division Bench which we will mention hereafter. But before that we briefly describe the nature of charges framed against the accused persons including the present appellants. The first charge was one under section 148 IPC for rioting. The second charge was one under section 302/149 IPC for the murder of Mokhtar All, a police constable In white uniform. The third charge was one under section 302/149 IPC for the murder of V.K. Mehta, D.C. Port Division., In Khanki uniform. The fourth and the fifth charges were under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and Mokhtar All respectively. The sixth and last charge was under section 324/149 IPC for causing hurt to K.K. Sharma, Asstt. Commissioner of Police (II), Port Division and to Rama Shankar Slngh, constable.</p><p>3. The direction of the Division Bench for retrial was couched In the following language :--</p><p>'On the conclusion as above, we set aside the order of convictions recorded and sentences Imposed upon the four appellants before us and direct their retrial only in respect of those charges for which they were found guilty by the learned trial Judge. In the retrial the learned Judge will give the appellants an opportunity of further cross-examining those witnesses of the prosecution, who had earlier deposed In respect of the above charges and thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure. The four appellants should then be given an opportunity to adduce evidence on their behalf. On the basis of the evidence already on record, evidence to be brought on record pursuant to this order, and the further statements of the appellants, If any, made under' section 313 of the Code of Criminal Procedure, the learned Judge will write out a fresh judgment after hearing the arguments of the parties. By way of abundant caution, we reiterate that the retrial, in terms of this order Is to be confined to the four appellants only and that too only in respect of the charges for which they were found guilty. Since the appellants are In custody for a pretty length of time, we direct the learned trial Judge to conclude the retrial as expedltiously as possible, preferably within a period of two months from the date of communication of this order. Till then, the four appellants shall continue to remain in custody.</p><p> The appeals are thus allowed and the reference made by the learned Judge under section 366 of the Code of Criminal Procedure is rejected.</p><p>Consequently the retrial was required to be confined to the charge under section 302/149 IPC against the four accused persons, namely, Naso, Lokman, Sanda Akhtar and Hossain Chowdhury, for the murder of V.K. Mehla and also against the accused Naso to the charge under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta as well as under section 148 IPC for rioting.</p><p>4. The trial court held the retrial pursuant to the above noted direction of the Division Bench. The witnesses whom the accused persons desired to further cross-examine In the retrial were produced by the prosecution and were cross-examined. However, at the retrial the prosecution could not produce two of their Important witnesses namely P.W. 26, Md. Mustafa and P.W. 38. Md. Narln as they were not traceable and this fact was recorded by the trial court In Its order No. 295 dated 28-2-92. Be that as It may, on retrial the accused Sanda Akhtar and the accused Hossaln Chowdhury were given the benefit of doubt and were acquitted and this had to be done, as it appears from paragraph 32 of the Judgment of the trial court, mainly because the evidence of the two prosecution witnesses, namely, P.W. 26 and P.W. 38 were not taken Into consideration as they could not be produced for further cross-examination at the retrial. In paragraph 33 of the Judgment of the trial court, it Is recorded in that connection that the learned Special Public Prosecutor after taking sufficient opportunity finally expressed his Inability to produce those two witnesses and also pointed out that after a lapse of nine years the whereabouts of those witnesses could not be ascertained and It may be that for fear of life they had absconded. However, at the retrial the trial court convicted and sentenced the appellants-accused Naso and Lokman as noted earlier and thereafter made this reference under section 366 Cr.PC for confirmation of death sentence Imposed on them. The said two appellants have also preferred criminal appeals against their conviction and sentences.</p><p>5. The prosecution case has been succinctly stated in the earlier judgment of the Division Bench and we restate the same. The prosecution case in a nutshell is that in the morning of March 18, 1984 communal disturbances broke out at Fathepur Village Road under the Garden Reach Police Station and its adjoining areas which fall within the Port Division of Calcutta Police. On getting information of the disturbances Sri Vinod Kr. Mehta, the then Dy. Commissioner of Police of the Port Division went there alongwlth his securily guard Moktar All. Sri K.K. Sharma (P.VV.7), who was the Asstt. Commissioner of Police of that Division then, also reached there along with his security guard R.S. Singh (P.W. 16) and other police officers. When the police personnel tried to restore peace and normalcy, they were attacked by a riotous mob with brick-bats, bombs etc. To avoid mob fury, Sri Mehta and others entered into a mosque but as they were not allowed to remain there by its [mam, they came out. Then they were again attacked with bombs and other lethal weapons and finding no other alternative Sri Mehta took shelter In the house of Abdul Latif Khan (P.W. 21). a constable attached to the Calcutta Police, at G.222 Battikal Second Lane. Moklar All. In his return, took shelter In a near-by house at Dhankhettl. Unfortunately, however they could not save their lives as they were hacked to death by the riotous mob. Subsequently, the charred body of Moktar All was found In an open space near the premises where he took shelter, while that of Sri Mehta bereft of his uniform, was found floating in a drain near premises No. F/59, Attabag with multiple Injuries on his person. Sri K.K. Sharma and his security guard were also attacked by the riotous mob and injured but fortunately they could save their lives by running away. Sri Sharma lodged an Information about the incident in the evening and on that information Garden Reach Police Station registered a case against 150/200 unknown persons for the murder of V.K. Mehta and Moktar All and for assault on Sri K.K. Sharma and other police personnel. S.I., S.R. Ganguly (P.W. 80) of Garden Reach Police Station took up investigation of the case but under orders of superiors Investigation was subsequently taken up by S.I., S.K. Bhattacharjee (P.W. 1) of the Detective Department (Homicide Squad) of Calcutta Police who submitted charge-sheet.</p><p>6. Having described above the genesis of the present appeal, the charges framed, the prosecution case in a nut-shell and the scope of retrial, we now proceed to examine the merit of the prosecution case on the basis of the facts, circumstances and evidence on record. It Is needless to mention that we are now concerned mainly with the case against the two appellants Nase and Lokman. At the very out set. we may mention here that ext. 3/1 Is the site plan which will be of great assistance in appreciating the facts, circumstances and evidence on record Including their co-relation in respect of different aspects of the matter. We may here also adumbrate a broad categorisation of the different types of prosecution witnesses. P.W. 80, Santl Ranjan Ganguly, S.I. of Police who was attached to Garden Reach Police Station at the relevant time is the first I.O. of the case. P.W. 1, SaroJ Kr. Bhattacharjee, S.I. of Police attached to Homicide Squad. Detective Department, Calcutta Police is the second I.O. who submitted charge-sheet after Investigation of the case. P.W. 2 Is the plan maker. P.Ws. 3, 4, 5 and 6 are photographers. They are all police personnel. P.W. 65 Is a private photographer. P.W. 7, K.K. Sharma is the Assistant Commissioner of Police, Port Division who lodged the FIR and P.Ws. 8, 9, 10, 11. 12, 13 and 16 are all police personnel who had been to the disturbed area for restoring law and order there. P.Ws. 15. 18, 20. 22, 23, 25. 27. 28, 29. 34. 35, 36. 37 and 48 were all declared hostile by the prosecution. However, of the said hostile witnesses, we may have to discuss the evidence of some, namely P.Ws. 15, 18, 20, 22, 23 and 25. The main prosecution witnesses Implicating the present appellant Nase are P.Ws..16, 19,21 and 24. The other two vital witnesses P.Ws. 26 and 38 however, could not be produced for further cross-examination at the retrial. P.W. 46 Is the Autopsy Surgeon who held the post-mortem examination on the dead-body of V.K. Mehta. P.Ws. 44, 66 and 67 are also medical witnesses. P.W. 47 is the Judicial Magistrate who held T.I. parade. P.W. 51 is the Judicial Magistrate who recorded the confessional statements of the two accused Nanney Kosal and Lokman Shah on 3-4-84 and 9-6-84 respectively (vide ext. 13 and ext. 14).</p><p>7. We will now discuss the evidence of some witnesses from which we will get an Idea of the nature of the Incident that took place on 18-3-84 in the concerned locality. P.W. 7, Sri K. K. Sharma was posted at the relevant time as Assistant Commissioner of Police (II). Port Division. He says that late V.K. Mehta was his Dy. Commissioner and he died on 18-3-84. It may be noted here that It is In evidence that 18-3-84 was a Sunday and It was the day on which 'hoiI' festival.was being celebrated. It is the evidence of Sri K. K. Sharma (P.W.7) that on that day while he was at his house he received a telephone from Port Division. Telephone Exchange at about 10-45 a.m. to the effect that a trouble was going on at the Junction of Falherpur Village Road and Paharpur Road and that the D.C. Mr, Mehta wanted his presence there. Then he proceeded to the place In a Jeep accompanied by his body guard Rama Shankar (P.W. 16) who was well acquainted with that place and they reached there at about 11 -30 a.m. and found brick-bats lying on the roads and remants of exploded bombs and he also saw a huge gathering. He also heard nofsy sounds. He says that he saw some local police officers standing there and seen D.C. Port accompanied by one Mr. Sen and local leader came to that place accompanied by some agitated persons and the D.C. told him that they would go out and see what was going on and then he, his guard, D.C., his guard Moktar All and 5/6 armed constables proceeded along the Fatherpur Village Road and entered the Mathorpara Basil and found agitated crowd on both sides of Mathorpara Bastl Lane. According to his evidence they proceeded further and came near Ramnagore Lane when brick-bats, bombs etc. were hurled at them and It was about 11-45 a.m. at that time. He says that there Is a mosque near the place where the Mathorpara Bast! approach meets Ramnagore Lane. His evidence is that due to heavy brick batting and bomb throwing D.C. asked them to take shelter Inside the mosque and In order to save themselves they entered Inside the mosque. He describes that there Is a collapsible gale at the back portion of the mosque and they entered the mosque through the front gate and after some time they noticed that a riotous mob of about 40/50 persons were trying to break open collapsible gale of the mosque and those persons were armed with brick-bals, bombs, swords, daggers etc. and Ihen the Imam of the mosque told them to leave the mosque and then the D.C. told him that they would have to leave the place and to go out and had also some discussion regarding their future course of acllon and also told him lhal they were to disparse the violent mobs. According to him the D.C. further told him that he (A.C.) should try to disperse the mob from Mathorpara Bastl approach and Ramnagore Lane junction while D.C. would disperse the mob from eastern side of the mosque. He estimates that there were about 400/500 persons around the mosque, and say that when they came out he noticed the D.C. In the midst of a crowd and was going towards the east. His evidence is that bombs and brickbats were thrown at them and he was surrounded by some persons and they forced him to sit on the ground and someone took off the helmet from his head and he was praying to God for his life and one person started hitting on his head with a full brick ('then if). He also noticed that some persons had daggers and swords with them. He says that he received bleeding Injury on his head and he was more or less senseless at that time and after some time somehow he managed to get up and could, with difficulties, reach the place wherefrom they had earlier proceeded towards the mob. He says that when he was made to sit forcibly by the mob, the situation was such that he could notice where his security guard was and where the other armed constables were. He also did not see his security guard subsequently on that date. His evidence Is that he met the D.C. Head Quarters, D.C. S.B.-I who were standing there at the place where he returned after sustaining injury, namely, near the junction of Paharpur Road and Fathepur Village Road and on seeing his condition the D.C. Head Quarters advised him to go to Calcutta Hospital for treatment and also ordered one sergeant to accompany him to the hospital and he then went to the Calcutta Medical Research Institute and was treated there. His evidence Is that he reached the hospital at about 12-15 p.m. and his Injury on the head was stitched and from there, Ignoring the advice of the doctor to take admission in the hospital, he went to Lalbazar and reached there at about 2-00 p.m. and met the Commissioner of Police (C.P.) and other high officials and narrated the Incident and from Lalbazar he went home as per the direction of the C.P. His further evidence Is that while at home he got a message that Police Commissioner had gone to the spot and he should go there and then he went to the spot and met the superior officers and came to know that the dismembered charred body of the body-guard of D.C. Mehta had been found in an open space and he also saw the charred body which was beyond recognition to him. He gave the name of the body-guard as Moktar All. He says that he also noticed that metallic buttons used by police constables were lying near the charred body and also found remnants of white uniform used by Calcutta Police Constables. According to his evidence D.C., Port Division V.K. Mehta was still untraced and they conducted search for him and on search the body of V.K. Mehta was recovered from a Kancha Nala and it was found that socks were on his feet and both legs were tied with a rope and he was wearing only one Jangea and the Galnjee was rolled up to his chest and the body had multiple marks of injuries In the eyes, face, chest and other parts and the body was sent to morgue for post-mortem examination. From his evidence it appears that In the T.I. parade he Identified the accused Sk. Nanney and in his evidence he says that he saw the said accused (Nanney) when they were coming out of the mosque. In a very violent and aggreslve mood with a bomb In his hand and he was shouting. His evidence is that after the bodies were sent to morgue, he went to Garden Reach Police Station and there S.I., Santf Ranjan Ganguly (P.W. 80) recorded his statement which was signed by him after going through the same. His statement which was recorded and treated as FIR was marked Ext. 4. In his cross-examination he says that he made the statement to the S.I. at about 8-05 p.m. He also clarifies that the statement fn the FIR (Ext.4) 'after seeing Commissioner of Police I came back to the spot at about 15 hours' is not correct, because he went home from Lalbazar and from home he went to the spot. This he has said In his examination-in-chief and we do not think that there is any substantial discrepancy In the matter. In his cross-examination he says that the police vehicles were parked near the crossing of Paharpur Road and Fatherpur Village Road since the vehicles could not got through Mathorpara. He also says that he was assaulted at Ramnagore Lane near a place where Mathorpara Road meets Ramnagore Lane and after the assault he went to the crossing of Fathepur Village Road via Mathorpara Lane. He says that at Lalbazar he came to know that V.K. Mehta and his body guard were still missing. He also says that dusk to dawn carfew was Imposed in that area on 18-3-84 and he was Informed at the P.S. that section 144 Cr.P.C. had been also promulgated in that area. He says that after the incident due to his Injuries he was completely on bed rest for two months. In his cross-examination in the retrial, he says that the dead body of V.K. Mehta was recovered from a Kanchha Nala and he saw It when it was taken out from that Nala. He however did not see the actual bringing out of the body from the Nala. He first saw the dead body, he says, by the side of the road where It was kept after bringing the same out from the nala. His further evidence Is that about 8 to 10 police personnel Including himself and D.C. Mehta were Inside the mosque and while some of the police personnel were not armed, some were carrying muskets and gas shells. It may be noted here that Ext.4 which Is the statement of P. W. 7, K.K. Sharma that was recorded as FIR on 18-3-84 stands In substantial conformity with the evidence of P.W.7. Sri K.K. Sharma as given in court.</p><p>8. P.W. 8, Sayed All Reza Is an armed constable of police. His evidence is that on 18-3-84 he reported to Lalbazar for duty at 6 a.m. and his duty was allotted to Watgunge P.S. and he went there with a gas gun, and that while he was In that P.S. on standby duty at about 10/10-15 a.m. the Subedar reported that a trouble was going on In Garden Reach area and they were required to go there and accordingly they left for Garden Reach and reached there at about 10-30/10-45 a.m. He says that he saw D.C. Mehta, A.C. and olher police forces and police officers present there and then D.C. Mehta proceeded Inside the bastl along with A.C.. the witness (P.W.8), guards of D.C. and A.C., 5 armed constables, 2 plain clothed constables and 3 police officers In plain cloth. He says that after entering Inside the basti they found a dead body lying there and D.C. asked two police men to guard the dead body and three police officers In civil dress were asked to bring a vehicle and pick up the body. He says that they heard noise coming from Inside the bastl and also heard sounds of bombs and then D.C. Mehta alongwith A.C. proceeded Inside towards that direction and they were with them and when they reached the road through the lane near the mosque they were attacked from both sides of the road and they took shelter in that mosque with the help of a Moulabl and members of the mob were throwing bombs, brick-bats and they had lathi, rods also with them. He says that he noticed that about 20/25 bombs were hurled towards them and when they took shelter In the mosque, a violent mob being armed with weapons were trying to break open the back side collapsible gate of the mosque and the Moulabl was also threatened by the mob with dire consequence if he did not drive out the police parly from the mosque and then on being asked by Moulabl they came out of the mosque and they were attacked with bomb and brick-bats and then the A.C. ran inside the lane through which they had reached the road and they also followed him. He says that as soon as he entered inside the lane he saw that the A.C. was being assaulted on his head With a brick and his helmet was missing. According to his evidence he tried to fire gas from his gun but the gun did not work and then using the gun as a lathi he gave a blow to a boy who was assaulting the A.C. He further says that when he hit that boy with the gun the gas shell burst out. He however says that he could not recognise the boy who assaulted the A.C. with the brick on his head as trouble was going. He further says that when the gas shell burst out, all of the persons fled away from the place and A.C. then stood up and started walking slowly with bleeding Injuries on his head. P.W.8 says that he also received a brickbat blow on his leg when he was going to enter inside the lane after coming out of the mosque. His evidence is that he followed the A.C. keeping watch on the back side and In this way they reached the place where they had come from watgunge P.S. and at that time he noticed the presence of D.C. Headquarters at that place alongwith other police officers and constables and they had a talk with the A.C. His evidence Is that he reported to one police officer that D.C. Mehta had been separated from them and on hearing this the D.C. Headquarters proceeded inside the basti alongwith them in order to ascertain the situation. He says that it was then about 1/1-30 p.m. and he took the D.C. and the others to the mosque and on his way he reported the entire incident to the D.C. Headquarters. He says that the D.C. Headquarters started asking the people of the locality regarding the whereabouts of D.C. Metha and on receiving one information they went to an open space on Ramnagore Lane and saw that a human body was burning. He further says that they noticed a piece of white uniform and a nickel button used by constables lying near that place and so he guessed that It was the body of the guard of D.C.Mehta. That place, he says, is near the mosque. His evidence is that then he and other police constables remained at that place where the dead body was burning and the other police officers went to other place and then at about 5-30/6-00 p.m. they come to know that the dead body of V.K. Mehta had been traced out. His further evidence is that he saw that a dead body was placed by the side of a drain in a lane and the dead body was covered with a white cloth and a police officer lifted that cloth and he found that it was the dead body of Mehta with marks of injuries. In his cross-examination he says that he was 3/4 cubits behind the A.C. when the A.C. was being assaulted and as he was threatening the mob with the gas gun he was not assaulted by any person of that mob. He gives the time as 2/2-30 p.m. when he noticed that the dead body was burning. P.W.9 is also an armed constable attached to the 5th Battalion. He was also sent on duty to Garden Reach area on 18-3-84 after 10-00 a.m. He says that in their party there were 4 armed constables and four had gas guns and some others had lathies and one inspector was with them. His evidence Is that on reaching Paharpur they found a gathering and also heard shouts and D.C. Port, A.C. and other police officers were present at that place. His further evidence Is that D.C. Port, asked four armed constables and four constables with gas guns to accompany him in the adjacent lane and they entered in the lane and after going some distance found a house in blaze and the D.C. placed two armed constables to guard that house and then they along with D.C. were proceeding through an adjacent baeti area and noticed a dead body and D.C. ordered two local police men to guard the dead body and they proceeded further and came to a road near a mosque and when they were on that road they were attacked from both sides with brick-bats, bombs and on being attacked they entered inside the mosque. He says that there were 60/70 persons on both sides of the road. His evidence is that then some persons were trying to break open the gate of the mosque and the Moulabl asked them to get out of the mosque and they came out of the mosque and they were attacked with bombs and brick-bats. He says that he took shelter in a chala and also threw his gas granade but the granade did not burst. He says that from the Chala he came out and started running and he met the A.C. and other police men. He says that A.C. had bleeding injury on his head and finally he boarded the lorry. in his cross-examination he says that D.C., A.C., himself and other police men were together up to the mosque of Paharpur.</p><p>9. P.W.10 is another armed police constable. He was also sent on duty to that place on that day. His evidence is that when they came to the Junction of Paharpur Road and Fathepur Village Road, D.C. Port, V.K. Mehta, his guard, A.C. Port Mr. Sharma, his guard, O.C. Garden Reach P.S. and some local police officers and constables were present there. He says that a house was burning some distance away and a vehicle of Fire Brigade was there. His evidence is that they along with D.C. and A.C. proceeded towards the northern direction and D.C. posted two armed constables near the burning house and proceeding further they found a dead body and D.C. posted the constable of local P.S. there and they proceeded further and noticed an agitated mob and also heard sounds of bombs. He says that they reached Ramnagore Lane near the mosque and up till then the D.C. did not order them to fire. He further says that the D.C. did not pass any order to fire. His evidence-is that when they reached near the mosque, bombs were thrown and they entered inside the mosque. He further says that 20/ 25 persons armed with sharp weapons such as sword, tangi like weapon, klrlch etc. tried to break open the gate of the mosque and when they then all came out of the mosque bombs, brick-bats were thrown at them. He also speaks of assault by one person on A.C. Mr. Sharma and says that his helmet had fallen on the ground and his head was bleeding. He says that at that stage he did not see the D.C. He further says that on their way back he had fired two rounds in the air in order to save themselves as bombs were being hurled from roof-top. He also speaks about the burning of a house and says that Mr. Sharma told the D.C. Headquarters that the D.C. Mehta had been separated from them and then Sharma left for hospital as he has injury on his head and they boarded the lorry. His cross-examination shows that the D.C- Port Division had a shield in his hand at certain stage. P.W. 11, Ashlm Chakraborty is also an armed constable of Calcutta police who was sent on duly there on that day. He says that he was carrying gas gun. He also speaks about the mob found on reaching Fathepur Road arid Paharpur Road crossing. He testified to the presence of D.C. Port. A.C., Port and their guards and officers of Garden Reach P.S. as well as police men of that P.S. He says that they could hear shoutings and sounds of bombs coming from northern side and the D.C. asked them to follow him and than D.C., A.C., their guards and they including the witness along with police officers of the local P.S. and constables proceeded towards north through Fathepur Village Road and through a narrow lane in the basti when they heard sounds of bombs and noise in the Bastt and also they found a deadbody near a two storyed building covered with cloth. He says that the D.C. ordered the two constables of the local P.S. who had muskets to guard the deadbody and also directed the two officers of the local P.S. to make arrangement for removal of the deadbody and then he along with D.C., A.C., their body guards, two armed constables and four gas constables including himself proceeded towards further north and reached Ramnagar Lane near a mosque. He says that many people were shouting, standing on sides of Ramnagar Lane and they were attacked with bombs and brickbats from both sides of the road and then they all entered (n the mosque. His evidence shows that a mob armed with swords, bhojalis were trying to break open the collapsible gate and the D.C. ordered them to come out of the mosque and then they all came out and they were again attacked with bombs and brickbats from both sides of the road. He says that he was hit on his leg with a brickbat. He further says that he fired one round of tear gas shell but it did not explode and then out of fear and to save himself, he took shelter in a tileshed and another constable also took shelter there. He noticed that the A.C. Port Division was going back. He also speaks about the bleeding injury on the head of the A.C. Port Division Then they reached the crossing of Paharpur and Fathepur Village Road where D.C. Headquarters was present. He says that A.C., Port Division talked to the D.C. Headquarters. P.W. 12 Naba Ranjan Dutta is an armed police constable. He says that from Lalbazar they were sent to Garden Reach area and they went there in a lorry and reached Paharpur Road at about 11/11-15 a.m. and found V.K. Mehta. D.C., Port and A.C., Port present there. His evidence also shows that when they reached the road near the mosque a mob of about 150 persons or so on both sides of the road started throwing bombs and brickbats towards them and then they entered inside the mosque and then some persons were trying to break open the collapsible gate of the mosque and were shouting for driving them out of the mosque. He further says that D.C. and A.C. had some conversation with the Moulabl of the mosque and thereafter they all came out and when they came on the road they were again attacked with brickbats and bombs from both sides on the road. He says that he was also hit on his hand and feet by brickbats. He of course cannot say as to which of his companions had gone in what direction but he noticed that the A.C. and 2/3 armed policemen were going towards the lane through which he had come earlier and he followed them. P.W. 13 Ajit Kr. Malty, a constable of Calcutta Police who was in the police party at the relevant time also speaks about that part of the incident which the other police witnesses have described as discussed above.</p><p>10. P.W. 16 Rama Shankar Singh who is a police constable was the security guard of K.K. Sharma (P.W.7), the A.C.-11 (Port) at the relevant time. He went to the spot with the A.C.-II (P.D.) on the relevant date. He says that they reached Fathepur Village Road and Paharpur crossing at about 11-00 a.m. and found the D.C.. Port. Vinod Kr. Mehta and his body guard, both in police uniform, present there as well as the O.C. Garden Reach P.S. and three police officers of South Port Police Station. He also speaks about the presence of some constables of Garden Reach P-S. and police force there. His evidence shows that the people of that locality were in very agitated mood and the D.C. was trying to pacify them and at that time they heard uproars and sounds of bombs coming from Mathorpara side and then the D.C., Port, his body guard, Mr. Sharma, he (the witness), three police officers, two constables of Garden Reach P.S. and six armed constables, [two carrying muskets, two with gas guns and two with gas granades) proceeded towards Mathorpara under the leadership of D.C., Mehta and on reaching Mathorpara they noticed one deadbody lying on the ground near the house of one idrlsh and then the D.C. told the three police officers to make arrangement for removal of the deadbody in a vehicle and the D.C. also posted two Garden Reach P.S. constables near that deadbody. His further evidence is that they then heard roars coming from Ramnagar Lane side and then D.C. Mehta, his body guard. Mr. Sharma, the witness himself and six armed constables proceeded towards that direction and as soon as they reached Ramnagar Lane from Mathorpara they were attacked from the eastern and the western sides of the Ramnogar Lane with brickbats, bombs etc and in order to save their lives they entered in a mosque situated on Ramnagar Lane and they noticed a mob standing behind the collapsible gate of the mosque and trying to break open the gate. He further says that the mob was shouting and asking the imam of the mosque ot drive them out of the mosque and then the Moulabi asked the D.C. to leave the mosque and then the D.C., Mehta had some talks with Mr. Sharma and thereafter they left the mosque. As soon as they came out of the mosque, he says, they were attacked from both sides of the road with bombs, brickbats etc. He says that he received bleeding-injury on his right leg as he was hit with a splinter of bomb and with a brickbat when he was on Ramnagar Lane. He says that he received bleeding injury on the thigh of his right leg and he fell down on the ground and got up within two minutes. His evidence is that at first he could not see any of his companions but subsequently he noticed that the D.C. Mehta and his body guard were running towards the eastern side and a (SIC)b was chasing them with swords, brickbats and bombs. it is to be noted here that from this witness, namely, the body guard of the A.C.. Sri Sharma we get that on being chased by the armed mob, the D.C., Mehta and his body guard ran towards the eastern side. His evidence is that in order to save him he himself started running towards the western side and reached Paharpur road. His evidence read with the evidence of the police witnesses discussed earlier thus indicates how D.C. Mehta and his body guard at that point of time were separated from the other members of the police party on the face of the attack made by the furious and armed mob, and at that point of time when the other members of the police party retreated towards the western side, the D.C., Mehta and his body guard were running in the other direction, namely, the eastern side on being chased by the mob and thus they became isolated from the other members of the police party. P.W.16 says that when he reached Paharpur Road on running away from the place of the trouble, he found a taxi there and he went to Garden Reach P.S. in that taxi and there he reported the incident to one A.S.I, of the P.S. and from the P.S. he went to Calcutta Police Hospital for treatment and was admitted there and he was in the hospital for 26 days. A significant part of his evidence is that he speaks about the presence of Nannay Kasal and Naso (an appellant) and Puttan in the mob having bombs with them when the police parly was attacked by the mob on Ramnagar lane as soon as they reached there from Mathorpara. He also says that he had seen Nannay Kasal to throw bombs towards them. He further says that at that time he also saw Hallm, Naru, Gorachand and llllas, all asked with brickbats and also idrish Rahaman, Kallu armed with bombs. He further says that he had also seen Kasrln in that mob. He says that he knew them previously. in court he also identifies the accused Naso and certain other accused persons. His evidence is that the mob which was throwing bombs etc towards them and the -mob that chased the D.C. and his body guard as well as the mob that was trying to break open the gate were all in angry mood. The evidence of this witness is thus significant as he testifies to the presence of the accused Naso, an appellant herein, with bomb in his hand in the furicus mob that attacked the police parly. in his cross-examination he says that the distance between the mosque and the Paharpur road along Ramnagar Lane will be five to ten minutes walk and the crossing of Ramnagar Lane and Paharpur Road will be about 5 to 10 minutes walk from the crossing of Fathepur village Road and Paharpur Road. He says that they wereinslde the mosque for about 5/ 6 minutes. He also says that both the D.C. and his body guard were in uniform. From his cross-examination we get that the distance between Ramnagar mosque and the Ramnagar oulpost will be less than a mile. He further says that on that day there was trouble in alomost all parts of that area. His evidence is that on that day there was disturbance between Hindu and Muslims. in his cross-examination during retrial he says that after coming out of the mosque he sustained injury on his right leg from a splinter and he fell down and thereafter he managed to go towards Paharpur Road and he went to the Garden Reach P.S. at about 12-45 p.m. and he narrated before the duty officer how he sustained injury and thereafter taking sick report he went to the police hospital. He further says that excepting the disturbance infront of the mosque he had no occasion to see any other disturbance on that day. He also says that when he was in the hospital for 26 days the Police Officer from Lalbazar vlslled him for interrogation. From him we get that he was posted in Garden Reach P.S. for one year from 1980 to 1981.</p><p>11. P.W. 73 Sewnath Slngh was the O.C. of Garden Reach P.S. on 18.3.84. His evidence is that on that day at about 10-15 a.m. S.I.. O.K. Sikdar of Garden Reach P.S. received a massage from Lalbazar Control Room that a disturbance of communal nature was going on in Falhepur village Road area and that information was recorded in the G.D. of the Garden Reach P.S. and thereafter he along wllh S.I., H.P. Dutla. S.I., O.K. Sikdar left the P.S. with available force. He says that he was in his Jeep and the force was in a police vehicle and they reached the concerned area at about 10-30 a.m. and noticed that two groups of agitated mob numbering about 800 or so were throwing brickbats, bombs etc at each other and then he along with his officer and staff chased the crowd and the crowd melted and entered in the lanes and by-lanes. He says that two buildings were on fire and they tried to put off the fire. His further evidence is that the D.C. Port and some other police officers also arrived there, namely, O.C. iqbalpur P.S., O.C. SPPS, S.i. A. Cope, S.i. S. Gupta, Sergeant S. Banerjee and other police men. He also speaks about the presence of the armed body guard of the D.C. He says that when the D.C. came he had his guard Muktar All with him. The D.C., he says, was in his Khaki uniform and his guard was in white uniform. His evidence is that he showed the D.C. the affected place and the D.C. also chased the crowd. He says that other houses were set on fire and they tried to extinguish the fire with the help of local people and the Fire Brigade also arrived there and at that time on receiving and information that a man had been killed on Paharpur Road, he left for Paharpur Road with one or two constables on foot and on arriving there he found that the people were very much agitated and the dead body of one Subrata Bhattacharjee, whom he knew, was lying infront of the premises No.J-146. Paharpur Road and thereafter he pacified the people and came back to Fathepur village Road to make arrangement for the removal of the deadbody. His evidence is that the T.C. Head-quarters S.K. Dasgupta arrived at Fathepur village Road and at that time A.C. (ii) Port Division K.K. Sharma came there with injury on his head and thereafter he himself along with D.C. Headquarters and force proceeded towards Ramnagar Lane through Azhar Motla Bagan as they had no trace about the D.C. Port and his guard. His evidence is that they were searching for the D.C. and his guard at Ramnagar Lane and adjacent areas and K.K. Sharma, A.C. (ii) Port Division was sent to hospital accompanied by Sergeant J.L. Roy. His further evidence is that when they were continuing the search for D.C. and his bodyguard, they found at about 2-30 p.m. a deadbody which was on fire lit by bomboo pieces and other elements in an open plot in front of Mirza Galllb School and a burnt khankl cloth piece and one metal button were found near that place. He says that the fire was extinguished and the charred body was taken charge of by them and he asked his officer to hold inquest of the charred body and the inquest was held by S.i. S. Moitra. His further evidence is that they continued their search for Mr. Mehta and at about 5-30 p.m. the deadbody of Mr. Mohta was found floating in a kancha drain behind the premises No. F-59 and F-201, Atabag. The deadbody, he says, was floating on its back with legs towards north and head towards south with only under-wear on and the body was smeared wllh mud. He clarifies that by underwear he means under-garment. He also speaks of the presence of a pair of socks on legs and a rolled vest on the body. He says that there were injuries on the deadbody of Mehta, mostly on the face and the right part of the head. The body, he says, was taken out from the drain and S.I. S. Moitra prepared the inquest report of the deadbody of V.K. Mehta in their presence and then the charred body and the body of Mr. Mehta were sent to Calcutta Police Morgue for post-mortem examination. He says that the charred body was the body of Moktar All, the security guard of D.C. His evidence is that after the deadbodles were sent to Calcutta Police Morgue, they returned to Garden Reach P.S. at about 8-05 p.m. He further says that the D.C. Port did not carry any revolver on that day. His evidence is that when the security guards go for duty they carry service revolver and ammunallon. in his cross-examination he says that the charred body had no hands and legs and the head was also missing except the occipital region of the skull. He also says that the open space where the charred body was found is situated at the junction of Ramnagar Lane and Battlkal. He says that Ramnagar Lane runs from east to west and Battlkal runs from north to south and the open space extends up to Mirza Galib School from the junction of those two roads and the school is to the north of that junction. He further says in his cross-examination that from Lalbazar Control Room a massage was received that deadbody was floating in the kancha drain. He says that as the situation was abnormal, he cannot remember everything in details and it is difficult for him to say who detected the floating body first as there were many olflcers together in search of the deadbody. He further says that S.J., S.R. Gangull (P.W.80) was the l.O. of the case at the initial stage and thereafter the case was taken over by the Detective Department, Lalbazar. He says in his cross-examination that the D.C. D.D. Mr. H.A. Safwi also came to Ramnagar area a bit late and he was all through with them and curfew was imposed in that area and some persons were apprehended in that area on 18th and 19th March and were challanged in petty cases but he cannot tell the number of the arrested persons now. He also cannot tell in details whether all the arrested persons were challaned in petty cases or some were released after interrogation. He says that curfew was imposed on 18.3.84 in that area and so far he remembers the curfew was in that area for 10/12 days. He also says that as he did not witness all the incidents so he did not start any FiR suomotu. He says that the open plot where the charred body was found was at the Junction of Ramnagar Lane ?,nd Battlkal. He also says that they had been to Ramnagar Mosque at about 12-30 p.m. on that day and at that time there was no gathering there.</p><p>12. P.W.15 Farha Juvoll is the iman of the Dhankhetibari Masjid where the policeparty took shelter on being attacked by the violent mob. This witness, it seems, was treated as hostile by the prosecution. But even then he testifies to the fact that the police party entered in the mosque and had been there for some time. P.W. 17 Abul Hassan is a resident of G-246 Ramnagar Lane. He says that the Maidan to the north of their house is known as Dhankhetl Maidan. in March, 1984, he was working in the wheat grinding shop of his cousin brother Makbul Ahmed at G-247 Ramnagar Lane. He says that on 18.3.84 as usual he went to the shop for his work at 7 a.m. and at about 9-45/10-00 a.m. while he was working in that shop he heard sounds of bombs coming from Mathorpara side and Fathepur village Road side and he found that people were running here and there and he came to know that riot had started between Hindus and Muslims and being afraid he closed the shop and went home at about 10-30/10-40 a.m. He says that he again heard sounds of bombs coming from Ramnagar Lane Dhankheti mosque side and he also heard uproars and he felt that the uproars and sounds of bombs were moving towards their house and he then opened his window partially and noticed that two policemen were running speedily towards Battlkal side, one policeman being in khaki uniform and the other in white uniform. He noticed one wire-net shield in the hand of that policeman who was in khaki uniform, and that brickbats were being thrown at him and he was blocking the blows with his shield. He further noticed that 20/25 persons were chasing the policeman and were hurling brickbats at him. He says that he could recognise some of thepersons in that mob who were throwing brickbats and chasing those policemen and he names Rahamat, Nanney. Corachand, Halim and Matin as the persons whom he could recognise. He says that the mob chased those policemen towards Batlikal side and he become afraid and closed the window. His evidence thus lends support to the prosecution case as well as the other evidence adduced by the prosecution in that behalf that the D.C. V.K. Mehta and his body guard Moktar All were being chased by a violent mob. He further says that at about 12-30 p.m. he heard sounds and uproars coming from Batukal side and subsequently it appeared to him that the roars were coming from Dhankheti Maidan and he again opened his window partly and noticed that a policeman in white uniform was lying on the ground and about 15/20 persons were there around that body. He further noticed that four persons were chopping the hands and legs of that policeman with chopper like weapons and he could recognise Rahamat and Matin who along with two others were chopping the hands and legs of that policeman. He also could recognise Gorachand and Hallm amongst the persons who were standing near the body of the constable. He noticed that some persons were placing bamboo pieces near that body, and he says that being afraid he closed the window. His further evidence Is that at aboul 7/8 p.m. In that night he came to know that D.C. Port had been murdered and his body guard was also murdered and his body was burnt down. He restifies that by the dress of that body he could recognise that he was a police sepoy. His evidence thus lends support to the prosecution case that the body of Moktar Ali, the body guard of D.C. Mehta was dismembered by cutting its limbs and was burnt by fire by the miscreants, and he also could identify some of the miscreants named by him. In his cross-examination he says that curfew was imposed in that area in the afternoon of 18.3.84. He further saus that his father was arrested by police at about 4/4-30 p.m. on 19.3.84 from the crossing of Barttikal and Ramnagar Lane and his father returned in that night at about 7-30/8-00 p.m. He says that In their locality the number of muslims is more than that of the Hindus. He denies the defence suggestion that his father was released by the police on the understanding that he would give evidence on behalf of the prosecution as tutored by the police. P.W. 18. Makbul Ahmed is a resident of premises No. 247 Ramnagar Lane. He testifies to the fact that on 18th March, there was huge mob and people were running here and there at about 10/10-10a.m. He was however treated as hostile by the prosecution. He says that on that day he. Mansoor, TaJ All and 30 others were arrested by police and taken to Garden Reach P.S. and they were released at about 11-00 p.m. P.W.19, Khalil Khan was resident of G-230, Batlikal at the relevant time as a tenant. He Is a police constable who was posted at Lalbazar Headquarters, R.C. Office In March, 1984. From his evidence we get that P.W.21 Abdul Latif Khan is his cousin brother and P.W.24 Hadis Khan Is the son of the said Abdul Latif Khan and that In March, 1984 Hadis was residing at G-222 Batlikal. It may be mentioned here that Abdul Latlf Khan is also a police constable. P.W.19, Khalil Khan says that in March. 1984 Hadis Khan had no employment and he used to keep 2/3 cows and sell milk. He says that the uniform of Calcutta Police constable is white shirt and white pant and also they used buttons on their shirt which were made of brass. He also testifies that the emblom 'C.P.' is also made of brass. He knows Moktar All. He says that 18.3.84 was a holiday and he was In his house and at about 10/10-30 a.m. he heard a huge row coming from Fathepur village Road side and he also heard a row coming from Battikal side and he came out of his house and stood on the road very close to his house and while he was standing near the corner of the house of Kayum which is 228/2 Battikal, he saw that D.C. Mehta and his body guard constable Moktar All were being chased by a mob from the southern side to the northern side and they were throwing brickbats at those two police persons and were shouting 'maro, maro police lokko maro'. He says that the mob and those two police persons were 30/40 yards away from the place where he was standing, He testifies to the fact that the D.C. was in a khaki uniform and Moktar was in white uniform. He says that the house of Nalmmullah Is opposite to his house at a distance of 30/35 yards, the number of that house being G-228/3 Battikal. He saw that the security guard Moktar All entered in the house of Nalmmullah and 30/40 persons were chasing Moktar Ali. He says that he Intervened and stated to them not to assault the police otherwise they would feel the consequence. He says that in the mob some were carrying choppers and some were carrying swords. He also says that he was dashed down by the mob on the ground. He could recognise Gorachand. Sagir, Rahamat, Halim, Wahob and Kallu amongst the persons who were chasing the police constable Moktar Ali. He says that he was dashed down by Rahamat, and Kallu was with Rahamat at that time and that being afraid he then went Inside his house. His further evidence is that 20/25 minutes thereafter his brother's son Hadls (P.W.24) came to his house and reported that Naso and his associates had assaulted the D.C. very serious by in the house of Hadls, and that Hadis also stated that a sepoy was also being assaulted by Rahamat and Kallu on the road. Hadls, he says, was very much purturbed and he was trembling and Hadls told that he was leaving for his father-in-law's house. P.W. 19 Khalil says that he also became afraid apprehending attack on him and the members of his family as he was a police constable and so he along with his family members went to Ramnagar Police Camp. In his cross-examination he says that on that day at about 8-30/9-00 p.m. he went to Garden Reach P.S. after leaving the members of his family at Ramnagar Police Camp and made a statement to the police officer about the Incident seen by him. He says that he made the statement to the duty officer who recorded it in english. He says that his two brothers are also working as Calcutta Police constables and his cousin brother Latif (P.W.21) is also a constable of Calcutta Police. He further says that on that day latif Khan had duty. He says that his office was closed on that day being a Sunday and that the R.O. office remains closed on Sunday and other holidays. He says that he reached Ramnagar Police Camp with his family members at about 2/2-30 p.m. after locking his house. His evidence in cross-examination is that as soon as he came out of his house hearing the row he noticed that D.C. and Moktar crossed him from southern side to northern side speedily. He denies the defence suggestion that his brother's son Aktar was arrested by police and was made an accused but subsequently he was let off and in his place another Aktar was made accused. He however does not remember whether Hadls was arrested by the police. He also denies the defence suggestion that as he is a police constable so he is deposing falsely on being pressurised by hissuperior officers. He says that from Garden Reach P.S. he returned to Ramnagar Camp and stayed there with hts family for the night and in the next morning he returned home at about 8-00 a.m. Hadls, he says, came to his house at about 12/12-30 p.m., and reported to him what he had seen. He denies the defence suggestion that his relations were taken in custody by the police and when he and Latif asked the police officers to release them, they told that they would be released provided they would give evidence. in his cross-examination at the retrial he says that his statement was recorded by the police at the P.S. at about 8/8-30 p.m. on the date of the Incident.</p><p>13. P.W.20 Akil Ahmed is a resident of G-223 Battlkal. He, it seems, was however treated as a hostile witness by the prosecution. From his examination-in-chief we however get that Latif Khan (P.W.21) and P.W.24 Hadls Khan (son of P.W.21) reside in the tileshed house which is adjacent to the house of this witness (P.W.20). We get it from P.W.21 and P.W.24 that the premises in which they reside is G-222 Battikal Second Lane. It is also to be mentioned here that according to the prosecution the incident of assault on D.C. Mehta took place in the said premises No. G-222. Battlkal Second Lane. P.W.20, Akil Ahmed says in his cross-examination that Hadis Khan (P.W.24) used to keep cows and sell milk and he used to keep cows in the courtyard. The prosecution expected this witness to give positive evidence about attack on two police persons but he belled that expectlon. From his examination-in-chief it however appears that their house is a two storied building and one can see the rooms of the tileshed (where Latif Khan and his son Hadls used to reside) from his house (the house of P.W.20) on leaning. However, what the prosecution inter alia suggested to this witness is that he stated to the I.O. during investigation that he found that some minor boys were pouring water In the room where D.C. entered and also on the courtyard, which however he disowns to have made. By this suggestion the prosecution possibly wanted to project a case that blood which had fallen there as a result of assault on D.C. Mehta was washed away with water. P.W.20 wants to say that on the date of the indicent he was not in his house and therefore he did not see anything. In his cross-examination on behalf of the defence he says that he returned home on 19.3.84 and on that day police had arrested Abut Hossain, Sallm and many others. He however, did not see Hadls Khan on 19.3.84. The evidence of this hostile witness thus shows that on 19.3.84 many pesons were arrested or picked up by the police. We will find from the evidence of P.W.24. Hadls Khan that he was also picked up by the police on 19.3.84 which we will discuss later. P.W.20 says in cross-examination that on 19.3.84 he stayed in the house for 2/3 hours and thereafter fled away from that area and went to his sister's house and stayed there for some days. The evidence of this hostile witness P.W.20, we find, lends support to the prosecution case that Latlf and his son Hadls were his neighbours at the relevant time and Hadls used to maintain cows and sell milk and that on 19.3.84 police arrested many persons of that locality.</p><p>14. P.W.21 Abdul Latlf Khan was residing with his family at G-222 Baltikal Second Lane as a tenant at the relevant time and Hadis Khan (P.W.24) is his son. He says that In March, 1984 Hadls used to keep cows and sell milk and that he used to keep his cows in the said premises. Hisevidence is that on 18.3.84 which was the 'holiday' he had stand-by duty to be performed from 12 noon to 8-00 p.m. at P.T.S. Barrack and that at about 12 noon he got the information that a riot had started between the Hindus and Muslims in their area and he then started for his house from P.T.S. Barrack In order to see the members of his family. He says that at about 12-30/12-45 p.m. he reached Battlkal Second Lane and when he advanced ten steps or so he found that 6/7 persons were standing ahead of him and amongst them he could recognise Naso (an appellant), Puttan. Samsad and Abbas who were all armed. He says that some of them had swords, some had choppers, some had Napalas etc and they were standing by the side of kancha drain in Battikal Second Lane. According to his evidence the house of Dr. Hikmat All Mondal was situated near that place and he also noticed that one deadbody was lying by the side of that kancha drain but not inside the drain. He says that he knew those persons named by him as they were his neighbours. He also idenlified the accused Naso in court. He says that those persons were standing very close to that deadbody and that Naso was standing two cubits away from that deadbody which was at a distance of about 30/35 yeards from the place where he (the witness) was standing. He says that so far as he could see, blood was coming from head and the deadbody was smeared with blood. According to his evidence he stopped there and thought that it would not be proper for him to advance further and he became alarmed and then returning back he entered In the premises No. G-350 where his father was residing with his step-mother and he learnt from his father that there was trouble in Battlkal area and his wife and other members of the family had left that area and that he then went to his brother's house at Alif Nagar and came to know that his wife and sons and daughters had not come there and he then went to Kazlpara in the house of the father-in-law of his son. Md. Hadis and there he met Hadls and the other members of the family. Then he says that his son Hadls reported to him that a mob had chased D.C. Port and the D.C., Port took shelter Inside their house and then Naso, Puttan Samsad and some other persons started assaulting D.C. and that Hadis also reported to him that he had seen some miscreants assaulting one constable in front of the house of Naimullah. He testifies to the fact that at that time Mr. Mehta was the D.C., Port. His evidence is that thereafter from Kazipara he went to Garden Reach P.S. at about 8-00 p.m. and at that time there were many police officers who were very busy and at about 9-30 p.m. he could state to a police officer about the Incident seen by him and also heard by him from his son, and his statement was recorded. He also says that he found his brother Md. Khalil (P.W. 19) in the P.S. and his statement was also recorded by the police officer. He further says that at the P.S. he learnt that the deadbody of D.C. was recovered from the place where he had seen the deadbody of a person as stated by him and lhat the deadbody of police constable Moktar was recovered from Dhankheti Maidan. He says that he is residing at G-222 Battikal Second Lane for the last 25/28 years. In his cross-examination he also gives the names of certain other tenents who were living at G-222 Ballikal Second Lane with family. He says that the accused Naso at that time used to reside occasionally in the house of one Nazi Saheb in Battikal Second Lane and occasionally in the house near Match factory by the river side. In his cross-examination he says that he had seen 6/7persons including the persons named by him by the side of the Kancha drain and he became afraid when he saw those persons and he stood there for one minute when he saw those persons but none of them approached him. He specifically says that he became panicky as soon as he noticed the deadbody and those persons and he stood ther for one minute. Dr. Molla. he says, is known as Dr. Hlkmat All Mondal. He says that he was very much unnerved on seeing the deadbody all on a sudden. In his cross-examination he says that he reached Garden Reach P.S. at 8-00 p.m. and after his statement and the statement of his cousing brother Md. Khalil (P.W.19) were recorded, they left Garden Reach P.S. at 10-00 p.m. and he went to P.T.S. and his brother went to Ramnagar Camp. Khalll, he says, is also a Police constable of Calcutta Police. He says that when he reached Garden Reach P.S. he found many senior police officers Including Commissioner of Police and Jt. Commissioner of Police etc. present there. He says they he stated that he had seen something and heard something but no police officer was listening to him and so he could not report as soon as he reached the P.S. and finally he could make statement to the police officer at 9-30 p.m. and it was recorded In English and read over and explained to him. Much has been criticised by the learned Advocate for the appellants that according to this witness he reached Garden Reach P.S. at about 8-00 p.m. but his statement was not recorded by the police till 19-30 p.m. although this witness claims to have seen and heard about some very important facts specifically Involving some accused persons and this, according to the learned Advocate for the appellants, shows that the evidence of this police constables P.W.21 and of other concerned witnesses is the product of concoction and subsequent manupulatlon at the Instance of police. On the other hand, it is submitted by the learned Special Public Prosecutor representing the State that after such a shocking and gruesome Incident resulting In the death of a very senior police officer like Dy. Commissioner and also his constable guard, it was only natural that there would be many top police officers at the concerned P.S., namely. Garden Reach P.S. to take stock of the situation and also to take necessary follow up measures demanded by the situation and in such a state of affairs, it is quite possible that a police person of the rank of a constable like P.W.21 or P.W. 19 could not succeed readily in contacting the proper officer who would Immediately attend to his statements. Having regard to the facts and circumstances we also do not think that In a situation like this there was really any Improbability that the statement of these witnesses were recorded at about 9-30 P.M. at the P.S. although they went there at about 8-00 p.m. In his cross-examination during retrial, he says that uptil now he cannot say, whose deadbody It was, which he saw on that date. We may note here that if the evidence of this witness was really a product of concoction he would have possibly satd that the deadbody which he saw was recognised by him as the deadbody of D.C. Mehta. But he did not say so. He indeed knew D.C. Mehta, as he says but it is nothing unnatural that at that point of time when he suddenly saw the deadbody from a distance of 30/35 yards in the presence of some armed persons and the deadbody was smeared with blood, he did not naturally bother to engage himself In minute observation for detecting the identity of the deadbody, and Instead he left the place being naturally panicky but he was, as we have seen, very specific about the presence of certain armed miscreants named by him Including the appellant Naso.</p><p>15. We now proceed to discuss the evidence of the next vital witness P.W.24, Hadis Khan, the son of P.W.21 Abdul Latif. He says that they reside at G-222 Battikal Second Lane as tenant and in March, 1984 he used to sell cow milk and had four cows and he used to keep two cows in their house and two in another place. He says that he himself and Mustafa, his helper (P.W.26) used to look after the Cows. His evidence is that on 18.3.84, sometime In the morning he came to know that a not between the Hindus and Muslims had started and that at about 11-30/11-40 a.m. again he heard sounds of bombs coming from Ramnagar Lane side when he was in his courtyard and his mother and Mustafa were in the house, but his father had gone for his duty. He next says that at about 12 noon he heard a huge row coming from Southern side when he was in his courtyard and on hearing the same he came out along with Mustafa from his house and stood on the road and notice that many persons were chasing two policemen towards South and one policeman was In a white uniform and the other was in Khaki uniform and the policeman in while uniform entered in the house of Naimullah and some persons also entered that house and those persons were hurling brickbats. His evidence is that the house of Naimullah was at a distance of 50/60 yards from the place where he was standing. He however could not recognise any of the persons who were hurling brickbats and chasing that policeman in white uniform and entered in the house of Naimullah. But his specific evidence is that the other policeman in khaki dress was being chased by the mob and when that policeman came near him he entered in the courtyard of his house and that policeman too entered in that courtyard and the policeman told him that he was D.C. Port and then on his pointing out the D.C. entered into the bathroom (Gasalkhana). The Gasolkhana, he says, was 9/10 cubits away from the place where he was standing and that simultaneously Idris and some other persons armed with brickbats etc. entered Into the courtyard and they were throwing brickbats aiming at the bathroom and simultaneously Naso (an appellant). Puttan, Samsad, Abbas, Mukim entered in the courtyard. He says that Naso had a rod in his hand and others had swords, nepala etc in their hands. He says that he knew those persons from before. The D.C., he says, became frightened on seeing those persons and requested them not to assault him after disclosing his identity as the D.C. of Police but some of those persons replied that they did not know D.C. and then ordered 'maro' and then Naso, Puttan, Samsad, Ahmed, Mukim and some others entered instde the bathroom and then Naso gave a rod-blow on the helmet of D.C. and there was dashing and pushing and the helmet fell down and Naso again assaulted D.C. with the rod on his head. P.W.24, Hadis says that then he came out from the courtyard and went out of the house and some people were throwing brickbats on the tiles of their roof but he cannot tell their names. He says that he then proceeded towards his uncle Khalll Khan's house but on his way when he came near the house of Naimullah he noticed that a pojiceman In white uniform was being assaulted on the road by Gorachand and some other persons and then he entered Inside the house of his uncle and reported the entire Incident to his uncle (meaning P.W.19) and he also reported that he was not going to stay and was going to his father-in-law's place and then he went to his father-in-law's place at Kazlpara at Howrah along with his mother. He says that after sometime hisfather Abdul Latif (P.W.21) came to his father-in-law's place and he reported the entire Incident to his father. He says that his father said that he would be staying in the P.T.S. barrack. He says that he used to keep two cows out of four cows near the power house gate commonly known as 28 number. In his cross-examination he says that he left for his father-in-law's place from his house at 12-30/1-00 p.m. and reached his father-in-law's house at about 2-00/2-30 p.m. His evidence Is that his wife and children had gone to his father-in-law's house on 15.3.84. He says that he and his mother returned home on 19.3.84 at about 6-30/7-00 a.m. from his father-in-law's place and he noticed that many police persons were roaming In their locality. He says that he was examined by the I.O. on 20.3.84 In their house. He further says that on 19.3.94 at about 12-00 noon police arrested him and placed in the van and the van patrolled in their locality and then at about 6-30/7-00 p.m. he was taken to Garden Reach P.S. and many people of their locality were also brought to Garden Reach P.S. on that day. He further says that he was released by the police in that night at about 9/10 p.m. and they were kept in the lock-up of Garden Reach P.S. from 7-00 p.m. till they were released. Much has been criticised by the learned Advocate for the appellants that when the police from the statements of P.W. 19 & P.W.21 could come to know In the very evening of the 18th March that Hadis had seen a vital part of the occurrence and also had named some of the culprits to them, there was no reason why his statement should have been recorded as late as on 20.3.84 in his house inspite of the fact that he was in the custody of police in police van and P.S. Hazat for quite a long time upto about 9-00/10-00 p.m. on the 19th March. This, according to the learned Advocate for the appellants, Indicates thai the prosecution case that Hadls saw a vital part of the incident is a concocted story. We are however not convinced by this submission. The enormity of the Incident, the involvement of a large number of persons and the complexities Inherently Involved In an Investigation of a case of this nature as well as the change of investigating officer on 19th March are indeed some of the factors which have to be taken Into consideration in this context. And that being so, we do not think that there really exists any reason to doubt the veracity of the evidence of this witness Hadls (PW.24). P.W.24, Hadls says in his cross-examination that the bathroom is used by the female inmates of the house and that the size of the bathroom would be about 8 cubits X 8 cubits. He says that the latrine is not inside that bathroom. He further says that the D.C. was Inside the bathroom when he came out from their house. Hefurther says that he came out from their house 6/7 minutes after the D.C. had entered In their courtyard. He also says that when he came out of his house the D.C. was being assaulted and he noticed about 50/60 persons on the road in front of their house. He however does not remember whether he had seen blood coming out from the head of D.C. when he was assaulted on the head by the iron road. His evidence is however clear that the D.C. was assaulted on his head by Iron rod. He denies the defence suggestion that Naso did not give blow with iron rod on the head of D.C. He makes it specific that the bathroom is used for washing hand and feet by the femalefolk of the premises before 'oozu' He says lhat there are no door and walls of that bathroom. Much has been commented upon by the learned Advocate for the appellants as to whether a bathroomof that size could have accommodated so many assailants who are said to have assaulted the D.C. at the relevant time. In this connection we may mention that P. W.2, Ashoke Kr. Bhattacharjee, S.I. of police and official plan maker has given the area of the Gosulkhana (bathroom) as 5m.x4m. Since the Gosulkhana has no walls as we find it from P.W. 24 Hadis, we do not think that there is any improbability in sustaining of assaults by D.C. there from the assallents who chased and cornered him there. He (P.W.24) denies the defence suggestion that he has been tutored by police to give false evidence because his father and uncle are working as police constables. In his further cross-examination during retrial in February, 1932 he however says that his statement was recorded by the police while he was in police lock-up. This, it is submitted on behalf of the appellants, is not insistent with the prosecution case inasmuch as it is the prosecution case that his statement was recorded on 20.3.84 as earlier stated by the witness. He also says in his such further cross-examination that his father went to the P.S. for his release and he talked to his father before release from the P.S. lockup. But he says that at that time his statement was not recorded by the police. This, therefore, lends support to the fact that his slatement was recorded not on 19th but on 20th. He says that his statement was recorded, as he remembers, after his. talk with his father. In his such further cross-examination at the retrial he says that he returned from Kazlpara to his Garden Reach residence three days after the Incident. It should be remembered that he was facing further cross-examination at the retrial In February, 1992. about eight years after the Incident and therefore some minor inconsistencies and confusion in the deposition at such distance of time cannot be ruled out. Whatever may be the confused statement of P.W.24 Hadls eight years after the incident at the time of further cross-examination at the retrial, it may be noted here that even the hostile witness P.W.22 Brion Merces who is the brother-in-law of the appellant Naso testifies to the fact that police arrested him on 19.3.84 and Hadls, Mustafa, and Alamgir also were arrested by the police. Such statement of this hostile witness therefore lends support to the prosecution case that Hadis was arrested from his house on 19th March, at noon after he returned from Kazlpara on that day in the morning, and this fact does not get obliterated by any statement of Hadis which he might have made In a confused state of memory in course of his further cross-examination eight years after the Incident.</p><p>16. P.W.22 Brlon Merces is a resident of C-85, Battlkal. Their balcony faces Battlkal Second Lane. From him we get that the appellant Naso Is his sister's husband. He was however treated as a hostile witness by the prosecution. He says in his examinatlon-in-chief that on 18th March. 1984, which was a Sunday, at about 10-00 a.m. he heard from the people that a not between Hindus and Muslims had started and at about 12 noon they heard great row and then he and his parents came to their balcony. He says that the Hindus and the Muslims were fighting and quarrelling and the Muslims started running shouting, that the Hindus had come to their locality, and that being frightened they (witness and his parents) all came Inside their room and closed the door. His evidence shows that some children and women had taken shelter Inside their house and they were saying that policemen had died. He saw nothing else. As we have alreadynoted, in his cross-examination he says that he was arrested by police on 19.3.84 and Hadis, Mustafa and Alamgir were also arrested by police. P.W.23 Narman Merces is the father of P.W.22 Brion Merces. He was also treated as a hostile witness by the prosecution. In his examination-in-chtef he says that on 18th March, 1984-which was a holiday, at about 10-00 a.m. they heard from the people of their locality that a trouble had broken out at Fathepur and they also heard some sounds of bombs and learnt that a riot had started between Hindus and Muslims. He says that then at about 12 noon he, his wife and his son came out of the room and stood on the balcony and noticed a huge mob on Battlkal Second Lane which was at a distance of 60 to 80 ft. from the balcony. He also speaks about throwing of breakbats. He says that he then came Inside the room and locked the door from Inside and after half an hour the area became very quiet. The accused Naso, he says is his son-in-law. P.W.25 Sakll Ahmed is the brother of P.W.20 Akil Ahmed and a resident of G-223 Batllkal Second Lane. He was however treated as a hostile witness by the prosecution. In his cross-examination on behalf of the defence he says that G-222 Battlkal Is to the north of his house where Latif constable (P.W.21) resides and he knows Hadls, the son of Latif constable. He says that he occasionally goes to G-222 Battlkal to Hadls for bringing cow milk. In his further cross-examination at the time of retrial he says that Aki-ka-Kurbani can be performed on any day of the year and after performance of this Kurbani a marking by palm with the blood of the sacrifice is given on the outer wall of the residence or on the outer door and some times this marking is also given in interior wall or door. This has been possibly taken in cross-examination to explain away blood marks. P.W.S 27, 28, 29, 34, 35, 36, 37 & 48 were all treated as hostile witnesses by the prosecution.</p><p>17. P.W.14 Mansoor Ali is a resident of C-247 Ramnagar Lane and he is the owner of the ration shop situated on the ground floor of the same premises. His evidence is that on 18.3.84 at about 10-00/10-30 a.m. while he was in his house he heard sounds of bombs and he opened the windows and noticed that people were running hither and thither. These people, he says, were 200 yards away from his building, and he gives the number of the people as 150 or so. He says that he came down the stairs and closed the ration shop and again went up along with his brother. He says that he noticed that 3/4 police constable came out of the mosque and that many people went to the western side of the mosque and some people went to the eastern side and those people were running probably out of fear as police had come. He also speaks about throwing of brickbats upon the police party. He says that the police were in the middle part and on both sides there were mobs. He also heard sounds of firing and he closed the window and went inside the room. His evidence shows that after some time he heard row near his house and also sounds coming from the northern side of the mosque. They went to the roof of their house and noticed that a constable in white uniform was lying with his face and chest on the ground and many people were standing surrounding the constable and amongst those persons he could recognise Rahamat, Gorachand, Idris, Haltm, Nanney Kosal, Wahab, Saglr and Matil. He says that It appeared to him that the constable who was lying on the ground was dead. He further says that thereafter the mob burnt the deadbody of the constable with split bamboos. He also namesRahamat, Gorachand, Idris, Wahab, Halim and Nanney Kosai as some of the persons who were burning the deadbody of the constable. He says that after burning the deadbody of the constable all the miscreants fled away from the place and police came at about 3-00 p.m. He also says that the police had seized one button with ring, piece of burnt cloth, etc under a seizure list which was signed by him (Ext. 5/1). He says that the mob was armed with brickbats when they were throwing brickbats at the police party. He further says that he was in his house when police came at 3-00 p.m. and called him. He also says that the body of the constable which was lying on the open space was at a distance of forty yards from his residence. He further says that he noticed that Rahamat. Matil and 2/3 others whom he could not recognise were cutting the hands and legs of that constable with choppers. In his cross-examination he says that as the incident occurred long ago, he does not remember everything vividly but he remembers that Idris and Nanney Kosai were hurling bombs at the police.</p><p>18. P.W.49 Haridas Mollra is the Senior Scientific Officer-curn-Asslt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He says that on 22.3.84 as per the direction of D.C.. D.D., Calcutta, he visited Ramnagar area with his colleague P.K. Sengupta. Sr. Scientific Officer. He says that he visited the place which is an open field near a school building and he collected from the debris some partly burnt pieces of cloths, some metallic buttons with rings and one ring. He says that he asked the Investigating officer who was with them to collect those articles, and those articles were seized by the I.O. and a seizure list was prepared In his presence and he signed the seizure list. He Identifies his signature, Ext. 12/1. It has been criticised on behalf of the appellants that those articles were seized only on 22.3.84 when the Scientific Officer of the Forensic Science Laboratory went there with the I.O., but the police could not seize those articles earlier although the police had been to all those places in the meantime after the date of occurrence. In our opinion, this Is inconsequential in view of the totality of the facts, circumstances and evidence on record. P.W.78, Prasanta Kr. Sengupta is the other Senior Scientific Offlcer-cum-Asstt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He examined in his laboratory certain articles which were sent to him for examination and he submitted his report which is Ext. 29. In his cross-examination at the retrial he says that he accompanied the expert. P.W.49 Haridas Moitra to Garden Reach, that Is, the place of occurrence In connection with this case and from that area they came back together. P.W.69 Pradip Shankar Chakraborly was an S.I. of police in March, 1984. attached to Homicides Squad. Detective Department. Lalbazar. He says that on 22.3.84 as per the direction of S.I. S.K. Bhattacharjee. the I.O., he accompanied him to Forensic Science Laboratory to bring the experts and they reached the laboratory at about 10-30 a.m. He says that after giving some directions the I.O. left and he (the witness) brought Sri H. Moitra (P.W.49). Expert to Garden Reach area and showed him the place where constable Moktar All was burnt and the murders of V.K. Mehta and his body guard were committed. He says that the expert examined the premises No. G-222 Battikal including the Gusalkhana and from there they went to the open place known as Dhanketl Maldan. The learned Advocate for theappellants submits that the expert (P.W.49) does not say that he went to the premises No. G. 222 Battikal and Gusalkhana there which this witness (P.W.69) wants to say. In our opinion, this is inconsequential because it is not necessary that every witness must state everything in details. P.W.69 says that the expert could trace out one metalic ring, some burnt clothes with two metallic buttons with rings attached to burnt clothes from Dhankheti Maidan. He (witness) seized those articles. He says that on 22.3.84 at 14-10 hours as per order of O.C., Homicide squad, he accompanied S.I., S. Bhattacharjee along with O.C., Homicide squad and other officers and men and accused Sk. Nanney in custody with two Doms, Narayan (P.W.41) and Bindeswari (P.W.40) and arrived at Garden Reach and on being led by the accused Nanney they went near a Kancha drain which was flowing in between premises No. G-13 Batttkal and F-55 Atabag Basti and also near premises No. G-222 Battikal. He says that the accused Nanney showed the spot inside the kancha drain having muddy water and stated that he and others dropped Incriminating articles there, about which he had made statement to the S.I. S. Bhattacharjee at that spot. He further says that being instructed by S.I. S. Bhattacharjee and O.C. Homicide Squad the accused got down inside the waist deep kancha nala and those two Doms also entered in the drain to assit the accused, If necessary, his evidence is that the accused (Nanney) then himself brought out from the said nala the following articles namely (1) one Dhal (shield) used by police, (2) one helmet, the front portion of which was partially dented and broken, with some hairs sticking inside the helmet. (3) one brown coloured leather belt having a nickel metal plate fitted with Inscription I.P.S. on it. (4) one black leather belt fitted with metallic emblam 'Calcutta Police', (5) one big sword about 30' in length, (6) piece of cloth partly torn and fitted with button, (7) one small sword about 20' length and (8) one brown coloured chappal of the right foot. P.W.69 further says that he seized those articles in presence of witnesses. He identifies Exl. 8 as that selzer list. He further says that thereafter he along with S.I. D.K. Dasgupta, as per instruction of I.O. and O.C. Homicide Squad, went to G-77 Batlikal which was a club room of Battikal Young Boys Committee and on search In presence of the witnesses certain articles were recovered and seized from that club room, namely, one pointed Iron red measuring about 29' In length including wooden handle, one bhojall, one book ofletter head pad and seized all those articles under the seizure list Ext. 17. He also says that he made certain other seizures from the road between premises Nos. G-227 & G-222, such as, Khaki coloured buttons and partly burnt pieces of cloths. Ext. 18 is the relevant seizure list. He also says that on that day between 5-30 and 5-40 p.m. he seized one wooden piri measuring about 15' X 8' having stains of blood from Inside the premises No. G-222 Battikal. The pirl, he says, was lying near the entrance door of the room situated at the north-east corner of that premises. Ext. 19 is the concerned seizure list. In his further cross-examination at the retrial he says that they arrived at premises No. G-222 Battikal at 15 hours on 22.3.84 and they stayed there for about 15 minutes and it was his first visit. He further says that F.S. Expert was with them up to 4-35 p.m. on that day. He says that the expert was with him while he was Inside premises No. G-222. It will thus appear lhat the expert was not with this police officer when he seized the wooden piri at G-222 Battikabetween 5-30--5-40 p.m. It may be noted here that the evidence of the P.W.s 40 & 41, the Doms, also corborate the evidence of P.W.69. P.S. Chakraborty, S.I. of police regarding the recovery of Incriminating articles from the drain by the concerned accused.</p><p>19. P.W.64 Haripada Dutta is S.I. of police who was attached to Garden Reach P.S. in March, 1984. His evidence is that on 19.3.84 as per direction of the O.C.. Garden Reach P.S. he had been to premises No. G-229A Batllkal and took scrapplngs of dried up blood with few hairs from the door leaf of that premises, etc between 3-35 p.m. and 3-55 p.m. In presence of witnesses and prepared the seizure list, Ext. 10. in his cross-examination he says that FIR of Garden Reach Case No. 45. dated 18.3.84 Ext. A was written and signed by him. That FIR relates to the Incident that occurred in Fatepur Village Road and Mathorpara and Balsnabpara. He says that he took up the investigation initially of that case. That was a different case. The present appeal relates to the P.S. Case No. 46 dated 18.3.84. P.W.68 Sibaprasanna Dutta was posted as S.I. of police in Port Division in March, 1984. He had arrested Sanda Akatar @ Aktar Alam who was an accused in the Garden Reach P.S. Case No. 46 dated 18.3.84. He says that he arrested him on 20.7.84 at about 7-30 p.m. at the fly-over of Sealdah. P.W.70 Sudhlsh Ranjan Nag is S.I. of police who was attached to docolly and robbery squad D.D., Lalbazar. He says that on 19.3.84 the D.C., D.D. told him and S.I. U.S. Lahiri that the murder case of Mehta had been taken up by the Homicide Squad and S.I. S.K. Bhattacharjee was the I.O. of that case. and directed them to asslt him in apprehending the accused of that case and that the D.C. further told that he had Information that some of the accused persons namely, Sk. Nanney, Gorachand, Md. Halim, Sk. Nuru and Wahabuddln might be available at Surinam Jetty and asked them to keep watch over that place and to arrest the said accused persons. If possible. His evidence is that at about 6-20 p.m. they arrested those accused persons and took them to Garden Reach P.S. where D.C./D.D. and other officers were present and they placed the accused persons before them and I.O. took charge of those accused persons. He says that on being directed by D.C. D.D. to search for the other accused persons at Batllkal, Chlrlamore, Ramnagar and Mathorpara Complex, he. U.S. Lahiri and force had been to those places in search of the miscreants but none could be arrested and they returned to Lalbazar at about 10-10 p.m. and made over the supplementary caase diary to the i.O. S.K. Bhattacharjee, He further says that they had also arrested Md. Idris and Sakil Ahmed. In his cross-examination, he says that Idris was arrested from Gaya on 27.3.84. P.W.71 Samir Kr. Moltra was attached to Garden Reach P.S. as S.I. of police In March. 1984. He accompanied the Commissioner of Police in Ramnagar area on 18.3.84 In connection with the murder of D.C. Mehta and his body guard. Between 4-00 p.m. and 5-00 p.m. on that day he seized certain articles such as pieces of partly burnt bamboos, pieces of charred bone-like substance, pieces of charred cloth, burnt metallic button fitted with ring, belt, two swords etc from an open field in front of premises No. G.-100/1, Ramnagar Lane, also know as Dhanketl. The seizure list prepared by him is Ext. 5. He had also held the inquest of the deadbodles of V.K. Mehta and the body guard Moktar Ali and prepared inquest reports. In the inquest report relating to the dead-body of B.K. Mehta it is noted that the deadbody of Mehta was lying in front of premises No. G-221, Dhanketl. The witness however saysthat it was premises No G-221, Battikal and it was wrongly mentioned as G-221, Dhanketi in the inquest report. In his cross-examination he says that he had detected this mistake in court at the time of giving evidence. It seems to be a case of bona fide accidental mistake.</p><p>20. P.W.80 Santi Ranjan Ganguli was attached to Garden Reach P.S. on 18.3.84 as S.I. of police. The FIR of this case was drawn up by him. His evidence Is that the fromal FIR was drawn up at 8-05 p.m. at Garden Reach P.S. on the basis of Statement of K.K. Sharma, Asstt. Commissioner of Police, Port Division. He says that the statement of Sri Sharma was also recorded by him as per the order of the O.C. of Garden Reach P.S. He also took up the investigation of the case under the order of the O.C., Garden Reach P.S. on that date at 8-05 p.m. He says that he then recorded the statements of the two witnesses namely Abdul Latif Khan (P.W.21) & Md. Khali Khan (P.W.19) under section 161 Cr.PC at Garden Reach P.S. and then at 11-00 p.m. he had been to Mathorpara, Rnmnagar Lane etc of the affected areas of Garden Reach with force and after contacting sources there he returned to the P.S. at 11-50 p.m. He says that on 19.3.84 at 6-40 p.m. he had shown formal arrest of four accused persons, namely Nanney Kosal, Gorachand, Halim and Nuru who were arrested by the police officers of the Detective Department. He further says that on 18.3.84 after returning to the P.S. from the affected area he prepared respective requisitions for postmortem examination of V.K. Mehta and his security guard. Moktar Ali and on 19.3.84 at 10-00 a.m. he sent those requisitions to the Prof. of Forensic and State Medicine and on that day at 7-40 p.m. he handed over the case diary to S.I. S.K. Bhattacharjee of Homicide Squad who had taken up the investigation and he also handed all other connected documents under the orders of his O.C. and the D.C.D.D. at Garden Reach P.S. In his cross-examination he says that on 18.3.84 he was in Garden Reach P.S. after mid-day and that he had also seen the G.D. Entry regarding the disturbances at Fatepur Village Road. He says that on that night i.e. on 18.3.84 another case being Garden Reach P.S. Case No. 45 dated 18.3.84 was also recorded and that FIR was recorded by S.I. H.P. Dutta(P.W.64). In his cross-examination he says that going to the locale he questioned some persons, but did not record their statements under section 161 Cr.PC and that he had tried to collect the names of the assailants but could not succeed to obtain the same from those persons. Much has been criticised by the learned Advocate for the appellants that if really the first I.O. (P.W.80) had recorded the statements of the constables P.W.19 Khalll Khan and P.W.21 Abdul Latif Khan on 18.3.84, he must have obtained from them the names of the assailants before he went to the locale in that night and therefore there was not question of trying to collect the names of the assailants at the locale in that night and this shows that the evidence of the said P.W. 19 and P.W.21 or for that matter the entire prosecution case implicating the appellants is a product of concoction. We however find ourselves unable to accept this critism. It is true that the I.O. got some names from P.W. 19 and P.W. 21 on 18.3.84, but obviously there was no reason to suppose that those were the only culprits involved in the occurrence. It Is therefore only natural that the I.O. while visiting the locale will try to obtain from persons the new names of other culprits as well as confirmation of the names of culprits already obtained by him from P.W.19 and P.W.21 before going to the locale.</p><p>21. P.W.1 S.K. Bhattacharjee was attached to Homicide Squad, Detective Department as S.I. of police in 1984. He is the Second investigating Officer of this case. He says that under the order of the D.C.D.D. he took up the investigation of the Garden Reach P.S. Case No. 46 dated 18.3.84 and submitted charge-sheet against 43 accused persons after completion of investigation showing as many as 18 accused persons are absconders. He says that six of those 18 absconders were subsequently apprehended and 12 were still at large while he was deposing on 12.9.88. He was however examined further next on behalf of the prosecution on 11.4.89, He says that on 19.3.84 the D.C.. D.D. verbally ordered him at 5-00 p.m. to take up the investigation of the case and then at about 5-30 p.m. he, D.C., D.D., A.C. D.D.-1. O.C. Homicide Squad, S.I. P.S. Chakraborty of Homicide Squad and two constables of Homicide Squad started for Garden Reach P.S. He further says that prior to that D.C., D.D. told him that he had already sent two S.I.s of Detective Department, namely U.S. Lahiri and S.R. Nag (P.W.70) to work out an Information received by him in respect of some accused persons. He says that at 6-05 p.m. they all reached Garden Reach P.S. and met the O.C. of that P.S. there, he also says that at about 6-40 p.m. S.I. S.R. Nag (P.W.70) and S.I. U.S. Lahiri brought under arrest five accused persons namely Sk. Nanney, Md. Halim, Wahabuddln, Gorachand and Sk. Nuru to the Garden Reach P.S. and those five arrested persons were produced before the D.C., D.D. and the then I.O. of the case S.I. S.R. Ganguly (P.W.80) showed those accused persons as arrested in this case. He further says that at 7-45 p.m. he took charge of those arrested accused persons, case diary and other connected papers along with alamat from S.R. Ganguli, and under order of the D.C., D.D. he came to Lalbazar with those five accused persons, S.I. P.S. Chakraborty and two constables. His evidence shows that they left the Garden Reach P.S. at 8-10 p.m. and reached Lalbazar at 8-40 p.m. and then he started interrogation of those five arrested persons and thereafter he perused the case diary and other connected papers. He says that at 10-30 p.m. he received the supplementary case diary from S.I. S.R. Nag who arrested the five accused persons. His evidence is that on 20.3.84 he met D.C., D-D. in his office and received his instruction regarding the next follow up action. He says that he came to know (hat a team had been raised to assist him in the Investigation of the case. He also names the officers who were Included In the team. He also names Sanat Kr. Gupta, A.C. D.D. (I) as the persons who was placed as overall in-charge of the team. On 20.3.84 he produced all the five accused persons in the court of the S.D.J.M., Allpore and also prayed for their police remand, and then on that day at 2-30 p.m. he along with D.C., D.D., A.C. D.D. (1), O.C. Homicide Squad, S.I. Samir Ganguli left for the spot with force for investigation. According to his evidence they reached Garden Reach P.S. at 3-00 p.m. and then on being led by the O.C. Garden Reach P.S. under the order of D.C., D.D. they all went to Ramnagar Lane in front of the mosque where D.C., D.D. and others had allegedly taken shelter and stayed there upto 3-35 p.m. His further evidence is that then on being led by O.C. Garden Reach P.S. they went to a vacant plot of land at 4-00 p.m. wherefrom the charred body of the security guard had been allegedly recovered and he found some burnt substances there and from that place they went to the premises No. G-222, Battikal Second Lane and reached there at 4-25 P.M.and there he met Hadis Khan (P.W.24) and his mother, Kaflabibi and herecorded their statements there. According to his evidence then they wentto premises No. 228/3 Battikal Second Lane which is the house of Md.Naimullah (since deceased). He also then describes his further activities inthat locality. It appears from his evidence that on 21.3.84 he, O.C.,Homicide Squad, S.I. Samir Ganguli went to 222 Battikal Second Lane andfrom there he went to G-247 Ramnagar Lane. Then on being Informed byS.I. Samlr Gangull that the Commissioner of Police had already arrived atpremises No. 222 Battikal Second Lane with A.C. D.D. (1). he went to thatplace and as per direction of the Commissioner of Police, he seizedscrapplngs of blood looking stains with control from the outer wall of a roomof premises No. G-222 Batllkal Second Lane and prepared the seizure listext. 31. On 22.3.84. according to his evidence, he met the Director of F.S.L.and then the Director deputed H. Moltra (P.W.49) and P.K. Sengupta(P.W.78) both senior officers of F.S.L. to visit the P.O. He says that at thattime Mr. Moltra reported that he would visit the P.O. In the afternoon, andMr. P.K. Sengupta was out at that point of time and he (the witness)instructed S.I. P.S. Chakraborry to take Mr. Moltra and Mr. Sengupta tothe P.O. and he left for Lalbazar. His evidence shows that on that day heexamined Norman Merces (P.W.23) and Brion Merces (P.W.22) and recordedtheir statements and then they along with those two persons went to theresident of the absconding accused Naso and there they found the wife ofNaso Karolin and ascertained the particulars of Naso from her and fromthat place they again came to premises No. G-85 Battlkal First Lane andquestioned some Inmates and at that time S.I. P.S. Chakraborry came andreported that the F.S.L. experts had arrived and they were at G-222 BattlkalSecond Lane and then he (the witness) went there and met them. He saysthat the experts made Inspection at different places of that premises andthen requested to take them to the place wherefrom the charred body ofMoktar was recovered and they were taken there and the experts madethorough search in the burnt substances and ultimately discovered metallcring, a piece of burnt cloth fitted with metallic buttons with ring, and thosearticles were seized. His evidence is that on 23.3.84 he examined Sk. NanneyKosal who made a statement leading to the recovery of some Incriminatingarticles. He also speaks about recovery of Incriminating articles pursuantto the statement made by the accused Sk. Nanney Kosal. His evidence showsthat the accused Nanney made statement to him to the effect that he hadthrown one helmet, one dhal, two swords in the water of kancha drain andhe would be able to lead the police party to the spot where he and othersthrew away those weapons and other things and If those things were stillthere he would be able to bring them out. The evidence of the I.O. (P.W.I)shows that the accused Nanney was taken (on 23.3.84) to the concernedarea pursuant to the statements made by him and the accused Sk. Nancyled them in front of a kancha drain on the northern side of the premisesNo. G-221 Battlkal and G-213 Battlkal and the accused then pointed outa place inside the kancha drain to be the place where the articles as statedby him were thrown and then being asked the accused got down In the waistdeep water of the kancha drain and brought out one by one, one shieldmade of wire net, one helmet, two swords, two belts of which one hadmetallic plate having 'IPS' inscription, one black belt used by constable. Healso speaks about the recovery of a chappal of a right foot. The recovered articles were then seized. His evidence shows that on 26.3.84 also at night they conducted a raid in the concerned area and searched for certain accused persons Including Naso but could not trace them out. His evidence also shows that on 4.4.84 they went to G-85 Battikal Second Lane which is the residence of the father-in-law of the accused Naso but there also Naso was not found. His evidence is that on 30.5.84 the accused Lokman Shah and Osman Shah, two brothers, were arrested from their residence in a night raid between 1-40 a.m. and 2-00 a.m. He says that on 7.6.84 the accused Lokman Shah during Interrogation, stated that he wanted to make a confessional statement and so on 8.6.84 he (I.O.) forwarded Lokman to the learned S.D.J.M. with prayer for recording his confessional statement and his confessional statement was recorded by the learned S.D.J.M., 3rd Court Allpore on 9.6.84. It appears that the I.O. obtained an order of police remand for the accused Lokman after he was produced before the S.D.J.M. after arrest and the accused Lokman expressed his desire to make confessional statement to the I.O. on 7.6.84 while he was under police remand. The I.O. (P.W.I) says that on 16.6.84 he submitted charge-sheet against 43 accused persons of whom 24 were In custody and the rest were absconding. He further says that after the submission of the charge-sheet seven absconding accused persons had been arrested. He says that on 28.2.85 at 3-00 p.m. acting on a secret Information he with the help of S.I. Rajkumar Chatterjee of the Detective Department and others arrested Nasim Khan Naso from the station road near Kallghat Railway Station. He further says that the accused Naso was arrested with the revolver which was given to constable Moktar All for his duty, with three rounds of ammunition for which a specific case has been started on his complaint under section 25 and section 27 of the Arms Act. While confronted with this in examination under section 313 Cr.P.C. the accused Naso only says that the witness (P.W. 1) told lie that he (Naso) was absconding and he was arrested on 28.2.85 at 3-00 p.m. from the Station Road near Kallghat Railway Station or that he had any revolver in his possession at the time of his arrest. Besides such bare denial he however does not say anything as to on what date and wherefrom he was arrested.</p><p>22. In his cross-examination P.W.I (the second I.O.) says that he did not go to Garden Reach area between 18.3.84 and 5-00 p.m. of 19.3.84. He says that on 20.3.84 the first witness he examined was Hadls Khan of G-222 Battikal Second Lane in that premises. His evidence shows that on 19.3.84 he first interrogated the five arrested accused persons (Including Sk. Nanney) but he did not record their statements. His evidence Is that on 20.3.84 he forwarded the five arrested accused to court with prayer for police remand upto 2.4.84 and the learned S.D.J.M. allowed the prayer for police remand. He says that he could not interrogate any of the accused persons on 20.3.84 as he had no time for such interrogation. He also says that on 20.3.84 he went to Garden Reach area along with his superiors, namely. D.C. D.D., A.C. D.D. (1) and O.C.. Homicide Squad and reached there at 3-25 p.m. His evidence Is that they first went to the Garden Reach P.S. and then the O.C. of the Garden Reach P.S. led them to the area where the Incident occured and there he examined Hadls Khan first and also Kaflabibi. the mother of Hadls Khan. He has however not shown Kaflabibias a witness in the charge-sheet. He says that on 20.3.84 he reached G-222 Battlkal Second Lane at 4-25 p.m. are remained there till 5-30 p.m. He also says that they were in Battlkal Second Lane area on 20.3.84 from 3-25 p.m. till 10-15 p.m. and that dusk to dawn curfew was imposed in that area and order under section 144 Cr.PC was also promulgated there and police picket was posted in different parts of that area. His evidence in cross-examination is that the blood looking stains were found on the outside wall of the western room of the premises No. G-222 Battlkal Second Lane, and he says so with reference to the seizure list, ext. 31. He says that the experts had arrived at premises No.G-222 Battlkal sometime before 3-00 p.m. and he went there at 3-05 p.m. and the experts H. Motlra and P.K. Sengupta of F.S.L. Inspected the premises and courtyard of G-222 Battlkal Second Lane and from that house, being accompanied by them, the experts went to open plot of land known as Dhankhell Maldan. He denies the defence suggestion that he had advised constable Latif Khan to procure persons of his choice who would support the prosecution case. He also denies the defence suggestion that Hadis Khan and Md. Mustafa gave statements at his tutoring. He says that the statement of Nanney Kosai was recorded by him on 23.3.84 between 8-50 a.m. and 10-10 a.m. and with the accused and other police of lines he left for the P.O. to verify the statement of the Nanney Kasal and reached in front of the kancha drain at 2-55 p.m. He says that the accused Lokman was forwarded to court on 8.6.84 with a prayer for recording his confessional statement. He has acknowledged that both the two accused Sk. Nanney and Lokman retracted their confessional statements by filing petitions but he cannot say the date on which such petition was filed after the submission of the charge-sheet. He cannot say whether those petition were filed on 14.8.84. In his cross-examination he denies the defence suggestion that Naso was arrested from the factory gate of Sultan Hossain.</p><p>23. Of the medical witnesses, P.W. 44 Dr. Sunil Dey of the Calcutta Medical Research Institute examined Sr. K. Sharma (P.W.7). Asstt. Commissioner of Police on 18.3.84 at 12-30 p.m- In the Emergency. He also describes the Injury found and treated by him. P.W.66 Dr. Bhlbutlbhusan Blswas who was attached to Calcutta Police Hospital at the relevant time speaks about the Injuries of constable Ramshankar Singh (P.W.16) which were found by him. He says that the said constable was admitted on 18.3.84. He also describes the Injuries found by him. P.W.67 Dr. Gopi Ranjan Samanta was also attached to Calcutta Police Hospital at the relevant time. He proves the discharge certificate in respect of said Ramashankar Slngh. The patient, he says, was admitted on 18.3.84 with bomb injury on the lower thing of the right leg and was discharged from the hospital on 12.4.84. P.W. 46 Dr. Bhopal Mazumdar in the autopsy surgeon. On 19.3.84 he was posted as Demonstrator in the Department of Forensic and Slate Medicines, Medical College and Hospital. His medical qualifications are M.B.B.S. and M.D. In Forensic Medicine. He Joined the West Bengal Health Service on 25.2.75. On the date on which he deposed in court, that is, on the 1st February, 1989 he was posted as Assistant Professor and Head of the Department of the Forensic Science and Medicines, North Bengal Medical College. He held post-mortem examination on the dead-body of V.K. Mehta, D.C. Port Division on 19.3.84. He describesas many as 23 injuries found by him externally on the various parts of the deadbody including the face, head, etc. Injury No.9, as found by him. Is a lacerated would 3' x 1' X muscle X bone X meninges X brain on the right fronto-parletal region of the head, being placed half inch right to the mid line and 69 1/2 above the right heel. This is a head injury. He has also describes what he found on dissection. He says that all the Injuries were showing evidence of vital reaction. He openes that death was due to the effect of the injuries as mentioned by him which were ante-mortem and homicidal in nature. He also specifically says that he found 23 external and 4 internal injuries on the deadbody. According to his evidence the cumulative effects of the injuries were sufficient to cause death in the ordinary course of nature. He further says that Injury No.9 might be caused by any hard blunt weapon like iron rod or any other metallic rod and that the victim was in standing position when injury No.9 was Inflicted. He says that the said Injury No.9 was caused by the assailant from the front side of the victim. He further says that the Injury No.9 and the injury No.2 found on dissection were the vital Injuries. He also says that injury No.9 alone was sufficient to cause the death of the victim In the ordinary course of nature. However, the Injury No.9, he says, could not cause instantaneous death. He says that the injury No.23 was caused by pulling the body from leg side and that the injuries sustained by the victim were caused by more than one person. He also describes specifically as to which particular injury could be caused by what type of weapon. The possible weapons named by him include metallic rod, chopper, sword, napala, bhojall, brickbats etc. It may be noted here that the Injury No.9, according to the prosecution case, is connected with the assault made by the appellant-accused Naso on the head of V.K. Mehta with iron rod. The Autopsy Surgeon, P.W. 46 says that he held the post-mortem examination on the deadbody of V.K. Mehta on 19.3.84 at 12-00 noon at Calcutta Police Morgue and Prof. J.B. Mukherjee who was the professor and head of the Department of Forensic and State Medicines, Medical College, Calcutta was present when he held the postmortem examination and that Prof. J.B. Mukherjee supervised the examination. He says that Prof. J.B. Mukherjee concurred with his opinion and made the following remark: The post-mortem examination was conducted under my direct supervision and guidance. I fully concur with the findings and opinion of the Autopsy Surgeon, Dr. B. Mazumdar'. The post-mortem report was however prepared and signed by P.W. 46, Dr. B. Mazumdar and the same has been marked ext.tO. From his evidence the get that by that time he (P.W. 46) had gathered the experience of holding post-mortem examination on nearly four thousand deadbodies. He also held the postmortem examination 19.3.84 at 3-00 p.m. on the deadbody of the constable Moktar All who was the body guard of V.K. Mehta. He also describes the injuries found by him on the deadbody of Moktar All and gives the opinion regarding the effect of the injuries and the cause of death. In his cross-examination, he says that the Injury numbers 1,2,3,4,5,6.12,13,14,15,16 & 22 as found on the deadbody of V.K. Mehta were Incised injuries. The learned Advocate for the appellants contends that the opinion given by the Autopsy Surgeon, P.W.46 Dr. B. Mazumdar to the effect that the injury No.9 alone was sufficient to cause the death of the victim in the ordinary course of nature is not there specifically in the post-mortem report and this hasbeen stated by the Autopsy Surgeon Dr. Mazumdar as his own opinion while giving evidence in the court and this opinion of the Autopsy Surglon, P.W.46 is therefore not supported by the opinion of Prof. J.B. Mukherjee who supervised the post-mortem examination and therefore this opinion of P.W.46 should not be taken into consideration at all In judging the effect of the assault stated to have been made by the accused Naso on the head of the victim Mehta with iron rod. In our opinion this contention is however not acceptable. It is true that Prof. J.B. Mukherjee, obviously as a senior person, supervised the post-mortem examination held by P.W.46 Dr. Mazumdar but that does not mean that the opinion of Dr. Mazumdar on any point is of no merit or consequence unless the same is specifically endorsed by Prof. Mukherjee. P.W. 46, Dr. Mazumdar is also an expert in the matter and as we have seen he has a very rich experience in the matter of holding post-mortem examination. That being so, his opinion also given on the basis of the examination made by him, deserves due consideration and acceptance on merit unless the same otherwise stands discredited or condemned for any good and sufficient reason. Here there is absolutely no reason why we should not accept the opinion of the aulopsy surgeon P.W.46 regarding the effect of the injury No.9 which is a head injury allegedly caused by the accused Naso by inflicting assault on the head of the victim with rod. The learned Advocate for the appellants also submits that according to the evidence of the Autopsy Surgeon P.W. 46 all the Injuries had shown the evidence of vital reaction and therefore no disproportionate importance should be given to the effect of injury No.9. In this connection we are however to mention that even if all the injuries had shown evidence of vital reaction, that does not for that reason alone minimise the gravity of the effect of any particular Injury which according to the autopsy surgeon P.W.46 is alone sufficient to cause the death of the victim in the ordinary course of nature, even though such Injury could not have caused instanteneous death. It is needless to mention that causing of death is an ingradlent of the offence punishable under section 302 IPC and it is not necessary that death In all cases must be caused Instantaneously for bringing the case under section 302 IPC. That apart, when death is the result of a cumulative effect of all the injuries caused to the assailant in prosecution of the common object to commit the offence, each and every assailant is responsible for the offence in view of the section 149 IPC. The learned Advocate for the appellants also contends that the grounds of opinion of the expert are also relevant. Indeed there is no doubt that the autopsy surgeon in the present case has elaborately described all the injuries found by him and obviously his opinion is based on the findings recorded by him. No worthy ground has been brought out in the cross-examination of the autopsy surgeon nor successfully contended before us for which we could hold that the opinion of the autopsy surgeon is not acceptable. We reiterate that we have no reason or ground to discard or disregard the opinion given by the autopsy surgeon P.W.46.</p><p>24. P.W.47 Kanchan Chatterjee is the Judicial Magistrate who held T.I. parade in respect of the accused Nanney Kosal at Allpore Central Jail on 30.5.84. He says that the witness K.K. Sharma (P.W.7) identified the suspect Nanney Kosal stating that he along with others were hurling bombs at Ramnagar Lane near mosque and further stated that while he along withD.C, V.K. Mehta reached the crossing of Ramnagar Lane and Mathorpara entrance while chasing a mob, he saw the suspect hurling bombs along with others.</p><p>25. P.W.51, P.K. Deb is the Judicial Magistrate who recorded the confessional statements of the accused Nanney Kosal and the accused Lokman Shah on 3.4.84 and 9.6.84 respectively. He says that on 2.4.84 the accused Sk. Nanney was produced before him by constable Niranjan Das and the record was also laid before him. He was directed by the S.D.J.M. Allpore to record the confessional statements of Sk. Nanney. His evidence shows that on 2.4.84 the accused Sk. Nanney on being produced from judicial custody, was given cautions by him in open court and he was then sent to jail custody with the direction to the Jail authority, Alipore Central Jail that he should be kept in segregation so that he could get sufficient time for reflection. He says that on 3.4.84 the accused was again produced before him at about 3-00 p.m. In his court room and the accused was again given caution by him regarding the Implication of giving a confessional statement and the accused was kept in his chamber and was given time for an hour to reflect and ponder over the matter, and nobody was present In his chamber except the accused. He specifically says that no policeman was present in his chamber. He says that at 4-00 p.m. he asked the accused whether he was to make a confessional statement in his chamber and the accused Insisted on making a voluntary confessional statement and he recorded the same in his court room. He says that he was satisfied about the volunteriness of the accused in making the statement. The confessional statement of the accused Nanney Kosal as recorded by the Judicial Magistrate, P.K. Deb on 3.4.84 has been marked ext.13. He further says that the accused admitted that the statement had been correctly recorded and he also explained to the accused before he recorded his statement that he was free not make any statement and if he made any statement It might be used against him. He further says that nobody was present Inside the court room when the statement of the accused was recorded. The recording. according to his evidence, was complete by 4-40 p.m. It may be noted here that the accused Nanney Kosai was convicted and sentenced by the trial court in the original trial and reportedly he did not prefer any appeal against such conviction and sentence.</p><p>26. The further evidence of the Judicial Magistrate, P.W. 51, P.K. Deb Is that on 8.6.84, the learned S.D.J.M. Alipore directed him to record the confessional statement of the accused (appellant) Lokman Shah. He says that on that date at about 1-15 p.m. the accused (Lokman) was produced before him and was identified by the constable P. Pramanlk In court room. He says that the accused was cautioned by him and the Implication of making the confessional statement was explained to him. He further says that the accused was produced from Judicial custody and he sent the accused to Jail custody and directed the superintendent of Allpore Central Jail to keep the accused In segregation so that he could get sufficient time for reflection, and directed his production before him on 9.6.84. The accused was produced before him on 9.6.84 at 2-00 p.m. by the constable Ramnarayan Goala in the court room and the accused was given warning and caution and was given one hour's time to think over the matter and was kept In the chamber of the Magistrate where none else was present. According to his evidence at 3-00 p.m. the accused insisted upon making a voluntary confessional statement and he (Magistrate) started recording his confessional statement in the court room at 3-00 p.m. where none else was present. He specifically says that no policeman was present at that time. He also deposes that before he started recording the statement he gave the accused all statutory cautions and started recording his statement after he was satisfied that the accused was making the statement voluntarily. The accused made the statement In Hindi and he recorded the statement in Bengali script. He further saya that after the statement was recorded It was explained to the accused in Hindi and the accused signed the statement in his presence. Ext. 14 is the confessional statement of the accused Lokman Shah as recorded by the Judicial Magistrate P.W.51 P.K. Deb. He further says that the accused admitted that the statement was correctly recorded after it was read over to him. In his cross-examination he says that he cannot say whether on 8.6.84 the accused was directly taken to the jail from his court room or he was taken to some other place before he was finally taken to Jail. It is needless to mention that the accused got sufficient time and opportunity for reflection in jail custody. In his cross-examination the Judicial Magistrate, P.W.51 specifically syas that he was fully satisfied after putting questions to the accused persons that they were voluntarily making statements and that he applied both his subjective and objective satisfactions. He specifically says that he put certain questions and he was satisfied that they were mentally prepared to make such statements. In his cross-examination he further says that he had cautioned Lokman that he would not be sent to police custody If he did not make any statement. It is suggested to him in his cross-examination that the statements were recorded In presence of the I.O. of the case. This is a preposterous suggestion, we must say, that a Judicial Magistrate while recording a confessional statement will allow the I.O. to be present there.</p><p>27. Ext. 34 which is the ordersheet of the court of the S.D.J.M. Alipore shows that the accused Nanney Kosal along with others were produced in court in custody on 20.3.84 and they were all remanded to police custody till 2.4.84 after considering the prayer of the I.O. It also appears that while producing the accused persons before the learned S.D.J.M. from police custody on 2.4.84 the I.O. inter alia made a prayer for recording the confessional statement of Sk. Nanney Kosal under section 164 Cr.PC and the learned S.D.J.M. directed Sri P.K. Deb J.M., 3rd Court for recording the statement under section 164 Cr.PC. The order-sheet dated 30.5.84 shows that the accused Lokman Shah and accused Osman Shah were produced before the S.D.J.M. In custody on 30.5.84. According to the prosecution case the said two accused persons are brothers. On the prayer of the I.O. the S.D.J.M. remanded both the accused Lokman and Osman to police custody till 11.6.84. It also appears that the accused Lokman was produced in court from police custody in advance on 8.6.84 and on considering the prayer of the I.O. to record his confessional statement, the learned S.D.J.M. directed the Judicial Magistrate Sri P.K. Deb to record his confessional statement. On that very day Lokman who produced before P.K. Deb, J.M. and he was given necessary warnings and was remanded to Jail custody and was then produced before the J.M. concerned on 9.6.84 again and his confessional statement was recorded after giving him necessarycautions. It may be mentioned here that the accused Sk. Osman Shah was produced on 9.6.84 and he was remanded to jail custody for reflection but ultimately he declined to make any confessional statement when he was produced before the Magistrate on 11.6.84. It may be noted here that both the accused Nanney Kosal and Lokman Shah who made confessional statements before the Judicial Magistrate, however ultimately retracted such confessional statements by filing petitions before the court on 14.8.84. It has been submitted on behalf of the State that there is no bar in taking into consideration the confessional statements of those two accused persons although they ultimately retracted the same. It is also pointed out that they retracted their confessional statements as late as on 14th August, 1984 although their statements were recorded In the months of April, and June respectively and although they were produced in court a number of limes before 14th August, 1984.</p><p>28. Ext. 3 is the statement of the accused Sk. Nanney recorded by the Judicial Magistrate under section 16A Cr.PC. In his statement under section 164 Cr.PC the accused Nanney Kosal has described some part of the Incident Implicating himself and certain other persons. We have already noted that Nanney Kosal has been convicted and sentenced in the original trial and he did not prefer any appeal against the same. It has been contended on behalf of the appellants that since Nanney Kosal was therefore not being tried Jointly alongwith present appellants in the retrial, his confessional statement recorded under section 164 Cr.PC cannot be taken into consideration against the present appellants under section 30 of the Evidence Act. The learned Advocate for the appellants has in this connection also relied upon certain decisions cited by him which we will refer to at a later stage. Ext. 14 is the statement of the appellant Lokman Shah recorded by the Judicial Magistrate under section 164 Cr.PC. The statement was made by the accused-appellant Lokman before the Judicial Magistrate In Hindi and the Magistrate recorded the same in Bengali script. The English translation of the relevant portion of the statement of the accused Lokman recorded under section 164 Cr.PC as appearing In the paper book is reproduced below :</p><p>'Q. Tell what statement you will make?</p><p> Ans. On 18th date, Sunday (Holiday), the Incident took place. At 10 or 10-30 Naso, Puttan, Akhtar, Chowdhury came to me for price. I asked what you will do by money. They answered quarrel is going on in village road for that weapons are to be purchased by the money. Those persons have set fire to the mosque. If those persons make any trouble here we shall fight out. I said I shall also fight out. After that they fled away. At 11-45 a cry or quarrel came to my heralng. I came out and found that two police officers coming speedily. Many people threw brickbats towards those police officers. The police officer in white dress went towards the house of Mulla. The police officer In Khaki dress came straight. When he was crossing near me I also threw a brickbat. I cannot say whether it hit or not. The police officer In khaki dress entered In the house of Latif Sepot. Many persons entered following him. Amongst them Idris was there. From outside many people threw brickbats. I also threw 2/1 brickbats. I cannot say whether it hit him or not. Aftersometime I found that Naso, Puttan, Akhtar and Chowdhury were coming from the side of Battikal mosque. They took me Inside the house. I found the police officer In khaki dress was standing near the kitchen. (wrong translation). The correct translation is 'standing by the side of Gosalkhana'--'Gosalkhanaka pas khara hayal. That person said he was D.C. Some people said they do not know D.C. etc. After this all people in a batch caught that person. I also caught him. Naso hit by a rod on the head. For this the hard cap fell down. Again rod was used. It hit the head. Saheb fell down. Puttan, Akhtar and some other many people assaulted him on the face with deadly weapons, (wrong translation. The correct translation is 'Puttan, Akhtar & many other persons started assaulting on his face with sharp-cutting weapons--'dharwala hattar se chehar par marne laga'). I could not tolerate the blood-shed. For that I came out. I was then searching for my younger brother. After some time I found those 8/10 persons took D.C. Saheb and entered Inside the house, (wrong translation. The correct translation is 'after a while I saw that those 8/10 persons were going out from Inside the premises taking away D.C. Saheb--Thora der ke bad dekhta o at das admi D.C. Saheb ko le ke bari ke ondar se chala ja raha'). They proceeded towards the Mehar Manzil crossing the house of Israil. ('They took him away towards Mehar Manzil after crossing the house of Israil'--'Israilko par karke Meher Manzil ke taraf le giyal. After that I cannot understand what happened, ('what happened thereafter, I cannot say')--'Usko bad hamko nehi malum haya keya hua'). I worked under port. And I was present at home on that day.</p><p> 'Q. Do you want to say anything more?</p><p> Ans. No. I have forgotten to say one thing. Samsad and Abbas were also present in the Incident.'</p><p>29. It may also be rioted here that from ext. 14 it will appear that the Judicial Magistrate before recording the statement of the accused Lokman Shah put various questions to the accused Lokman for ascertaining whether the accused was making the statement voluntarily and free from any outside influence. As we have seen, the statement was recorded by the Judicial Magistrate on 9.6.84 and on the preceding date i.e. 8.6.84 the accused was sent to jail custody for giving him proper opportunity for reflection. In answering the question put to the accused Lokman on 9.6.84 by the Judicial Magistrate as to whether he was kept in the jail in separate room or not, he said that he was kept In a separate room for thinking and realising. The Magistrate also tells him inter alia that he was not bound to confess and asked him to tell after thinking whether he will make the statement from his mind or not, to which the accused replies that he will make the statement. He also says that he was not terrorised by anyone nor was requested or assured for giving the statement. In answer to the specific question whether he was beaten by any police officer, he replied in the negative. The Judicial Magistrate also told him that he would not be kept under the custody of the police whether he told or not. Even then the accused staled before the Magistrate that he would make the statement willfully and he had come from jail and nobody had given any hope or assurance to him. The Magistrate also cautioned the accused that If any statement was made by him, he might be hanged for the same and thatwhat he would say could go against him. Inspite of that the accused stated to the Magistrate that he would confess according to his sweet will. The Magistrate also appended a certificate under the statement recorded by him to the effect that he believed that the confession was made voluntarily.</p><p>30. The learned Advocate for the appellants has contended that the only evidence on which the prosecution has relied upon for bringing home the charge framed against the accused Lokman ts his alleged confessional statement, ext. 14. It is however contended by him that the law regarding use of confessional statement against maker of such statement is that the court must be satisfied that the confessional statement is truthful and is made voluntarily. He has also cited a number of decisions on this point such as Anathbandhu v. State of West Bengal, 1986(1) CHN. 229, State of West Bengal V. Prosenjit Tafadar 1991(1) CHN 331. Saran Singh v. State of Punjab, : 1957CriLJ1014 , etc. Indeed we are convinced that the same is true and voluntary. While examined under section 313 Cr.PC the accused Lokman even inter alia denies to have made such statement as recorded by the Magistrate and he even went to the absurd extent of telling that the I.O. was standing near him when he made the statement before the Magistrate. It may be noted here that at the retrial one defence witness being D.W.1 Sk. Mumtaz was examined on behalf of the defence. He claims to be an employee of Calcutta Port Trust. He says that he knows the accused Lokman, who was a class-IV staff in the department in which he was working. He says that there was continuous strike in all the ports of India including the Calcutta Port w.e.f. 16.3.84 and during the strike period he used to attend the gate No.8 of the workshop regularly and this gate is one of the entrance gales to the K.P. dock. He further says that like him other people also used to go in front of the gate during the strike. His evidence ts that on 18.3.84 he along with others went in front of that gate at about 8-30/9-00 a.m. and returned to his residence at about 12-45/1-00 p.m. He wants to say that on 18.3.84 when he went In front of that gate he found that the accused Lokman was sitting there. This defence witness has been examined to establish the plea of alibi taken by the accused Lokman. The evidence of this defence witness who was examined at the retrial in June, 1992 long after the occurrence however, does not inspire any confidence. No plausible explanation is coming as to why he was not examined at the time of the original trial if really Lokman was with him in front of the gate of the Calcutta Port Trust at the relevant time on 18.3.84. Also it is significant to note that the date of the Incident namely, 18.3.84 was not only a Sunday, but It was also the day on which the 'holi' festival was being celebrated. That being so, it is difficult to believe that he and other workers Including the accused Lokman would have gone there In front of the gate of their workshop on that day obviously without any purposeful object. Moreover it Is also quite unnatural that when riots and disturbances were going on in the concerned locality, the accused Lokman would have chosen to go and station himself in front of his closed factory gate without any meaningful purpose leaving aside the shelter of his own house, if realty he were a peace-loving person. Having regard to the facts and circumstances, we are not Inclined to place any reliance on the evidence of the defence witness D.W. 1 Sk. Mumtaz. The learned Advocate for the appellants submits that even if the defence plea of alibi falls and the court does not accept thesame, yet that by itself does not prove the prosecution case. In this connection he also refers to the decisions in Shared Blrdhtchand Sarda v. State of Maharashtra, 1984 SCC(Cr.l) 487 and Sk. Firoz v. State of West Bengal 1997. C.Cr.L.R. [Call 251. In connection with the question relating to the nature of use of a confessional statement he refers to the decisions in Pakal Narayan Swami v. Emperor AIR 1931 PC 47, PalblnderKatirv. State of Punjab : 1953CriLJ154 , Ompmkashv. State of Uttar Pradcsh : AIR1960SC409 . There is no doubt that a self exculpatory statement does not amount to confession. It is also true that the statement of the accused will have to be taken as a whole without making any 'pick and choose' of isolated sentences or words divorced or separated from the context in which they have been used. But in the present case on an Indeplh consideration of the statement of Lokman made before the Judicial Magistrate, we find no reason to hold that the same does not amount to a confessional statement. The learned Advocate for the appellants contends that the statement of Lokman as recorded under section 164 Cr.PC would show that he had only thrown some brickbats when the police officer in khaki dress entered in the house of LatlfSepol and he even did not care to notice whether the same hit the police office or not. He also contends that although the statement shows that Lokman caught the D.C. along with others when Naso hit him by a rod on his head as a result of which the cap fell down and Naso again hit the D.C. on his head and the D.C. fell down and other assailants assaulted him wllh sharp culling weapons, yet the statement shows that on seeing blood-shed as a result of assaults made by the assailants on the D.C. Lokman could not tolerate the situation and he withdrew himself and came out. It is submitted on behalf of the appellant Lokman that the conduct of Lokman shows his mental state at the relevant time and would suggest that he had no culpable object or Intention in respect of the commission of the offence. We are, however, unable to accept this defence contention. May be that the accused Lokman was comparatively a timid person and was unable to reconcile himself wllh blood-shed when the same occurred as a result of combined and concerted assault with various weapons upon the D.C. May be that the role played by the accused Lokman was not as aggressive as exhibited by many other more ferocious co-participants, yet the fact remains that when the D.C. was being chased by a mob and the D.C. was running away for safety, he, I.e.. the accused Lokman also threw brickbats at him and later even participated in catching hold of him along with others obviously for facilitating the assault by other persons with various weapons and in fact, the D.C. was assaulted with various lethal weapons Including rod used by the accused Naso on the head of the D.C. The admitted partlcipalion of Lokman in the operation and in the manner described by Lokman in his stalemenl clearly makes out that the statement of Lokman is nothing else but a confession of the commission of the offence and participation by himself in a culpable way in the commission of the same. We fall to understand why the statement of Lokman should be treated as something falling short of confession. We are rather of the opinion that the statement even when taken as a whole and without excluding anything therefrom amounts to a clear confession of the accused Lokman that he participated in the commission of the offence of severely assaulting the D.C. with various dangerous weapons in which the different assailants took part in a conjoint operation obviously with a common object to commit the offence which was being committed and tn that operation Lokman took part by catching hold of the victim along with others while some other assailants were assaulting the victim with various weapons. His withdrawal from the scene at a later stage on seeing blood-head does not exonerate him from the culpability of his act or state of mind which he displayed upto that stage and this is enough for the purpose of finding him guilty of the charge framed against him under section 302/149 IPC, Inasmuch as the D.C. was put to death as a result of a brutal assault perpetrated on him conjointly by the assailants. May be that the D.C. was further assaulted in continuation of the earlier assault even after Lokman withdrew himself from the scene after seeing the blood-shed but that does not, we reiterate, exonerate Lokman from his participative culpability in the commission of the offence till the stage of his withdrawal. We have seen from the evidence of the Autopsy Surgeon that the head injury sustained by the D.C. obviously as a result of assault made by Naso with rod on the head of the D.C. was alone sufficient to cause death and that was done while Lokman was catching the victim along with others obviously for facilitating conjoint assaults not only by the rod but also by other weapons used by the assailants. The statement of Lokman fully satisfies the requirements of a confessional statement and we are also of the opinion that the same is not only voluntary but is also true as the same receives substantial corroboratlon and also coroboratlon in material respects from the other evidence on record, namely, that the D.C. In khankl uniform and his body guard in while uniform were chased by a riotous mob there on that day and at that time, and the D.C. took shelter in that premises where he was attacked and assaulted by the assailants as stated by the eye witness P.W. 24, Md. Hadls. It is true that Lokman has not been specifically named by Md. Hadls but the other descriptions of the Incident as given by Md. Hadls, in our opinion, lends corroboratlon to the material aspects as to how and in what manner the occurrence took place at the concerned premises regarding assault on D.C. Mehta. Such corroboratlon tn respect of material aspects by the evidence of Md. Hadls Inspires sufficient confidence to accept the confessional statement of the accused Lokman as true. That being so, we have no hesitation in accepting the confessional statement of Lokman as voluntary and true. We will discuss more about the confessional statements at a later stage. Here we would like to note that the evidence of P.W.26 Md. Mustafa and P.W. 38 Md. Narln also supported the prosecution case regarding the Involvement of the accused Naso in the commission of the offence, but these two witnesses could not be produced for further cross-examination at the retrial and that is why their evidence was not pressed into service at the retrial. It has been submitted on behalf of the appellants that although the Division Bench while directing retrial directed the evidence already on record to be taken into consideration in writing out a fresh Judgment in the retrial, yet their evidence cannot be taken Into consideration because they could not be produced for further cross-examination at the time of retrial. It may be noted here that the Division Bench while remanding the case for retrial directed that the judgment is to be written on the basis of the evidence already on record, the evidence to be brought on record pursuant to the order of retrial, and the further statements of the appellants, if any, made under section 313 Cr.PC and also directed the trial Judge to give the appellants opportunity of further cross examining the prosecution witnesses. As we have seen, P.W.26 and P.W. 38 who support the prosecution case in respect of the Involvement of the appellant Naso however could not be produced for further cross-examination at the retrial Insplte of best efforts made by the prosecution as their whereabouts could not be traced out. In the circumstances it appears to us that section 33 of the Evidence Act would be attracted. Under section 33 of Evidence Act the evidence given by a witness in a Judicial proceeding is relevant for the purpose of proving in a subsequent Judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or his presence cannot be obtained without an amount of delay or expense which the court considers undesirable, etc., provided the proceeding was between the same parties or their representstive-In-Interest and the adverse party in the first proceeding had the right and opportunity to cross-examine, and the questions in Issue were substantially the same in the first and in the second proceeding. In the present case, at the original trial Involving the same Issue the appellants not only had the right and opportunity to cross-examine both P.W.26 and P.W.38, but in fact they were also cross-examined in extenso. That being so, when Insplte of efforts those two witnesses could not be traced out at the time of retrial plainly their earlier evidence was admissible in evidence at the retrial in view of section 33 of the Evidence Act. It is needless to say that the directions of the Division Bench concerning retrial do not have any connotation that a piece of evidence which is already on record will be excluded from consideration at the retrial even if the same is otherwise admissible in evidence in accordance with the provisions of law. Therefore we are of the opinion that the earlier evidence of P.W.26 and P.W.38 can be taken into consideration at the retrial under section 33 of the Evidence Act although they could not be produced for further cross-examination at the retrial as they could not be traced out after so many years inspile of efforts. In this back-ground it is Interesting to note the submission made by the learned Advocate for the appellants in respect of the question of admlsslbllly of the confessional statement of the accused Nanney Kosal for consideration at the retrial against the appellant Naso. it has been contended in this connection by the learned Advocate for the appellants that though the Division Bench while directing retrial permitted the trial court to take into consideration the evidence already on record, yet that direction is not Intended to nor does tt supersede any provision of law. It has been submitted by the learned Advocate for the appellants that under section 30 of the Evidence Act the confession of a co-accused can be taken into consideration against an accused only if both of them are Jointly tried for the same offence. It is submitted that since the accused Nanney Kosal who was convicted and sentenced in the original trial did not prefer any appeal and since he was not being Jointly tried with the present appellants at the retrial his confession cannot be taken Into consideration under section 30 of the Evidence Act at the retrial relating to the present appellants. In this connection the learned Advocate for the appellants has referred to certain decisions namely Emperor v. Keramot Sardar, 16 CHN 49, Assistant Collector of Customs. New Delhi v. Harbans Lal Sharaf 1980 Cr.LJ 681 (Delhi) and Suresh Budharmal Katati v. State of Mahamstra 1998 SCC(Cr.l.) 1625. The learned Advocate for the appellants thus contends that Inspite of the direction of the Division Bench for taking into consideration at the retrial the evidence already on record the confessional statement of Nanney Kosal cannot be taken Into consideration at the retrial as that Is, in effect, prohibited by section 30 of the Evidence Act and the direction of the Division Bench cannot be construed to supersede any provision of law. We accept this contention and we are also of the opinion that the confessional statement of Nanney Kosal cannot be taken Into consideration now in the retrial against the appellant Naso because Naso and Nanney Kosal were not facing Joint trial at the retrial. But we fall to understand why this same logic should not apply in respect of the earlier evidence of P.W.26 and P.W.38, both of whom were cross-examined at length at the earlier trial but who could not be traced out and produced at the retrial Insplte of efforts. The direction of the Division Bench to produce the witnesses for further cross-examination at the retrial obviously cannot be construed to exclude the operation of a statutory provision, namely, section 33 of the Evidence Act. No doubt that under the direction of the Division Bench both those witnesses were also required to be produced for further cros's-examlnallon at the retrial. But then, in our opinion, the law should take Its own course if in spite of efforts those two witnesses could not be traced out and produced after so many years for further cross-examination at the retrial. In our opinion, section 33 is attracted in the circumstances and there is nothing in the direction of the Division Bench which can be construed as excluding the operation of a statutory provision of law that may be attracted under the law Itself in a particular situation. In our opinion. In the circumstances the earlier evidence of P.W.26 and P.W.38 can be taken Into consideration at the retrial as a matter of law. However, as a matter of fact we keep their evidence out of consideration, and we examine whether even without taking into consideration the earlier evidence of those two witnesses, namely, P.W.26 and P.W.38 the prosecution have been able to establish the concerned charges against the present appellants.</p><p>31. The learned Advocate for appellants contends that the appellants should have been examined under section 313 Cr.PC afresh in respect of the earlier evidence on record but that was not done and that being so, the entire earlier evidence in the case should be kept out of consideration and it should be held that the earlier evidence cannot be used against the appellants for finding them guilty of the concerned charges in the retrial. It may be mentioned here that in the retrial, after the further cross-examination of the witnesses produced by the prosecution were completed, the appellants were further examined under section 313 Cr.PC thereby giving them opportunity to tell whatever they wanted to tell yet. It may also be noted here that the prosecution did not adduce any fresh evidence in the retrial and only the witnesses who were earlier examined and whom the defence wanted for further cross-examination barring P.W.2G and P.W.38, were produced for further cross-examination and even then further examination under section 313 Cr.PC was done in the retrial so that the appellants might get further opportunity to say whatever they yet desired to say. There was absolutely no question of examining the appellants afresh under section 313 Cr.PC in respect of the entire evidence in respect of which they were earlier given opportunity to express their say under section 313 Cr.PC it is a desparate contention raised on behalf of the appellants in despair that the earlier examination of the appellants under section 313 Cr.PC should be altogether excluded and they should have been examined afresh under section 313 Cr.PC in the retrial even in respect of the evidence in respect of which they were given adequate opportunity earlier under section 313 Cr.PC The direction of the Division Bench in this connection also contalnes the expression 'thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure'. The Division Bench used the expression 'further examine' and not fresh examination and there is also absolutely no reason why the earlier examination under section 313 in respect of the evidence earlier adduced should be treated as a nullity in the retrial. The contention raised by the learned Advocate for the appellants in this respect is wholly unacceptable.</p><p>32. The learned Advocate for the appellants contends inter alia that the unexplained delay in examination of P.W. 24 Hadis Khan renders it unsafe to rely on his evidence, The incident took place on 18.8.84 andP.W.24 Hadls Khan, we get it from the evidence of P.W. 1 S.K. Bhattacharjee. the second I.O., was examined by him in the afternoon of 20.8.84 at G-222 Battikal Second Lane. Both the earlier I.O. (P.W.80) and the second I.O.(P.W.l) have as we have seen, described what they did respectively after taking charge of the Investigation. Hadis Khan, as we have seen, was rounded up at about noon on the 19th and placed in a police van that patrolled in the locality and then he and others were in the police lock up at the P.S. from 7-00 p.m. and were later released in the evening of the same date. The second I.O. P.W. 1 took charge of the Investigation in the evening of the 19th and thereafter, as we have see, he took charge of some of the arrested accused persons in the evening and took them to Lalbazar and Interrogated them and on the next day he took steps for producing them before the court and then went to the concerned locality and there he examined Hadls Khan as the first witness to be examined by him and also the mother of the Hadis Khan in the concerned premises. Having regard to the facts and circumstances we cannot say that there was any delay or leapse in the matter of examining P.W.24 Hadls Khan. The learned Advocate for the appellants in this connection has referred to certain decisions namely, Balakrishna v. State of Orissa 1971 Cr LJ 670. Babull v. State of Orissa, 1974 SCC(Crl.) 104 and State of Orissa v. Brambhananda : 1976CriLJ1985 . It is needless to mention that all those decisions are confined in their effect to the particular facts of the respective cases. In Batakrishna v. State of Ortssa (supra) the concerned witness was examined by the I.O. 10/11 days after the incident which definitely is not so in our present case. In the other two cases namely Babull v. State of Orissa and Slate of Ortssa v. Brambhananda (supra) the concerned witnesses did not disclose the names of the assailants to anyone at the earliest available opportunity and there was no satisfactory explanation for the same. In our present case, as we have seen, P.W.24 Hadls disclosed what he saw at the earliest available opportunity on the very same day to P.W.19 Khalll Khan and P.W.21 Abdul Latlf Khan. Having regard to the facts, circumstances and evidence on record we find no reason to disbelieve the evidence of P.W.24 Hadis Khan.</p><p>33. As regards the question whetehr the statement of appellant Lokman recorded under section 164 Cr PC amounts to confession we have earlier discussed and we reiterate our opinion that such statement amouns to confession. We have already discussed that the Magistrate gave all necessary cautions to the appelalnt Lokman before recording his confession and also gave adequate opporutnity for reflection in Jail custody as well as after the accused was produced before him and he recorded the confessional statement after he was fully satisfied that his confessional statement was made voluntarily and the same was true. We also find no reason to hold otherwise in this respect. H has been contended on behalf of the appellant Lokman that there is no other evidence against the said appeallant except his confessional statement and that, too the confessional statement was subsequently retracted by him and that being so no conviction can be based on the retracted confession alone. In this connection the learned Advocate for the appellants has referred to certain decisions of the Supreme Court, namely, Chandrafcant Chfnum Lal v. State of Gujarat 1992(1) Crime 233, Kashmlra Slngh v. State of M.P. : 1952CriLJ839 . It may be noted here that the decision in Chandrafcant Chfman Lal (supra) is virtually based on the earlier decision of the Supreme Court in Kashmlra S(ngh v. State of Madhya Pradesh (supra). In Kashmlra Sfngh (supra) the Supreme Court was concerned with the question how Tar the confession of an accused person can be used against a co-accused. It is evident from a reading of the said decision in Kashmir Stngh that the said decision was not laying down the law that an accused cannot be convicted on the basis of his own confession. Rather what was laid down in effect in that context in Koshmia Singh is that an accused cannot be convicted on the basis of the confessional statement of the co-accused. On the other hand, the learned Advocate for the Slate has referred to certain decisions which we mention below regarding the use of confession. In Sarwan Stngh v. State of Punjab. : 1957CriLJ1014 , it has been held that in law it is always open to the court to convict an accused on his confession Itself though he has retracted it at a later stage and that nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement and that what amount of corroboratton would be necessary in such a case would always be a question of fact to be determlend in the light of the circumstances of each case. In Madi Ganga v. State qj Orfssa 1981 SCC (Crl) 411 it has been held by the Supreme Court that the accused can be convicted on the basis of the confessional statement if the general trend of his confession is substantiated by other evidence. In Param Hans Yadav v. State of Bihar 1987 SCC(Crl) 322 it has been held that although the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial the same can only be used for lending assurance to any substantive evidence. The law on the point has been very succinctly laid down by the Supreme Court in Sfirfsfiad Waaeshl v. State of Maharastra 1985 Cr LJ 1173 where it has been held that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboratlon from other Independent sources and that it can not, however, be the basis for convicting the co-accused though it may be taken Into consideration against the co-accused also. That being the law, it is evident that the retracted confession of the appellant Lokman can form the basis of his conviction if it has received general corroboratlon from other Independent sources as it has in our present case. We have seen that the appellant Lokman made an elaborate statement as to how the offence was being committed upon V.K. Mehta, D.C. by a group of assailants, some of whom were armed with deadly weapons, and as to the place where it occurred and how he participated in that operation. The manner in which the offence was committed upon V.K. Mehla in the concerned premises and how he was chased in that premises and assaulted are in such details that the vivid description itself lends an assurance of credibility for the confessional version. These details, as we have seen, are again corroborated in material particulars by the evidence of P.W.24 Hadts Khan. We have also seen that there.was an Inordinate and unexplained delay in retracting the confession. Having regard to the facts and circumstances, we have therefore no hesitation in accepting that the confessional statement of Lokman as made voluntarily and the same is true and is corroborated generally as well as in material particulars by the other independent evidence, namely, the evidence of P.W.24 Hadis. He have also seen that the appellant Lokman participated in catching hold of the unfortunate victim D.C., Mehta while he was being assaulted by the accused Naso with rod on his head and by other assailants with various lethal weapons on the other vital parts of the body of the victim. There is therefore no escape from the conclusion that the appellant Lokman is guilty of the charge framed under section 302/149 IPC in spite of the fact that at certain stage of the operation he might have withdrawn himself from scene while the others were yet carrying on the operation.</p><p>34. As regards the involvement of the appellant Naso we find no reason to discard the evidence of P.W. 24 Hadis. We have also seen how. Hadls reported to P.W. 19 and P.W.21 what he saw, on that very day. He clearly implicates the appellant Naso and from his evidence it appears that Naso delivered two blows with rod on the head of the D.C. Mehta while he was in unarmed condition. We have also seen that P.W. 16 Ramashankar Slngh has also deposed that he saw Naso amongst others in the mob with bombs. P.W.21 Abdul Latif Khan also saw Naso with others near deadbody and all were armed. We are therefore convinced that Naso was Involved in the commission of the offence along with others and this receives, additional assurance of truth when the confessional statement of the co-accused Lokman is taken into consideration under section 30 of the Evidence Act. We are also convinced from the evidence on record Including the postmortem doctor that the blow which Naso delivered on the head of V.K. Mehta with rod Itself was fatal. It is true that others also assaulted V.K. Mehta with various weapons and V.K, Mehta met with a tragic and as a result of all the assualts on him. The learned Advocate for the appellants submits that even if the prosecution evidence is taken at Its face value yet it is not clear whether the entire assault was held at premises No,G-222and whether some part of the assaults were carried on after taking away V.K. Mehta from that premises. In our opinion this is immaterial in view of the evidence of assault which is on record and the nature of the Injuries described by the Autopsy Surgeon. It is neither expected nor required that the prosecution must prove the entire operation second by second by a cinematographic display of the actions from the start to finish. The direct evidence of chasing of V.K. Mehta by the assailants and the participation of the appellant Naso in the concerned operation of assault on the victim with deadly weapons at premises No.G-222 and the description of the Injuries found by the autopsy surgeon on the deadbody of V.K. Mehta and his opinion about the effect of the same, are sufficient to hold the appellant Naso guilty of the charge framed against him under section 302/149 IPC for the murder of V.K. Mehta. Accordingly we hold both the appellants Naso and Lokman guilty of the charge framed against them under section 302/149 IPC for the murder of V.K. Mehta.</p><p>35. As we have seen, it is in evidence that the deadbody of V.K. Mehta with Injuries was recovered on that very day by the police party from a drain in that locality. From the facts, circumstances and evidence on record there is no doubt that the assailants of V.K. Mehta had thrown the deadbody in the drain, obviously with a view to avoiding easy detection of the evidence of the crime. There is evidence, as we have seen, that Naso participated in assaulting V.K. Mehta. P.W.21 Abdul Latlf Khan, as we have seen, while coming back to his house and reached Battlkal Second Lane at about 12-30/12-45 p.m. noticed some persons armed with weapons present near a deadbody lying by the side of the kancha drain there and he also found the appellant Naso amongst those persons who were all armed. His evidence is that Naso was standing 2 cubits away from the deadbody. He also says that later at the police station he learnt that the deadbody of the Dy. Commissioner was recovered from the place where he had earlier seen the deadbody. Circumstantially the conclusion becomes irresistible that the deadbody was thrown Into the drain there and it must have been done by those persons who vere found present there beside the deadbody. And Naso was one of them, in the circumstances we are of the opinion that the conviction of the appellant Naso under section 201/149 1PC is justified. We are also of the opinion that his conviction under section 148 1PC is also warranted and Justified.</p><p>36. Now we consider the question of sentence so far as the offence under section 302/149 IPC is concerned. Both the appellants Naso and Lokman have been sentenced to death by the trial court for their conviction under section 302/149 1PC in respect of the murder of V.K. Mehta, the Dy. Commissioner of Police, Port Division. The learned Advocate for the appellants contended, without prejudice to his other contention that the appellants were entitled to an order of acquittal, that this was not at all a fit case for death sentence even if the conviction were upheld. In this connection he referred to the decisions in Bachhan Stngh v. State of Punjab, : 1980CriLJ636 , Rajendra Prosad v. State of U.P. : 1979CriLJ792 , Digambar Gope v. State of West Bengal 1997 C.Cr.L.R.(Cal) 139 and Rabindra Prida v. State of West Bengal 1995 C.Cr.L.R (Cal) 210 etc. On the other hand, the learned Advocate for the State has referred to the decisions in Shlo Mohan Stngh v. State 1977 SCC(Cri) 324, Gayasi v. State of Uttar Pradesh. 1981 SCC(Cri) 590, Jay Kr. v. State of Madhya Pradesh 1999 111 AD(Cr.) SC 33 and 1987 SCC(Cri) 322. etc. Indeed it is now a settled law that for an offence of murder life Imprisonment is the normal sentence while the death sentence should be Imposed only in the rarest of rare cases. The guidelines for determining the case where death sentence can be Imposed are to be found in the decisions of the Supreme Court in Bachhan Singh : 1980CriLJ636 , Mechhi Singh v. State of Punjab : 1983CriLJ1457 , Kama Tewari v. State of Madhya Pradesh, 1996 Cr.L.J. 4158. etc. In going to decide whether in a particular case death sentence should be imposed or not the aggravating and the mitigating circumstances in respect of the concerned accused are required to be taken Into consideration. In Jay Kr. v. S(ate p/M.P,(supra) it has been observed by the Supreme Court that the law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment and that while it is true that a sentence disproportionately severe, ought not passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly Inadequate having due regard to the nature of the offence since an Inadequate sentence would fall to produce a deterrent effect on the society at large. It has been further observed therein that punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, but rather for having its due Impact on the society and that while undue harshness is not required yet Inadequate punishment may lead to sufferance of the community at large. In Shtv Mohcin Sfngh v. The State (supra), it has been Inter alia observed by the Supreme Court that the heinousness of the crime is a relevant factor in the choice of the sentence. In Gayasi v. State qfU.P. (supra), the Supreme Court while confirming the death sentence in a case where the victim was a public servant and was murdered while performing his public duties observed that such crimes committed against Public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.</p><p>37. Now let us look to the circumstances in which the crime has been committed in the present case. On receiving information that a disturbance was going on in the concerned locality, V.K. Mehta, the Dy. Commissioner of the Port Division rushed to the spot and the other officers and force also joined him. He of course had no arms or weapon with him. He led the police party for restoring normalcy in the disturbed area. At that time the police party was attacked by the furious mob with brickbats, bombs and the policeparty headed by the Dy. Commissioner took shelter in a mosque. Underthe pressure of the violent and armed mob the Immam of the mosque askedthe police party to leave the mosque. In the circumstances the police partyhad to leave the mosque. As soon as they came out of the mosque theywere again attacked by the violent mob. The D.C. and his body guard MoktarAll proceeded in one direction while the Assistant Commisloner and theother members of the police party could retreat in a different direction. Whilethus retreating the members of the police party were attacked by themembers of the mob as a result of which the Assistant Commissioner andsome other members of the party sustained Injuries. Unfortunately, howeverthe Dy. Commissioner and his body Guard Moktar All proceeded in adifferent direction Isolated from the other members of the police party andthey were also chased by an armed mob. Both the D.C. and his body guardMoktar All were in police uniform. They were there to perform their officialduties to restore peace and maintain law and order. Insplte of that withoutany provocation from them they were hounded up by the ferocious mob asa result of which the D.C. and hts body guard also became separated fromeach other. The body guard was brutally killed by some of the assailants,and the D.C., while on the run for life and safely took shelter in G-222Battlkal Second Lane but there also the chasing mob followed him. In hishelpless bid the D.C. fervently disclosed to his assailants that he was D.C.of police hoping that the same would have a sobering effect on theassailants, but the assailants were in a devellsh mood and even proclaimedthat the they did not care for D.C. An isolated senior police officer of therank of a Deputy Commissioner who had been there for restoring peace andfor maintaining law and order in discharge of his official duty helplesslyfound himself pitiably doomed in a death trap under the devilish controlof the ferocious assailants while he himself was totally unarmed. There wasabsolutely no provocation from the side of the Deputy Commissioner. It wasthe bounden duly of everyone present there to assist the D.C, in discharge of his official duty to restore peace and maintain law and order but Instead, the assailants took devellsh pleasure in committing the diabolical murder of the D.C. In a dastardly manner. The brutality of the assailants on the helpless D.C. can be readily measured by the number and nature of Injuries found by the Autopsy Surgeon on the deadbody. The appellant Naso, as we found, took the lead role as the pioneer in the matter of actual assault on the D.C. after getting him in virtual capacity. Ignoring the appeal of the D.C. as reflected in the fervant disclosure of his Identity the appellant Naso delivered blow with rod on the head of the D.C. from the front side obviously with enormous force so much so that the helmet of the D.C. fell down from his head and the appellant Naso took that opportunity to deliver a second blow on the bare head of the D.C. with the rod and the beastly operation was followed by assaults by others with different other deadly weapons. The Impact of the assault made by the appellant Naso has been projected by the evidence of the Autopsy Surgeon. The head Injury sustained by the D.C. was sufficient to cause death in the normal course. The role played by the appellant Naso in making the dastardly and deadly assault on the helpless and unarmed D.C. who was on duty is studded with such mainfestatlon of depraved ferocity that the case unrringly comes within the arena of a rarest of rare cases. The tragic death of a brave and dutiful public servant in a circumstance like this is sure to have a macabre effect on the society at large and also a demoralising Impact on the public service in particular, unless the justice delivery system matchlngly responds to nuelralllse the same in the Interest of the peace-loving segment of the society. In our considered opinion, and having regard to the facts and circumstances we have no hesitation in holding that this is a fit case where the appellant Naso deserves death sentence in the Interest of the society at large. There is absolutely no mitigating circumstance for awarding the alternative sentence of life Imprisonment to the appellant Naso. In the result we confirm the death sentence Imposed by the trial court on the accused Naso for his conviction under section 302/149 1PC. However, having regard to the low-profile role played by the appellant Lokman Shah we are of the opinion that in his case death sentence need not be Imposed and the alternative sentence of Imprisonment for life for his conviction under section 302/149 1PC will meet the ends of justice. In the result the death referred in respect of the accused Naso is hereby accepted and the appeal filed by him is dismissed. The death sentence as well as the other sentences Imposed upon the appellant Naso by the trial court are all confirmed. The death reference relating to accused Lokman is however rejected and the death sentence Imposed on him by the trial court is set aside and Instead of death sentence, the sentence of imprisonment for life is imposed on the appellant Lokman for his conviction under section 302/149 IPC. Subject to above modification of sentence for conviction under section 302/149 IPC the appeal preferred by the appellant Lokman stands dismissed.</p><p>M.K. Basu, J.</p><p>38. I agree.</p><p>39. Older accordingly<p></p><p>',
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	'title_for_layout' => 'Lokman Shah and anr Vs State of West Bengal - Citation 853066 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '853066',
			'acts' => ' <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 148, 149, 201 and 302;;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 16A, 144, 154, 161, 164, 313 and 366;;Evidence Act, 1972 - Sections 9, 30, 33 and 45;;<a href="/act/52009/arms-act-1959-complete-act">Arms Act, 1959</a> - Sections 25 and 27',
			'appealno' => 'Criminal Appellate Jurisdiction, Crl. Appeal No. 274 of 1992 with Death Reference No. 11 of 1996',
			'appellant' => 'Lokman Shah and anr.',
			'authreffered' => '',
			'casename' => 'Lokman Shah and anr. Vs. State of West Bengal',
			'casenote' => ' - ',
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			'casesref' => 'In Gayasi v. State;',
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			'counselplain' => ' Mr. Balai Chandra Roy, ;Mr. Sekhar Kumar Bose, ;Mr. Subrata Kumar Basu and ;Mr. Asim Kumar Roy, Advs.',
			'counseldef' => ' Mr. Tapan Roy Chowdhury and ;Mr. Thakurdas Roy Chowdhury, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-12-01',
			'deposition' => '',
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			'judge' => 'Gitesh Ranjan Bhattacharjee and ;Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">G.R. Bhattacharjee, J.</p><p style="text-align: justify;">1. Both the above noted Death Reference and the criminal appeal are being dealt with and disposed of by this Judgment as they arise out of the same Judgment of the 3rd court of Additional Sessions Judge, Allpore. The trial court by its judgment and order dated 26-8-92 acquitted the accused Sanda Akhtar and the accused Hossaln Chowdhury but convicted the accused Naslm @ Naso and the accused Lokman Shah under section 302/149 IPC and further convicted the accused Naso under sections 148, 201/149 IPC. Subsequently after giving a hearing on the question of sentence the trial court by Its order dated 31-8-92 sentenced both the accused Naso @ Naslm and Lokman Shah to death for their conviction under section 302/149 IPC for the murder of V.K. Mehta and also sentenced the accused Nase to R.I. for 3 years and fine of Rs. 2.000/- i.d. to R.I. for 6 months for the offence of rioting punishable under section 148 IPC and also sentenced him to R.I. for 3 years and a fine of Rs. 2,000/-I.d. to R.I. for 6 months for the offence punishable under section 148 IPC and also sentenced him to R.I for 7 years and a fine of Rs.6000/- I.d. to R.I. for 1 year and 6th months for the offence punishable under section 201/149 IPC. The substantive sentences of Imprisonment were directed to run concurrently. The trial court then made a reference to this court under section 366 Cr.PC for consideration of confirmation of the death sentence Imposed upon the two accused Nase and Lokman. Correspondingly the said two accused have preferred appeal to this court against the judgment and orders of conviction and sentences passed by the trial court. As we have already noted both the death reference and the criminal appeal are being dealt with and disposed of simultaneously by this Judgment.</p><p style="text-align: justify;">2. It may be noted here that on an earlier occasion the trial court In a trial on the same charges and others passed Judgment and orders of conviction and sentences In S.T. No. l(6)/88 and on that occasion four accused persons namely Naso and Lokman (the present appellants) along with the accused Akhtar (c) Sanda Akhtar and Hossaln Chowdhury were Inter alta convicted under section 302/149 IPC for the murder of V.K. Mehta and sentenced to death. There were also other sentences In respect of different accused persons on that occasion. It is however to be noted specifically here that on that occasion the accused Nanney Kasai was convicted under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and sentenced to R.I. for 6 years and he was further sentenced to R.l. for 2 years for conviction under section 148 IPC with the direction that both the sentences would run concurrently. The said accused Nanney Kasai. we are told, did not prefer any appeal against the conviction and sentences Imposed on him and he rather preferred to undergo the sentences imposed on him by the trial court The four accused named above who were sentenced to death however preferred appeals against their conviction and sentences which were all heard together by a Division Bench of this court along with the death reference for consideration of confirmation of death sentence Imposed upon them by the trial court. The Division Bench hearing the said death reference and the connected criminal appeals disposed of the same by Judgment dated 8-7-91 by which the death reference was rejected and the appeals were allowed and retrial of the said four appellants-accused persons by the trial court was directed to be held In respect of the charges for which they were found guilty by the trial court. The precise ground on which the retrial was directed was that the trial court allowed the prayer of amendmenl of certain heads of charges at the stage of argument at the behest of the learned Special Public Prosecutor, thereby making amendment In respect of the names of the places of occurrence in the concerned charges. In view of such amendment In the concerned charges at the stage of argument before the trial court, the Division Bench hearing the earlier appeals and the death reference felt that the accused persons ought to have been given an opportunity by the trial court to cross-examine the prosecution witnesses after alteration of charges, and only on that ground the Division Bench considered It proper, without entering Into the merit of the prosecution case, to direct retrial of the case by the trial court In the manner directed by the Division Bench which we will mention hereafter. But before that we briefly describe the nature of charges framed against the accused persons including the present appellants. The first charge was one under section 148 IPC for rioting. The second charge was one under section 302/149 IPC for the murder of Mokhtar All, a police constable In white uniform. The third charge was one under section 302/149 IPC for the murder of V.K. Mehta, D.C. Port Division., In Khanki uniform. The fourth and the fifth charges were under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and Mokhtar All respectively. The sixth and last charge was under section 324/149 IPC for causing hurt to K.K. Sharma, Asstt. Commissioner of Police (II), Port Division and to Rama Shankar Slngh, constable.</p><p style="text-align: justify;">3. The direction of the Division Bench for retrial was couched In the following language :--</p><p style="text-align: justify;">'On the conclusion as above, we set aside the order of convictions recorded and sentences Imposed upon the four appellants before us and direct their retrial only in respect of those charges for which they were found guilty by the learned trial Judge. In the retrial the learned Judge will give the appellants an opportunity of further cross-examining those witnesses of the prosecution, who had earlier deposed In respect of the above charges and thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure. The four appellants should then be given an opportunity to adduce evidence on their behalf. On the basis of the evidence already on record, evidence to be brought on record pursuant to this order, and the further statements of the appellants, If any, made under' section 313 of the Code of Criminal Procedure, the learned Judge will write out a fresh judgment after hearing the arguments of the parties. By way of abundant caution, we reiterate that the retrial, in terms of this order Is to be confined to the four appellants only and that too only in respect of the charges for which they were found guilty. Since the appellants are In custody for a pretty length of time, we direct the learned trial Judge to conclude the retrial as expedltiously as possible, preferably within a period of two months from the date of communication of this order. Till then, the four appellants shall continue to remain in custody.</p><p style="text-align: justify;"> The appeals are thus allowed and the reference made by the learned Judge under section 366 of the Code of Criminal Procedure is rejected.</p><p style="text-align: justify;">Consequently the retrial was required to be confined to the charge under section 302/149 IPC against the four accused persons, namely, Naso, Lokman, Sanda Akhtar and Hossain Chowdhury, for the murder of V.K. Mehla and also against the accused Naso to the charge under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta as well as under section 148 IPC for rioting.</p><p style="text-align: justify;">4. The trial court held the retrial pursuant to the above noted direction of the Division Bench. The witnesses whom the accused persons desired to further cross-examine In the retrial were produced by the prosecution and were cross-examined. However, at the retrial the prosecution could not produce two of their Important witnesses namely P.W. 26, Md. Mustafa and P.W. 38. Md. Narln as they were not traceable and this fact was recorded by the trial court In Its order No. 295 dated 28-2-92. Be that as It may, on retrial the accused Sanda Akhtar and the accused Hossaln Chowdhury were given the benefit of doubt and were acquitted and this had to be done, as it appears from paragraph 32 of the Judgment of the trial court, mainly because the evidence of the two prosecution witnesses, namely, P.W. 26 and P.W. 38 were not taken Into consideration as they could not be produced for further cross-examination at the retrial. In paragraph 33 of the Judgment of the trial court, it Is recorded in that connection that the learned Special Public Prosecutor after taking sufficient opportunity finally expressed his Inability to produce those two witnesses and also pointed out that after a lapse of nine years the whereabouts of those witnesses could not be ascertained and It may be that for fear of life they had absconded. However, at the retrial the trial court convicted and sentenced the appellants-accused Naso and Lokman as noted earlier and thereafter made this reference under section 366 Cr.PC for confirmation of death sentence Imposed on them. The said two appellants have also preferred criminal appeals against their conviction and sentences.</p><p style="text-align: justify;">5. The prosecution case has been succinctly stated in the earlier judgment of the Division Bench and we restate the same. The prosecution case in a nutshell is that in the morning of March 18, 1984 communal disturbances broke out at Fathepur Village Road under the Garden Reach Police Station and its adjoining areas which fall within the Port Division of Calcutta Police. On getting information of the disturbances Sri Vinod Kr. Mehta, the then Dy. Commissioner of Police of the Port Division went there alongwlth his securily guard Moktar All. Sri K.K. Sharma (P.VV.7), who was the Asstt. Commissioner of Police of that Division then, also reached there along with his security guard R.S. Singh (P.W. 16) and other police officers. When the police personnel tried to restore peace and normalcy, they were attacked by a riotous mob with brick-bats, bombs etc. To avoid mob fury, Sri Mehta and others entered into a mosque but as they were not allowed to remain there by its [mam, they came out. Then they were again attacked with bombs and other lethal weapons and finding no other alternative Sri Mehta took shelter In the house of Abdul Latif Khan (P.W. 21). a constable attached to the Calcutta Police, at G.222 Battikal Second Lane. Moklar All. In his return, took shelter In a near-by house at Dhankhettl. Unfortunately, however they could not save their lives as they were hacked to death by the riotous mob. Subsequently, the charred body of Moktar All was found In an open space near the premises where he took shelter, while that of Sri Mehta bereft of his uniform, was found floating in a drain near premises No. F/59, Attabag with multiple Injuries on his person. Sri K.K. Sharma and his security guard were also attacked by the riotous mob and injured but fortunately they could save their lives by running away. Sri Sharma lodged an Information about the incident in the evening and on that information Garden Reach Police Station registered a case against 150/200 unknown persons for the murder of V.K. Mehta and Moktar All and for assault on Sri K.K. Sharma and other police personnel. S.I., S.R. Ganguly (P.W. 80) of Garden Reach Police Station took up investigation of the case but under orders of superiors Investigation was subsequently taken up by S.I., S.K. Bhattacharjee (P.W. 1) of the Detective Department (Homicide Squad) of Calcutta Police who submitted charge-sheet.</p><p style="text-align: justify;">6. Having described above the genesis of the present appeal, the charges framed, the prosecution case in a nut-shell and the scope of retrial, we now proceed to examine the merit of the prosecution case on the basis of the facts, circumstances and evidence on record. It Is needless to mention that we are now concerned mainly with the case against the two appellants Nase and Lokman. At the very out set. we may mention here that ext. 3/1 Is the site plan which will be of great assistance in appreciating the facts, circumstances and evidence on record Including their co-relation in respect of different aspects of the matter. We may here also adumbrate a broad categorisation of the different types of prosecution witnesses. P.W. 80, Santl Ranjan Ganguly, S.I. of Police who was attached to Garden Reach Police Station at the relevant time is the first I.O. of the case. P.W. 1, SaroJ Kr. Bhattacharjee, S.I. of Police attached to Homicide Squad. Detective Department, Calcutta Police is the second I.O. who submitted charge-sheet after Investigation of the case. P.W. 2 Is the plan maker. P.Ws. 3, 4, 5 and 6 are photographers. They are all police personnel. P.W. 65 Is a private photographer. P.W. 7, K.K. Sharma is the Assistant Commissioner of Police, Port Division who lodged the FIR and P.Ws. 8, 9, 10, 11. 12, 13 and 16 are all police personnel who had been to the disturbed area for restoring law and order there. P.Ws. 15. 18, 20. 22, 23, 25. 27. 28, 29. 34. 35, 36. 37 and 48 were all declared hostile by the prosecution. However, of the said hostile witnesses, we may have to discuss the evidence of some, namely P.Ws. 15, 18, 20, 22, 23 and 25. The main prosecution witnesses Implicating the present appellant Nase are P.Ws..16, 19,21 and 24. The other two vital witnesses P.Ws. 26 and 38 however, could not be produced for further cross-examination at the retrial. P.W. 46 Is the Autopsy Surgeon who held the post-mortem examination on the dead-body of V.K. Mehta. P.Ws. 44, 66 and 67 are also medical witnesses. P.W. 47 is the Judicial Magistrate who held T.I. parade. P.W. 51 is the Judicial Magistrate who recorded the confessional statements of the two accused Nanney Kosal and Lokman Shah on 3-4-84 and 9-6-84 respectively (vide ext. 13 and ext. 14).</p><p style="text-align: justify;">7. We will now discuss the evidence of some witnesses from which we will get an Idea of the nature of the Incident that took place on 18-3-84 in the concerned locality. P.W. 7, Sri K. K. Sharma was posted at the relevant time as Assistant Commissioner of Police (II). Port Division. He says that late V.K. Mehta was his Dy. Commissioner and he died on 18-3-84. It may be noted here that It is In evidence that 18-3-84 was a Sunday and It was the day on which 'hoiI' festival.was being celebrated. It is the evidence of Sri K. K. Sharma (P.W.7) that on that day while he was at his house he received a telephone from Port Division. Telephone Exchange at about 10-45 a.m. to the effect that a trouble was going on at the Junction of Falherpur Village Road and Paharpur Road and that the D.C. Mr, Mehta wanted his presence there. Then he proceeded to the place In a Jeep accompanied by his body guard Rama Shankar (P.W. 16) who was well acquainted with that place and they reached there at about 11 -30 a.m. and found brick-bats lying on the roads and remants of exploded bombs and he also saw a huge gathering. He also heard nofsy sounds. He says that he saw some local police officers standing there and seen D.C. Port accompanied by one Mr. Sen and local leader came to that place accompanied by some agitated persons and the D.C. told him that they would go out and see what was going on and then he, his guard, D.C., his guard Moktar All and 5/6 armed constables proceeded along the Fatherpur Village Road and entered the Mathorpara Basil and found agitated crowd on both sides of Mathorpara Bastl Lane. According to his evidence they proceeded further and came near Ramnagore Lane when brick-bats, bombs etc. were hurled at them and It was about 11-45 a.m. at that time. He says that there Is a mosque near the place where the Mathorpara Bast! approach meets Ramnagore Lane. His evidence is that due to heavy brick batting and bomb throwing D.C. asked them to take shelter Inside the mosque and In order to save themselves they entered Inside the mosque. He describes that there Is a collapsible gale at the back portion of the mosque and they entered the mosque through the front gate and after some time they noticed that a riotous mob of about 40/50 persons were trying to break open collapsible gale of the mosque and those persons were armed with brick-bals, bombs, swords, daggers etc. and Ihen the Imam of the mosque told them to leave the mosque and then the D.C. told him that they would have to leave the place and to go out and had also some discussion regarding their future course of acllon and also told him lhal they were to disparse the violent mobs. According to him the D.C. further told him that he (A.C.) should try to disperse the mob from Mathorpara Bastl approach and Ramnagore Lane junction while D.C. would disperse the mob from eastern side of the mosque. He estimates that there were about 400/500 persons around the mosque, and say that when they came out he noticed the D.C. In the midst of a crowd and was going towards the east. His evidence is that bombs and brickbats were thrown at them and he was surrounded by some persons and they forced him to sit on the ground and someone took off the helmet from his head and he was praying to God for his life and one person started hitting on his head with a full brick ('then if). He also noticed that some persons had daggers and swords with them. He says that he received bleeding Injury on his head and he was more or less senseless at that time and after some time somehow he managed to get up and could, with difficulties, reach the place wherefrom they had earlier proceeded towards the mob. He says that when he was made to sit forcibly by the mob, the situation was such that he could notice where his security guard was and where the other armed constables were. He also did not see his security guard subsequently on that date. His evidence Is that he met the D.C. Head Quarters, D.C. S.B.-I who were standing there at the place where he returned after sustaining injury, namely, near the junction of Paharpur Road and Fathepur Village Road and on seeing his condition the D.C. Head Quarters advised him to go to Calcutta Hospital for treatment and also ordered one sergeant to accompany him to the hospital and he then went to the Calcutta Medical Research Institute and was treated there. His evidence Is that he reached the hospital at about 12-15 p.m. and his Injury on the head was stitched and from there, Ignoring the advice of the doctor to take admission in the hospital, he went to Lalbazar and reached there at about 2-00 p.m. and met the Commissioner of Police (C.P.) and other high officials and narrated the Incident and from Lalbazar he went home as per the direction of the C.P. His further evidence Is that while at home he got a message that Police Commissioner had gone to the spot and he should go there and then he went to the spot and met the superior officers and came to know that the dismembered charred body of the body-guard of D.C. Mehta had been found in an open space and he also saw the charred body which was beyond recognition to him. He gave the name of the body-guard as Moktar All. He says that he also noticed that metallic buttons used by police constables were lying near the charred body and also found remnants of white uniform used by Calcutta Police Constables. According to his evidence D.C., Port Division V.K. Mehta was still untraced and they conducted search for him and on search the body of V.K. Mehta was recovered from a Kancha Nala and it was found that socks were on his feet and both legs were tied with a rope and he was wearing only one Jangea and the Galnjee was rolled up to his chest and the body had multiple marks of injuries In the eyes, face, chest and other parts and the body was sent to morgue for post-mortem examination. From his evidence it appears that In the T.I. parade he Identified the accused Sk. Nanney and in his evidence he says that he saw the said accused (Nanney) when they were coming out of the mosque. In a very violent and aggreslve mood with a bomb In his hand and he was shouting. His evidence is that after the bodies were sent to morgue, he went to Garden Reach Police Station and there S.I., Santf Ranjan Ganguly (P.W. 80) recorded his statement which was signed by him after going through the same. His statement which was recorded and treated as FIR was marked Ext. 4. In his cross-examination he says that he made the statement to the S.I. at about 8-05 p.m. He also clarifies that the statement fn the FIR (Ext.4) 'after seeing Commissioner of Police I came back to the spot at about 15 hours' is not correct, because he went home from Lalbazar and from home he went to the spot. This he has said In his examination-in-chief and we do not think that there is any substantial discrepancy In the matter. In his cross-examination he says that the police vehicles were parked near the crossing of Paharpur Road and Fatherpur Village Road since the vehicles could not got through Mathorpara. He also says that he was assaulted at Ramnagore Lane near a place where Mathorpara Road meets Ramnagore Lane and after the assault he went to the crossing of Fathepur Village Road via Mathorpara Lane. He says that at Lalbazar he came to know that V.K. Mehta and his body guard were still missing. He also says that dusk to dawn carfew was Imposed in that area on 18-3-84 and he was Informed at the P.S. that section 144 Cr.P.C. had been also promulgated in that area. He says that after the incident due to his Injuries he was completely on bed rest for two months. In his cross-examination in the retrial, he says that the dead body of V.K. Mehta was recovered from a Kanchha Nala and he saw It when it was taken out from that Nala. He however did not see the actual bringing out of the body from the Nala. He first saw the dead body, he says, by the side of the road where It was kept after bringing the same out from the nala. His further evidence Is that about 8 to 10 police personnel Including himself and D.C. Mehta were Inside the mosque and while some of the police personnel were not armed, some were carrying muskets and gas shells. It may be noted here that Ext.4 which Is the statement of P. W. 7, K.K. Sharma that was recorded as FIR on 18-3-84 stands In substantial conformity with the evidence of P.W.7. Sri K.K. Sharma as given in court.</p><p style="text-align: justify;">8. P.W. 8, Sayed All Reza Is an armed constable of police. His evidence is that on 18-3-84 he reported to Lalbazar for duty at 6 a.m. and his duty was allotted to Watgunge P.S. and he went there with a gas gun, and that while he was In that P.S. on standby duty at about 10/10-15 a.m. the Subedar reported that a trouble was going on In Garden Reach area and they were required to go there and accordingly they left for Garden Reach and reached there at about 10-30/10-45 a.m. He says that he saw D.C. Mehta, A.C. and olher police forces and police officers present there and then D.C. Mehta proceeded Inside the bastl along with A.C.. the witness (P.W.8), guards of D.C. and A.C., 5 armed constables, 2 plain clothed constables and 3 police officers In plain cloth. He says that after entering Inside the basti they found a dead body lying there and D.C. asked two police men to guard the dead body and three police officers In civil dress were asked to bring a vehicle and pick up the body. He says that they heard noise coming from Inside the bastl and also heard sounds of bombs and then D.C. Mehta alongwith A.C. proceeded Inside towards that direction and they were with them and when they reached the road through the lane near the mosque they were attacked from both sides of the road and they took shelter in that mosque with the help of a Moulabl and members of the mob were throwing bombs, brick-bats and they had lathi, rods also with them. He says that he noticed that about 20/25 bombs were hurled towards them and when they took shelter In the mosque, a violent mob being armed with weapons were trying to break open the back side collapsible gate of the mosque and the Moulabl was also threatened by the mob with dire consequence if he did not drive out the police parly from the mosque and then on being asked by Moulabl they came out of the mosque and they were attacked with bomb and brick-bats and then the A.C. ran inside the lane through which they had reached the road and they also followed him. He says that as soon as he entered inside the lane he saw that the A.C. was being assaulted on his head With a brick and his helmet was missing. According to his evidence he tried to fire gas from his gun but the gun did not work and then using the gun as a lathi he gave a blow to a boy who was assaulting the A.C. He further says that when he hit that boy with the gun the gas shell burst out. He however says that he could not recognise the boy who assaulted the A.C. with the brick on his head as trouble was going. He further says that when the gas shell burst out, all of the persons fled away from the place and A.C. then stood up and started walking slowly with bleeding Injuries on his head. P.W.8 says that he also received a brickbat blow on his leg when he was going to enter inside the lane after coming out of the mosque. His evidence is that he followed the A.C. keeping watch on the back side and In this way they reached the place where they had come from watgunge P.S. and at that time he noticed the presence of D.C. Headquarters at that place alongwith other police officers and constables and they had a talk with the A.C. His evidence Is that he reported to one police officer that D.C. Mehta had been separated from them and on hearing this the D.C. Headquarters proceeded inside the basti alongwith them in order to ascertain the situation. He says that it was then about 1/1-30 p.m. and he took the D.C. and the others to the mosque and on his way he reported the entire incident to the D.C. Headquarters. He says that the D.C. Headquarters started asking the people of the locality regarding the whereabouts of D.C. Metha and on receiving one information they went to an open space on Ramnagore Lane and saw that a human body was burning. He further says that they noticed a piece of white uniform and a nickel button used by constables lying near that place and so he guessed that It was the body of the guard of D.C.Mehta. That place, he says, is near the mosque. His evidence is that then he and other police constables remained at that place where the dead body was burning and the other police officers went to other place and then at about 5-30/6-00 p.m. they come to know that the dead body of V.K. Mehta had been traced out. His further evidence is that he saw that a dead body was placed by the side of a drain in a lane and the dead body was covered with a white cloth and a police officer lifted that cloth and he found that it was the dead body of Mehta with marks of injuries. In his cross-examination he says that he was 3/4 cubits behind the A.C. when the A.C. was being assaulted and as he was threatening the mob with the gas gun he was not assaulted by any person of that mob. He gives the time as 2/2-30 p.m. when he noticed that the dead body was burning. P.W.9 is also an armed constable attached to the 5th Battalion. He was also sent on duty to Garden Reach area on 18-3-84 after 10-00 a.m. He says that in their party there were 4 armed constables and four had gas guns and some others had lathies and one inspector was with them. His evidence Is that on reaching Paharpur they found a gathering and also heard shouts and D.C. Port, A.C. and other police officers were present at that place. His further evidence Is that D.C. Port, asked four armed constables and four constables with gas guns to accompany him in the adjacent lane and they entered in the lane and after going some distance found a house in blaze and the D.C. placed two armed constables to guard that house and then they along with D.C. were proceeding through an adjacent baeti area and noticed a dead body and D.C. ordered two local police men to guard the dead body and they proceeded further and came to a road near a mosque and when they were on that road they were attacked from both sides with brick-bats, bombs and on being attacked they entered inside the mosque. He says that there were 60/70 persons on both sides of the road. His evidence is that then some persons were trying to break open the gate of the mosque and the Moulabl asked them to get out of the mosque and they came out of the mosque and they were attacked with bombs and brick-bats. He says that he took shelter in a chala and also threw his gas granade but the granade did not burst. He says that from the Chala he came out and started running and he met the A.C. and other police men. He says that A.C. had bleeding injury on his head and finally he boarded the lorry. in his cross-examination he says that D.C., A.C., himself and other police men were together up to the mosque of Paharpur.</p><p style="text-align: justify;">9. P.W.10 is another armed police constable. He was also sent on duty to that place on that day. His evidence is that when they came to the Junction of Paharpur Road and Fathepur Village Road, D.C. Port, V.K. Mehta, his guard, A.C. Port Mr. Sharma, his guard, O.C. Garden Reach P.S. and some local police officers and constables were present there. He says that a house was burning some distance away and a vehicle of Fire Brigade was there. His evidence is that they along with D.C. and A.C. proceeded towards the northern direction and D.C. posted two armed constables near the burning house and proceeding further they found a dead body and D.C. posted the constable of local P.S. there and they proceeded further and noticed an agitated mob and also heard sounds of bombs. He says that they reached Ramnagore Lane near the mosque and up till then the D.C. did not order them to fire. He further says that the D.C. did not pass any order to fire. His evidence-is that when they reached near the mosque, bombs were thrown and they entered inside the mosque. He further says that 20/ 25 persons armed with sharp weapons such as sword, tangi like weapon, klrlch etc. tried to break open the gate of the mosque and when they then all came out of the mosque bombs, brick-bats were thrown at them. He also speaks of assault by one person on A.C. Mr. Sharma and says that his helmet had fallen on the ground and his head was bleeding. He says that at that stage he did not see the D.C. He further says that on their way back he had fired two rounds in the air in order to save themselves as bombs were being hurled from roof-top. He also speaks about the burning of a house and says that Mr. Sharma told the D.C. Headquarters that the D.C. Mehta had been separated from them and then Sharma left for hospital as he has injury on his head and they boarded the lorry. His cross-examination shows that the D.C- Port Division had a shield in his hand at certain stage. P.W. 11, Ashlm Chakraborty is also an armed constable of Calcutta police who was sent on duly there on that day. He says that he was carrying gas gun. He also speaks about the mob found on reaching Fathepur Road arid Paharpur Road crossing. He testified to the presence of D.C. Port. A.C., Port and their guards and officers of Garden Reach P.S. as well as police men of that P.S. He says that they could hear shoutings and sounds of bombs coming from northern side and the D.C. asked them to follow him and than D.C., A.C., their guards and they including the witness along with police officers of the local P.S. and constables proceeded towards north through Fathepur Village Road and through a narrow lane in the basti when they heard sounds of bombs and noise in the Bastt and also they found a deadbody near a two storyed building covered with cloth. He says that the D.C. ordered the two constables of the local P.S. who had muskets to guard the deadbody and also directed the two officers of the local P.S. to make arrangement for removal of the deadbody and then he along with D.C., A.C., their body guards, two armed constables and four gas constables including himself proceeded towards further north and reached Ramnagar Lane near a mosque. He says that many people were shouting, standing on sides of Ramnagar Lane and they were attacked with bombs and brickbats from both sides of the road and then they all entered (n the mosque. His evidence shows that a mob armed with swords, bhojalis were trying to break open the collapsible gate and the D.C. ordered them to come out of the mosque and then they all came out and they were again attacked with bombs and brickbats from both sides of the road. He says that he was hit on his leg with a brickbat. He further says that he fired one round of tear gas shell but it did not explode and then out of fear and to save himself, he took shelter in a tileshed and another constable also took shelter there. He noticed that the A.C. Port Division was going back. He also speaks about the bleeding injury on the head of the A.C. Port Division Then they reached the crossing of Paharpur and Fathepur Village Road where D.C. Headquarters was present. He says that A.C., Port Division talked to the D.C. Headquarters. P.W. 12 Naba Ranjan Dutta is an armed police constable. He says that from Lalbazar they were sent to Garden Reach area and they went there in a lorry and reached Paharpur Road at about 11/11-15 a.m. and found V.K. Mehta. D.C., Port and A.C., Port present there. His evidence also shows that when they reached the road near the mosque a mob of about 150 persons or so on both sides of the road started throwing bombs and brickbats towards them and then they entered inside the mosque and then some persons were trying to break open the collapsible gate of the mosque and were shouting for driving them out of the mosque. He further says that D.C. and A.C. had some conversation with the Moulabl of the mosque and thereafter they all came out and when they came on the road they were again attacked with brickbats and bombs from both sides on the road. He says that he was also hit on his hand and feet by brickbats. He of course cannot say as to which of his companions had gone in what direction but he noticed that the A.C. and 2/3 armed policemen were going towards the lane through which he had come earlier and he followed them. P.W. 13 Ajit Kr. Malty, a constable of Calcutta Police who was in the police party at the relevant time also speaks about that part of the incident which the other police witnesses have described as discussed above.</p><p style="text-align: justify;">10. P.W. 16 Rama Shankar Singh who is a police constable was the security guard of K.K. Sharma (P.W.7), the A.C.-11 (Port) at the relevant time. He went to the spot with the A.C.-II (P.D.) on the relevant date. He says that they reached Fathepur Village Road and Paharpur crossing at about 11-00 a.m. and found the D.C.. Port. Vinod Kr. Mehta and his body guard, both in police uniform, present there as well as the O.C. Garden Reach P.S. and three police officers of South Port Police Station. He also speaks about the presence of some constables of Garden Reach P-S. and police force there. His evidence shows that the people of that locality were in very agitated mood and the D.C. was trying to pacify them and at that time they heard uproars and sounds of bombs coming from Mathorpara side and then the D.C., Port, his body guard, Mr. Sharma, he (the witness), three police officers, two constables of Garden Reach P.S. and six armed constables, [two carrying muskets, two with gas guns and two with gas granades) proceeded towards Mathorpara under the leadership of D.C., Mehta and on reaching Mathorpara they noticed one deadbody lying on the ground near the house of one idrlsh and then the D.C. told the three police officers to make arrangement for removal of the deadbody in a vehicle and the D.C. also posted two Garden Reach P.S. constables near that deadbody. His further evidence is that they then heard roars coming from Ramnagar Lane side and then D.C. Mehta, his body guard. Mr. Sharma, the witness himself and six armed constables proceeded towards that direction and as soon as they reached Ramnagar Lane from Mathorpara they were attacked from the eastern and the western sides of the Ramnogar Lane with brickbats, bombs etc and in order to save their lives they entered in a mosque situated on Ramnagar Lane and they noticed a mob standing behind the collapsible gate of the mosque and trying to break open the gate. He further says that the mob was shouting and asking the imam of the mosque ot drive them out of the mosque and then the Moulabi asked the D.C. to leave the mosque and then the D.C., Mehta had some talks with Mr. Sharma and thereafter they left the mosque. As soon as they came out of the mosque, he says, they were attacked from both sides of the road with bombs, brickbats etc. He says that he received bleeding-injury on his right leg as he was hit with a splinter of bomb and with a brickbat when he was on Ramnagar Lane. He says that he received bleeding injury on the thigh of his right leg and he fell down on the ground and got up within two minutes. His evidence is that at first he could not see any of his companions but subsequently he noticed that the D.C. Mehta and his body guard were running towards the eastern side and a (SIC)b was chasing them with swords, brickbats and bombs. it is to be noted here that from this witness, namely, the body guard of the A.C.. Sri Sharma we get that on being chased by the armed mob, the D.C., Mehta and his body guard ran towards the eastern side. His evidence is that in order to save him he himself started running towards the western side and reached Paharpur road. His evidence read with the evidence of the police witnesses discussed earlier thus indicates how D.C. Mehta and his body guard at that point of time were separated from the other members of the police party on the face of the attack made by the furious and armed mob, and at that point of time when the other members of the police party retreated towards the western side, the D.C., Mehta and his body guard were running in the other direction, namely, the eastern side on being chased by the mob and thus they became isolated from the other members of the police party. P.W.16 says that when he reached Paharpur Road on running away from the place of the trouble, he found a taxi there and he went to Garden Reach P.S. in that taxi and there he reported the incident to one A.S.I, of the P.S. and from the P.S. he went to Calcutta Police Hospital for treatment and was admitted there and he was in the hospital for 26 days. A significant part of his evidence is that he speaks about the presence of Nannay Kasal and Naso (an appellant) and Puttan in the mob having bombs with them when the police parly was attacked by the mob on Ramnagar lane as soon as they reached there from Mathorpara. He also says that he had seen Nannay Kasal to throw bombs towards them. He further says that at that time he also saw Hallm, Naru, Gorachand and llllas, all asked with brickbats and also idrish Rahaman, Kallu armed with bombs. He further says that he had also seen Kasrln in that mob. He says that he knew them previously. in court he also identifies the accused Naso and certain other accused persons. His evidence is that the mob which was throwing bombs etc towards them and the -mob that chased the D.C. and his body guard as well as the mob that was trying to break open the gate were all in angry mood. The evidence of this witness is thus significant as he testifies to the presence of the accused Naso, an appellant herein, with bomb in his hand in the furicus mob that attacked the police parly. in his cross-examination he says that the distance between the mosque and the Paharpur road along Ramnagar Lane will be five to ten minutes walk and the crossing of Ramnagar Lane and Paharpur Road will be about 5 to 10 minutes walk from the crossing of Fathepur village Road and Paharpur Road. He says that they wereinslde the mosque for about 5/ 6 minutes. He also says that both the D.C. and his body guard were in uniform. From his cross-examination we get that the distance between Ramnagar mosque and the Ramnagar oulpost will be less than a mile. He further says that on that day there was trouble in alomost all parts of that area. His evidence is that on that day there was disturbance between Hindu and Muslims. in his cross-examination during retrial he says that after coming out of the mosque he sustained injury on his right leg from a splinter and he fell down and thereafter he managed to go towards Paharpur Road and he went to the Garden Reach P.S. at about 12-45 p.m. and he narrated before the duty officer how he sustained injury and thereafter taking sick report he went to the police hospital. He further says that excepting the disturbance infront of the mosque he had no occasion to see any other disturbance on that day. He also says that when he was in the hospital for 26 days the Police Officer from Lalbazar vlslled him for interrogation. From him we get that he was posted in Garden Reach P.S. for one year from 1980 to 1981.</p><p style="text-align: justify;">11. P.W. 73 Sewnath Slngh was the O.C. of Garden Reach P.S. on 18.3.84. His evidence is that on that day at about 10-15 a.m. S.I.. O.K. Sikdar of Garden Reach P.S. received a massage from Lalbazar Control Room that a disturbance of communal nature was going on in Falhepur village Road area and that information was recorded in the G.D. of the Garden Reach P.S. and thereafter he along wllh S.I., H.P. Dutla. S.I., O.K. Sikdar left the P.S. with available force. He says that he was in his Jeep and the force was in a police vehicle and they reached the concerned area at about 10-30 a.m. and noticed that two groups of agitated mob numbering about 800 or so were throwing brickbats, bombs etc at each other and then he along with his officer and staff chased the crowd and the crowd melted and entered in the lanes and by-lanes. He says that two buildings were on fire and they tried to put off the fire. His further evidence is that the D.C. Port and some other police officers also arrived there, namely, O.C. iqbalpur P.S., O.C. SPPS, S.i. A. Cope, S.i. S. Gupta, Sergeant S. Banerjee and other police men. He also speaks about the presence of the armed body guard of the D.C. He says that when the D.C. came he had his guard Muktar All with him. The D.C., he says, was in his Khaki uniform and his guard was in white uniform. His evidence is that he showed the D.C. the affected place and the D.C. also chased the crowd. He says that other houses were set on fire and they tried to extinguish the fire with the help of local people and the Fire Brigade also arrived there and at that time on receiving and information that a man had been killed on Paharpur Road, he left for Paharpur Road with one or two constables on foot and on arriving there he found that the people were very much agitated and the dead body of one Subrata Bhattacharjee, whom he knew, was lying infront of the premises No.J-146. Paharpur Road and thereafter he pacified the people and came back to Fathepur village Road to make arrangement for the removal of the deadbody. His evidence is that the T.C. Head-quarters S.K. Dasgupta arrived at Fathepur village Road and at that time A.C. (ii) Port Division K.K. Sharma came there with injury on his head and thereafter he himself along with D.C. Headquarters and force proceeded towards Ramnagar Lane through Azhar Motla Bagan as they had no trace about the D.C. Port and his guard. His evidence is that they were searching for the D.C. and his guard at Ramnagar Lane and adjacent areas and K.K. Sharma, A.C. (ii) Port Division was sent to hospital accompanied by Sergeant J.L. Roy. His further evidence is that when they were continuing the search for D.C. and his bodyguard, they found at about 2-30 p.m. a deadbody which was on fire lit by bomboo pieces and other elements in an open plot in front of Mirza Galllb School and a burnt khankl cloth piece and one metal button were found near that place. He says that the fire was extinguished and the charred body was taken charge of by them and he asked his officer to hold inquest of the charred body and the inquest was held by S.i. S. Moitra. His further evidence is that they continued their search for Mr. Mehta and at about 5-30 p.m. the deadbody of Mr. Mohta was found floating in a kancha drain behind the premises No. F-59 and F-201, Atabag. The deadbody, he says, was floating on its back with legs towards north and head towards south with only under-wear on and the body was smeared wllh mud. He clarifies that by underwear he means under-garment. He also speaks of the presence of a pair of socks on legs and a rolled vest on the body. He says that there were injuries on the deadbody of Mehta, mostly on the face and the right part of the head. The body, he says, was taken out from the drain and S.I. S. Moitra prepared the inquest report of the deadbody of V.K. Mehta in their presence and then the charred body and the body of Mr. Mehta were sent to Calcutta Police Morgue for post-mortem examination. He says that the charred body was the body of Moktar All, the security guard of D.C. His evidence is that after the deadbodles were sent to Calcutta Police Morgue, they returned to Garden Reach P.S. at about 8-05 p.m. He further says that the D.C. Port did not carry any revolver on that day. His evidence is that when the security guards go for duty they carry service revolver and ammunallon. in his cross-examination he says that the charred body had no hands and legs and the head was also missing except the occipital region of the skull. He also says that the open space where the charred body was found is situated at the junction of Ramnagar Lane and Battlkal. He says that Ramnagar Lane runs from east to west and Battlkal runs from north to south and the open space extends up to Mirza Galib School from the junction of those two roads and the school is to the north of that junction. He further says in his cross-examination that from Lalbazar Control Room a massage was received that deadbody was floating in the kancha drain. He says that as the situation was abnormal, he cannot remember everything in details and it is difficult for him to say who detected the floating body first as there were many olflcers together in search of the deadbody. He further says that S.J., S.R. Gangull (P.W.80) was the l.O. of the case at the initial stage and thereafter the case was taken over by the Detective Department, Lalbazar. He says in his cross-examination that the D.C. D.D. Mr. H.A. Safwi also came to Ramnagar area a bit late and he was all through with them and curfew was imposed in that area and some persons were apprehended in that area on 18th and 19th March and were challanged in petty cases but he cannot tell the number of the arrested persons now. He also cannot tell in details whether all the arrested persons were challaned in petty cases or some were released after interrogation. He says that curfew was imposed on 18.3.84 in that area and so far he remembers the curfew was in that area for 10/12 days. He also says that as he did not witness all the incidents so he did not start any FiR suomotu. He says that the open plot where the charred body was found was at the Junction of Ramnagar Lane ?,nd Battlkal. He also says that they had been to Ramnagar Mosque at about 12-30 p.m. on that day and at that time there was no gathering there.</p><p style="text-align: justify;">12. P.W.15 Farha Juvoll is the iman of the Dhankhetibari Masjid where the policeparty took shelter on being attacked by the violent mob. This witness, it seems, was treated as hostile by the prosecution. But even then he testifies to the fact that the police party entered in the mosque and had been there for some time. P.W. 17 Abul Hassan is a resident of G-246 Ramnagar Lane. He says that the Maidan to the north of their house is known as Dhankhetl Maidan. in March, 1984, he was working in the wheat grinding shop of his cousin brother Makbul Ahmed at G-247 Ramnagar Lane. He says that on 18.3.84 as usual he went to the shop for his work at 7 a.m. and at about 9-45/10-00 a.m. while he was working in that shop he heard sounds of bombs coming from Mathorpara side and Fathepur village Road side and he found that people were running here and there and he came to know that riot had started between Hindus and Muslims and being afraid he closed the shop and went home at about 10-30/10-40 a.m. He says that he again heard sounds of bombs coming from Ramnagar Lane Dhankheti mosque side and he also heard uproars and he felt that the uproars and sounds of bombs were moving towards their house and he then opened his window partially and noticed that two policemen were running speedily towards Battlkal side, one policeman being in khaki uniform and the other in white uniform. He noticed one wire-net shield in the hand of that policeman who was in khaki uniform, and that brickbats were being thrown at him and he was blocking the blows with his shield. He further noticed that 20/25 persons were chasing the policeman and were hurling brickbats at him. He says that he could recognise some of thepersons in that mob who were throwing brickbats and chasing those policemen and he names Rahamat, Nanney. Corachand, Halim and Matin as the persons whom he could recognise. He says that the mob chased those policemen towards Batlikal side and he become afraid and closed the window. His evidence thus lends support to the prosecution case as well as the other evidence adduced by the prosecution in that behalf that the D.C. V.K. Mehta and his body guard Moktar All were being chased by a violent mob. He further says that at about 12-30 p.m. he heard sounds and uproars coming from Batukal side and subsequently it appeared to him that the roars were coming from Dhankheti Maidan and he again opened his window partly and noticed that a policeman in white uniform was lying on the ground and about 15/20 persons were there around that body. He further noticed that four persons were chopping the hands and legs of that policeman with chopper like weapons and he could recognise Rahamat and Matin who along with two others were chopping the hands and legs of that policeman. He also could recognise Gorachand and Hallm amongst the persons who were standing near the body of the constable. He noticed that some persons were placing bamboo pieces near that body, and he says that being afraid he closed the window. His further evidence Is that at aboul 7/8 p.m. In that night he came to know that D.C. Port had been murdered and his body guard was also murdered and his body was burnt down. He restifies that by the dress of that body he could recognise that he was a police sepoy. His evidence thus lends support to the prosecution case that the body of Moktar Ali, the body guard of D.C. Mehta was dismembered by cutting its limbs and was burnt by fire by the miscreants, and he also could identify some of the miscreants named by him. In his cross-examination he says that curfew was imposed in that area in the afternoon of 18.3.84. He further saus that his father was arrested by police at about 4/4-30 p.m. on 19.3.84 from the crossing of Barttikal and Ramnagar Lane and his father returned in that night at about 7-30/8-00 p.m. He says that In their locality the number of muslims is more than that of the Hindus. He denies the defence suggestion that his father was released by the police on the understanding that he would give evidence on behalf of the prosecution as tutored by the police. P.W. 18. Makbul Ahmed is a resident of premises No. 247 Ramnagar Lane. He testifies to the fact that on 18th March, there was huge mob and people were running here and there at about 10/10-10a.m. He was however treated as hostile by the prosecution. He says that on that day he. Mansoor, TaJ All and 30 others were arrested by police and taken to Garden Reach P.S. and they were released at about 11-00 p.m. P.W.19, Khalil Khan was resident of G-230, Batlikal at the relevant time as a tenant. He Is a police constable who was posted at Lalbazar Headquarters, R.C. Office In March, 1984. From his evidence we get that P.W.21 Abdul Latif Khan is his cousin brother and P.W.24 Hadis Khan Is the son of the said Abdul Latif Khan and that In March, 1984 Hadis was residing at G-222 Batlikal. It may be mentioned here that Abdul Latlf Khan is also a police constable. P.W.19, Khalil Khan says that in March. 1984 Hadis Khan had no employment and he used to keep 2/3 cows and sell milk. He says that the uniform of Calcutta Police constable is white shirt and white pant and also they used buttons on their shirt which were made of brass. He also testifies that the emblom 'C.P.' is also made of brass. He knows Moktar All. He says that 18.3.84 was a holiday and he was In his house and at about 10/10-30 a.m. he heard a huge row coming from Fathepur village Road side and he also heard a row coming from Battikal side and he came out of his house and stood on the road very close to his house and while he was standing near the corner of the house of Kayum which is 228/2 Battikal, he saw that D.C. Mehta and his body guard constable Moktar All were being chased by a mob from the southern side to the northern side and they were throwing brickbats at those two police persons and were shouting 'maro, maro police lokko maro'. He says that the mob and those two police persons were 30/40 yards away from the place where he was standing, He testifies to the fact that the D.C. was in a khaki uniform and Moktar was in white uniform. He says that the house of Nalmmullah Is opposite to his house at a distance of 30/35 yards, the number of that house being G-228/3 Battikal. He saw that the security guard Moktar All entered in the house of Nalmmullah and 30/40 persons were chasing Moktar Ali. He says that he Intervened and stated to them not to assault the police otherwise they would feel the consequence. He says that in the mob some were carrying choppers and some were carrying swords. He also says that he was dashed down by the mob on the ground. He could recognise Gorachand. Sagir, Rahamat, Halim, Wahob and Kallu amongst the persons who were chasing the police constable Moktar Ali. He says that he was dashed down by Rahamat, and Kallu was with Rahamat at that time and that being afraid he then went Inside his house. His further evidence is that 20/25 minutes thereafter his brother's son Hadls (P.W.24) came to his house and reported that Naso and his associates had assaulted the D.C. very serious by in the house of Hadls, and that Hadis also stated that a sepoy was also being assaulted by Rahamat and Kallu on the road. Hadls, he says, was very much purturbed and he was trembling and Hadls told that he was leaving for his father-in-law's house. P.W. 19 Khalil says that he also became afraid apprehending attack on him and the members of his family as he was a police constable and so he along with his family members went to Ramnagar Police Camp. In his cross-examination he says that on that day at about 8-30/9-00 p.m. he went to Garden Reach P.S. after leaving the members of his family at Ramnagar Police Camp and made a statement to the police officer about the Incident seen by him. He says that he made the statement to the duty officer who recorded it in english. He says that his two brothers are also working as Calcutta Police constables and his cousin brother Latif (P.W.21) is also a constable of Calcutta Police. He further says that on that day latif Khan had duty. He says that his office was closed on that day being a Sunday and that the R.O. office remains closed on Sunday and other holidays. He says that he reached Ramnagar Police Camp with his family members at about 2/2-30 p.m. after locking his house. His evidence in cross-examination is that as soon as he came out of his house hearing the row he noticed that D.C. and Moktar crossed him from southern side to northern side speedily. He denies the defence suggestion that his brother's son Aktar was arrested by police and was made an accused but subsequently he was let off and in his place another Aktar was made accused. He however does not remember whether Hadls was arrested by the police. He also denies the defence suggestion that as he is a police constable so he is deposing falsely on being pressurised by hissuperior officers. He says that from Garden Reach P.S. he returned to Ramnagar Camp and stayed there with hts family for the night and in the next morning he returned home at about 8-00 a.m. Hadls, he says, came to his house at about 12/12-30 p.m., and reported to him what he had seen. He denies the defence suggestion that his relations were taken in custody by the police and when he and Latif asked the police officers to release them, they told that they would be released provided they would give evidence. in his cross-examination at the retrial he says that his statement was recorded by the police at the P.S. at about 8/8-30 p.m. on the date of the Incident.</p><p style="text-align: justify;">13. P.W.20 Akil Ahmed is a resident of G-223 Battlkal. He, it seems, was however treated as a hostile witness by the prosecution. From his examination-in-chief we however get that Latif Khan (P.W.21) and P.W.24 Hadls Khan (son of P.W.21) reside in the tileshed house which is adjacent to the house of this witness (P.W.20). We get it from P.W.21 and P.W.24 that the premises in which they reside is G-222 Battikal Second Lane. It is also to be mentioned here that according to the prosecution the incident of assault on D.C. Mehta took place in the said premises No. G-222. Battlkal Second Lane. P.W.20, Akil Ahmed says in his cross-examination that Hadis Khan (P.W.24) used to keep cows and sell milk and he used to keep cows in the courtyard. The prosecution expected this witness to give positive evidence about attack on two police persons but he belled that expectlon. From his examination-in-chief it however appears that their house is a two storied building and one can see the rooms of the tileshed (where Latif Khan and his son Hadls used to reside) from his house (the house of P.W.20) on leaning. However, what the prosecution inter alia suggested to this witness is that he stated to the I.O. during investigation that he found that some minor boys were pouring water In the room where D.C. entered and also on the courtyard, which however he disowns to have made. By this suggestion the prosecution possibly wanted to project a case that blood which had fallen there as a result of assault on D.C. Mehta was washed away with water. P.W.20 wants to say that on the date of the indicent he was not in his house and therefore he did not see anything. In his cross-examination on behalf of the defence he says that he returned home on 19.3.84 and on that day police had arrested Abut Hossain, Sallm and many others. He however, did not see Hadls Khan on 19.3.84. The evidence of this hostile witness thus shows that on 19.3.84 many pesons were arrested or picked up by the police. We will find from the evidence of P.W.24. Hadls Khan that he was also picked up by the police on 19.3.84 which we will discuss later. P.W.20 says in cross-examination that on 19.3.84 he stayed in the house for 2/3 hours and thereafter fled away from that area and went to his sister's house and stayed there for some days. The evidence of this hostile witness P.W.20, we find, lends support to the prosecution case that Latlf and his son Hadls were his neighbours at the relevant time and Hadls used to maintain cows and sell milk and that on 19.3.84 police arrested many persons of that locality.</p><p style="text-align: justify;">14. P.W.21 Abdul Latlf Khan was residing with his family at G-222 Baltikal Second Lane as a tenant at the relevant time and Hadis Khan (P.W.24) is his son. He says that In March, 1984 Hadls used to keep cows and sell milk and that he used to keep his cows in the said premises. Hisevidence is that on 18.3.84 which was the 'holiday' he had stand-by duty to be performed from 12 noon to 8-00 p.m. at P.T.S. Barrack and that at about 12 noon he got the information that a riot had started between the Hindus and Muslims in their area and he then started for his house from P.T.S. Barrack In order to see the members of his family. He says that at about 12-30/12-45 p.m. he reached Battlkal Second Lane and when he advanced ten steps or so he found that 6/7 persons were standing ahead of him and amongst them he could recognise Naso (an appellant), Puttan. Samsad and Abbas who were all armed. He says that some of them had swords, some had choppers, some had Napalas etc and they were standing by the side of kancha drain in Battikal Second Lane. According to his evidence the house of Dr. Hikmat All Mondal was situated near that place and he also noticed that one deadbody was lying by the side of that kancha drain but not inside the drain. He says that he knew those persons named by him as they were his neighbours. He also idenlified the accused Naso in court. He says that those persons were standing very close to that deadbody and that Naso was standing two cubits away from that deadbody which was at a distance of about 30/35 yeards from the place where he (the witness) was standing. He says that so far as he could see, blood was coming from head and the deadbody was smeared with blood. According to his evidence he stopped there and thought that it would not be proper for him to advance further and he became alarmed and then returning back he entered In the premises No. G-350 where his father was residing with his step-mother and he learnt from his father that there was trouble in Battlkal area and his wife and other members of the family had left that area and that he then went to his brother's house at Alif Nagar and came to know that his wife and sons and daughters had not come there and he then went to Kazlpara in the house of the father-in-law of his son. Md. Hadis and there he met Hadls and the other members of the family. Then he says that his son Hadls reported to him that a mob had chased D.C. Port and the D.C., Port took shelter Inside their house and then Naso, Puttan Samsad and some other persons started assaulting D.C. and that Hadis also reported to him that he had seen some miscreants assaulting one constable in front of the house of Naimullah. He testifies to the fact that at that time Mr. Mehta was the D.C., Port. His evidence is that thereafter from Kazipara he went to Garden Reach P.S. at about 8-00 p.m. and at that time there were many police officers who were very busy and at about 9-30 p.m. he could state to a police officer about the Incident seen by him and also heard by him from his son, and his statement was recorded. He also says that he found his brother Md. Khalil (P.W. 19) in the P.S. and his statement was also recorded by the police officer. He further says that at the P.S. he learnt that the deadbody of D.C. was recovered from the place where he had seen the deadbody of a person as stated by him and lhat the deadbody of police constable Moktar was recovered from Dhankheti Maidan. He says that he is residing at G-222 Battikal Second Lane for the last 25/28 years. In his cross-examination he also gives the names of certain other tenents who were living at G-222 Ballikal Second Lane with family. He says that the accused Naso at that time used to reside occasionally in the house of one Nazi Saheb in Battikal Second Lane and occasionally in the house near Match factory by the river side. In his cross-examination he says that he had seen 6/7persons including the persons named by him by the side of the Kancha drain and he became afraid when he saw those persons and he stood there for one minute when he saw those persons but none of them approached him. He specifically says that he became panicky as soon as he noticed the deadbody and those persons and he stood ther for one minute. Dr. Molla. he says, is known as Dr. Hlkmat All Mondal. He says that he was very much unnerved on seeing the deadbody all on a sudden. In his cross-examination he says that he reached Garden Reach P.S. at 8-00 p.m. and after his statement and the statement of his cousing brother Md. Khalil (P.W.19) were recorded, they left Garden Reach P.S. at 10-00 p.m. and he went to P.T.S. and his brother went to Ramnagar Camp. Khalll, he says, is also a Police constable of Calcutta Police. He says that when he reached Garden Reach P.S. he found many senior police officers Including Commissioner of Police and Jt. Commissioner of Police etc. present there. He says they he stated that he had seen something and heard something but no police officer was listening to him and so he could not report as soon as he reached the P.S. and finally he could make statement to the police officer at 9-30 p.m. and it was recorded In English and read over and explained to him. Much has been criticised by the learned Advocate for the appellants that according to this witness he reached Garden Reach P.S. at about 8-00 p.m. but his statement was not recorded by the police till 19-30 p.m. although this witness claims to have seen and heard about some very important facts specifically Involving some accused persons and this, according to the learned Advocate for the appellants, shows that the evidence of this police constables P.W.21 and of other concerned witnesses is the product of concoction and subsequent manupulatlon at the Instance of police. On the other hand, it is submitted by the learned Special Public Prosecutor representing the State that after such a shocking and gruesome Incident resulting In the death of a very senior police officer like Dy. Commissioner and also his constable guard, it was only natural that there would be many top police officers at the concerned P.S., namely. Garden Reach P.S. to take stock of the situation and also to take necessary follow up measures demanded by the situation and in such a state of affairs, it is quite possible that a police person of the rank of a constable like P.W.21 or P.W. 19 could not succeed readily in contacting the proper officer who would Immediately attend to his statements. Having regard to the facts and circumstances we also do not think that In a situation like this there was really any Improbability that the statement of these witnesses were recorded at about 9-30 P.M. at the P.S. although they went there at about 8-00 p.m. In his cross-examination during retrial, he says that uptil now he cannot say, whose deadbody It was, which he saw on that date. We may note here that if the evidence of this witness was really a product of concoction he would have possibly satd that the deadbody which he saw was recognised by him as the deadbody of D.C. Mehta. But he did not say so. He indeed knew D.C. Mehta, as he says but it is nothing unnatural that at that point of time when he suddenly saw the deadbody from a distance of 30/35 yards in the presence of some armed persons and the deadbody was smeared with blood, he did not naturally bother to engage himself In minute observation for detecting the identity of the deadbody, and Instead he left the place being naturally panicky but he was, as we have seen, very specific about the presence of certain armed miscreants named by him Including the appellant Naso.</p><p style="text-align: justify;">15. We now proceed to discuss the evidence of the next vital witness P.W.24, Hadis Khan, the son of P.W.21 Abdul Latif. He says that they reside at G-222 Battikal Second Lane as tenant and in March, 1984 he used to sell cow milk and had four cows and he used to keep two cows in their house and two in another place. He says that he himself and Mustafa, his helper (P.W.26) used to look after the Cows. His evidence is that on 18.3.84, sometime In the morning he came to know that a not between the Hindus and Muslims had started and that at about 11-30/11-40 a.m. again he heard sounds of bombs coming from Ramnagar Lane side when he was in his courtyard and his mother and Mustafa were in the house, but his father had gone for his duty. He next says that at about 12 noon he heard a huge row coming from Southern side when he was in his courtyard and on hearing the same he came out along with Mustafa from his house and stood on the road and notice that many persons were chasing two policemen towards South and one policeman was In a white uniform and the other was in Khaki uniform and the policeman in while uniform entered in the house of Naimullah and some persons also entered that house and those persons were hurling brickbats. His evidence is that the house of Naimullah was at a distance of 50/60 yards from the place where he was standing. He however could not recognise any of the persons who were hurling brickbats and chasing that policeman in white uniform and entered in the house of Naimullah. But his specific evidence is that the other policeman in khaki dress was being chased by the mob and when that policeman came near him he entered in the courtyard of his house and that policeman too entered in that courtyard and the policeman told him that he was D.C. Port and then on his pointing out the D.C. entered into the bathroom (Gasalkhana). The Gasolkhana, he says, was 9/10 cubits away from the place where he was standing and that simultaneously Idris and some other persons armed with brickbats etc. entered Into the courtyard and they were throwing brickbats aiming at the bathroom and simultaneously Naso (an appellant). Puttan, Samsad, Abbas, Mukim entered in the courtyard. He says that Naso had a rod in his hand and others had swords, nepala etc in their hands. He says that he knew those persons from before. The D.C., he says, became frightened on seeing those persons and requested them not to assault him after disclosing his identity as the D.C. of Police but some of those persons replied that they did not know D.C. and then ordered 'maro' and then Naso, Puttan, Samsad, Ahmed, Mukim and some others entered instde the bathroom and then Naso gave a rod-blow on the helmet of D.C. and there was dashing and pushing and the helmet fell down and Naso again assaulted D.C. with the rod on his head. P.W.24, Hadis says that then he came out from the courtyard and went out of the house and some people were throwing brickbats on the tiles of their roof but he cannot tell their names. He says that he then proceeded towards his uncle Khalll Khan's house but on his way when he came near the house of Naimullah he noticed that a pojiceman In white uniform was being assaulted on the road by Gorachand and some other persons and then he entered Inside the house of his uncle and reported the entire Incident to his uncle (meaning P.W.19) and he also reported that he was not going to stay and was going to his father-in-law's place and then he went to his father-in-law's place at Kazlpara at Howrah along with his mother. He says that after sometime hisfather Abdul Latif (P.W.21) came to his father-in-law's place and he reported the entire Incident to his father. He says that his father said that he would be staying in the P.T.S. barrack. He says that he used to keep two cows out of four cows near the power house gate commonly known as 28 number. In his cross-examination he says that he left for his father-in-law's place from his house at 12-30/1-00 p.m. and reached his father-in-law's house at about 2-00/2-30 p.m. His evidence Is that his wife and children had gone to his father-in-law's house on 15.3.84. He says that he and his mother returned home on 19.3.84 at about 6-30/7-00 a.m. from his father-in-law's place and he noticed that many police persons were roaming In their locality. He says that he was examined by the I.O. on 20.3.84 In their house. He further says that on 19.3.94 at about 12-00 noon police arrested him and placed in the van and the van patrolled in their locality and then at about 6-30/7-00 p.m. he was taken to Garden Reach P.S. and many people of their locality were also brought to Garden Reach P.S. on that day. He further says that he was released by the police in that night at about 9/10 p.m. and they were kept in the lock-up of Garden Reach P.S. from 7-00 p.m. till they were released. Much has been criticised by the learned Advocate for the appellants that when the police from the statements of P.W. 19 & P.W.21 could come to know In the very evening of the 18th March that Hadis had seen a vital part of the occurrence and also had named some of the culprits to them, there was no reason why his statement should have been recorded as late as on 20.3.84 in his house inspite of the fact that he was in the custody of police in police van and P.S. Hazat for quite a long time upto about 9-00/10-00 p.m. on the 19th March. This, according to the learned Advocate for the appellants, Indicates thai the prosecution case that Hadls saw a vital part of the incident is a concocted story. We are however not convinced by this submission. The enormity of the Incident, the involvement of a large number of persons and the complexities Inherently Involved In an Investigation of a case of this nature as well as the change of investigating officer on 19th March are indeed some of the factors which have to be taken Into consideration in this context. And that being so, we do not think that there really exists any reason to doubt the veracity of the evidence of this witness Hadls (PW.24). P.W.24, Hadls says in his cross-examination that the bathroom is used by the female inmates of the house and that the size of the bathroom would be about 8 cubits X 8 cubits. He says that the latrine is not inside that bathroom. He further says that the D.C. was Inside the bathroom when he came out from their house. Hefurther says that he came out from their house 6/7 minutes after the D.C. had entered In their courtyard. He also says that when he came out of his house the D.C. was being assaulted and he noticed about 50/60 persons on the road in front of their house. He however does not remember whether he had seen blood coming out from the head of D.C. when he was assaulted on the head by the iron road. His evidence is however clear that the D.C. was assaulted on his head by Iron rod. He denies the defence suggestion that Naso did not give blow with iron rod on the head of D.C. He makes it specific that the bathroom is used for washing hand and feet by the femalefolk of the premises before 'oozu' He says lhat there are no door and walls of that bathroom. Much has been commented upon by the learned Advocate for the appellants as to whether a bathroomof that size could have accommodated so many assailants who are said to have assaulted the D.C. at the relevant time. In this connection we may mention that P. W.2, Ashoke Kr. Bhattacharjee, S.I. of police and official plan maker has given the area of the Gosulkhana (bathroom) as 5m.x4m. Since the Gosulkhana has no walls as we find it from P.W. 24 Hadis, we do not think that there is any improbability in sustaining of assaults by D.C. there from the assallents who chased and cornered him there. He (P.W.24) denies the defence suggestion that he has been tutored by police to give false evidence because his father and uncle are working as police constables. In his further cross-examination during retrial in February, 1932 he however says that his statement was recorded by the police while he was in police lock-up. This, it is submitted on behalf of the appellants, is not insistent with the prosecution case inasmuch as it is the prosecution case that his statement was recorded on 20.3.84 as earlier stated by the witness. He also says in his such further cross-examination that his father went to the P.S. for his release and he talked to his father before release from the P.S. lockup. But he says that at that time his statement was not recorded by the police. This, therefore, lends support to the fact that his slatement was recorded not on 19th but on 20th. He says that his statement was recorded, as he remembers, after his. talk with his father. In his such further cross-examination at the retrial he says that he returned from Kazlpara to his Garden Reach residence three days after the Incident. It should be remembered that he was facing further cross-examination at the retrial In February, 1992. about eight years after the Incident and therefore some minor inconsistencies and confusion in the deposition at such distance of time cannot be ruled out. Whatever may be the confused statement of P.W.24 Hadls eight years after the incident at the time of further cross-examination at the retrial, it may be noted here that even the hostile witness P.W.22 Brion Merces who is the brother-in-law of the appellant Naso testifies to the fact that police arrested him on 19.3.84 and Hadls, Mustafa, and Alamgir also were arrested by the police. Such statement of this hostile witness therefore lends support to the prosecution case that Hadis was arrested from his house on 19th March, at noon after he returned from Kazlpara on that day in the morning, and this fact does not get obliterated by any statement of Hadis which he might have made In a confused state of memory in course of his further cross-examination eight years after the Incident.</p><p style="text-align: justify;">16. P.W.22 Brlon Merces is a resident of C-85, Battlkal. Their balcony faces Battlkal Second Lane. From him we get that the appellant Naso Is his sister's husband. He was however treated as a hostile witness by the prosecution. He says in his examinatlon-in-chief that on 18th March. 1984, which was a Sunday, at about 10-00 a.m. he heard from the people that a not between Hindus and Muslims had started and at about 12 noon they heard great row and then he and his parents came to their balcony. He says that the Hindus and the Muslims were fighting and quarrelling and the Muslims started running shouting, that the Hindus had come to their locality, and that being frightened they (witness and his parents) all came Inside their room and closed the door. His evidence shows that some children and women had taken shelter Inside their house and they were saying that policemen had died. He saw nothing else. As we have alreadynoted, in his cross-examination he says that he was arrested by police on 19.3.84 and Hadis, Mustafa and Alamgir were also arrested by police. P.W.23 Narman Merces is the father of P.W.22 Brion Merces. He was also treated as a hostile witness by the prosecution. In his examination-in-chtef he says that on 18th March, 1984-which was a holiday, at about 10-00 a.m. they heard from the people of their locality that a trouble had broken out at Fathepur and they also heard some sounds of bombs and learnt that a riot had started between Hindus and Muslims. He says that then at about 12 noon he, his wife and his son came out of the room and stood on the balcony and noticed a huge mob on Battlkal Second Lane which was at a distance of 60 to 80 ft. from the balcony. He also speaks about throwing of breakbats. He says that he then came Inside the room and locked the door from Inside and after half an hour the area became very quiet. The accused Naso, he says is his son-in-law. P.W.25 Sakll Ahmed is the brother of P.W.20 Akil Ahmed and a resident of G-223 Batllkal Second Lane. He was however treated as a hostile witness by the prosecution. In his cross-examination on behalf of the defence he says that G-222 Battlkal Is to the north of his house where Latif constable (P.W.21) resides and he knows Hadls, the son of Latif constable. He says that he occasionally goes to G-222 Battlkal to Hadls for bringing cow milk. In his further cross-examination at the time of retrial he says that Aki-ka-Kurbani can be performed on any day of the year and after performance of this Kurbani a marking by palm with the blood of the sacrifice is given on the outer wall of the residence or on the outer door and some times this marking is also given in interior wall or door. This has been possibly taken in cross-examination to explain away blood marks. P.W.S 27, 28, 29, 34, 35, 36, 37 & 48 were all treated as hostile witnesses by the prosecution.</p><p style="text-align: justify;">17. P.W.14 Mansoor Ali is a resident of C-247 Ramnagar Lane and he is the owner of the ration shop situated on the ground floor of the same premises. His evidence is that on 18.3.84 at about 10-00/10-30 a.m. while he was in his house he heard sounds of bombs and he opened the windows and noticed that people were running hither and thither. These people, he says, were 200 yards away from his building, and he gives the number of the people as 150 or so. He says that he came down the stairs and closed the ration shop and again went up along with his brother. He says that he noticed that 3/4 police constable came out of the mosque and that many people went to the western side of the mosque and some people went to the eastern side and those people were running probably out of fear as police had come. He also speaks about throwing of brickbats upon the police party. He says that the police were in the middle part and on both sides there were mobs. He also heard sounds of firing and he closed the window and went inside the room. His evidence shows that after some time he heard row near his house and also sounds coming from the northern side of the mosque. They went to the roof of their house and noticed that a constable in white uniform was lying with his face and chest on the ground and many people were standing surrounding the constable and amongst those persons he could recognise Rahamat, Gorachand, Idris, Haltm, Nanney Kosal, Wahab, Saglr and Matil. He says that It appeared to him that the constable who was lying on the ground was dead. He further says that thereafter the mob burnt the deadbody of the constable with split bamboos. He also namesRahamat, Gorachand, Idris, Wahab, Halim and Nanney Kosai as some of the persons who were burning the deadbody of the constable. He says that after burning the deadbody of the constable all the miscreants fled away from the place and police came at about 3-00 p.m. He also says that the police had seized one button with ring, piece of burnt cloth, etc under a seizure list which was signed by him (Ext. 5/1). He says that the mob was armed with brickbats when they were throwing brickbats at the police party. He further says that he was in his house when police came at 3-00 p.m. and called him. He also says that the body of the constable which was lying on the open space was at a distance of forty yards from his residence. He further says that he noticed that Rahamat. Matil and 2/3 others whom he could not recognise were cutting the hands and legs of that constable with choppers. In his cross-examination he says that as the incident occurred long ago, he does not remember everything vividly but he remembers that Idris and Nanney Kosai were hurling bombs at the police.</p><p style="text-align: justify;">18. P.W.49 Haridas Mollra is the Senior Scientific Officer-curn-Asslt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He says that on 22.3.84 as per the direction of D.C.. D.D., Calcutta, he visited Ramnagar area with his colleague P.K. Sengupta. Sr. Scientific Officer. He says that he visited the place which is an open field near a school building and he collected from the debris some partly burnt pieces of cloths, some metallic buttons with rings and one ring. He says that he asked the Investigating officer who was with them to collect those articles, and those articles were seized by the I.O. and a seizure list was prepared In his presence and he signed the seizure list. He Identifies his signature, Ext. 12/1. It has been criticised on behalf of the appellants that those articles were seized only on 22.3.84 when the Scientific Officer of the Forensic Science Laboratory went there with the I.O., but the police could not seize those articles earlier although the police had been to all those places in the meantime after the date of occurrence. In our opinion, this Is inconsequential in view of the totality of the facts, circumstances and evidence on record. P.W.78, Prasanta Kr. Sengupta is the other Senior Scientific Offlcer-cum-Asstt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He examined in his laboratory certain articles which were sent to him for examination and he submitted his report which is Ext. 29. In his cross-examination at the retrial he says that he accompanied the expert. P.W.49 Haridas Moitra to Garden Reach, that Is, the place of occurrence In connection with this case and from that area they came back together. P.W.69 Pradip Shankar Chakraborly was an S.I. of police in March, 1984. attached to Homicides Squad. Detective Department. Lalbazar. He says that on 22.3.84 as per the direction of S.I. S.K. Bhattacharjee. the I.O., he accompanied him to Forensic Science Laboratory to bring the experts and they reached the laboratory at about 10-30 a.m. He says that after giving some directions the I.O. left and he (the witness) brought Sri H. Moitra (P.W.49). Expert to Garden Reach area and showed him the place where constable Moktar All was burnt and the murders of V.K. Mehta and his body guard were committed. He says that the expert examined the premises No. G-222 Battikal including the Gusalkhana and from there they went to the open place known as Dhanketl Maldan. The learned Advocate for theappellants submits that the expert (P.W.49) does not say that he went to the premises No. G. 222 Battikal and Gusalkhana there which this witness (P.W.69) wants to say. In our opinion, this is inconsequential because it is not necessary that every witness must state everything in details. P.W.69 says that the expert could trace out one metalic ring, some burnt clothes with two metallic buttons with rings attached to burnt clothes from Dhankheti Maidan. He (witness) seized those articles. He says that on 22.3.84 at 14-10 hours as per order of O.C., Homicide squad, he accompanied S.I., S. Bhattacharjee along with O.C., Homicide squad and other officers and men and accused Sk. Nanney in custody with two Doms, Narayan (P.W.41) and Bindeswari (P.W.40) and arrived at Garden Reach and on being led by the accused Nanney they went near a Kancha drain which was flowing in between premises No. G-13 Batttkal and F-55 Atabag Basti and also near premises No. G-222 Battikal. He says that the accused Nanney showed the spot inside the kancha drain having muddy water and stated that he and others dropped Incriminating articles there, about which he had made statement to the S.I. S. Bhattacharjee at that spot. He further says that being instructed by S.I. S. Bhattacharjee and O.C. Homicide Squad the accused got down inside the waist deep kancha nala and those two Doms also entered in the drain to assit the accused, If necessary, his evidence is that the accused (Nanney) then himself brought out from the said nala the following articles namely (1) one Dhal (shield) used by police, (2) one helmet, the front portion of which was partially dented and broken, with some hairs sticking inside the helmet. (3) one brown coloured leather belt having a nickel metal plate fitted with Inscription I.P.S. on it. (4) one black leather belt fitted with metallic emblam 'Calcutta Police', (5) one big sword about 30' in length, (6) piece of cloth partly torn and fitted with button, (7) one small sword about 20' length and (8) one brown coloured chappal of the right foot. P.W.69 further says that he seized those articles in presence of witnesses. He identifies Exl. 8 as that selzer list. He further says that thereafter he along with S.I. D.K. Dasgupta, as per instruction of I.O. and O.C. Homicide Squad, went to G-77 Batlikal which was a club room of Battikal Young Boys Committee and on search In presence of the witnesses certain articles were recovered and seized from that club room, namely, one pointed Iron red measuring about 29' In length including wooden handle, one bhojall, one book ofletter head pad and seized all those articles under the seizure list Ext. 17. He also says that he made certain other seizures from the road between premises Nos. G-227 & G-222, such as, Khaki coloured buttons and partly burnt pieces of cloths. Ext. 18 is the relevant seizure list. He also says that on that day between 5-30 and 5-40 p.m. he seized one wooden piri measuring about 15' X 8' having stains of blood from Inside the premises No. G-222 Battikal. The pirl, he says, was lying near the entrance door of the room situated at the north-east corner of that premises. Ext. 19 is the concerned seizure list. In his further cross-examination at the retrial he says that they arrived at premises No. G-222 Battikal at 15 hours on 22.3.84 and they stayed there for about 15 minutes and it was his first visit. He further says that F.S. Expert was with them up to 4-35 p.m. on that day. He says that the expert was with him while he was Inside premises No. G-222. It will thus appear lhat the expert was not with this police officer when he seized the wooden piri at G-222 Battikabetween 5-30--5-40 p.m. It may be noted here that the evidence of the P.W.s 40 & 41, the Doms, also corborate the evidence of P.W.69. P.S. Chakraborty, S.I. of police regarding the recovery of Incriminating articles from the drain by the concerned accused.</p><p style="text-align: justify;">19. P.W.64 Haripada Dutta is S.I. of police who was attached to Garden Reach P.S. in March, 1984. His evidence is that on 19.3.84 as per direction of the O.C.. Garden Reach P.S. he had been to premises No. G-229A Batllkal and took scrapplngs of dried up blood with few hairs from the door leaf of that premises, etc between 3-35 p.m. and 3-55 p.m. In presence of witnesses and prepared the seizure list, Ext. 10. in his cross-examination he says that FIR of Garden Reach Case No. 45. dated 18.3.84 Ext. A was written and signed by him. That FIR relates to the Incident that occurred in Fatepur Village Road and Mathorpara and Balsnabpara. He says that he took up the investigation initially of that case. That was a different case. The present appeal relates to the P.S. Case No. 46 dated 18.3.84. P.W.68 Sibaprasanna Dutta was posted as S.I. of police in Port Division in March, 1984. He had arrested Sanda Akatar @ Aktar Alam who was an accused in the Garden Reach P.S. Case No. 46 dated 18.3.84. He says that he arrested him on 20.7.84 at about 7-30 p.m. at the fly-over of Sealdah. P.W.70 Sudhlsh Ranjan Nag is S.I. of police who was attached to docolly and robbery squad D.D., Lalbazar. He says that on 19.3.84 the D.C., D.D. told him and S.I. U.S. Lahiri that the murder case of Mehta had been taken up by the Homicide Squad and S.I. S.K. Bhattacharjee was the I.O. of that case. and directed them to asslt him in apprehending the accused of that case and that the D.C. further told that he had Information that some of the accused persons namely, Sk. Nanney, Gorachand, Md. Halim, Sk. Nuru and Wahabuddln might be available at Surinam Jetty and asked them to keep watch over that place and to arrest the said accused persons. If possible. His evidence is that at about 6-20 p.m. they arrested those accused persons and took them to Garden Reach P.S. where D.C./D.D. and other officers were present and they placed the accused persons before them and I.O. took charge of those accused persons. He says that on being directed by D.C. D.D. to search for the other accused persons at Batllkal, Chlrlamore, Ramnagar and Mathorpara Complex, he. U.S. Lahiri and force had been to those places in search of the miscreants but none could be arrested and they returned to Lalbazar at about 10-10 p.m. and made over the supplementary caase diary to the i.O. S.K. Bhattacharjee, He further says that they had also arrested Md. Idris and Sakil Ahmed. In his cross-examination, he says that Idris was arrested from Gaya on 27.3.84. P.W.71 Samir Kr. Moltra was attached to Garden Reach P.S. as S.I. of police In March. 1984. He accompanied the Commissioner of Police in Ramnagar area on 18.3.84 In connection with the murder of D.C. Mehta and his body guard. Between 4-00 p.m. and 5-00 p.m. on that day he seized certain articles such as pieces of partly burnt bamboos, pieces of charred bone-like substance, pieces of charred cloth, burnt metallic button fitted with ring, belt, two swords etc from an open field in front of premises No. G.-100/1, Ramnagar Lane, also know as Dhanketl. The seizure list prepared by him is Ext. 5. He had also held the inquest of the deadbodles of V.K. Mehta and the body guard Moktar Ali and prepared inquest reports. In the inquest report relating to the dead-body of B.K. Mehta it is noted that the deadbody of Mehta was lying in front of premises No. G-221, Dhanketl. The witness however saysthat it was premises No G-221, Battikal and it was wrongly mentioned as G-221, Dhanketi in the inquest report. In his cross-examination he says that he had detected this mistake in court at the time of giving evidence. It seems to be a case of bona fide accidental mistake.</p><p style="text-align: justify;">20. P.W.80 Santi Ranjan Ganguli was attached to Garden Reach P.S. on 18.3.84 as S.I. of police. The FIR of this case was drawn up by him. His evidence Is that the fromal FIR was drawn up at 8-05 p.m. at Garden Reach P.S. on the basis of Statement of K.K. Sharma, Asstt. Commissioner of Police, Port Division. He says that the statement of Sri Sharma was also recorded by him as per the order of the O.C. of Garden Reach P.S. He also took up the investigation of the case under the order of the O.C., Garden Reach P.S. on that date at 8-05 p.m. He says that he then recorded the statements of the two witnesses namely Abdul Latif Khan (P.W.21) & Md. Khali Khan (P.W.19) under section 161 Cr.PC at Garden Reach P.S. and then at 11-00 p.m. he had been to Mathorpara, Rnmnagar Lane etc of the affected areas of Garden Reach with force and after contacting sources there he returned to the P.S. at 11-50 p.m. He says that on 19.3.84 at 6-40 p.m. he had shown formal arrest of four accused persons, namely Nanney Kosal, Gorachand, Halim and Nuru who were arrested by the police officers of the Detective Department. He further says that on 18.3.84 after returning to the P.S. from the affected area he prepared respective requisitions for postmortem examination of V.K. Mehta and his security guard. Moktar Ali and on 19.3.84 at 10-00 a.m. he sent those requisitions to the Prof. of Forensic and State Medicine and on that day at 7-40 p.m. he handed over the case diary to S.I. S.K. Bhattacharjee of Homicide Squad who had taken up the investigation and he also handed all other connected documents under the orders of his O.C. and the D.C.D.D. at Garden Reach P.S. In his cross-examination he says that on 18.3.84 he was in Garden Reach P.S. after mid-day and that he had also seen the G.D. Entry regarding the disturbances at Fatepur Village Road. He says that on that night i.e. on 18.3.84 another case being Garden Reach P.S. Case No. 45 dated 18.3.84 was also recorded and that FIR was recorded by S.I. H.P. Dutta(P.W.64). In his cross-examination he says that going to the locale he questioned some persons, but did not record their statements under section 161 Cr.PC and that he had tried to collect the names of the assailants but could not succeed to obtain the same from those persons. Much has been criticised by the learned Advocate for the appellants that if really the first I.O. (P.W.80) had recorded the statements of the constables P.W.19 Khalll Khan and P.W.21 Abdul Latif Khan on 18.3.84, he must have obtained from them the names of the assailants before he went to the locale in that night and therefore there was not question of trying to collect the names of the assailants at the locale in that night and this shows that the evidence of the said P.W. 19 and P.W.21 or for that matter the entire prosecution case implicating the appellants is a product of concoction. We however find ourselves unable to accept this critism. It is true that the I.O. got some names from P.W. 19 and P.W. 21 on 18.3.84, but obviously there was no reason to suppose that those were the only culprits involved in the occurrence. It Is therefore only natural that the I.O. while visiting the locale will try to obtain from persons the new names of other culprits as well as confirmation of the names of culprits already obtained by him from P.W.19 and P.W.21 before going to the locale.</p><p style="text-align: justify;">21. P.W.1 S.K. Bhattacharjee was attached to Homicide Squad, Detective Department as S.I. of police in 1984. He is the Second investigating Officer of this case. He says that under the order of the D.C.D.D. he took up the investigation of the Garden Reach P.S. Case No. 46 dated 18.3.84 and submitted charge-sheet against 43 accused persons after completion of investigation showing as many as 18 accused persons are absconders. He says that six of those 18 absconders were subsequently apprehended and 12 were still at large while he was deposing on 12.9.88. He was however examined further next on behalf of the prosecution on 11.4.89, He says that on 19.3.84 the D.C.. D.D. verbally ordered him at 5-00 p.m. to take up the investigation of the case and then at about 5-30 p.m. he, D.C., D.D., A.C. D.D.-1. O.C. Homicide Squad, S.I. P.S. Chakraborty of Homicide Squad and two constables of Homicide Squad started for Garden Reach P.S. He further says that prior to that D.C., D.D. told him that he had already sent two S.I.s of Detective Department, namely U.S. Lahiri and S.R. Nag (P.W.70) to work out an Information received by him in respect of some accused persons. He says that at 6-05 p.m. they all reached Garden Reach P.S. and met the O.C. of that P.S. there, he also says that at about 6-40 p.m. S.I. S.R. Nag (P.W.70) and S.I. U.S. Lahiri brought under arrest five accused persons namely Sk. Nanney, Md. Halim, Wahabuddln, Gorachand and Sk. Nuru to the Garden Reach P.S. and those five arrested persons were produced before the D.C., D.D. and the then I.O. of the case S.I. S.R. Ganguly (P.W.80) showed those accused persons as arrested in this case. He further says that at 7-45 p.m. he took charge of those arrested accused persons, case diary and other connected papers along with alamat from S.R. Ganguli, and under order of the D.C., D.D. he came to Lalbazar with those five accused persons, S.I. P.S. Chakraborty and two constables. His evidence shows that they left the Garden Reach P.S. at 8-10 p.m. and reached Lalbazar at 8-40 p.m. and then he started interrogation of those five arrested persons and thereafter he perused the case diary and other connected papers. He says that at 10-30 p.m. he received the supplementary case diary from S.I. S.R. Nag who arrested the five accused persons. His evidence is that on 20.3.84 he met D.C., D-D. in his office and received his instruction regarding the next follow up action. He says that he came to know (hat a team had been raised to assist him in the Investigation of the case. He also names the officers who were Included In the team. He also names Sanat Kr. Gupta, A.C. D.D. (I) as the persons who was placed as overall in-charge of the team. On 20.3.84 he produced all the five accused persons in the court of the S.D.J.M., Allpore and also prayed for their police remand, and then on that day at 2-30 p.m. he along with D.C., D.D., A.C. D.D. (1), O.C. Homicide Squad, S.I. Samir Ganguli left for the spot with force for investigation. According to his evidence they reached Garden Reach P.S. at 3-00 p.m. and then on being led by the O.C. Garden Reach P.S. under the order of D.C., D.D. they all went to Ramnagar Lane in front of the mosque where D.C., D.D. and others had allegedly taken shelter and stayed there upto 3-35 p.m. His further evidence is that then on being led by O.C. Garden Reach P.S. they went to a vacant plot of land at 4-00 p.m. wherefrom the charred body of the security guard had been allegedly recovered and he found some burnt substances there and from that place they went to the premises No. G-222, Battikal Second Lane and reached there at 4-25 P.M.and there he met Hadis Khan (P.W.24) and his mother, Kaflabibi and herecorded their statements there. According to his evidence then they wentto premises No. 228/3 Battikal Second Lane which is the house of Md.Naimullah (since deceased). He also then describes his further activities inthat locality. It appears from his evidence that on 21.3.84 he, O.C.,Homicide Squad, S.I. Samir Ganguli went to 222 Battikal Second Lane andfrom there he went to G-247 Ramnagar Lane. Then on being Informed byS.I. Samlr Gangull that the Commissioner of Police had already arrived atpremises No. 222 Battikal Second Lane with A.C. D.D. (1). he went to thatplace and as per direction of the Commissioner of Police, he seizedscrapplngs of blood looking stains with control from the outer wall of a roomof premises No. G-222 Batllkal Second Lane and prepared the seizure listext. 31. On 22.3.84. according to his evidence, he met the Director of F.S.L.and then the Director deputed H. Moltra (P.W.49) and P.K. Sengupta(P.W.78) both senior officers of F.S.L. to visit the P.O. He says that at thattime Mr. Moltra reported that he would visit the P.O. In the afternoon, andMr. P.K. Sengupta was out at that point of time and he (the witness)instructed S.I. P.S. Chakraborry to take Mr. Moltra and Mr. Sengupta tothe P.O. and he left for Lalbazar. His evidence shows that on that day heexamined Norman Merces (P.W.23) and Brion Merces (P.W.22) and recordedtheir statements and then they along with those two persons went to theresident of the absconding accused Naso and there they found the wife ofNaso Karolin and ascertained the particulars of Naso from her and fromthat place they again came to premises No. G-85 Battlkal First Lane andquestioned some Inmates and at that time S.I. P.S. Chakraborry came andreported that the F.S.L. experts had arrived and they were at G-222 BattlkalSecond Lane and then he (the witness) went there and met them. He saysthat the experts made Inspection at different places of that premises andthen requested to take them to the place wherefrom the charred body ofMoktar was recovered and they were taken there and the experts madethorough search in the burnt substances and ultimately discovered metallcring, a piece of burnt cloth fitted with metallic buttons with ring, and thosearticles were seized. His evidence is that on 23.3.84 he examined Sk. NanneyKosal who made a statement leading to the recovery of some Incriminatingarticles. He also speaks about recovery of Incriminating articles pursuantto the statement made by the accused Sk. Nanney Kosal. His evidence showsthat the accused Nanney made statement to him to the effect that he hadthrown one helmet, one dhal, two swords in the water of kancha drain andhe would be able to lead the police party to the spot where he and othersthrew away those weapons and other things and If those things were stillthere he would be able to bring them out. The evidence of the I.O. (P.W.I)shows that the accused Nanney was taken (on 23.3.84) to the concernedarea pursuant to the statements made by him and the accused Sk. Nancyled them in front of a kancha drain on the northern side of the premisesNo. G-221 Battlkal and G-213 Battlkal and the accused then pointed outa place inside the kancha drain to be the place where the articles as statedby him were thrown and then being asked the accused got down In the waistdeep water of the kancha drain and brought out one by one, one shieldmade of wire net, one helmet, two swords, two belts of which one hadmetallic plate having 'IPS' inscription, one black belt used by constable. Healso speaks about the recovery of a chappal of a right foot. The recovered articles were then seized. His evidence shows that on 26.3.84 also at night they conducted a raid in the concerned area and searched for certain accused persons Including Naso but could not trace them out. His evidence also shows that on 4.4.84 they went to G-85 Battikal Second Lane which is the residence of the father-in-law of the accused Naso but there also Naso was not found. His evidence is that on 30.5.84 the accused Lokman Shah and Osman Shah, two brothers, were arrested from their residence in a night raid between 1-40 a.m. and 2-00 a.m. He says that on 7.6.84 the accused Lokman Shah during Interrogation, stated that he wanted to make a confessional statement and so on 8.6.84 he (I.O.) forwarded Lokman to the learned S.D.J.M. with prayer for recording his confessional statement and his confessional statement was recorded by the learned S.D.J.M., 3rd Court Allpore on 9.6.84. It appears that the I.O. obtained an order of police remand for the accused Lokman after he was produced before the S.D.J.M. after arrest and the accused Lokman expressed his desire to make confessional statement to the I.O. on 7.6.84 while he was under police remand. The I.O. (P.W.I) says that on 16.6.84 he submitted charge-sheet against 43 accused persons of whom 24 were In custody and the rest were absconding. He further says that after the submission of the charge-sheet seven absconding accused persons had been arrested. He says that on 28.2.85 at 3-00 p.m. acting on a secret Information he with the help of S.I. Rajkumar Chatterjee of the Detective Department and others arrested Nasim Khan Naso from the station road near Kallghat Railway Station. He further says that the accused Naso was arrested with the revolver which was given to constable Moktar All for his duty, with three rounds of ammunition for which a specific case has been started on his complaint under section 25 and section 27 of the Arms Act. While confronted with this in examination under section 313 Cr.P.C. the accused Naso only says that the witness (P.W. 1) told lie that he (Naso) was absconding and he was arrested on 28.2.85 at 3-00 p.m. from the Station Road near Kallghat Railway Station or that he had any revolver in his possession at the time of his arrest. Besides such bare denial he however does not say anything as to on what date and wherefrom he was arrested.</p><p style="text-align: justify;">22. In his cross-examination P.W.I (the second I.O.) says that he did not go to Garden Reach area between 18.3.84 and 5-00 p.m. of 19.3.84. He says that on 20.3.84 the first witness he examined was Hadls Khan of G-222 Battikal Second Lane in that premises. His evidence shows that on 19.3.84 he first interrogated the five arrested accused persons (Including Sk. Nanney) but he did not record their statements. His evidence Is that on 20.3.84 he forwarded the five arrested accused to court with prayer for police remand upto 2.4.84 and the learned S.D.J.M. allowed the prayer for police remand. He says that he could not interrogate any of the accused persons on 20.3.84 as he had no time for such interrogation. He also says that on 20.3.84 he went to Garden Reach area along with his superiors, namely. D.C. D.D., A.C. D.D. (1) and O.C.. Homicide Squad and reached there at 3-25 p.m. His evidence Is that they first went to the Garden Reach P.S. and then the O.C. of the Garden Reach P.S. led them to the area where the Incident occured and there he examined Hadls Khan first and also Kaflabibi. the mother of Hadls Khan. He has however not shown Kaflabibias a witness in the charge-sheet. He says that on 20.3.84 he reached G-222 Battlkal Second Lane at 4-25 p.m. are remained there till 5-30 p.m. He also says that they were in Battlkal Second Lane area on 20.3.84 from 3-25 p.m. till 10-15 p.m. and that dusk to dawn curfew was imposed in that area and order under section 144 Cr.PC was also promulgated there and police picket was posted in different parts of that area. His evidence in cross-examination is that the blood looking stains were found on the outside wall of the western room of the premises No. G-222 Battlkal Second Lane, and he says so with reference to the seizure list, ext. 31. He says that the experts had arrived at premises No.G-222 Battlkal sometime before 3-00 p.m. and he went there at 3-05 p.m. and the experts H. Motlra and P.K. Sengupta of F.S.L. Inspected the premises and courtyard of G-222 Battlkal Second Lane and from that house, being accompanied by them, the experts went to open plot of land known as Dhankhell Maldan. He denies the defence suggestion that he had advised constable Latif Khan to procure persons of his choice who would support the prosecution case. He also denies the defence suggestion that Hadis Khan and Md. Mustafa gave statements at his tutoring. He says that the statement of Nanney Kosai was recorded by him on 23.3.84 between 8-50 a.m. and 10-10 a.m. and with the accused and other police of lines he left for the P.O. to verify the statement of the Nanney Kasal and reached in front of the kancha drain at 2-55 p.m. He says that the accused Lokman was forwarded to court on 8.6.84 with a prayer for recording his confessional statement. He has acknowledged that both the two accused Sk. Nanney and Lokman retracted their confessional statements by filing petitions but he cannot say the date on which such petition was filed after the submission of the charge-sheet. He cannot say whether those petition were filed on 14.8.84. In his cross-examination he denies the defence suggestion that Naso was arrested from the factory gate of Sultan Hossain.</p><p style="text-align: justify;">23. Of the medical witnesses, P.W. 44 Dr. Sunil Dey of the Calcutta Medical Research Institute examined Sr. K. Sharma (P.W.7). Asstt. Commissioner of Police on 18.3.84 at 12-30 p.m- In the Emergency. He also describes the Injury found and treated by him. P.W.66 Dr. Bhlbutlbhusan Blswas who was attached to Calcutta Police Hospital at the relevant time speaks about the Injuries of constable Ramshankar Singh (P.W.16) which were found by him. He says that the said constable was admitted on 18.3.84. He also describes the Injuries found by him. P.W.67 Dr. Gopi Ranjan Samanta was also attached to Calcutta Police Hospital at the relevant time. He proves the discharge certificate in respect of said Ramashankar Slngh. The patient, he says, was admitted on 18.3.84 with bomb injury on the lower thing of the right leg and was discharged from the hospital on 12.4.84. P.W. 46 Dr. Bhopal Mazumdar in the autopsy surgeon. On 19.3.84 he was posted as Demonstrator in the Department of Forensic and Slate Medicines, Medical College and Hospital. His medical qualifications are M.B.B.S. and M.D. In Forensic Medicine. He Joined the West Bengal Health Service on 25.2.75. On the date on which he deposed in court, that is, on the 1st February, 1989 he was posted as Assistant Professor and Head of the Department of the Forensic Science and Medicines, North Bengal Medical College. He held post-mortem examination on the dead-body of V.K. Mehta, D.C. Port Division on 19.3.84. He describesas many as 23 injuries found by him externally on the various parts of the deadbody including the face, head, etc. Injury No.9, as found by him. Is a lacerated would 3' x 1' X muscle X bone X meninges X brain on the right fronto-parletal region of the head, being placed half inch right to the mid line and 69 1/2 above the right heel. This is a head injury. He has also describes what he found on dissection. He says that all the Injuries were showing evidence of vital reaction. He openes that death was due to the effect of the injuries as mentioned by him which were ante-mortem and homicidal in nature. He also specifically says that he found 23 external and 4 internal injuries on the deadbody. According to his evidence the cumulative effects of the injuries were sufficient to cause death in the ordinary course of nature. He further says that Injury No.9 might be caused by any hard blunt weapon like iron rod or any other metallic rod and that the victim was in standing position when injury No.9 was Inflicted. He says that the said Injury No.9 was caused by the assailant from the front side of the victim. He further says that the Injury No.9 and the injury No.2 found on dissection were the vital Injuries. He also says that injury No.9 alone was sufficient to cause the death of the victim In the ordinary course of nature. However, the Injury No.9, he says, could not cause instantaneous death. He says that the injury No.23 was caused by pulling the body from leg side and that the injuries sustained by the victim were caused by more than one person. He also describes specifically as to which particular injury could be caused by what type of weapon. The possible weapons named by him include metallic rod, chopper, sword, napala, bhojall, brickbats etc. It may be noted here that the Injury No.9, according to the prosecution case, is connected with the assault made by the appellant-accused Naso on the head of V.K. Mehta with iron rod. The Autopsy Surgeon, P.W. 46 says that he held the post-mortem examination on the deadbody of V.K. Mehta on 19.3.84 at 12-00 noon at Calcutta Police Morgue and Prof. J.B. Mukherjee who was the professor and head of the Department of Forensic and State Medicines, Medical College, Calcutta was present when he held the postmortem examination and that Prof. J.B. Mukherjee supervised the examination. He says that Prof. J.B. Mukherjee concurred with his opinion and made the following remark: The post-mortem examination was conducted under my direct supervision and guidance. I fully concur with the findings and opinion of the Autopsy Surgeon, Dr. B. Mazumdar'. The post-mortem report was however prepared and signed by P.W. 46, Dr. B. Mazumdar and the same has been marked ext.tO. From his evidence the get that by that time he (P.W. 46) had gathered the experience of holding post-mortem examination on nearly four thousand deadbodies. He also held the postmortem examination 19.3.84 at 3-00 p.m. on the deadbody of the constable Moktar All who was the body guard of V.K. Mehta. He also describes the injuries found by him on the deadbody of Moktar All and gives the opinion regarding the effect of the injuries and the cause of death. In his cross-examination, he says that the Injury numbers 1,2,3,4,5,6.12,13,14,15,16 & 22 as found on the deadbody of V.K. Mehta were Incised injuries. The learned Advocate for the appellants contends that the opinion given by the Autopsy Surgeon, P.W.46 Dr. B. Mazumdar to the effect that the injury No.9 alone was sufficient to cause the death of the victim in the ordinary course of nature is not there specifically in the post-mortem report and this hasbeen stated by the Autopsy Surgeon Dr. Mazumdar as his own opinion while giving evidence in the court and this opinion of the Autopsy Surglon, P.W.46 is therefore not supported by the opinion of Prof. J.B. Mukherjee who supervised the post-mortem examination and therefore this opinion of P.W.46 should not be taken into consideration at all In judging the effect of the assault stated to have been made by the accused Naso on the head of the victim Mehta with iron rod. In our opinion this contention is however not acceptable. It is true that Prof. J.B. Mukherjee, obviously as a senior person, supervised the post-mortem examination held by P.W.46 Dr. Mazumdar but that does not mean that the opinion of Dr. Mazumdar on any point is of no merit or consequence unless the same is specifically endorsed by Prof. Mukherjee. P.W. 46, Dr. Mazumdar is also an expert in the matter and as we have seen he has a very rich experience in the matter of holding post-mortem examination. That being so, his opinion also given on the basis of the examination made by him, deserves due consideration and acceptance on merit unless the same otherwise stands discredited or condemned for any good and sufficient reason. Here there is absolutely no reason why we should not accept the opinion of the aulopsy surgeon P.W.46 regarding the effect of the injury No.9 which is a head injury allegedly caused by the accused Naso by inflicting assault on the head of the victim with rod. The learned Advocate for the appellants also submits that according to the evidence of the Autopsy Surgeon P.W. 46 all the Injuries had shown the evidence of vital reaction and therefore no disproportionate importance should be given to the effect of injury No.9. In this connection we are however to mention that even if all the injuries had shown evidence of vital reaction, that does not for that reason alone minimise the gravity of the effect of any particular Injury which according to the autopsy surgeon P.W.46 is alone sufficient to cause the death of the victim in the ordinary course of nature, even though such Injury could not have caused instanteneous death. It is needless to mention that causing of death is an ingradlent of the offence punishable under section 302 IPC and it is not necessary that death In all cases must be caused Instantaneously for bringing the case under section 302 IPC. That apart, when death is the result of a cumulative effect of all the injuries caused to the assailant in prosecution of the common object to commit the offence, each and every assailant is responsible for the offence in view of the section 149 IPC. The learned Advocate for the appellants also contends that the grounds of opinion of the expert are also relevant. Indeed there is no doubt that the autopsy surgeon in the present case has elaborately described all the injuries found by him and obviously his opinion is based on the findings recorded by him. No worthy ground has been brought out in the cross-examination of the autopsy surgeon nor successfully contended before us for which we could hold that the opinion of the autopsy surgeon is not acceptable. We reiterate that we have no reason or ground to discard or disregard the opinion given by the autopsy surgeon P.W.46.</p><p style="text-align: justify;">24. P.W.47 Kanchan Chatterjee is the Judicial Magistrate who held T.I. parade in respect of the accused Nanney Kosal at Allpore Central Jail on 30.5.84. He says that the witness K.K. Sharma (P.W.7) identified the suspect Nanney Kosal stating that he along with others were hurling bombs at Ramnagar Lane near mosque and further stated that while he along withD.C, V.K. Mehta reached the crossing of Ramnagar Lane and Mathorpara entrance while chasing a mob, he saw the suspect hurling bombs along with others.</p><p style="text-align: justify;">25. P.W.51, P.K. Deb is the Judicial Magistrate who recorded the confessional statements of the accused Nanney Kosal and the accused Lokman Shah on 3.4.84 and 9.6.84 respectively. He says that on 2.4.84 the accused Sk. Nanney was produced before him by constable Niranjan Das and the record was also laid before him. He was directed by the S.D.J.M. Allpore to record the confessional statements of Sk. Nanney. His evidence shows that on 2.4.84 the accused Sk. Nanney on being produced from judicial custody, was given cautions by him in open court and he was then sent to jail custody with the direction to the Jail authority, Alipore Central Jail that he should be kept in segregation so that he could get sufficient time for reflection. He says that on 3.4.84 the accused was again produced before him at about 3-00 p.m. In his court room and the accused was again given caution by him regarding the Implication of giving a confessional statement and the accused was kept in his chamber and was given time for an hour to reflect and ponder over the matter, and nobody was present In his chamber except the accused. He specifically says that no policeman was present in his chamber. He says that at 4-00 p.m. he asked the accused whether he was to make a confessional statement in his chamber and the accused Insisted on making a voluntary confessional statement and he recorded the same in his court room. He says that he was satisfied about the volunteriness of the accused in making the statement. The confessional statement of the accused Nanney Kosal as recorded by the Judicial Magistrate, P.K. Deb on 3.4.84 has been marked ext.13. He further says that the accused admitted that the statement had been correctly recorded and he also explained to the accused before he recorded his statement that he was free not make any statement and if he made any statement It might be used against him. He further says that nobody was present Inside the court room when the statement of the accused was recorded. The recording. according to his evidence, was complete by 4-40 p.m. It may be noted here that the accused Nanney Kosai was convicted and sentenced by the trial court in the original trial and reportedly he did not prefer any appeal against such conviction and sentence.</p><p style="text-align: justify;">26. The further evidence of the Judicial Magistrate, P.W. 51, P.K. Deb Is that on 8.6.84, the learned S.D.J.M. Alipore directed him to record the confessional statement of the accused (appellant) Lokman Shah. He says that on that date at about 1-15 p.m. the accused (Lokman) was produced before him and was identified by the constable P. Pramanlk In court room. He says that the accused was cautioned by him and the Implication of making the confessional statement was explained to him. He further says that the accused was produced from Judicial custody and he sent the accused to Jail custody and directed the superintendent of Allpore Central Jail to keep the accused In segregation so that he could get sufficient time for reflection, and directed his production before him on 9.6.84. The accused was produced before him on 9.6.84 at 2-00 p.m. by the constable Ramnarayan Goala in the court room and the accused was given warning and caution and was given one hour's time to think over the matter and was kept In the chamber of the Magistrate where none else was present. According to his evidence at 3-00 p.m. the accused insisted upon making a voluntary confessional statement and he (Magistrate) started recording his confessional statement in the court room at 3-00 p.m. where none else was present. He specifically says that no policeman was present at that time. He also deposes that before he started recording the statement he gave the accused all statutory cautions and started recording his statement after he was satisfied that the accused was making the statement voluntarily. The accused made the statement In Hindi and he recorded the statement in Bengali script. He further saya that after the statement was recorded It was explained to the accused in Hindi and the accused signed the statement in his presence. Ext. 14 is the confessional statement of the accused Lokman Shah as recorded by the Judicial Magistrate P.W.51 P.K. Deb. He further says that the accused admitted that the statement was correctly recorded after it was read over to him. In his cross-examination he says that he cannot say whether on 8.6.84 the accused was directly taken to the jail from his court room or he was taken to some other place before he was finally taken to Jail. It is needless to mention that the accused got sufficient time and opportunity for reflection in jail custody. In his cross-examination the Judicial Magistrate, P.W.51 specifically syas that he was fully satisfied after putting questions to the accused persons that they were voluntarily making statements and that he applied both his subjective and objective satisfactions. He specifically says that he put certain questions and he was satisfied that they were mentally prepared to make such statements. In his cross-examination he further says that he had cautioned Lokman that he would not be sent to police custody If he did not make any statement. It is suggested to him in his cross-examination that the statements were recorded In presence of the I.O. of the case. This is a preposterous suggestion, we must say, that a Judicial Magistrate while recording a confessional statement will allow the I.O. to be present there.</p><p style="text-align: justify;">27. Ext. 34 which is the ordersheet of the court of the S.D.J.M. Alipore shows that the accused Nanney Kosal along with others were produced in court in custody on 20.3.84 and they were all remanded to police custody till 2.4.84 after considering the prayer of the I.O. It also appears that while producing the accused persons before the learned S.D.J.M. from police custody on 2.4.84 the I.O. inter alia made a prayer for recording the confessional statement of Sk. Nanney Kosal under section 164 Cr.PC and the learned S.D.J.M. directed Sri P.K. Deb J.M., 3rd Court for recording the statement under section 164 Cr.PC. The order-sheet dated 30.5.84 shows that the accused Lokman Shah and accused Osman Shah were produced before the S.D.J.M. In custody on 30.5.84. According to the prosecution case the said two accused persons are brothers. On the prayer of the I.O. the S.D.J.M. remanded both the accused Lokman and Osman to police custody till 11.6.84. It also appears that the accused Lokman was produced in court from police custody in advance on 8.6.84 and on considering the prayer of the I.O. to record his confessional statement, the learned S.D.J.M. directed the Judicial Magistrate Sri P.K. Deb to record his confessional statement. On that very day Lokman who produced before P.K. Deb, J.M. and he was given necessary warnings and was remanded to Jail custody and was then produced before the J.M. concerned on 9.6.84 again and his confessional statement was recorded after giving him necessarycautions. It may be mentioned here that the accused Sk. Osman Shah was produced on 9.6.84 and he was remanded to jail custody for reflection but ultimately he declined to make any confessional statement when he was produced before the Magistrate on 11.6.84. It may be noted here that both the accused Nanney Kosal and Lokman Shah who made confessional statements before the Judicial Magistrate, however ultimately retracted such confessional statements by filing petitions before the court on 14.8.84. It has been submitted on behalf of the State that there is no bar in taking into consideration the confessional statements of those two accused persons although they ultimately retracted the same. It is also pointed out that they retracted their confessional statements as late as on 14th August, 1984 although their statements were recorded In the months of April, and June respectively and although they were produced in court a number of limes before 14th August, 1984.</p><p style="text-align: justify;">28. Ext. 3 is the statement of the accused Sk. Nanney recorded by the Judicial Magistrate under section 16A Cr.PC. In his statement under section 164 Cr.PC the accused Nanney Kosal has described some part of the Incident Implicating himself and certain other persons. We have already noted that Nanney Kosal has been convicted and sentenced in the original trial and he did not prefer any appeal against the same. It has been contended on behalf of the appellants that since Nanney Kosal was therefore not being tried Jointly alongwith present appellants in the retrial, his confessional statement recorded under section 164 Cr.PC cannot be taken into consideration against the present appellants under section 30 of the Evidence Act. The learned Advocate for the appellants has in this connection also relied upon certain decisions cited by him which we will refer to at a later stage. Ext. 14 is the statement of the appellant Lokman Shah recorded by the Judicial Magistrate under section 164 Cr.PC. The statement was made by the accused-appellant Lokman before the Judicial Magistrate In Hindi and the Magistrate recorded the same in Bengali script. The English translation of the relevant portion of the statement of the accused Lokman recorded under section 164 Cr.PC as appearing In the paper book is reproduced below :</p><p style="text-align: justify;">'Q. Tell what statement you will make?</p><p style="text-align: justify;"> Ans. On 18th date, Sunday (Holiday), the Incident took place. At 10 or 10-30 Naso, Puttan, Akhtar, Chowdhury came to me for price. I asked what you will do by money. They answered quarrel is going on in village road for that weapons are to be purchased by the money. Those persons have set fire to the mosque. If those persons make any trouble here we shall fight out. I said I shall also fight out. After that they fled away. At 11-45 a cry or quarrel came to my heralng. I came out and found that two police officers coming speedily. Many people threw brickbats towards those police officers. The police officer in white dress went towards the house of Mulla. The police officer In Khaki dress came straight. When he was crossing near me I also threw a brickbat. I cannot say whether it hit or not. The police officer In khaki dress entered In the house of Latif Sepot. Many persons entered following him. Amongst them Idris was there. From outside many people threw brickbats. I also threw 2/1 brickbats. I cannot say whether it hit him or not. Aftersometime I found that Naso, Puttan, Akhtar and Chowdhury were coming from the side of Battikal mosque. They took me Inside the house. I found the police officer In khaki dress was standing near the kitchen. (wrong translation). The correct translation is 'standing by the side of Gosalkhana'--'Gosalkhanaka pas khara hayal. That person said he was D.C. Some people said they do not know D.C. etc. After this all people in a batch caught that person. I also caught him. Naso hit by a rod on the head. For this the hard cap fell down. Again rod was used. It hit the head. Saheb fell down. Puttan, Akhtar and some other many people assaulted him on the face with deadly weapons, (wrong translation. The correct translation is 'Puttan, Akhtar & many other persons started assaulting on his face with sharp-cutting weapons--'dharwala hattar se chehar par marne laga'). I could not tolerate the blood-shed. For that I came out. I was then searching for my younger brother. After some time I found those 8/10 persons took D.C. Saheb and entered Inside the house, (wrong translation. The correct translation is 'after a while I saw that those 8/10 persons were going out from Inside the premises taking away D.C. Saheb--Thora der ke bad dekhta o at das admi D.C. Saheb ko le ke bari ke ondar se chala ja raha'). They proceeded towards the Mehar Manzil crossing the house of Israil. ('They took him away towards Mehar Manzil after crossing the house of Israil'--'Israilko par karke Meher Manzil ke taraf le giyal. After that I cannot understand what happened, ('what happened thereafter, I cannot say')--'Usko bad hamko nehi malum haya keya hua'). I worked under port. And I was present at home on that day.</p><p style="text-align: justify;"> 'Q. Do you want to say anything more?</p><p style="text-align: justify;"> Ans. No. I have forgotten to say one thing. Samsad and Abbas were also present in the Incident.'</p><p style="text-align: justify;">29. It may also be rioted here that from ext. 14 it will appear that the Judicial Magistrate before recording the statement of the accused Lokman Shah put various questions to the accused Lokman for ascertaining whether the accused was making the statement voluntarily and free from any outside influence. As we have seen, the statement was recorded by the Judicial Magistrate on 9.6.84 and on the preceding date i.e. 8.6.84 the accused was sent to jail custody for giving him proper opportunity for reflection. In answering the question put to the accused Lokman on 9.6.84 by the Judicial Magistrate as to whether he was kept in the jail in separate room or not, he said that he was kept In a separate room for thinking and realising. The Magistrate also tells him inter alia that he was not bound to confess and asked him to tell after thinking whether he will make the statement from his mind or not, to which the accused replies that he will make the statement. He also says that he was not terrorised by anyone nor was requested or assured for giving the statement. In answer to the specific question whether he was beaten by any police officer, he replied in the negative. The Judicial Magistrate also told him that he would not be kept under the custody of the police whether he told or not. Even then the accused staled before the Magistrate that he would make the statement willfully and he had come from jail and nobody had given any hope or assurance to him. The Magistrate also cautioned the accused that If any statement was made by him, he might be hanged for the same and thatwhat he would say could go against him. Inspite of that the accused stated to the Magistrate that he would confess according to his sweet will. The Magistrate also appended a certificate under the statement recorded by him to the effect that he believed that the confession was made voluntarily.</p><p style="text-align: justify;">30. The learned Advocate for the appellants has contended that the only evidence on which the prosecution has relied upon for bringing home the charge framed against the accused Lokman ts his alleged confessional statement, ext. 14. It is however contended by him that the law regarding use of confessional statement against maker of such statement is that the court must be satisfied that the confessional statement is truthful and is made voluntarily. He has also cited a number of decisions on this point such as Anathbandhu v. State of West Bengal, 1986(1) CHN. 229, State of West Bengal V. Prosenjit Tafadar 1991(1) CHN 331. Saran Singh v. State of Punjab, : 1957CriLJ1014 , etc. Indeed we are convinced that the same is true and voluntary. While examined under section 313 Cr.PC the accused Lokman even inter alia denies to have made such statement as recorded by the Magistrate and he even went to the absurd extent of telling that the I.O. was standing near him when he made the statement before the Magistrate. It may be noted here that at the retrial one defence witness being D.W.1 Sk. Mumtaz was examined on behalf of the defence. He claims to be an employee of Calcutta Port Trust. He says that he knows the accused Lokman, who was a class-IV staff in the department in which he was working. He says that there was continuous strike in all the ports of India including the Calcutta Port w.e.f. 16.3.84 and during the strike period he used to attend the gate No.8 of the workshop regularly and this gate is one of the entrance gales to the K.P. dock. He further says that like him other people also used to go in front of the gate during the strike. His evidence ts that on 18.3.84 he along with others went in front of that gate at about 8-30/9-00 a.m. and returned to his residence at about 12-45/1-00 p.m. He wants to say that on 18.3.84 when he went In front of that gate he found that the accused Lokman was sitting there. This defence witness has been examined to establish the plea of alibi taken by the accused Lokman. The evidence of this defence witness who was examined at the retrial in June, 1992 long after the occurrence however, does not inspire any confidence. No plausible explanation is coming as to why he was not examined at the time of the original trial if really Lokman was with him in front of the gate of the Calcutta Port Trust at the relevant time on 18.3.84. Also it is significant to note that the date of the Incident namely, 18.3.84 was not only a Sunday, but It was also the day on which the 'holi' festival was being celebrated. That being so, it is difficult to believe that he and other workers Including the accused Lokman would have gone there In front of the gate of their workshop on that day obviously without any purposeful object. Moreover it Is also quite unnatural that when riots and disturbances were going on in the concerned locality, the accused Lokman would have chosen to go and station himself in front of his closed factory gate without any meaningful purpose leaving aside the shelter of his own house, if realty he were a peace-loving person. Having regard to the facts and circumstances, we are not Inclined to place any reliance on the evidence of the defence witness D.W. 1 Sk. Mumtaz. The learned Advocate for the appellants submits that even if the defence plea of alibi falls and the court does not accept thesame, yet that by itself does not prove the prosecution case. In this connection he also refers to the decisions in Shared Blrdhtchand Sarda v. State of Maharashtra, 1984 SCC(Cr.l) 487 and Sk. Firoz v. State of West Bengal 1997. C.Cr.L.R. [Call 251. In connection with the question relating to the nature of use of a confessional statement he refers to the decisions in Pakal Narayan Swami v. Emperor AIR 1931 PC 47, PalblnderKatirv. State of Punjab : 1953CriLJ154 , Ompmkashv. State of Uttar Pradcsh : AIR1960SC409 . There is no doubt that a self exculpatory statement does not amount to confession. It is also true that the statement of the accused will have to be taken as a whole without making any 'pick and choose' of isolated sentences or words divorced or separated from the context in which they have been used. But in the present case on an Indeplh consideration of the statement of Lokman made before the Judicial Magistrate, we find no reason to hold that the same does not amount to a confessional statement. The learned Advocate for the appellants contends that the statement of Lokman as recorded under section 164 Cr.PC would show that he had only thrown some brickbats when the police officer in khaki dress entered in the house of LatlfSepol and he even did not care to notice whether the same hit the police office or not. He also contends that although the statement shows that Lokman caught the D.C. along with others when Naso hit him by a rod on his head as a result of which the cap fell down and Naso again hit the D.C. on his head and the D.C. fell down and other assailants assaulted him wllh sharp culling weapons, yet the statement shows that on seeing blood-shed as a result of assaults made by the assailants on the D.C. Lokman could not tolerate the situation and he withdrew himself and came out. It is submitted on behalf of the appellant Lokman that the conduct of Lokman shows his mental state at the relevant time and would suggest that he had no culpable object or Intention in respect of the commission of the offence. We are, however, unable to accept this defence contention. May be that the accused Lokman was comparatively a timid person and was unable to reconcile himself wllh blood-shed when the same occurred as a result of combined and concerted assault with various weapons upon the D.C. May be that the role played by the accused Lokman was not as aggressive as exhibited by many other more ferocious co-participants, yet the fact remains that when the D.C. was being chased by a mob and the D.C. was running away for safety, he, I.e.. the accused Lokman also threw brickbats at him and later even participated in catching hold of him along with others obviously for facilitating the assault by other persons with various weapons and in fact, the D.C. was assaulted with various lethal weapons Including rod used by the accused Naso on the head of the D.C. The admitted partlcipalion of Lokman in the operation and in the manner described by Lokman in his stalemenl clearly makes out that the statement of Lokman is nothing else but a confession of the commission of the offence and participation by himself in a culpable way in the commission of the same. We fall to understand why the statement of Lokman should be treated as something falling short of confession. We are rather of the opinion that the statement even when taken as a whole and without excluding anything therefrom amounts to a clear confession of the accused Lokman that he participated in the commission of the offence of severely assaulting the D.C. with various dangerous weapons in which the different assailants took part in a conjoint operation obviously with a common object to commit the offence which was being committed and tn that operation Lokman took part by catching hold of the victim along with others while some other assailants were assaulting the victim with various weapons. His withdrawal from the scene at a later stage on seeing blood-head does not exonerate him from the culpability of his act or state of mind which he displayed upto that stage and this is enough for the purpose of finding him guilty of the charge framed against him under section 302/149 IPC, Inasmuch as the D.C. was put to death as a result of a brutal assault perpetrated on him conjointly by the assailants. May be that the D.C. was further assaulted in continuation of the earlier assault even after Lokman withdrew himself from the scene after seeing the blood-shed but that does not, we reiterate, exonerate Lokman from his participative culpability in the commission of the offence till the stage of his withdrawal. We have seen from the evidence of the Autopsy Surgeon that the head injury sustained by the D.C. obviously as a result of assault made by Naso with rod on the head of the D.C. was alone sufficient to cause death and that was done while Lokman was catching the victim along with others obviously for facilitating conjoint assaults not only by the rod but also by other weapons used by the assailants. The statement of Lokman fully satisfies the requirements of a confessional statement and we are also of the opinion that the same is not only voluntary but is also true as the same receives substantial corroboratlon and also coroboratlon in material respects from the other evidence on record, namely, that the D.C. In khankl uniform and his body guard in while uniform were chased by a riotous mob there on that day and at that time, and the D.C. took shelter in that premises where he was attacked and assaulted by the assailants as stated by the eye witness P.W. 24, Md. Hadls. It is true that Lokman has not been specifically named by Md. Hadls but the other descriptions of the Incident as given by Md. Hadls, in our opinion, lends corroboratlon to the material aspects as to how and in what manner the occurrence took place at the concerned premises regarding assault on D.C. Mehta. Such corroboratlon tn respect of material aspects by the evidence of Md. Hadls Inspires sufficient confidence to accept the confessional statement of the accused Lokman as true. That being so, we have no hesitation in accepting the confessional statement of Lokman as voluntary and true. We will discuss more about the confessional statements at a later stage. Here we would like to note that the evidence of P.W.26 Md. Mustafa and P.W. 38 Md. Narln also supported the prosecution case regarding the Involvement of the accused Naso in the commission of the offence, but these two witnesses could not be produced for further cross-examination at the retrial and that is why their evidence was not pressed into service at the retrial. It has been submitted on behalf of the appellants that although the Division Bench while directing retrial directed the evidence already on record to be taken into consideration in writing out a fresh Judgment in the retrial, yet their evidence cannot be taken Into consideration because they could not be produced for further cross-examination at the time of retrial. It may be noted here that the Division Bench while remanding the case for retrial directed that the judgment is to be written on the basis of the evidence already on record, the evidence to be brought on record pursuant to the order of retrial, and the further statements of the appellants, if any, made under section 313 Cr.PC and also directed the trial Judge to give the appellants opportunity of further cross examining the prosecution witnesses. As we have seen, P.W.26 and P.W. 38 who support the prosecution case in respect of the Involvement of the appellant Naso however could not be produced for further cross-examination at the retrial Insplte of best efforts made by the prosecution as their whereabouts could not be traced out. In the circumstances it appears to us that section 33 of the Evidence Act would be attracted. Under section 33 of Evidence Act the evidence given by a witness in a Judicial proceeding is relevant for the purpose of proving in a subsequent Judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or his presence cannot be obtained without an amount of delay or expense which the court considers undesirable, etc., provided the proceeding was between the same parties or their representstive-In-Interest and the adverse party in the first proceeding had the right and opportunity to cross-examine, and the questions in Issue were substantially the same in the first and in the second proceeding. In the present case, at the original trial Involving the same Issue the appellants not only had the right and opportunity to cross-examine both P.W.26 and P.W.38, but in fact they were also cross-examined in extenso. That being so, when Insplte of efforts those two witnesses could not be traced out at the time of retrial plainly their earlier evidence was admissible in evidence at the retrial in view of section 33 of the Evidence Act. It is needless to say that the directions of the Division Bench concerning retrial do not have any connotation that a piece of evidence which is already on record will be excluded from consideration at the retrial even if the same is otherwise admissible in evidence in accordance with the provisions of law. Therefore we are of the opinion that the earlier evidence of P.W.26 and P.W.38 can be taken into consideration at the retrial under section 33 of the Evidence Act although they could not be produced for further cross-examination at the retrial as they could not be traced out after so many years inspile of efforts. In this back-ground it is Interesting to note the submission made by the learned Advocate for the appellants in respect of the question of admlsslbllly of the confessional statement of the accused Nanney Kosal for consideration at the retrial against the appellant Naso. it has been contended in this connection by the learned Advocate for the appellants that though the Division Bench while directing retrial permitted the trial court to take into consideration the evidence already on record, yet that direction is not Intended to nor does tt supersede any provision of law. It has been submitted by the learned Advocate for the appellants that under section 30 of the Evidence Act the confession of a co-accused can be taken into consideration against an accused only if both of them are Jointly tried for the same offence. It is submitted that since the accused Nanney Kosal who was convicted and sentenced in the original trial did not prefer any appeal and since he was not being Jointly tried with the present appellants at the retrial his confession cannot be taken Into consideration under section 30 of the Evidence Act at the retrial relating to the present appellants. In this connection the learned Advocate for the appellants has referred to certain decisions namely Emperor v. Keramot Sardar, 16 CHN 49, Assistant Collector of Customs. New Delhi v. Harbans Lal Sharaf 1980 Cr.LJ 681 (Delhi) and Suresh Budharmal Katati v. State of Mahamstra 1998 SCC(Cr.l.) 1625. The learned Advocate for the appellants thus contends that Inspite of the direction of the Division Bench for taking into consideration at the retrial the evidence already on record the confessional statement of Nanney Kosal cannot be taken Into consideration at the retrial as that Is, in effect, prohibited by section 30 of the Evidence Act and the direction of the Division Bench cannot be construed to supersede any provision of law. We accept this contention and we are also of the opinion that the confessional statement of Nanney Kosal cannot be taken Into consideration now in the retrial against the appellant Naso because Naso and Nanney Kosal were not facing Joint trial at the retrial. But we fall to understand why this same logic should not apply in respect of the earlier evidence of P.W.26 and P.W.38, both of whom were cross-examined at length at the earlier trial but who could not be traced out and produced at the retrial Insplte of efforts. The direction of the Division Bench to produce the witnesses for further cross-examination at the retrial obviously cannot be construed to exclude the operation of a statutory provision, namely, section 33 of the Evidence Act. No doubt that under the direction of the Division Bench both those witnesses were also required to be produced for further cros's-examlnallon at the retrial. But then, in our opinion, the law should take Its own course if in spite of efforts those two witnesses could not be traced out and produced after so many years for further cross-examination at the retrial. In our opinion, section 33 is attracted in the circumstances and there is nothing in the direction of the Division Bench which can be construed as excluding the operation of a statutory provision of law that may be attracted under the law Itself in a particular situation. In our opinion. In the circumstances the earlier evidence of P.W.26 and P.W.38 can be taken Into consideration at the retrial as a matter of law. However, as a matter of fact we keep their evidence out of consideration, and we examine whether even without taking into consideration the earlier evidence of those two witnesses, namely, P.W.26 and P.W.38 the prosecution have been able to establish the concerned charges against the present appellants.</p><p style="text-align: justify;">31. The learned Advocate for appellants contends that the appellants should have been examined under section 313 Cr.PC afresh in respect of the earlier evidence on record but that was not done and that being so, the entire earlier evidence in the case should be kept out of consideration and it should be held that the earlier evidence cannot be used against the appellants for finding them guilty of the concerned charges in the retrial. It may be mentioned here that in the retrial, after the further cross-examination of the witnesses produced by the prosecution were completed, the appellants were further examined under section 313 Cr.PC thereby giving them opportunity to tell whatever they wanted to tell yet. It may also be noted here that the prosecution did not adduce any fresh evidence in the retrial and only the witnesses who were earlier examined and whom the defence wanted for further cross-examination barring P.W.2G and P.W.38, were produced for further cross-examination and even then further examination under section 313 Cr.PC was done in the retrial so that the appellants might get further opportunity to say whatever they yet desired to say. There was absolutely no question of examining the appellants afresh under section 313 Cr.PC in respect of the entire evidence in respect of which they were earlier given opportunity to express their say under section 313 Cr.PC it is a desparate contention raised on behalf of the appellants in despair that the earlier examination of the appellants under section 313 Cr.PC should be altogether excluded and they should have been examined afresh under section 313 Cr.PC in the retrial even in respect of the evidence in respect of which they were given adequate opportunity earlier under section 313 Cr.PC The direction of the Division Bench in this connection also contalnes the expression 'thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure'. The Division Bench used the expression 'further examine' and not fresh examination and there is also absolutely no reason why the earlier examination under section 313 in respect of the evidence earlier adduced should be treated as a nullity in the retrial. The contention raised by the learned Advocate for the appellants in this respect is wholly unacceptable.</p><p style="text-align: justify;">32. The learned Advocate for the appellants contends inter alia that the unexplained delay in examination of P.W. 24 Hadis Khan renders it unsafe to rely on his evidence, The incident took place on 18.8.84 andP.W.24 Hadls Khan, we get it from the evidence of P.W. 1 S.K. Bhattacharjee. the second I.O., was examined by him in the afternoon of 20.8.84 at G-222 Battikal Second Lane. Both the earlier I.O. (P.W.80) and the second I.O.(P.W.l) have as we have seen, described what they did respectively after taking charge of the Investigation. Hadis Khan, as we have seen, was rounded up at about noon on the 19th and placed in a police van that patrolled in the locality and then he and others were in the police lock up at the P.S. from 7-00 p.m. and were later released in the evening of the same date. The second I.O. P.W. 1 took charge of the Investigation in the evening of the 19th and thereafter, as we have see, he took charge of some of the arrested accused persons in the evening and took them to Lalbazar and Interrogated them and on the next day he took steps for producing them before the court and then went to the concerned locality and there he examined Hadls Khan as the first witness to be examined by him and also the mother of the Hadis Khan in the concerned premises. Having regard to the facts and circumstances we cannot say that there was any delay or leapse in the matter of examining P.W.24 Hadls Khan. The learned Advocate for the appellants in this connection has referred to certain decisions namely, Balakrishna v. State of Orissa 1971 Cr LJ 670. Babull v. State of Orissa, 1974 SCC(Crl.) 104 and State of Orissa v. Brambhananda : 1976CriLJ1985 . It is needless to mention that all those decisions are confined in their effect to the particular facts of the respective cases. In Batakrishna v. State of Ortssa (supra) the concerned witness was examined by the I.O. 10/11 days after the incident which definitely is not so in our present case. In the other two cases namely Babull v. State of Orissa and Slate of Ortssa v. Brambhananda (supra) the concerned witnesses did not disclose the names of the assailants to anyone at the earliest available opportunity and there was no satisfactory explanation for the same. In our present case, as we have seen, P.W.24 Hadls disclosed what he saw at the earliest available opportunity on the very same day to P.W.19 Khalll Khan and P.W.21 Abdul Latlf Khan. Having regard to the facts, circumstances and evidence on record we find no reason to disbelieve the evidence of P.W.24 Hadis Khan.</p><p style="text-align: justify;">33. As regards the question whetehr the statement of appellant Lokman recorded under section 164 Cr PC amounts to confession we have earlier discussed and we reiterate our opinion that such statement amouns to confession. We have already discussed that the Magistrate gave all necessary cautions to the appelalnt Lokman before recording his confession and also gave adequate opporutnity for reflection in Jail custody as well as after the accused was produced before him and he recorded the confessional statement after he was fully satisfied that his confessional statement was made voluntarily and the same was true. We also find no reason to hold otherwise in this respect. H has been contended on behalf of the appellant Lokman that there is no other evidence against the said appeallant except his confessional statement and that, too the confessional statement was subsequently retracted by him and that being so no conviction can be based on the retracted confession alone. In this connection the learned Advocate for the appellants has referred to certain decisions of the Supreme Court, namely, Chandrafcant Chfnum Lal v. State of Gujarat 1992(1) Crime 233, Kashmlra Slngh v. State of M.P. : 1952CriLJ839 . It may be noted here that the decision in Chandrafcant Chfman Lal (supra) is virtually based on the earlier decision of the Supreme Court in Kashmlra S(ngh v. State of Madhya Pradesh (supra). In Kashmlra Sfngh (supra) the Supreme Court was concerned with the question how Tar the confession of an accused person can be used against a co-accused. It is evident from a reading of the said decision in Kashmir Stngh that the said decision was not laying down the law that an accused cannot be convicted on the basis of his own confession. Rather what was laid down in effect in that context in Koshmia Singh is that an accused cannot be convicted on the basis of the confessional statement of the co-accused. On the other hand, the learned Advocate for the Slate has referred to certain decisions which we mention below regarding the use of confession. In Sarwan Stngh v. State of Punjab. : 1957CriLJ1014 , it has been held that in law it is always open to the court to convict an accused on his confession Itself though he has retracted it at a later stage and that nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement and that what amount of corroboratton would be necessary in such a case would always be a question of fact to be determlend in the light of the circumstances of each case. In Madi Ganga v. State qj Orfssa 1981 SCC (Crl) 411 it has been held by the Supreme Court that the accused can be convicted on the basis of the confessional statement if the general trend of his confession is substantiated by other evidence. In Param Hans Yadav v. State of Bihar 1987 SCC(Crl) 322 it has been held that although the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial the same can only be used for lending assurance to any substantive evidence. The law on the point has been very succinctly laid down by the Supreme Court in Sfirfsfiad Waaeshl v. State of Maharastra 1985 Cr LJ 1173 where it has been held that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboratlon from other Independent sources and that it can not, however, be the basis for convicting the co-accused though it may be taken Into consideration against the co-accused also. That being the law, it is evident that the retracted confession of the appellant Lokman can form the basis of his conviction if it has received general corroboratlon from other Independent sources as it has in our present case. We have seen that the appellant Lokman made an elaborate statement as to how the offence was being committed upon V.K. Mehta, D.C. by a group of assailants, some of whom were armed with deadly weapons, and as to the place where it occurred and how he participated in that operation. The manner in which the offence was committed upon V.K. Mehla in the concerned premises and how he was chased in that premises and assaulted are in such details that the vivid description itself lends an assurance of credibility for the confessional version. These details, as we have seen, are again corroborated in material particulars by the evidence of P.W.24 Hadts Khan. We have also seen that there.was an Inordinate and unexplained delay in retracting the confession. Having regard to the facts and circumstances, we have therefore no hesitation in accepting that the confessional statement of Lokman as made voluntarily and the same is true and is corroborated generally as well as in material particulars by the other independent evidence, namely, the evidence of P.W.24 Hadis. He have also seen that the appellant Lokman participated in catching hold of the unfortunate victim D.C., Mehta while he was being assaulted by the accused Naso with rod on his head and by other assailants with various lethal weapons on the other vital parts of the body of the victim. There is therefore no escape from the conclusion that the appellant Lokman is guilty of the charge framed under section 302/149 IPC in spite of the fact that at certain stage of the operation he might have withdrawn himself from scene while the others were yet carrying on the operation.</p><p style="text-align: justify;">34. As regards the involvement of the appellant Naso we find no reason to discard the evidence of P.W. 24 Hadis. We have also seen how. Hadls reported to P.W. 19 and P.W.21 what he saw, on that very day. He clearly implicates the appellant Naso and from his evidence it appears that Naso delivered two blows with rod on the head of the D.C. Mehta while he was in unarmed condition. We have also seen that P.W. 16 Ramashankar Slngh has also deposed that he saw Naso amongst others in the mob with bombs. P.W.21 Abdul Latif Khan also saw Naso with others near deadbody and all were armed. We are therefore convinced that Naso was Involved in the commission of the offence along with others and this receives, additional assurance of truth when the confessional statement of the co-accused Lokman is taken into consideration under section 30 of the Evidence Act. We are also convinced from the evidence on record Including the postmortem doctor that the blow which Naso delivered on the head of V.K. Mehta with rod Itself was fatal. It is true that others also assaulted V.K. Mehta with various weapons and V.K, Mehta met with a tragic and as a result of all the assualts on him. The learned Advocate for the appellants submits that even if the prosecution evidence is taken at Its face value yet it is not clear whether the entire assault was held at premises No,G-222and whether some part of the assaults were carried on after taking away V.K. Mehta from that premises. In our opinion this is immaterial in view of the evidence of assault which is on record and the nature of the Injuries described by the Autopsy Surgeon. It is neither expected nor required that the prosecution must prove the entire operation second by second by a cinematographic display of the actions from the start to finish. The direct evidence of chasing of V.K. Mehta by the assailants and the participation of the appellant Naso in the concerned operation of assault on the victim with deadly weapons at premises No.G-222 and the description of the Injuries found by the autopsy surgeon on the deadbody of V.K. Mehta and his opinion about the effect of the same, are sufficient to hold the appellant Naso guilty of the charge framed against him under section 302/149 IPC for the murder of V.K. Mehta. Accordingly we hold both the appellants Naso and Lokman guilty of the charge framed against them under section 302/149 IPC for the murder of V.K. Mehta.</p><p style="text-align: justify;">35. As we have seen, it is in evidence that the deadbody of V.K. Mehta with Injuries was recovered on that very day by the police party from a drain in that locality. From the facts, circumstances and evidence on record there is no doubt that the assailants of V.K. Mehta had thrown the deadbody in the drain, obviously with a view to avoiding easy detection of the evidence of the crime. There is evidence, as we have seen, that Naso participated in assaulting V.K. Mehta. P.W.21 Abdul Latlf Khan, as we have seen, while coming back to his house and reached Battlkal Second Lane at about 12-30/12-45 p.m. noticed some persons armed with weapons present near a deadbody lying by the side of the kancha drain there and he also found the appellant Naso amongst those persons who were all armed. His evidence is that Naso was standing 2 cubits away from the deadbody. He also says that later at the police station he learnt that the deadbody of the Dy. Commissioner was recovered from the place where he had earlier seen the deadbody. Circumstantially the conclusion becomes irresistible that the deadbody was thrown Into the drain there and it must have been done by those persons who vere found present there beside the deadbody. And Naso was one of them, in the circumstances we are of the opinion that the conviction of the appellant Naso under section 201/149 1PC is justified. We are also of the opinion that his conviction under section 148 1PC is also warranted and Justified.</p><p style="text-align: justify;">36. Now we consider the question of sentence so far as the offence under section 302/149 IPC is concerned. Both the appellants Naso and Lokman have been sentenced to death by the trial court for their conviction under section 302/149 1PC in respect of the murder of V.K. Mehta, the Dy. Commissioner of Police, Port Division. The learned Advocate for the appellants contended, without prejudice to his other contention that the appellants were entitled to an order of acquittal, that this was not at all a fit case for death sentence even if the conviction were upheld. In this connection he referred to the decisions in Bachhan Stngh v. State of Punjab, : 1980CriLJ636 , Rajendra Prosad v. State of U.P. : 1979CriLJ792 , Digambar Gope v. State of West Bengal 1997 C.Cr.L.R.(Cal) 139 and Rabindra Prida v. State of West Bengal 1995 C.Cr.L.R (Cal) 210 etc. On the other hand, the learned Advocate for the State has referred to the decisions in Shlo Mohan Stngh v. State 1977 SCC(Cri) 324, Gayasi v. State of Uttar Pradesh. 1981 SCC(Cri) 590, Jay Kr. v. State of Madhya Pradesh 1999 111 AD(Cr.) SC 33 and 1987 SCC(Cri) 322. etc. Indeed it is now a settled law that for an offence of murder life Imprisonment is the normal sentence while the death sentence should be Imposed only in the rarest of rare cases. The guidelines for determining the case where death sentence can be Imposed are to be found in the decisions of the Supreme Court in Bachhan Singh : 1980CriLJ636 , Mechhi Singh v. State of Punjab : 1983CriLJ1457 , Kama Tewari v. State of Madhya Pradesh, 1996 Cr.L.J. 4158. etc. In going to decide whether in a particular case death sentence should be imposed or not the aggravating and the mitigating circumstances in respect of the concerned accused are required to be taken Into consideration. In Jay Kr. v. S(ate p/M.P,(supra) it has been observed by the Supreme Court that the law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment and that while it is true that a sentence disproportionately severe, ought not passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly Inadequate having due regard to the nature of the offence since an Inadequate sentence would fall to produce a deterrent effect on the society at large. It has been further observed therein that punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, but rather for having its due Impact on the society and that while undue harshness is not required yet Inadequate punishment may lead to sufferance of the community at large. In Shtv Mohcin Sfngh v. The State (supra), it has been Inter alia observed by the Supreme Court that the heinousness of the crime is a relevant factor in the choice of the sentence. In Gayasi v. State qfU.P. (supra), the Supreme Court while confirming the death sentence in a case where the victim was a public servant and was murdered while performing his public duties observed that such crimes committed against Public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.</p><p style="text-align: justify;">37. Now let us look to the circumstances in which the crime has been committed in the present case. On receiving information that a disturbance was going on in the concerned locality, V.K. Mehta, the Dy. Commissioner of the Port Division rushed to the spot and the other officers and force also joined him. He of course had no arms or weapon with him. He led the police party for restoring normalcy in the disturbed area. At that time the police party was attacked by the furious mob with brickbats, bombs and the policeparty headed by the Dy. Commissioner took shelter in a mosque. Underthe pressure of the violent and armed mob the Immam of the mosque askedthe police party to leave the mosque. In the circumstances the police partyhad to leave the mosque. As soon as they came out of the mosque theywere again attacked by the violent mob. The D.C. and his body guard MoktarAll proceeded in one direction while the Assistant Commisloner and theother members of the police party could retreat in a different direction. Whilethus retreating the members of the police party were attacked by themembers of the mob as a result of which the Assistant Commissioner andsome other members of the party sustained Injuries. Unfortunately, howeverthe Dy. Commissioner and his body Guard Moktar All proceeded in adifferent direction Isolated from the other members of the police party andthey were also chased by an armed mob. Both the D.C. and his body guardMoktar All were in police uniform. They were there to perform their officialduties to restore peace and maintain law and order. Insplte of that withoutany provocation from them they were hounded up by the ferocious mob asa result of which the D.C. and hts body guard also became separated fromeach other. The body guard was brutally killed by some of the assailants,and the D.C., while on the run for life and safely took shelter in G-222Battlkal Second Lane but there also the chasing mob followed him. In hishelpless bid the D.C. fervently disclosed to his assailants that he was D.C.of police hoping that the same would have a sobering effect on theassailants, but the assailants were in a devellsh mood and even proclaimedthat the they did not care for D.C. An isolated senior police officer of therank of a Deputy Commissioner who had been there for restoring peace andfor maintaining law and order in discharge of his official duty helplesslyfound himself pitiably doomed in a death trap under the devilish controlof the ferocious assailants while he himself was totally unarmed. There wasabsolutely no provocation from the side of the Deputy Commissioner. It wasthe bounden duly of everyone present there to assist the D.C, in discharge of his official duty to restore peace and maintain law and order but Instead, the assailants took devellsh pleasure in committing the diabolical murder of the D.C. In a dastardly manner. The brutality of the assailants on the helpless D.C. can be readily measured by the number and nature of Injuries found by the Autopsy Surgeon on the deadbody. The appellant Naso, as we found, took the lead role as the pioneer in the matter of actual assault on the D.C. after getting him in virtual capacity. Ignoring the appeal of the D.C. as reflected in the fervant disclosure of his Identity the appellant Naso delivered blow with rod on the head of the D.C. from the front side obviously with enormous force so much so that the helmet of the D.C. fell down from his head and the appellant Naso took that opportunity to deliver a second blow on the bare head of the D.C. with the rod and the beastly operation was followed by assaults by others with different other deadly weapons. The Impact of the assault made by the appellant Naso has been projected by the evidence of the Autopsy Surgeon. The head Injury sustained by the D.C. was sufficient to cause death in the normal course. The role played by the appellant Naso in making the dastardly and deadly assault on the helpless and unarmed D.C. who was on duty is studded with such mainfestatlon of depraved ferocity that the case unrringly comes within the arena of a rarest of rare cases. The tragic death of a brave and dutiful public servant in a circumstance like this is sure to have a macabre effect on the society at large and also a demoralising Impact on the public service in particular, unless the justice delivery system matchlngly responds to nuelralllse the same in the Interest of the peace-loving segment of the society. In our considered opinion, and having regard to the facts and circumstances we have no hesitation in holding that this is a fit case where the appellant Naso deserves death sentence in the Interest of the society at large. There is absolutely no mitigating circumstance for awarding the alternative sentence of life Imprisonment to the appellant Naso. In the result we confirm the death sentence Imposed by the trial court on the accused Naso for his conviction under section 302/149 1PC. However, having regard to the low-profile role played by the appellant Lokman Shah we are of the opinion that in his case death sentence need not be Imposed and the alternative sentence of Imprisonment for life for his conviction under section 302/149 1PC will meet the ends of justice. In the result the death referred in respect of the accused Naso is hereby accepted and the appeal filed by him is dismissed. The death sentence as well as the other sentences Imposed upon the appellant Naso by the trial court are all confirmed. The death reference relating to accused Lokman is however rejected and the death sentence Imposed on him by the trial court is set aside and Instead of death sentence, the sentence of imprisonment for life is imposed on the appellant Lokman for his conviction under section 302/149 IPC. Subject to above modification of sentence for conviction under section 302/149 IPC the appeal preferred by the appellant Lokman stands dismissed.</p><p style="text-align: justify;">M.K. Basu, J.</p><p style="text-align: justify;">38. I agree.</p><p style="text-align: justify;">39. Older accordingly<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		(int) 1 => 'lokman-shah-anr-vs-state-west-bengal'
	)
)
$title_for_layout = 'Lokman Shah and anr Vs State of West Bengal - Citation 853066 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '853066',
		'acts' => ' <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 148, 149, 201 and 302;;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 16A, 144, 154, 161, 164, 313 and 366;;Evidence Act, 1972 - Sections 9, 30, 33 and 45;;<a href="/act/52009/arms-act-1959-complete-act">Arms Act, 1959</a> - Sections 25 and 27',
		'appealno' => 'Criminal Appellate Jurisdiction, Crl. Appeal No. 274 of 1992 with Death Reference No. 11 of 1996',
		'appellant' => 'Lokman Shah and anr.',
		'authreffered' => '',
		'casename' => 'Lokman Shah and anr. Vs. State of West Bengal',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Gayasi v. State;',
		'citingcases' => '',
		'counselplain' => ' Mr. Balai Chandra Roy, ;Mr. Sekhar Kumar Bose, ;Mr. Subrata Kumar Basu and ;Mr. Asim Kumar Roy, Advs.',
		'counseldef' => ' Mr. Tapan Roy Chowdhury and ;Mr. Thakurdas Roy Chowdhury, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-12-01',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Gitesh Ranjan Bhattacharjee and ;Malay Kumar Basu, JJ.',
		'judgement' => '<p>G.R. Bhattacharjee, J.</p><p>1. Both the above noted Death Reference and the criminal appeal are being dealt with and disposed of by this Judgment as they arise out of the same Judgment of the 3rd court of Additional Sessions Judge, Allpore. The trial court by its judgment and order dated 26-8-92 acquitted the accused Sanda Akhtar and the accused Hossaln Chowdhury but convicted the accused Naslm @ Naso and the accused Lokman Shah under section 302/149 IPC and further convicted the accused Naso under sections 148, 201/149 IPC. Subsequently after giving a hearing on the question of sentence the trial court by Its order dated 31-8-92 sentenced both the accused Naso @ Naslm and Lokman Shah to death for their conviction under section 302/149 IPC for the murder of V.K. Mehta and also sentenced the accused Nase to R.I. for 3 years and fine of Rs. 2.000/- i.d. to R.I. for 6 months for the offence of rioting punishable under section 148 IPC and also sentenced him to R.I. for 3 years and a fine of Rs. 2,000/-I.d. to R.I. for 6 months for the offence punishable under section 148 IPC and also sentenced him to R.I for 7 years and a fine of Rs.6000/- I.d. to R.I. for 1 year and 6th months for the offence punishable under section 201/149 IPC. The substantive sentences of Imprisonment were directed to run concurrently. The trial court then made a reference to this court under section 366 Cr.PC for consideration of confirmation of the death sentence Imposed upon the two accused Nase and Lokman. Correspondingly the said two accused have preferred appeal to this court against the judgment and orders of conviction and sentences passed by the trial court. As we have already noted both the death reference and the criminal appeal are being dealt with and disposed of simultaneously by this Judgment.</p><p>2. It may be noted here that on an earlier occasion the trial court In a trial on the same charges and others passed Judgment and orders of conviction and sentences In S.T. No. l(6)/88 and on that occasion four accused persons namely Naso and Lokman (the present appellants) along with the accused Akhtar (c) Sanda Akhtar and Hossaln Chowdhury were Inter alta convicted under section 302/149 IPC for the murder of V.K. Mehta and sentenced to death. There were also other sentences In respect of different accused persons on that occasion. It is however to be noted specifically here that on that occasion the accused Nanney Kasai was convicted under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and sentenced to R.I. for 6 years and he was further sentenced to R.l. for 2 years for conviction under section 148 IPC with the direction that both the sentences would run concurrently. The said accused Nanney Kasai. we are told, did not prefer any appeal against the conviction and sentences Imposed on him and he rather preferred to undergo the sentences imposed on him by the trial court The four accused named above who were sentenced to death however preferred appeals against their conviction and sentences which were all heard together by a Division Bench of this court along with the death reference for consideration of confirmation of death sentence Imposed upon them by the trial court. The Division Bench hearing the said death reference and the connected criminal appeals disposed of the same by Judgment dated 8-7-91 by which the death reference was rejected and the appeals were allowed and retrial of the said four appellants-accused persons by the trial court was directed to be held In respect of the charges for which they were found guilty by the trial court. The precise ground on which the retrial was directed was that the trial court allowed the prayer of amendmenl of certain heads of charges at the stage of argument at the behest of the learned Special Public Prosecutor, thereby making amendment In respect of the names of the places of occurrence in the concerned charges. In view of such amendment In the concerned charges at the stage of argument before the trial court, the Division Bench hearing the earlier appeals and the death reference felt that the accused persons ought to have been given an opportunity by the trial court to cross-examine the prosecution witnesses after alteration of charges, and only on that ground the Division Bench considered It proper, without entering Into the merit of the prosecution case, to direct retrial of the case by the trial court In the manner directed by the Division Bench which we will mention hereafter. But before that we briefly describe the nature of charges framed against the accused persons including the present appellants. The first charge was one under section 148 IPC for rioting. The second charge was one under section 302/149 IPC for the murder of Mokhtar All, a police constable In white uniform. The third charge was one under section 302/149 IPC for the murder of V.K. Mehta, D.C. Port Division., In Khanki uniform. The fourth and the fifth charges were under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and Mokhtar All respectively. The sixth and last charge was under section 324/149 IPC for causing hurt to K.K. Sharma, Asstt. Commissioner of Police (II), Port Division and to Rama Shankar Slngh, constable.</p><p>3. The direction of the Division Bench for retrial was couched In the following language :--</p><p>'On the conclusion as above, we set aside the order of convictions recorded and sentences Imposed upon the four appellants before us and direct their retrial only in respect of those charges for which they were found guilty by the learned trial Judge. In the retrial the learned Judge will give the appellants an opportunity of further cross-examining those witnesses of the prosecution, who had earlier deposed In respect of the above charges and thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure. The four appellants should then be given an opportunity to adduce evidence on their behalf. On the basis of the evidence already on record, evidence to be brought on record pursuant to this order, and the further statements of the appellants, If any, made under' section 313 of the Code of Criminal Procedure, the learned Judge will write out a fresh judgment after hearing the arguments of the parties. By way of abundant caution, we reiterate that the retrial, in terms of this order Is to be confined to the four appellants only and that too only in respect of the charges for which they were found guilty. Since the appellants are In custody for a pretty length of time, we direct the learned trial Judge to conclude the retrial as expedltiously as possible, preferably within a period of two months from the date of communication of this order. Till then, the four appellants shall continue to remain in custody.</p><p> The appeals are thus allowed and the reference made by the learned Judge under section 366 of the Code of Criminal Procedure is rejected.</p><p>Consequently the retrial was required to be confined to the charge under section 302/149 IPC against the four accused persons, namely, Naso, Lokman, Sanda Akhtar and Hossain Chowdhury, for the murder of V.K. Mehla and also against the accused Naso to the charge under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta as well as under section 148 IPC for rioting.</p><p>4. The trial court held the retrial pursuant to the above noted direction of the Division Bench. The witnesses whom the accused persons desired to further cross-examine In the retrial were produced by the prosecution and were cross-examined. However, at the retrial the prosecution could not produce two of their Important witnesses namely P.W. 26, Md. Mustafa and P.W. 38. Md. Narln as they were not traceable and this fact was recorded by the trial court In Its order No. 295 dated 28-2-92. Be that as It may, on retrial the accused Sanda Akhtar and the accused Hossaln Chowdhury were given the benefit of doubt and were acquitted and this had to be done, as it appears from paragraph 32 of the Judgment of the trial court, mainly because the evidence of the two prosecution witnesses, namely, P.W. 26 and P.W. 38 were not taken Into consideration as they could not be produced for further cross-examination at the retrial. In paragraph 33 of the Judgment of the trial court, it Is recorded in that connection that the learned Special Public Prosecutor after taking sufficient opportunity finally expressed his Inability to produce those two witnesses and also pointed out that after a lapse of nine years the whereabouts of those witnesses could not be ascertained and It may be that for fear of life they had absconded. However, at the retrial the trial court convicted and sentenced the appellants-accused Naso and Lokman as noted earlier and thereafter made this reference under section 366 Cr.PC for confirmation of death sentence Imposed on them. The said two appellants have also preferred criminal appeals against their conviction and sentences.</p><p>5. The prosecution case has been succinctly stated in the earlier judgment of the Division Bench and we restate the same. The prosecution case in a nutshell is that in the morning of March 18, 1984 communal disturbances broke out at Fathepur Village Road under the Garden Reach Police Station and its adjoining areas which fall within the Port Division of Calcutta Police. On getting information of the disturbances Sri Vinod Kr. Mehta, the then Dy. Commissioner of Police of the Port Division went there alongwlth his securily guard Moktar All. Sri K.K. Sharma (P.VV.7), who was the Asstt. Commissioner of Police of that Division then, also reached there along with his security guard R.S. Singh (P.W. 16) and other police officers. When the police personnel tried to restore peace and normalcy, they were attacked by a riotous mob with brick-bats, bombs etc. To avoid mob fury, Sri Mehta and others entered into a mosque but as they were not allowed to remain there by its [mam, they came out. Then they were again attacked with bombs and other lethal weapons and finding no other alternative Sri Mehta took shelter In the house of Abdul Latif Khan (P.W. 21). a constable attached to the Calcutta Police, at G.222 Battikal Second Lane. Moklar All. In his return, took shelter In a near-by house at Dhankhettl. Unfortunately, however they could not save their lives as they were hacked to death by the riotous mob. Subsequently, the charred body of Moktar All was found In an open space near the premises where he took shelter, while that of Sri Mehta bereft of his uniform, was found floating in a drain near premises No. F/59, Attabag with multiple Injuries on his person. Sri K.K. Sharma and his security guard were also attacked by the riotous mob and injured but fortunately they could save their lives by running away. Sri Sharma lodged an Information about the incident in the evening and on that information Garden Reach Police Station registered a case against 150/200 unknown persons for the murder of V.K. Mehta and Moktar All and for assault on Sri K.K. Sharma and other police personnel. S.I., S.R. Ganguly (P.W. 80) of Garden Reach Police Station took up investigation of the case but under orders of superiors Investigation was subsequently taken up by S.I., S.K. Bhattacharjee (P.W. 1) of the Detective Department (Homicide Squad) of Calcutta Police who submitted charge-sheet.</p><p>6. Having described above the genesis of the present appeal, the charges framed, the prosecution case in a nut-shell and the scope of retrial, we now proceed to examine the merit of the prosecution case on the basis of the facts, circumstances and evidence on record. It Is needless to mention that we are now concerned mainly with the case against the two appellants Nase and Lokman. At the very out set. we may mention here that ext. 3/1 Is the site plan which will be of great assistance in appreciating the facts, circumstances and evidence on record Including their co-relation in respect of different aspects of the matter. We may here also adumbrate a broad categorisation of the different types of prosecution witnesses. P.W. 80, Santl Ranjan Ganguly, S.I. of Police who was attached to Garden Reach Police Station at the relevant time is the first I.O. of the case. P.W. 1, SaroJ Kr. Bhattacharjee, S.I. of Police attached to Homicide Squad. Detective Department, Calcutta Police is the second I.O. who submitted charge-sheet after Investigation of the case. P.W. 2 Is the plan maker. P.Ws. 3, 4, 5 and 6 are photographers. They are all police personnel. P.W. 65 Is a private photographer. P.W. 7, K.K. Sharma is the Assistant Commissioner of Police, Port Division who lodged the FIR and P.Ws. 8, 9, 10, 11. 12, 13 and 16 are all police personnel who had been to the disturbed area for restoring law and order there. P.Ws. 15. 18, 20. 22, 23, 25. 27. 28, 29. 34. 35, 36. 37 and 48 were all declared hostile by the prosecution. However, of the said hostile witnesses, we may have to discuss the evidence of some, namely P.Ws. 15, 18, 20, 22, 23 and 25. The main prosecution witnesses Implicating the present appellant Nase are P.Ws..16, 19,21 and 24. The other two vital witnesses P.Ws. 26 and 38 however, could not be produced for further cross-examination at the retrial. P.W. 46 Is the Autopsy Surgeon who held the post-mortem examination on the dead-body of V.K. Mehta. P.Ws. 44, 66 and 67 are also medical witnesses. P.W. 47 is the Judicial Magistrate who held T.I. parade. P.W. 51 is the Judicial Magistrate who recorded the confessional statements of the two accused Nanney Kosal and Lokman Shah on 3-4-84 and 9-6-84 respectively (vide ext. 13 and ext. 14).</p><p>7. We will now discuss the evidence of some witnesses from which we will get an Idea of the nature of the Incident that took place on 18-3-84 in the concerned locality. P.W. 7, Sri K. K. Sharma was posted at the relevant time as Assistant Commissioner of Police (II). Port Division. He says that late V.K. Mehta was his Dy. Commissioner and he died on 18-3-84. It may be noted here that It is In evidence that 18-3-84 was a Sunday and It was the day on which 'hoiI' festival.was being celebrated. It is the evidence of Sri K. K. Sharma (P.W.7) that on that day while he was at his house he received a telephone from Port Division. Telephone Exchange at about 10-45 a.m. to the effect that a trouble was going on at the Junction of Falherpur Village Road and Paharpur Road and that the D.C. Mr, Mehta wanted his presence there. Then he proceeded to the place In a Jeep accompanied by his body guard Rama Shankar (P.W. 16) who was well acquainted with that place and they reached there at about 11 -30 a.m. and found brick-bats lying on the roads and remants of exploded bombs and he also saw a huge gathering. He also heard nofsy sounds. He says that he saw some local police officers standing there and seen D.C. Port accompanied by one Mr. Sen and local leader came to that place accompanied by some agitated persons and the D.C. told him that they would go out and see what was going on and then he, his guard, D.C., his guard Moktar All and 5/6 armed constables proceeded along the Fatherpur Village Road and entered the Mathorpara Basil and found agitated crowd on both sides of Mathorpara Bastl Lane. According to his evidence they proceeded further and came near Ramnagore Lane when brick-bats, bombs etc. were hurled at them and It was about 11-45 a.m. at that time. He says that there Is a mosque near the place where the Mathorpara Bast! approach meets Ramnagore Lane. His evidence is that due to heavy brick batting and bomb throwing D.C. asked them to take shelter Inside the mosque and In order to save themselves they entered Inside the mosque. He describes that there Is a collapsible gale at the back portion of the mosque and they entered the mosque through the front gate and after some time they noticed that a riotous mob of about 40/50 persons were trying to break open collapsible gale of the mosque and those persons were armed with brick-bals, bombs, swords, daggers etc. and Ihen the Imam of the mosque told them to leave the mosque and then the D.C. told him that they would have to leave the place and to go out and had also some discussion regarding their future course of acllon and also told him lhal they were to disparse the violent mobs. According to him the D.C. further told him that he (A.C.) should try to disperse the mob from Mathorpara Bastl approach and Ramnagore Lane junction while D.C. would disperse the mob from eastern side of the mosque. He estimates that there were about 400/500 persons around the mosque, and say that when they came out he noticed the D.C. In the midst of a crowd and was going towards the east. His evidence is that bombs and brickbats were thrown at them and he was surrounded by some persons and they forced him to sit on the ground and someone took off the helmet from his head and he was praying to God for his life and one person started hitting on his head with a full brick ('then if). He also noticed that some persons had daggers and swords with them. He says that he received bleeding Injury on his head and he was more or less senseless at that time and after some time somehow he managed to get up and could, with difficulties, reach the place wherefrom they had earlier proceeded towards the mob. He says that when he was made to sit forcibly by the mob, the situation was such that he could notice where his security guard was and where the other armed constables were. He also did not see his security guard subsequently on that date. His evidence Is that he met the D.C. Head Quarters, D.C. S.B.-I who were standing there at the place where he returned after sustaining injury, namely, near the junction of Paharpur Road and Fathepur Village Road and on seeing his condition the D.C. Head Quarters advised him to go to Calcutta Hospital for treatment and also ordered one sergeant to accompany him to the hospital and he then went to the Calcutta Medical Research Institute and was treated there. His evidence Is that he reached the hospital at about 12-15 p.m. and his Injury on the head was stitched and from there, Ignoring the advice of the doctor to take admission in the hospital, he went to Lalbazar and reached there at about 2-00 p.m. and met the Commissioner of Police (C.P.) and other high officials and narrated the Incident and from Lalbazar he went home as per the direction of the C.P. His further evidence Is that while at home he got a message that Police Commissioner had gone to the spot and he should go there and then he went to the spot and met the superior officers and came to know that the dismembered charred body of the body-guard of D.C. Mehta had been found in an open space and he also saw the charred body which was beyond recognition to him. He gave the name of the body-guard as Moktar All. He says that he also noticed that metallic buttons used by police constables were lying near the charred body and also found remnants of white uniform used by Calcutta Police Constables. According to his evidence D.C., Port Division V.K. Mehta was still untraced and they conducted search for him and on search the body of V.K. Mehta was recovered from a Kancha Nala and it was found that socks were on his feet and both legs were tied with a rope and he was wearing only one Jangea and the Galnjee was rolled up to his chest and the body had multiple marks of injuries In the eyes, face, chest and other parts and the body was sent to morgue for post-mortem examination. From his evidence it appears that In the T.I. parade he Identified the accused Sk. Nanney and in his evidence he says that he saw the said accused (Nanney) when they were coming out of the mosque. In a very violent and aggreslve mood with a bomb In his hand and he was shouting. His evidence is that after the bodies were sent to morgue, he went to Garden Reach Police Station and there S.I., Santf Ranjan Ganguly (P.W. 80) recorded his statement which was signed by him after going through the same. His statement which was recorded and treated as FIR was marked Ext. 4. In his cross-examination he says that he made the statement to the S.I. at about 8-05 p.m. He also clarifies that the statement fn the FIR (Ext.4) 'after seeing Commissioner of Police I came back to the spot at about 15 hours' is not correct, because he went home from Lalbazar and from home he went to the spot. This he has said In his examination-in-chief and we do not think that there is any substantial discrepancy In the matter. In his cross-examination he says that the police vehicles were parked near the crossing of Paharpur Road and Fatherpur Village Road since the vehicles could not got through Mathorpara. He also says that he was assaulted at Ramnagore Lane near a place where Mathorpara Road meets Ramnagore Lane and after the assault he went to the crossing of Fathepur Village Road via Mathorpara Lane. He says that at Lalbazar he came to know that V.K. Mehta and his body guard were still missing. He also says that dusk to dawn carfew was Imposed in that area on 18-3-84 and he was Informed at the P.S. that section 144 Cr.P.C. had been also promulgated in that area. He says that after the incident due to his Injuries he was completely on bed rest for two months. In his cross-examination in the retrial, he says that the dead body of V.K. Mehta was recovered from a Kanchha Nala and he saw It when it was taken out from that Nala. He however did not see the actual bringing out of the body from the Nala. He first saw the dead body, he says, by the side of the road where It was kept after bringing the same out from the nala. His further evidence Is that about 8 to 10 police personnel Including himself and D.C. Mehta were Inside the mosque and while some of the police personnel were not armed, some were carrying muskets and gas shells. It may be noted here that Ext.4 which Is the statement of P. W. 7, K.K. Sharma that was recorded as FIR on 18-3-84 stands In substantial conformity with the evidence of P.W.7. Sri K.K. Sharma as given in court.</p><p>8. P.W. 8, Sayed All Reza Is an armed constable of police. His evidence is that on 18-3-84 he reported to Lalbazar for duty at 6 a.m. and his duty was allotted to Watgunge P.S. and he went there with a gas gun, and that while he was In that P.S. on standby duty at about 10/10-15 a.m. the Subedar reported that a trouble was going on In Garden Reach area and they were required to go there and accordingly they left for Garden Reach and reached there at about 10-30/10-45 a.m. He says that he saw D.C. Mehta, A.C. and olher police forces and police officers present there and then D.C. Mehta proceeded Inside the bastl along with A.C.. the witness (P.W.8), guards of D.C. and A.C., 5 armed constables, 2 plain clothed constables and 3 police officers In plain cloth. He says that after entering Inside the basti they found a dead body lying there and D.C. asked two police men to guard the dead body and three police officers In civil dress were asked to bring a vehicle and pick up the body. He says that they heard noise coming from Inside the bastl and also heard sounds of bombs and then D.C. Mehta alongwith A.C. proceeded Inside towards that direction and they were with them and when they reached the road through the lane near the mosque they were attacked from both sides of the road and they took shelter in that mosque with the help of a Moulabl and members of the mob were throwing bombs, brick-bats and they had lathi, rods also with them. He says that he noticed that about 20/25 bombs were hurled towards them and when they took shelter In the mosque, a violent mob being armed with weapons were trying to break open the back side collapsible gate of the mosque and the Moulabl was also threatened by the mob with dire consequence if he did not drive out the police parly from the mosque and then on being asked by Moulabl they came out of the mosque and they were attacked with bomb and brick-bats and then the A.C. ran inside the lane through which they had reached the road and they also followed him. He says that as soon as he entered inside the lane he saw that the A.C. was being assaulted on his head With a brick and his helmet was missing. According to his evidence he tried to fire gas from his gun but the gun did not work and then using the gun as a lathi he gave a blow to a boy who was assaulting the A.C. He further says that when he hit that boy with the gun the gas shell burst out. He however says that he could not recognise the boy who assaulted the A.C. with the brick on his head as trouble was going. He further says that when the gas shell burst out, all of the persons fled away from the place and A.C. then stood up and started walking slowly with bleeding Injuries on his head. P.W.8 says that he also received a brickbat blow on his leg when he was going to enter inside the lane after coming out of the mosque. His evidence is that he followed the A.C. keeping watch on the back side and In this way they reached the place where they had come from watgunge P.S. and at that time he noticed the presence of D.C. Headquarters at that place alongwith other police officers and constables and they had a talk with the A.C. His evidence Is that he reported to one police officer that D.C. Mehta had been separated from them and on hearing this the D.C. Headquarters proceeded inside the basti alongwith them in order to ascertain the situation. He says that it was then about 1/1-30 p.m. and he took the D.C. and the others to the mosque and on his way he reported the entire incident to the D.C. Headquarters. He says that the D.C. Headquarters started asking the people of the locality regarding the whereabouts of D.C. Metha and on receiving one information they went to an open space on Ramnagore Lane and saw that a human body was burning. He further says that they noticed a piece of white uniform and a nickel button used by constables lying near that place and so he guessed that It was the body of the guard of D.C.Mehta. That place, he says, is near the mosque. His evidence is that then he and other police constables remained at that place where the dead body was burning and the other police officers went to other place and then at about 5-30/6-00 p.m. they come to know that the dead body of V.K. Mehta had been traced out. His further evidence is that he saw that a dead body was placed by the side of a drain in a lane and the dead body was covered with a white cloth and a police officer lifted that cloth and he found that it was the dead body of Mehta with marks of injuries. In his cross-examination he says that he was 3/4 cubits behind the A.C. when the A.C. was being assaulted and as he was threatening the mob with the gas gun he was not assaulted by any person of that mob. He gives the time as 2/2-30 p.m. when he noticed that the dead body was burning. P.W.9 is also an armed constable attached to the 5th Battalion. He was also sent on duty to Garden Reach area on 18-3-84 after 10-00 a.m. He says that in their party there were 4 armed constables and four had gas guns and some others had lathies and one inspector was with them. His evidence Is that on reaching Paharpur they found a gathering and also heard shouts and D.C. Port, A.C. and other police officers were present at that place. His further evidence Is that D.C. Port, asked four armed constables and four constables with gas guns to accompany him in the adjacent lane and they entered in the lane and after going some distance found a house in blaze and the D.C. placed two armed constables to guard that house and then they along with D.C. were proceeding through an adjacent baeti area and noticed a dead body and D.C. ordered two local police men to guard the dead body and they proceeded further and came to a road near a mosque and when they were on that road they were attacked from both sides with brick-bats, bombs and on being attacked they entered inside the mosque. He says that there were 60/70 persons on both sides of the road. His evidence is that then some persons were trying to break open the gate of the mosque and the Moulabl asked them to get out of the mosque and they came out of the mosque and they were attacked with bombs and brick-bats. He says that he took shelter in a chala and also threw his gas granade but the granade did not burst. He says that from the Chala he came out and started running and he met the A.C. and other police men. He says that A.C. had bleeding injury on his head and finally he boarded the lorry. in his cross-examination he says that D.C., A.C., himself and other police men were together up to the mosque of Paharpur.</p><p>9. P.W.10 is another armed police constable. He was also sent on duty to that place on that day. His evidence is that when they came to the Junction of Paharpur Road and Fathepur Village Road, D.C. Port, V.K. Mehta, his guard, A.C. Port Mr. Sharma, his guard, O.C. Garden Reach P.S. and some local police officers and constables were present there. He says that a house was burning some distance away and a vehicle of Fire Brigade was there. His evidence is that they along with D.C. and A.C. proceeded towards the northern direction and D.C. posted two armed constables near the burning house and proceeding further they found a dead body and D.C. posted the constable of local P.S. there and they proceeded further and noticed an agitated mob and also heard sounds of bombs. He says that they reached Ramnagore Lane near the mosque and up till then the D.C. did not order them to fire. He further says that the D.C. did not pass any order to fire. His evidence-is that when they reached near the mosque, bombs were thrown and they entered inside the mosque. He further says that 20/ 25 persons armed with sharp weapons such as sword, tangi like weapon, klrlch etc. tried to break open the gate of the mosque and when they then all came out of the mosque bombs, brick-bats were thrown at them. He also speaks of assault by one person on A.C. Mr. Sharma and says that his helmet had fallen on the ground and his head was bleeding. He says that at that stage he did not see the D.C. He further says that on their way back he had fired two rounds in the air in order to save themselves as bombs were being hurled from roof-top. He also speaks about the burning of a house and says that Mr. Sharma told the D.C. Headquarters that the D.C. Mehta had been separated from them and then Sharma left for hospital as he has injury on his head and they boarded the lorry. His cross-examination shows that the D.C- Port Division had a shield in his hand at certain stage. P.W. 11, Ashlm Chakraborty is also an armed constable of Calcutta police who was sent on duly there on that day. He says that he was carrying gas gun. He also speaks about the mob found on reaching Fathepur Road arid Paharpur Road crossing. He testified to the presence of D.C. Port. A.C., Port and their guards and officers of Garden Reach P.S. as well as police men of that P.S. He says that they could hear shoutings and sounds of bombs coming from northern side and the D.C. asked them to follow him and than D.C., A.C., their guards and they including the witness along with police officers of the local P.S. and constables proceeded towards north through Fathepur Village Road and through a narrow lane in the basti when they heard sounds of bombs and noise in the Bastt and also they found a deadbody near a two storyed building covered with cloth. He says that the D.C. ordered the two constables of the local P.S. who had muskets to guard the deadbody and also directed the two officers of the local P.S. to make arrangement for removal of the deadbody and then he along with D.C., A.C., their body guards, two armed constables and four gas constables including himself proceeded towards further north and reached Ramnagar Lane near a mosque. He says that many people were shouting, standing on sides of Ramnagar Lane and they were attacked with bombs and brickbats from both sides of the road and then they all entered (n the mosque. His evidence shows that a mob armed with swords, bhojalis were trying to break open the collapsible gate and the D.C. ordered them to come out of the mosque and then they all came out and they were again attacked with bombs and brickbats from both sides of the road. He says that he was hit on his leg with a brickbat. He further says that he fired one round of tear gas shell but it did not explode and then out of fear and to save himself, he took shelter in a tileshed and another constable also took shelter there. He noticed that the A.C. Port Division was going back. He also speaks about the bleeding injury on the head of the A.C. Port Division Then they reached the crossing of Paharpur and Fathepur Village Road where D.C. Headquarters was present. He says that A.C., Port Division talked to the D.C. Headquarters. P.W. 12 Naba Ranjan Dutta is an armed police constable. He says that from Lalbazar they were sent to Garden Reach area and they went there in a lorry and reached Paharpur Road at about 11/11-15 a.m. and found V.K. Mehta. D.C., Port and A.C., Port present there. His evidence also shows that when they reached the road near the mosque a mob of about 150 persons or so on both sides of the road started throwing bombs and brickbats towards them and then they entered inside the mosque and then some persons were trying to break open the collapsible gate of the mosque and were shouting for driving them out of the mosque. He further says that D.C. and A.C. had some conversation with the Moulabl of the mosque and thereafter they all came out and when they came on the road they were again attacked with brickbats and bombs from both sides on the road. He says that he was also hit on his hand and feet by brickbats. He of course cannot say as to which of his companions had gone in what direction but he noticed that the A.C. and 2/3 armed policemen were going towards the lane through which he had come earlier and he followed them. P.W. 13 Ajit Kr. Malty, a constable of Calcutta Police who was in the police party at the relevant time also speaks about that part of the incident which the other police witnesses have described as discussed above.</p><p>10. P.W. 16 Rama Shankar Singh who is a police constable was the security guard of K.K. Sharma (P.W.7), the A.C.-11 (Port) at the relevant time. He went to the spot with the A.C.-II (P.D.) on the relevant date. He says that they reached Fathepur Village Road and Paharpur crossing at about 11-00 a.m. and found the D.C.. Port. Vinod Kr. Mehta and his body guard, both in police uniform, present there as well as the O.C. Garden Reach P.S. and three police officers of South Port Police Station. He also speaks about the presence of some constables of Garden Reach P-S. and police force there. His evidence shows that the people of that locality were in very agitated mood and the D.C. was trying to pacify them and at that time they heard uproars and sounds of bombs coming from Mathorpara side and then the D.C., Port, his body guard, Mr. Sharma, he (the witness), three police officers, two constables of Garden Reach P.S. and six armed constables, [two carrying muskets, two with gas guns and two with gas granades) proceeded towards Mathorpara under the leadership of D.C., Mehta and on reaching Mathorpara they noticed one deadbody lying on the ground near the house of one idrlsh and then the D.C. told the three police officers to make arrangement for removal of the deadbody in a vehicle and the D.C. also posted two Garden Reach P.S. constables near that deadbody. His further evidence is that they then heard roars coming from Ramnagar Lane side and then D.C. Mehta, his body guard. Mr. Sharma, the witness himself and six armed constables proceeded towards that direction and as soon as they reached Ramnagar Lane from Mathorpara they were attacked from the eastern and the western sides of the Ramnogar Lane with brickbats, bombs etc and in order to save their lives they entered in a mosque situated on Ramnagar Lane and they noticed a mob standing behind the collapsible gate of the mosque and trying to break open the gate. He further says that the mob was shouting and asking the imam of the mosque ot drive them out of the mosque and then the Moulabi asked the D.C. to leave the mosque and then the D.C., Mehta had some talks with Mr. Sharma and thereafter they left the mosque. As soon as they came out of the mosque, he says, they were attacked from both sides of the road with bombs, brickbats etc. He says that he received bleeding-injury on his right leg as he was hit with a splinter of bomb and with a brickbat when he was on Ramnagar Lane. He says that he received bleeding injury on the thigh of his right leg and he fell down on the ground and got up within two minutes. His evidence is that at first he could not see any of his companions but subsequently he noticed that the D.C. Mehta and his body guard were running towards the eastern side and a (SIC)b was chasing them with swords, brickbats and bombs. it is to be noted here that from this witness, namely, the body guard of the A.C.. Sri Sharma we get that on being chased by the armed mob, the D.C., Mehta and his body guard ran towards the eastern side. His evidence is that in order to save him he himself started running towards the western side and reached Paharpur road. His evidence read with the evidence of the police witnesses discussed earlier thus indicates how D.C. Mehta and his body guard at that point of time were separated from the other members of the police party on the face of the attack made by the furious and armed mob, and at that point of time when the other members of the police party retreated towards the western side, the D.C., Mehta and his body guard were running in the other direction, namely, the eastern side on being chased by the mob and thus they became isolated from the other members of the police party. P.W.16 says that when he reached Paharpur Road on running away from the place of the trouble, he found a taxi there and he went to Garden Reach P.S. in that taxi and there he reported the incident to one A.S.I, of the P.S. and from the P.S. he went to Calcutta Police Hospital for treatment and was admitted there and he was in the hospital for 26 days. A significant part of his evidence is that he speaks about the presence of Nannay Kasal and Naso (an appellant) and Puttan in the mob having bombs with them when the police parly was attacked by the mob on Ramnagar lane as soon as they reached there from Mathorpara. He also says that he had seen Nannay Kasal to throw bombs towards them. He further says that at that time he also saw Hallm, Naru, Gorachand and llllas, all asked with brickbats and also idrish Rahaman, Kallu armed with bombs. He further says that he had also seen Kasrln in that mob. He says that he knew them previously. in court he also identifies the accused Naso and certain other accused persons. His evidence is that the mob which was throwing bombs etc towards them and the -mob that chased the D.C. and his body guard as well as the mob that was trying to break open the gate were all in angry mood. The evidence of this witness is thus significant as he testifies to the presence of the accused Naso, an appellant herein, with bomb in his hand in the furicus mob that attacked the police parly. in his cross-examination he says that the distance between the mosque and the Paharpur road along Ramnagar Lane will be five to ten minutes walk and the crossing of Ramnagar Lane and Paharpur Road will be about 5 to 10 minutes walk from the crossing of Fathepur village Road and Paharpur Road. He says that they wereinslde the mosque for about 5/ 6 minutes. He also says that both the D.C. and his body guard were in uniform. From his cross-examination we get that the distance between Ramnagar mosque and the Ramnagar oulpost will be less than a mile. He further says that on that day there was trouble in alomost all parts of that area. His evidence is that on that day there was disturbance between Hindu and Muslims. in his cross-examination during retrial he says that after coming out of the mosque he sustained injury on his right leg from a splinter and he fell down and thereafter he managed to go towards Paharpur Road and he went to the Garden Reach P.S. at about 12-45 p.m. and he narrated before the duty officer how he sustained injury and thereafter taking sick report he went to the police hospital. He further says that excepting the disturbance infront of the mosque he had no occasion to see any other disturbance on that day. He also says that when he was in the hospital for 26 days the Police Officer from Lalbazar vlslled him for interrogation. From him we get that he was posted in Garden Reach P.S. for one year from 1980 to 1981.</p><p>11. P.W. 73 Sewnath Slngh was the O.C. of Garden Reach P.S. on 18.3.84. His evidence is that on that day at about 10-15 a.m. S.I.. O.K. Sikdar of Garden Reach P.S. received a massage from Lalbazar Control Room that a disturbance of communal nature was going on in Falhepur village Road area and that information was recorded in the G.D. of the Garden Reach P.S. and thereafter he along wllh S.I., H.P. Dutla. S.I., O.K. Sikdar left the P.S. with available force. He says that he was in his Jeep and the force was in a police vehicle and they reached the concerned area at about 10-30 a.m. and noticed that two groups of agitated mob numbering about 800 or so were throwing brickbats, bombs etc at each other and then he along with his officer and staff chased the crowd and the crowd melted and entered in the lanes and by-lanes. He says that two buildings were on fire and they tried to put off the fire. His further evidence is that the D.C. Port and some other police officers also arrived there, namely, O.C. iqbalpur P.S., O.C. SPPS, S.i. A. Cope, S.i. S. Gupta, Sergeant S. Banerjee and other police men. He also speaks about the presence of the armed body guard of the D.C. He says that when the D.C. came he had his guard Muktar All with him. The D.C., he says, was in his Khaki uniform and his guard was in white uniform. His evidence is that he showed the D.C. the affected place and the D.C. also chased the crowd. He says that other houses were set on fire and they tried to extinguish the fire with the help of local people and the Fire Brigade also arrived there and at that time on receiving and information that a man had been killed on Paharpur Road, he left for Paharpur Road with one or two constables on foot and on arriving there he found that the people were very much agitated and the dead body of one Subrata Bhattacharjee, whom he knew, was lying infront of the premises No.J-146. Paharpur Road and thereafter he pacified the people and came back to Fathepur village Road to make arrangement for the removal of the deadbody. His evidence is that the T.C. Head-quarters S.K. Dasgupta arrived at Fathepur village Road and at that time A.C. (ii) Port Division K.K. Sharma came there with injury on his head and thereafter he himself along with D.C. Headquarters and force proceeded towards Ramnagar Lane through Azhar Motla Bagan as they had no trace about the D.C. Port and his guard. His evidence is that they were searching for the D.C. and his guard at Ramnagar Lane and adjacent areas and K.K. Sharma, A.C. (ii) Port Division was sent to hospital accompanied by Sergeant J.L. Roy. His further evidence is that when they were continuing the search for D.C. and his bodyguard, they found at about 2-30 p.m. a deadbody which was on fire lit by bomboo pieces and other elements in an open plot in front of Mirza Galllb School and a burnt khankl cloth piece and one metal button were found near that place. He says that the fire was extinguished and the charred body was taken charge of by them and he asked his officer to hold inquest of the charred body and the inquest was held by S.i. S. Moitra. His further evidence is that they continued their search for Mr. Mehta and at about 5-30 p.m. the deadbody of Mr. Mohta was found floating in a kancha drain behind the premises No. F-59 and F-201, Atabag. The deadbody, he says, was floating on its back with legs towards north and head towards south with only under-wear on and the body was smeared wllh mud. He clarifies that by underwear he means under-garment. He also speaks of the presence of a pair of socks on legs and a rolled vest on the body. He says that there were injuries on the deadbody of Mehta, mostly on the face and the right part of the head. The body, he says, was taken out from the drain and S.I. S. Moitra prepared the inquest report of the deadbody of V.K. Mehta in their presence and then the charred body and the body of Mr. Mehta were sent to Calcutta Police Morgue for post-mortem examination. He says that the charred body was the body of Moktar All, the security guard of D.C. His evidence is that after the deadbodles were sent to Calcutta Police Morgue, they returned to Garden Reach P.S. at about 8-05 p.m. He further says that the D.C. Port did not carry any revolver on that day. His evidence is that when the security guards go for duty they carry service revolver and ammunallon. in his cross-examination he says that the charred body had no hands and legs and the head was also missing except the occipital region of the skull. He also says that the open space where the charred body was found is situated at the junction of Ramnagar Lane and Battlkal. He says that Ramnagar Lane runs from east to west and Battlkal runs from north to south and the open space extends up to Mirza Galib School from the junction of those two roads and the school is to the north of that junction. He further says in his cross-examination that from Lalbazar Control Room a massage was received that deadbody was floating in the kancha drain. He says that as the situation was abnormal, he cannot remember everything in details and it is difficult for him to say who detected the floating body first as there were many olflcers together in search of the deadbody. He further says that S.J., S.R. Gangull (P.W.80) was the l.O. of the case at the initial stage and thereafter the case was taken over by the Detective Department, Lalbazar. He says in his cross-examination that the D.C. D.D. Mr. H.A. Safwi also came to Ramnagar area a bit late and he was all through with them and curfew was imposed in that area and some persons were apprehended in that area on 18th and 19th March and were challanged in petty cases but he cannot tell the number of the arrested persons now. He also cannot tell in details whether all the arrested persons were challaned in petty cases or some were released after interrogation. He says that curfew was imposed on 18.3.84 in that area and so far he remembers the curfew was in that area for 10/12 days. He also says that as he did not witness all the incidents so he did not start any FiR suomotu. He says that the open plot where the charred body was found was at the Junction of Ramnagar Lane ?,nd Battlkal. He also says that they had been to Ramnagar Mosque at about 12-30 p.m. on that day and at that time there was no gathering there.</p><p>12. P.W.15 Farha Juvoll is the iman of the Dhankhetibari Masjid where the policeparty took shelter on being attacked by the violent mob. This witness, it seems, was treated as hostile by the prosecution. But even then he testifies to the fact that the police party entered in the mosque and had been there for some time. P.W. 17 Abul Hassan is a resident of G-246 Ramnagar Lane. He says that the Maidan to the north of their house is known as Dhankhetl Maidan. in March, 1984, he was working in the wheat grinding shop of his cousin brother Makbul Ahmed at G-247 Ramnagar Lane. He says that on 18.3.84 as usual he went to the shop for his work at 7 a.m. and at about 9-45/10-00 a.m. while he was working in that shop he heard sounds of bombs coming from Mathorpara side and Fathepur village Road side and he found that people were running here and there and he came to know that riot had started between Hindus and Muslims and being afraid he closed the shop and went home at about 10-30/10-40 a.m. He says that he again heard sounds of bombs coming from Ramnagar Lane Dhankheti mosque side and he also heard uproars and he felt that the uproars and sounds of bombs were moving towards their house and he then opened his window partially and noticed that two policemen were running speedily towards Battlkal side, one policeman being in khaki uniform and the other in white uniform. He noticed one wire-net shield in the hand of that policeman who was in khaki uniform, and that brickbats were being thrown at him and he was blocking the blows with his shield. He further noticed that 20/25 persons were chasing the policeman and were hurling brickbats at him. He says that he could recognise some of thepersons in that mob who were throwing brickbats and chasing those policemen and he names Rahamat, Nanney. Corachand, Halim and Matin as the persons whom he could recognise. He says that the mob chased those policemen towards Batlikal side and he become afraid and closed the window. His evidence thus lends support to the prosecution case as well as the other evidence adduced by the prosecution in that behalf that the D.C. V.K. Mehta and his body guard Moktar All were being chased by a violent mob. He further says that at about 12-30 p.m. he heard sounds and uproars coming from Batukal side and subsequently it appeared to him that the roars were coming from Dhankheti Maidan and he again opened his window partly and noticed that a policeman in white uniform was lying on the ground and about 15/20 persons were there around that body. He further noticed that four persons were chopping the hands and legs of that policeman with chopper like weapons and he could recognise Rahamat and Matin who along with two others were chopping the hands and legs of that policeman. He also could recognise Gorachand and Hallm amongst the persons who were standing near the body of the constable. He noticed that some persons were placing bamboo pieces near that body, and he says that being afraid he closed the window. His further evidence Is that at aboul 7/8 p.m. In that night he came to know that D.C. Port had been murdered and his body guard was also murdered and his body was burnt down. He restifies that by the dress of that body he could recognise that he was a police sepoy. His evidence thus lends support to the prosecution case that the body of Moktar Ali, the body guard of D.C. Mehta was dismembered by cutting its limbs and was burnt by fire by the miscreants, and he also could identify some of the miscreants named by him. In his cross-examination he says that curfew was imposed in that area in the afternoon of 18.3.84. He further saus that his father was arrested by police at about 4/4-30 p.m. on 19.3.84 from the crossing of Barttikal and Ramnagar Lane and his father returned in that night at about 7-30/8-00 p.m. He says that In their locality the number of muslims is more than that of the Hindus. He denies the defence suggestion that his father was released by the police on the understanding that he would give evidence on behalf of the prosecution as tutored by the police. P.W. 18. Makbul Ahmed is a resident of premises No. 247 Ramnagar Lane. He testifies to the fact that on 18th March, there was huge mob and people were running here and there at about 10/10-10a.m. He was however treated as hostile by the prosecution. He says that on that day he. Mansoor, TaJ All and 30 others were arrested by police and taken to Garden Reach P.S. and they were released at about 11-00 p.m. P.W.19, Khalil Khan was resident of G-230, Batlikal at the relevant time as a tenant. He Is a police constable who was posted at Lalbazar Headquarters, R.C. Office In March, 1984. From his evidence we get that P.W.21 Abdul Latif Khan is his cousin brother and P.W.24 Hadis Khan Is the son of the said Abdul Latif Khan and that In March, 1984 Hadis was residing at G-222 Batlikal. It may be mentioned here that Abdul Latlf Khan is also a police constable. P.W.19, Khalil Khan says that in March. 1984 Hadis Khan had no employment and he used to keep 2/3 cows and sell milk. He says that the uniform of Calcutta Police constable is white shirt and white pant and also they used buttons on their shirt which were made of brass. He also testifies that the emblom 'C.P.' is also made of brass. He knows Moktar All. He says that 18.3.84 was a holiday and he was In his house and at about 10/10-30 a.m. he heard a huge row coming from Fathepur village Road side and he also heard a row coming from Battikal side and he came out of his house and stood on the road very close to his house and while he was standing near the corner of the house of Kayum which is 228/2 Battikal, he saw that D.C. Mehta and his body guard constable Moktar All were being chased by a mob from the southern side to the northern side and they were throwing brickbats at those two police persons and were shouting 'maro, maro police lokko maro'. He says that the mob and those two police persons were 30/40 yards away from the place where he was standing, He testifies to the fact that the D.C. was in a khaki uniform and Moktar was in white uniform. He says that the house of Nalmmullah Is opposite to his house at a distance of 30/35 yards, the number of that house being G-228/3 Battikal. He saw that the security guard Moktar All entered in the house of Nalmmullah and 30/40 persons were chasing Moktar Ali. He says that he Intervened and stated to them not to assault the police otherwise they would feel the consequence. He says that in the mob some were carrying choppers and some were carrying swords. He also says that he was dashed down by the mob on the ground. He could recognise Gorachand. Sagir, Rahamat, Halim, Wahob and Kallu amongst the persons who were chasing the police constable Moktar Ali. He says that he was dashed down by Rahamat, and Kallu was with Rahamat at that time and that being afraid he then went Inside his house. His further evidence is that 20/25 minutes thereafter his brother's son Hadls (P.W.24) came to his house and reported that Naso and his associates had assaulted the D.C. very serious by in the house of Hadls, and that Hadis also stated that a sepoy was also being assaulted by Rahamat and Kallu on the road. Hadls, he says, was very much purturbed and he was trembling and Hadls told that he was leaving for his father-in-law's house. P.W. 19 Khalil says that he also became afraid apprehending attack on him and the members of his family as he was a police constable and so he along with his family members went to Ramnagar Police Camp. In his cross-examination he says that on that day at about 8-30/9-00 p.m. he went to Garden Reach P.S. after leaving the members of his family at Ramnagar Police Camp and made a statement to the police officer about the Incident seen by him. He says that he made the statement to the duty officer who recorded it in english. He says that his two brothers are also working as Calcutta Police constables and his cousin brother Latif (P.W.21) is also a constable of Calcutta Police. He further says that on that day latif Khan had duty. He says that his office was closed on that day being a Sunday and that the R.O. office remains closed on Sunday and other holidays. He says that he reached Ramnagar Police Camp with his family members at about 2/2-30 p.m. after locking his house. His evidence in cross-examination is that as soon as he came out of his house hearing the row he noticed that D.C. and Moktar crossed him from southern side to northern side speedily. He denies the defence suggestion that his brother's son Aktar was arrested by police and was made an accused but subsequently he was let off and in his place another Aktar was made accused. He however does not remember whether Hadls was arrested by the police. He also denies the defence suggestion that as he is a police constable so he is deposing falsely on being pressurised by hissuperior officers. He says that from Garden Reach P.S. he returned to Ramnagar Camp and stayed there with hts family for the night and in the next morning he returned home at about 8-00 a.m. Hadls, he says, came to his house at about 12/12-30 p.m., and reported to him what he had seen. He denies the defence suggestion that his relations were taken in custody by the police and when he and Latif asked the police officers to release them, they told that they would be released provided they would give evidence. in his cross-examination at the retrial he says that his statement was recorded by the police at the P.S. at about 8/8-30 p.m. on the date of the Incident.</p><p>13. P.W.20 Akil Ahmed is a resident of G-223 Battlkal. He, it seems, was however treated as a hostile witness by the prosecution. From his examination-in-chief we however get that Latif Khan (P.W.21) and P.W.24 Hadls Khan (son of P.W.21) reside in the tileshed house which is adjacent to the house of this witness (P.W.20). We get it from P.W.21 and P.W.24 that the premises in which they reside is G-222 Battikal Second Lane. It is also to be mentioned here that according to the prosecution the incident of assault on D.C. Mehta took place in the said premises No. G-222. Battlkal Second Lane. P.W.20, Akil Ahmed says in his cross-examination that Hadis Khan (P.W.24) used to keep cows and sell milk and he used to keep cows in the courtyard. The prosecution expected this witness to give positive evidence about attack on two police persons but he belled that expectlon. From his examination-in-chief it however appears that their house is a two storied building and one can see the rooms of the tileshed (where Latif Khan and his son Hadls used to reside) from his house (the house of P.W.20) on leaning. However, what the prosecution inter alia suggested to this witness is that he stated to the I.O. during investigation that he found that some minor boys were pouring water In the room where D.C. entered and also on the courtyard, which however he disowns to have made. By this suggestion the prosecution possibly wanted to project a case that blood which had fallen there as a result of assault on D.C. Mehta was washed away with water. P.W.20 wants to say that on the date of the indicent he was not in his house and therefore he did not see anything. In his cross-examination on behalf of the defence he says that he returned home on 19.3.84 and on that day police had arrested Abut Hossain, Sallm and many others. He however, did not see Hadls Khan on 19.3.84. The evidence of this hostile witness thus shows that on 19.3.84 many pesons were arrested or picked up by the police. We will find from the evidence of P.W.24. Hadls Khan that he was also picked up by the police on 19.3.84 which we will discuss later. P.W.20 says in cross-examination that on 19.3.84 he stayed in the house for 2/3 hours and thereafter fled away from that area and went to his sister's house and stayed there for some days. The evidence of this hostile witness P.W.20, we find, lends support to the prosecution case that Latlf and his son Hadls were his neighbours at the relevant time and Hadls used to maintain cows and sell milk and that on 19.3.84 police arrested many persons of that locality.</p><p>14. P.W.21 Abdul Latlf Khan was residing with his family at G-222 Baltikal Second Lane as a tenant at the relevant time and Hadis Khan (P.W.24) is his son. He says that In March, 1984 Hadls used to keep cows and sell milk and that he used to keep his cows in the said premises. Hisevidence is that on 18.3.84 which was the 'holiday' he had stand-by duty to be performed from 12 noon to 8-00 p.m. at P.T.S. Barrack and that at about 12 noon he got the information that a riot had started between the Hindus and Muslims in their area and he then started for his house from P.T.S. Barrack In order to see the members of his family. He says that at about 12-30/12-45 p.m. he reached Battlkal Second Lane and when he advanced ten steps or so he found that 6/7 persons were standing ahead of him and amongst them he could recognise Naso (an appellant), Puttan. Samsad and Abbas who were all armed. He says that some of them had swords, some had choppers, some had Napalas etc and they were standing by the side of kancha drain in Battikal Second Lane. According to his evidence the house of Dr. Hikmat All Mondal was situated near that place and he also noticed that one deadbody was lying by the side of that kancha drain but not inside the drain. He says that he knew those persons named by him as they were his neighbours. He also idenlified the accused Naso in court. He says that those persons were standing very close to that deadbody and that Naso was standing two cubits away from that deadbody which was at a distance of about 30/35 yeards from the place where he (the witness) was standing. He says that so far as he could see, blood was coming from head and the deadbody was smeared with blood. According to his evidence he stopped there and thought that it would not be proper for him to advance further and he became alarmed and then returning back he entered In the premises No. G-350 where his father was residing with his step-mother and he learnt from his father that there was trouble in Battlkal area and his wife and other members of the family had left that area and that he then went to his brother's house at Alif Nagar and came to know that his wife and sons and daughters had not come there and he then went to Kazlpara in the house of the father-in-law of his son. Md. Hadis and there he met Hadls and the other members of the family. Then he says that his son Hadls reported to him that a mob had chased D.C. Port and the D.C., Port took shelter Inside their house and then Naso, Puttan Samsad and some other persons started assaulting D.C. and that Hadis also reported to him that he had seen some miscreants assaulting one constable in front of the house of Naimullah. He testifies to the fact that at that time Mr. Mehta was the D.C., Port. His evidence is that thereafter from Kazipara he went to Garden Reach P.S. at about 8-00 p.m. and at that time there were many police officers who were very busy and at about 9-30 p.m. he could state to a police officer about the Incident seen by him and also heard by him from his son, and his statement was recorded. He also says that he found his brother Md. Khalil (P.W. 19) in the P.S. and his statement was also recorded by the police officer. He further says that at the P.S. he learnt that the deadbody of D.C. was recovered from the place where he had seen the deadbody of a person as stated by him and lhat the deadbody of police constable Moktar was recovered from Dhankheti Maidan. He says that he is residing at G-222 Battikal Second Lane for the last 25/28 years. In his cross-examination he also gives the names of certain other tenents who were living at G-222 Ballikal Second Lane with family. He says that the accused Naso at that time used to reside occasionally in the house of one Nazi Saheb in Battikal Second Lane and occasionally in the house near Match factory by the river side. In his cross-examination he says that he had seen 6/7persons including the persons named by him by the side of the Kancha drain and he became afraid when he saw those persons and he stood there for one minute when he saw those persons but none of them approached him. He specifically says that he became panicky as soon as he noticed the deadbody and those persons and he stood ther for one minute. Dr. Molla. he says, is known as Dr. Hlkmat All Mondal. He says that he was very much unnerved on seeing the deadbody all on a sudden. In his cross-examination he says that he reached Garden Reach P.S. at 8-00 p.m. and after his statement and the statement of his cousing brother Md. Khalil (P.W.19) were recorded, they left Garden Reach P.S. at 10-00 p.m. and he went to P.T.S. and his brother went to Ramnagar Camp. Khalll, he says, is also a Police constable of Calcutta Police. He says that when he reached Garden Reach P.S. he found many senior police officers Including Commissioner of Police and Jt. Commissioner of Police etc. present there. He says they he stated that he had seen something and heard something but no police officer was listening to him and so he could not report as soon as he reached the P.S. and finally he could make statement to the police officer at 9-30 p.m. and it was recorded In English and read over and explained to him. Much has been criticised by the learned Advocate for the appellants that according to this witness he reached Garden Reach P.S. at about 8-00 p.m. but his statement was not recorded by the police till 19-30 p.m. although this witness claims to have seen and heard about some very important facts specifically Involving some accused persons and this, according to the learned Advocate for the appellants, shows that the evidence of this police constables P.W.21 and of other concerned witnesses is the product of concoction and subsequent manupulatlon at the Instance of police. On the other hand, it is submitted by the learned Special Public Prosecutor representing the State that after such a shocking and gruesome Incident resulting In the death of a very senior police officer like Dy. Commissioner and also his constable guard, it was only natural that there would be many top police officers at the concerned P.S., namely. Garden Reach P.S. to take stock of the situation and also to take necessary follow up measures demanded by the situation and in such a state of affairs, it is quite possible that a police person of the rank of a constable like P.W.21 or P.W. 19 could not succeed readily in contacting the proper officer who would Immediately attend to his statements. Having regard to the facts and circumstances we also do not think that In a situation like this there was really any Improbability that the statement of these witnesses were recorded at about 9-30 P.M. at the P.S. although they went there at about 8-00 p.m. In his cross-examination during retrial, he says that uptil now he cannot say, whose deadbody It was, which he saw on that date. We may note here that if the evidence of this witness was really a product of concoction he would have possibly satd that the deadbody which he saw was recognised by him as the deadbody of D.C. Mehta. But he did not say so. He indeed knew D.C. Mehta, as he says but it is nothing unnatural that at that point of time when he suddenly saw the deadbody from a distance of 30/35 yards in the presence of some armed persons and the deadbody was smeared with blood, he did not naturally bother to engage himself In minute observation for detecting the identity of the deadbody, and Instead he left the place being naturally panicky but he was, as we have seen, very specific about the presence of certain armed miscreants named by him Including the appellant Naso.</p><p>15. We now proceed to discuss the evidence of the next vital witness P.W.24, Hadis Khan, the son of P.W.21 Abdul Latif. He says that they reside at G-222 Battikal Second Lane as tenant and in March, 1984 he used to sell cow milk and had four cows and he used to keep two cows in their house and two in another place. He says that he himself and Mustafa, his helper (P.W.26) used to look after the Cows. His evidence is that on 18.3.84, sometime In the morning he came to know that a not between the Hindus and Muslims had started and that at about 11-30/11-40 a.m. again he heard sounds of bombs coming from Ramnagar Lane side when he was in his courtyard and his mother and Mustafa were in the house, but his father had gone for his duty. He next says that at about 12 noon he heard a huge row coming from Southern side when he was in his courtyard and on hearing the same he came out along with Mustafa from his house and stood on the road and notice that many persons were chasing two policemen towards South and one policeman was In a white uniform and the other was in Khaki uniform and the policeman in while uniform entered in the house of Naimullah and some persons also entered that house and those persons were hurling brickbats. His evidence is that the house of Naimullah was at a distance of 50/60 yards from the place where he was standing. He however could not recognise any of the persons who were hurling brickbats and chasing that policeman in white uniform and entered in the house of Naimullah. But his specific evidence is that the other policeman in khaki dress was being chased by the mob and when that policeman came near him he entered in the courtyard of his house and that policeman too entered in that courtyard and the policeman told him that he was D.C. Port and then on his pointing out the D.C. entered into the bathroom (Gasalkhana). The Gasolkhana, he says, was 9/10 cubits away from the place where he was standing and that simultaneously Idris and some other persons armed with brickbats etc. entered Into the courtyard and they were throwing brickbats aiming at the bathroom and simultaneously Naso (an appellant). Puttan, Samsad, Abbas, Mukim entered in the courtyard. He says that Naso had a rod in his hand and others had swords, nepala etc in their hands. He says that he knew those persons from before. The D.C., he says, became frightened on seeing those persons and requested them not to assault him after disclosing his identity as the D.C. of Police but some of those persons replied that they did not know D.C. and then ordered 'maro' and then Naso, Puttan, Samsad, Ahmed, Mukim and some others entered instde the bathroom and then Naso gave a rod-blow on the helmet of D.C. and there was dashing and pushing and the helmet fell down and Naso again assaulted D.C. with the rod on his head. P.W.24, Hadis says that then he came out from the courtyard and went out of the house and some people were throwing brickbats on the tiles of their roof but he cannot tell their names. He says that he then proceeded towards his uncle Khalll Khan's house but on his way when he came near the house of Naimullah he noticed that a pojiceman In white uniform was being assaulted on the road by Gorachand and some other persons and then he entered Inside the house of his uncle and reported the entire Incident to his uncle (meaning P.W.19) and he also reported that he was not going to stay and was going to his father-in-law's place and then he went to his father-in-law's place at Kazlpara at Howrah along with his mother. He says that after sometime hisfather Abdul Latif (P.W.21) came to his father-in-law's place and he reported the entire Incident to his father. He says that his father said that he would be staying in the P.T.S. barrack. He says that he used to keep two cows out of four cows near the power house gate commonly known as 28 number. In his cross-examination he says that he left for his father-in-law's place from his house at 12-30/1-00 p.m. and reached his father-in-law's house at about 2-00/2-30 p.m. His evidence Is that his wife and children had gone to his father-in-law's house on 15.3.84. He says that he and his mother returned home on 19.3.84 at about 6-30/7-00 a.m. from his father-in-law's place and he noticed that many police persons were roaming In their locality. He says that he was examined by the I.O. on 20.3.84 In their house. He further says that on 19.3.94 at about 12-00 noon police arrested him and placed in the van and the van patrolled in their locality and then at about 6-30/7-00 p.m. he was taken to Garden Reach P.S. and many people of their locality were also brought to Garden Reach P.S. on that day. He further says that he was released by the police in that night at about 9/10 p.m. and they were kept in the lock-up of Garden Reach P.S. from 7-00 p.m. till they were released. Much has been criticised by the learned Advocate for the appellants that when the police from the statements of P.W. 19 & P.W.21 could come to know In the very evening of the 18th March that Hadis had seen a vital part of the occurrence and also had named some of the culprits to them, there was no reason why his statement should have been recorded as late as on 20.3.84 in his house inspite of the fact that he was in the custody of police in police van and P.S. Hazat for quite a long time upto about 9-00/10-00 p.m. on the 19th March. This, according to the learned Advocate for the appellants, Indicates thai the prosecution case that Hadls saw a vital part of the incident is a concocted story. We are however not convinced by this submission. The enormity of the Incident, the involvement of a large number of persons and the complexities Inherently Involved In an Investigation of a case of this nature as well as the change of investigating officer on 19th March are indeed some of the factors which have to be taken Into consideration in this context. And that being so, we do not think that there really exists any reason to doubt the veracity of the evidence of this witness Hadls (PW.24). P.W.24, Hadls says in his cross-examination that the bathroom is used by the female inmates of the house and that the size of the bathroom would be about 8 cubits X 8 cubits. He says that the latrine is not inside that bathroom. He further says that the D.C. was Inside the bathroom when he came out from their house. Hefurther says that he came out from their house 6/7 minutes after the D.C. had entered In their courtyard. He also says that when he came out of his house the D.C. was being assaulted and he noticed about 50/60 persons on the road in front of their house. He however does not remember whether he had seen blood coming out from the head of D.C. when he was assaulted on the head by the iron road. His evidence is however clear that the D.C. was assaulted on his head by Iron rod. He denies the defence suggestion that Naso did not give blow with iron rod on the head of D.C. He makes it specific that the bathroom is used for washing hand and feet by the femalefolk of the premises before 'oozu' He says lhat there are no door and walls of that bathroom. Much has been commented upon by the learned Advocate for the appellants as to whether a bathroomof that size could have accommodated so many assailants who are said to have assaulted the D.C. at the relevant time. In this connection we may mention that P. W.2, Ashoke Kr. Bhattacharjee, S.I. of police and official plan maker has given the area of the Gosulkhana (bathroom) as 5m.x4m. Since the Gosulkhana has no walls as we find it from P.W. 24 Hadis, we do not think that there is any improbability in sustaining of assaults by D.C. there from the assallents who chased and cornered him there. He (P.W.24) denies the defence suggestion that he has been tutored by police to give false evidence because his father and uncle are working as police constables. In his further cross-examination during retrial in February, 1932 he however says that his statement was recorded by the police while he was in police lock-up. This, it is submitted on behalf of the appellants, is not insistent with the prosecution case inasmuch as it is the prosecution case that his statement was recorded on 20.3.84 as earlier stated by the witness. He also says in his such further cross-examination that his father went to the P.S. for his release and he talked to his father before release from the P.S. lockup. But he says that at that time his statement was not recorded by the police. This, therefore, lends support to the fact that his slatement was recorded not on 19th but on 20th. He says that his statement was recorded, as he remembers, after his. talk with his father. In his such further cross-examination at the retrial he says that he returned from Kazlpara to his Garden Reach residence three days after the Incident. It should be remembered that he was facing further cross-examination at the retrial In February, 1992. about eight years after the Incident and therefore some minor inconsistencies and confusion in the deposition at such distance of time cannot be ruled out. Whatever may be the confused statement of P.W.24 Hadls eight years after the incident at the time of further cross-examination at the retrial, it may be noted here that even the hostile witness P.W.22 Brion Merces who is the brother-in-law of the appellant Naso testifies to the fact that police arrested him on 19.3.84 and Hadls, Mustafa, and Alamgir also were arrested by the police. Such statement of this hostile witness therefore lends support to the prosecution case that Hadis was arrested from his house on 19th March, at noon after he returned from Kazlpara on that day in the morning, and this fact does not get obliterated by any statement of Hadis which he might have made In a confused state of memory in course of his further cross-examination eight years after the Incident.</p><p>16. P.W.22 Brlon Merces is a resident of C-85, Battlkal. Their balcony faces Battlkal Second Lane. From him we get that the appellant Naso Is his sister's husband. He was however treated as a hostile witness by the prosecution. He says in his examinatlon-in-chief that on 18th March. 1984, which was a Sunday, at about 10-00 a.m. he heard from the people that a not between Hindus and Muslims had started and at about 12 noon they heard great row and then he and his parents came to their balcony. He says that the Hindus and the Muslims were fighting and quarrelling and the Muslims started running shouting, that the Hindus had come to their locality, and that being frightened they (witness and his parents) all came Inside their room and closed the door. His evidence shows that some children and women had taken shelter Inside their house and they were saying that policemen had died. He saw nothing else. As we have alreadynoted, in his cross-examination he says that he was arrested by police on 19.3.84 and Hadis, Mustafa and Alamgir were also arrested by police. P.W.23 Narman Merces is the father of P.W.22 Brion Merces. He was also treated as a hostile witness by the prosecution. In his examination-in-chtef he says that on 18th March, 1984-which was a holiday, at about 10-00 a.m. they heard from the people of their locality that a trouble had broken out at Fathepur and they also heard some sounds of bombs and learnt that a riot had started between Hindus and Muslims. He says that then at about 12 noon he, his wife and his son came out of the room and stood on the balcony and noticed a huge mob on Battlkal Second Lane which was at a distance of 60 to 80 ft. from the balcony. He also speaks about throwing of breakbats. He says that he then came Inside the room and locked the door from Inside and after half an hour the area became very quiet. The accused Naso, he says is his son-in-law. P.W.25 Sakll Ahmed is the brother of P.W.20 Akil Ahmed and a resident of G-223 Batllkal Second Lane. He was however treated as a hostile witness by the prosecution. In his cross-examination on behalf of the defence he says that G-222 Battlkal Is to the north of his house where Latif constable (P.W.21) resides and he knows Hadls, the son of Latif constable. He says that he occasionally goes to G-222 Battlkal to Hadls for bringing cow milk. In his further cross-examination at the time of retrial he says that Aki-ka-Kurbani can be performed on any day of the year and after performance of this Kurbani a marking by palm with the blood of the sacrifice is given on the outer wall of the residence or on the outer door and some times this marking is also given in interior wall or door. This has been possibly taken in cross-examination to explain away blood marks. P.W.S 27, 28, 29, 34, 35, 36, 37 & 48 were all treated as hostile witnesses by the prosecution.</p><p>17. P.W.14 Mansoor Ali is a resident of C-247 Ramnagar Lane and he is the owner of the ration shop situated on the ground floor of the same premises. His evidence is that on 18.3.84 at about 10-00/10-30 a.m. while he was in his house he heard sounds of bombs and he opened the windows and noticed that people were running hither and thither. These people, he says, were 200 yards away from his building, and he gives the number of the people as 150 or so. He says that he came down the stairs and closed the ration shop and again went up along with his brother. He says that he noticed that 3/4 police constable came out of the mosque and that many people went to the western side of the mosque and some people went to the eastern side and those people were running probably out of fear as police had come. He also speaks about throwing of brickbats upon the police party. He says that the police were in the middle part and on both sides there were mobs. He also heard sounds of firing and he closed the window and went inside the room. His evidence shows that after some time he heard row near his house and also sounds coming from the northern side of the mosque. They went to the roof of their house and noticed that a constable in white uniform was lying with his face and chest on the ground and many people were standing surrounding the constable and amongst those persons he could recognise Rahamat, Gorachand, Idris, Haltm, Nanney Kosal, Wahab, Saglr and Matil. He says that It appeared to him that the constable who was lying on the ground was dead. He further says that thereafter the mob burnt the deadbody of the constable with split bamboos. He also namesRahamat, Gorachand, Idris, Wahab, Halim and Nanney Kosai as some of the persons who were burning the deadbody of the constable. He says that after burning the deadbody of the constable all the miscreants fled away from the place and police came at about 3-00 p.m. He also says that the police had seized one button with ring, piece of burnt cloth, etc under a seizure list which was signed by him (Ext. 5/1). He says that the mob was armed with brickbats when they were throwing brickbats at the police party. He further says that he was in his house when police came at 3-00 p.m. and called him. He also says that the body of the constable which was lying on the open space was at a distance of forty yards from his residence. He further says that he noticed that Rahamat. Matil and 2/3 others whom he could not recognise were cutting the hands and legs of that constable with choppers. In his cross-examination he says that as the incident occurred long ago, he does not remember everything vividly but he remembers that Idris and Nanney Kosai were hurling bombs at the police.</p><p>18. P.W.49 Haridas Mollra is the Senior Scientific Officer-curn-Asslt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He says that on 22.3.84 as per the direction of D.C.. D.D., Calcutta, he visited Ramnagar area with his colleague P.K. Sengupta. Sr. Scientific Officer. He says that he visited the place which is an open field near a school building and he collected from the debris some partly burnt pieces of cloths, some metallic buttons with rings and one ring. He says that he asked the Investigating officer who was with them to collect those articles, and those articles were seized by the I.O. and a seizure list was prepared In his presence and he signed the seizure list. He Identifies his signature, Ext. 12/1. It has been criticised on behalf of the appellants that those articles were seized only on 22.3.84 when the Scientific Officer of the Forensic Science Laboratory went there with the I.O., but the police could not seize those articles earlier although the police had been to all those places in the meantime after the date of occurrence. In our opinion, this Is inconsequential in view of the totality of the facts, circumstances and evidence on record. P.W.78, Prasanta Kr. Sengupta is the other Senior Scientific Offlcer-cum-Asstt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He examined in his laboratory certain articles which were sent to him for examination and he submitted his report which is Ext. 29. In his cross-examination at the retrial he says that he accompanied the expert. P.W.49 Haridas Moitra to Garden Reach, that Is, the place of occurrence In connection with this case and from that area they came back together. P.W.69 Pradip Shankar Chakraborly was an S.I. of police in March, 1984. attached to Homicides Squad. Detective Department. Lalbazar. He says that on 22.3.84 as per the direction of S.I. S.K. Bhattacharjee. the I.O., he accompanied him to Forensic Science Laboratory to bring the experts and they reached the laboratory at about 10-30 a.m. He says that after giving some directions the I.O. left and he (the witness) brought Sri H. Moitra (P.W.49). Expert to Garden Reach area and showed him the place where constable Moktar All was burnt and the murders of V.K. Mehta and his body guard were committed. He says that the expert examined the premises No. G-222 Battikal including the Gusalkhana and from there they went to the open place known as Dhanketl Maldan. The learned Advocate for theappellants submits that the expert (P.W.49) does not say that he went to the premises No. G. 222 Battikal and Gusalkhana there which this witness (P.W.69) wants to say. In our opinion, this is inconsequential because it is not necessary that every witness must state everything in details. P.W.69 says that the expert could trace out one metalic ring, some burnt clothes with two metallic buttons with rings attached to burnt clothes from Dhankheti Maidan. He (witness) seized those articles. He says that on 22.3.84 at 14-10 hours as per order of O.C., Homicide squad, he accompanied S.I., S. Bhattacharjee along with O.C., Homicide squad and other officers and men and accused Sk. Nanney in custody with two Doms, Narayan (P.W.41) and Bindeswari (P.W.40) and arrived at Garden Reach and on being led by the accused Nanney they went near a Kancha drain which was flowing in between premises No. G-13 Batttkal and F-55 Atabag Basti and also near premises No. G-222 Battikal. He says that the accused Nanney showed the spot inside the kancha drain having muddy water and stated that he and others dropped Incriminating articles there, about which he had made statement to the S.I. S. Bhattacharjee at that spot. He further says that being instructed by S.I. S. Bhattacharjee and O.C. Homicide Squad the accused got down inside the waist deep kancha nala and those two Doms also entered in the drain to assit the accused, If necessary, his evidence is that the accused (Nanney) then himself brought out from the said nala the following articles namely (1) one Dhal (shield) used by police, (2) one helmet, the front portion of which was partially dented and broken, with some hairs sticking inside the helmet. (3) one brown coloured leather belt having a nickel metal plate fitted with Inscription I.P.S. on it. (4) one black leather belt fitted with metallic emblam 'Calcutta Police', (5) one big sword about 30' in length, (6) piece of cloth partly torn and fitted with button, (7) one small sword about 20' length and (8) one brown coloured chappal of the right foot. P.W.69 further says that he seized those articles in presence of witnesses. He identifies Exl. 8 as that selzer list. He further says that thereafter he along with S.I. D.K. Dasgupta, as per instruction of I.O. and O.C. Homicide Squad, went to G-77 Batlikal which was a club room of Battikal Young Boys Committee and on search In presence of the witnesses certain articles were recovered and seized from that club room, namely, one pointed Iron red measuring about 29' In length including wooden handle, one bhojall, one book ofletter head pad and seized all those articles under the seizure list Ext. 17. He also says that he made certain other seizures from the road between premises Nos. G-227 & G-222, such as, Khaki coloured buttons and partly burnt pieces of cloths. Ext. 18 is the relevant seizure list. He also says that on that day between 5-30 and 5-40 p.m. he seized one wooden piri measuring about 15' X 8' having stains of blood from Inside the premises No. G-222 Battikal. The pirl, he says, was lying near the entrance door of the room situated at the north-east corner of that premises. Ext. 19 is the concerned seizure list. In his further cross-examination at the retrial he says that they arrived at premises No. G-222 Battikal at 15 hours on 22.3.84 and they stayed there for about 15 minutes and it was his first visit. He further says that F.S. Expert was with them up to 4-35 p.m. on that day. He says that the expert was with him while he was Inside premises No. G-222. It will thus appear lhat the expert was not with this police officer when he seized the wooden piri at G-222 Battikabetween 5-30--5-40 p.m. It may be noted here that the evidence of the P.W.s 40 & 41, the Doms, also corborate the evidence of P.W.69. P.S. Chakraborty, S.I. of police regarding the recovery of Incriminating articles from the drain by the concerned accused.</p><p>19. P.W.64 Haripada Dutta is S.I. of police who was attached to Garden Reach P.S. in March, 1984. His evidence is that on 19.3.84 as per direction of the O.C.. Garden Reach P.S. he had been to premises No. G-229A Batllkal and took scrapplngs of dried up blood with few hairs from the door leaf of that premises, etc between 3-35 p.m. and 3-55 p.m. In presence of witnesses and prepared the seizure list, Ext. 10. in his cross-examination he says that FIR of Garden Reach Case No. 45. dated 18.3.84 Ext. A was written and signed by him. That FIR relates to the Incident that occurred in Fatepur Village Road and Mathorpara and Balsnabpara. He says that he took up the investigation initially of that case. That was a different case. The present appeal relates to the P.S. Case No. 46 dated 18.3.84. P.W.68 Sibaprasanna Dutta was posted as S.I. of police in Port Division in March, 1984. He had arrested Sanda Akatar @ Aktar Alam who was an accused in the Garden Reach P.S. Case No. 46 dated 18.3.84. He says that he arrested him on 20.7.84 at about 7-30 p.m. at the fly-over of Sealdah. P.W.70 Sudhlsh Ranjan Nag is S.I. of police who was attached to docolly and robbery squad D.D., Lalbazar. He says that on 19.3.84 the D.C., D.D. told him and S.I. U.S. Lahiri that the murder case of Mehta had been taken up by the Homicide Squad and S.I. S.K. Bhattacharjee was the I.O. of that case. and directed them to asslt him in apprehending the accused of that case and that the D.C. further told that he had Information that some of the accused persons namely, Sk. Nanney, Gorachand, Md. Halim, Sk. Nuru and Wahabuddln might be available at Surinam Jetty and asked them to keep watch over that place and to arrest the said accused persons. If possible. His evidence is that at about 6-20 p.m. they arrested those accused persons and took them to Garden Reach P.S. where D.C./D.D. and other officers were present and they placed the accused persons before them and I.O. took charge of those accused persons. He says that on being directed by D.C. D.D. to search for the other accused persons at Batllkal, Chlrlamore, Ramnagar and Mathorpara Complex, he. U.S. Lahiri and force had been to those places in search of the miscreants but none could be arrested and they returned to Lalbazar at about 10-10 p.m. and made over the supplementary caase diary to the i.O. S.K. Bhattacharjee, He further says that they had also arrested Md. Idris and Sakil Ahmed. In his cross-examination, he says that Idris was arrested from Gaya on 27.3.84. P.W.71 Samir Kr. Moltra was attached to Garden Reach P.S. as S.I. of police In March. 1984. He accompanied the Commissioner of Police in Ramnagar area on 18.3.84 In connection with the murder of D.C. Mehta and his body guard. Between 4-00 p.m. and 5-00 p.m. on that day he seized certain articles such as pieces of partly burnt bamboos, pieces of charred bone-like substance, pieces of charred cloth, burnt metallic button fitted with ring, belt, two swords etc from an open field in front of premises No. G.-100/1, Ramnagar Lane, also know as Dhanketl. The seizure list prepared by him is Ext. 5. He had also held the inquest of the deadbodles of V.K. Mehta and the body guard Moktar Ali and prepared inquest reports. In the inquest report relating to the dead-body of B.K. Mehta it is noted that the deadbody of Mehta was lying in front of premises No. G-221, Dhanketl. The witness however saysthat it was premises No G-221, Battikal and it was wrongly mentioned as G-221, Dhanketi in the inquest report. In his cross-examination he says that he had detected this mistake in court at the time of giving evidence. It seems to be a case of bona fide accidental mistake.</p><p>20. P.W.80 Santi Ranjan Ganguli was attached to Garden Reach P.S. on 18.3.84 as S.I. of police. The FIR of this case was drawn up by him. His evidence Is that the fromal FIR was drawn up at 8-05 p.m. at Garden Reach P.S. on the basis of Statement of K.K. Sharma, Asstt. Commissioner of Police, Port Division. He says that the statement of Sri Sharma was also recorded by him as per the order of the O.C. of Garden Reach P.S. He also took up the investigation of the case under the order of the O.C., Garden Reach P.S. on that date at 8-05 p.m. He says that he then recorded the statements of the two witnesses namely Abdul Latif Khan (P.W.21) & Md. Khali Khan (P.W.19) under section 161 Cr.PC at Garden Reach P.S. and then at 11-00 p.m. he had been to Mathorpara, Rnmnagar Lane etc of the affected areas of Garden Reach with force and after contacting sources there he returned to the P.S. at 11-50 p.m. He says that on 19.3.84 at 6-40 p.m. he had shown formal arrest of four accused persons, namely Nanney Kosal, Gorachand, Halim and Nuru who were arrested by the police officers of the Detective Department. He further says that on 18.3.84 after returning to the P.S. from the affected area he prepared respective requisitions for postmortem examination of V.K. Mehta and his security guard. Moktar Ali and on 19.3.84 at 10-00 a.m. he sent those requisitions to the Prof. of Forensic and State Medicine and on that day at 7-40 p.m. he handed over the case diary to S.I. S.K. Bhattacharjee of Homicide Squad who had taken up the investigation and he also handed all other connected documents under the orders of his O.C. and the D.C.D.D. at Garden Reach P.S. In his cross-examination he says that on 18.3.84 he was in Garden Reach P.S. after mid-day and that he had also seen the G.D. Entry regarding the disturbances at Fatepur Village Road. He says that on that night i.e. on 18.3.84 another case being Garden Reach P.S. Case No. 45 dated 18.3.84 was also recorded and that FIR was recorded by S.I. H.P. Dutta(P.W.64). In his cross-examination he says that going to the locale he questioned some persons, but did not record their statements under section 161 Cr.PC and that he had tried to collect the names of the assailants but could not succeed to obtain the same from those persons. Much has been criticised by the learned Advocate for the appellants that if really the first I.O. (P.W.80) had recorded the statements of the constables P.W.19 Khalll Khan and P.W.21 Abdul Latif Khan on 18.3.84, he must have obtained from them the names of the assailants before he went to the locale in that night and therefore there was not question of trying to collect the names of the assailants at the locale in that night and this shows that the evidence of the said P.W. 19 and P.W.21 or for that matter the entire prosecution case implicating the appellants is a product of concoction. We however find ourselves unable to accept this critism. It is true that the I.O. got some names from P.W. 19 and P.W. 21 on 18.3.84, but obviously there was no reason to suppose that those were the only culprits involved in the occurrence. It Is therefore only natural that the I.O. while visiting the locale will try to obtain from persons the new names of other culprits as well as confirmation of the names of culprits already obtained by him from P.W.19 and P.W.21 before going to the locale.</p><p>21. P.W.1 S.K. Bhattacharjee was attached to Homicide Squad, Detective Department as S.I. of police in 1984. He is the Second investigating Officer of this case. He says that under the order of the D.C.D.D. he took up the investigation of the Garden Reach P.S. Case No. 46 dated 18.3.84 and submitted charge-sheet against 43 accused persons after completion of investigation showing as many as 18 accused persons are absconders. He says that six of those 18 absconders were subsequently apprehended and 12 were still at large while he was deposing on 12.9.88. He was however examined further next on behalf of the prosecution on 11.4.89, He says that on 19.3.84 the D.C.. D.D. verbally ordered him at 5-00 p.m. to take up the investigation of the case and then at about 5-30 p.m. he, D.C., D.D., A.C. D.D.-1. O.C. Homicide Squad, S.I. P.S. Chakraborty of Homicide Squad and two constables of Homicide Squad started for Garden Reach P.S. He further says that prior to that D.C., D.D. told him that he had already sent two S.I.s of Detective Department, namely U.S. Lahiri and S.R. Nag (P.W.70) to work out an Information received by him in respect of some accused persons. He says that at 6-05 p.m. they all reached Garden Reach P.S. and met the O.C. of that P.S. there, he also says that at about 6-40 p.m. S.I. S.R. Nag (P.W.70) and S.I. U.S. Lahiri brought under arrest five accused persons namely Sk. Nanney, Md. Halim, Wahabuddln, Gorachand and Sk. Nuru to the Garden Reach P.S. and those five arrested persons were produced before the D.C., D.D. and the then I.O. of the case S.I. S.R. Ganguly (P.W.80) showed those accused persons as arrested in this case. He further says that at 7-45 p.m. he took charge of those arrested accused persons, case diary and other connected papers along with alamat from S.R. Ganguli, and under order of the D.C., D.D. he came to Lalbazar with those five accused persons, S.I. P.S. Chakraborty and two constables. His evidence shows that they left the Garden Reach P.S. at 8-10 p.m. and reached Lalbazar at 8-40 p.m. and then he started interrogation of those five arrested persons and thereafter he perused the case diary and other connected papers. He says that at 10-30 p.m. he received the supplementary case diary from S.I. S.R. Nag who arrested the five accused persons. His evidence is that on 20.3.84 he met D.C., D-D. in his office and received his instruction regarding the next follow up action. He says that he came to know (hat a team had been raised to assist him in the Investigation of the case. He also names the officers who were Included In the team. He also names Sanat Kr. Gupta, A.C. D.D. (I) as the persons who was placed as overall in-charge of the team. On 20.3.84 he produced all the five accused persons in the court of the S.D.J.M., Allpore and also prayed for their police remand, and then on that day at 2-30 p.m. he along with D.C., D.D., A.C. D.D. (1), O.C. Homicide Squad, S.I. Samir Ganguli left for the spot with force for investigation. According to his evidence they reached Garden Reach P.S. at 3-00 p.m. and then on being led by the O.C. Garden Reach P.S. under the order of D.C., D.D. they all went to Ramnagar Lane in front of the mosque where D.C., D.D. and others had allegedly taken shelter and stayed there upto 3-35 p.m. His further evidence is that then on being led by O.C. Garden Reach P.S. they went to a vacant plot of land at 4-00 p.m. wherefrom the charred body of the security guard had been allegedly recovered and he found some burnt substances there and from that place they went to the premises No. G-222, Battikal Second Lane and reached there at 4-25 P.M.and there he met Hadis Khan (P.W.24) and his mother, Kaflabibi and herecorded their statements there. According to his evidence then they wentto premises No. 228/3 Battikal Second Lane which is the house of Md.Naimullah (since deceased). He also then describes his further activities inthat locality. It appears from his evidence that on 21.3.84 he, O.C.,Homicide Squad, S.I. Samir Ganguli went to 222 Battikal Second Lane andfrom there he went to G-247 Ramnagar Lane. Then on being Informed byS.I. Samlr Gangull that the Commissioner of Police had already arrived atpremises No. 222 Battikal Second Lane with A.C. D.D. (1). he went to thatplace and as per direction of the Commissioner of Police, he seizedscrapplngs of blood looking stains with control from the outer wall of a roomof premises No. G-222 Batllkal Second Lane and prepared the seizure listext. 31. On 22.3.84. according to his evidence, he met the Director of F.S.L.and then the Director deputed H. Moltra (P.W.49) and P.K. Sengupta(P.W.78) both senior officers of F.S.L. to visit the P.O. He says that at thattime Mr. Moltra reported that he would visit the P.O. In the afternoon, andMr. P.K. Sengupta was out at that point of time and he (the witness)instructed S.I. P.S. Chakraborry to take Mr. Moltra and Mr. Sengupta tothe P.O. and he left for Lalbazar. His evidence shows that on that day heexamined Norman Merces (P.W.23) and Brion Merces (P.W.22) and recordedtheir statements and then they along with those two persons went to theresident of the absconding accused Naso and there they found the wife ofNaso Karolin and ascertained the particulars of Naso from her and fromthat place they again came to premises No. G-85 Battlkal First Lane andquestioned some Inmates and at that time S.I. P.S. Chakraborry came andreported that the F.S.L. experts had arrived and they were at G-222 BattlkalSecond Lane and then he (the witness) went there and met them. He saysthat the experts made Inspection at different places of that premises andthen requested to take them to the place wherefrom the charred body ofMoktar was recovered and they were taken there and the experts madethorough search in the burnt substances and ultimately discovered metallcring, a piece of burnt cloth fitted with metallic buttons with ring, and thosearticles were seized. His evidence is that on 23.3.84 he examined Sk. NanneyKosal who made a statement leading to the recovery of some Incriminatingarticles. He also speaks about recovery of Incriminating articles pursuantto the statement made by the accused Sk. Nanney Kosal. His evidence showsthat the accused Nanney made statement to him to the effect that he hadthrown one helmet, one dhal, two swords in the water of kancha drain andhe would be able to lead the police party to the spot where he and othersthrew away those weapons and other things and If those things were stillthere he would be able to bring them out. The evidence of the I.O. (P.W.I)shows that the accused Nanney was taken (on 23.3.84) to the concernedarea pursuant to the statements made by him and the accused Sk. Nancyled them in front of a kancha drain on the northern side of the premisesNo. G-221 Battlkal and G-213 Battlkal and the accused then pointed outa place inside the kancha drain to be the place where the articles as statedby him were thrown and then being asked the accused got down In the waistdeep water of the kancha drain and brought out one by one, one shieldmade of wire net, one helmet, two swords, two belts of which one hadmetallic plate having 'IPS' inscription, one black belt used by constable. Healso speaks about the recovery of a chappal of a right foot. The recovered articles were then seized. His evidence shows that on 26.3.84 also at night they conducted a raid in the concerned area and searched for certain accused persons Including Naso but could not trace them out. His evidence also shows that on 4.4.84 they went to G-85 Battikal Second Lane which is the residence of the father-in-law of the accused Naso but there also Naso was not found. His evidence is that on 30.5.84 the accused Lokman Shah and Osman Shah, two brothers, were arrested from their residence in a night raid between 1-40 a.m. and 2-00 a.m. He says that on 7.6.84 the accused Lokman Shah during Interrogation, stated that he wanted to make a confessional statement and so on 8.6.84 he (I.O.) forwarded Lokman to the learned S.D.J.M. with prayer for recording his confessional statement and his confessional statement was recorded by the learned S.D.J.M., 3rd Court Allpore on 9.6.84. It appears that the I.O. obtained an order of police remand for the accused Lokman after he was produced before the S.D.J.M. after arrest and the accused Lokman expressed his desire to make confessional statement to the I.O. on 7.6.84 while he was under police remand. The I.O. (P.W.I) says that on 16.6.84 he submitted charge-sheet against 43 accused persons of whom 24 were In custody and the rest were absconding. He further says that after the submission of the charge-sheet seven absconding accused persons had been arrested. He says that on 28.2.85 at 3-00 p.m. acting on a secret Information he with the help of S.I. Rajkumar Chatterjee of the Detective Department and others arrested Nasim Khan Naso from the station road near Kallghat Railway Station. He further says that the accused Naso was arrested with the revolver which was given to constable Moktar All for his duty, with three rounds of ammunition for which a specific case has been started on his complaint under section 25 and section 27 of the Arms Act. While confronted with this in examination under section 313 Cr.P.C. the accused Naso only says that the witness (P.W. 1) told lie that he (Naso) was absconding and he was arrested on 28.2.85 at 3-00 p.m. from the Station Road near Kallghat Railway Station or that he had any revolver in his possession at the time of his arrest. Besides such bare denial he however does not say anything as to on what date and wherefrom he was arrested.</p><p>22. In his cross-examination P.W.I (the second I.O.) says that he did not go to Garden Reach area between 18.3.84 and 5-00 p.m. of 19.3.84. He says that on 20.3.84 the first witness he examined was Hadls Khan of G-222 Battikal Second Lane in that premises. His evidence shows that on 19.3.84 he first interrogated the five arrested accused persons (Including Sk. Nanney) but he did not record their statements. His evidence Is that on 20.3.84 he forwarded the five arrested accused to court with prayer for police remand upto 2.4.84 and the learned S.D.J.M. allowed the prayer for police remand. He says that he could not interrogate any of the accused persons on 20.3.84 as he had no time for such interrogation. He also says that on 20.3.84 he went to Garden Reach area along with his superiors, namely. D.C. D.D., A.C. D.D. (1) and O.C.. Homicide Squad and reached there at 3-25 p.m. His evidence Is that they first went to the Garden Reach P.S. and then the O.C. of the Garden Reach P.S. led them to the area where the Incident occured and there he examined Hadls Khan first and also Kaflabibi. the mother of Hadls Khan. He has however not shown Kaflabibias a witness in the charge-sheet. He says that on 20.3.84 he reached G-222 Battlkal Second Lane at 4-25 p.m. are remained there till 5-30 p.m. He also says that they were in Battlkal Second Lane area on 20.3.84 from 3-25 p.m. till 10-15 p.m. and that dusk to dawn curfew was imposed in that area and order under section 144 Cr.PC was also promulgated there and police picket was posted in different parts of that area. His evidence in cross-examination is that the blood looking stains were found on the outside wall of the western room of the premises No. G-222 Battlkal Second Lane, and he says so with reference to the seizure list, ext. 31. He says that the experts had arrived at premises No.G-222 Battlkal sometime before 3-00 p.m. and he went there at 3-05 p.m. and the experts H. Motlra and P.K. Sengupta of F.S.L. Inspected the premises and courtyard of G-222 Battlkal Second Lane and from that house, being accompanied by them, the experts went to open plot of land known as Dhankhell Maldan. He denies the defence suggestion that he had advised constable Latif Khan to procure persons of his choice who would support the prosecution case. He also denies the defence suggestion that Hadis Khan and Md. Mustafa gave statements at his tutoring. He says that the statement of Nanney Kosai was recorded by him on 23.3.84 between 8-50 a.m. and 10-10 a.m. and with the accused and other police of lines he left for the P.O. to verify the statement of the Nanney Kasal and reached in front of the kancha drain at 2-55 p.m. He says that the accused Lokman was forwarded to court on 8.6.84 with a prayer for recording his confessional statement. He has acknowledged that both the two accused Sk. Nanney and Lokman retracted their confessional statements by filing petitions but he cannot say the date on which such petition was filed after the submission of the charge-sheet. He cannot say whether those petition were filed on 14.8.84. In his cross-examination he denies the defence suggestion that Naso was arrested from the factory gate of Sultan Hossain.</p><p>23. Of the medical witnesses, P.W. 44 Dr. Sunil Dey of the Calcutta Medical Research Institute examined Sr. K. Sharma (P.W.7). Asstt. Commissioner of Police on 18.3.84 at 12-30 p.m- In the Emergency. He also describes the Injury found and treated by him. P.W.66 Dr. Bhlbutlbhusan Blswas who was attached to Calcutta Police Hospital at the relevant time speaks about the Injuries of constable Ramshankar Singh (P.W.16) which were found by him. He says that the said constable was admitted on 18.3.84. He also describes the Injuries found by him. P.W.67 Dr. Gopi Ranjan Samanta was also attached to Calcutta Police Hospital at the relevant time. He proves the discharge certificate in respect of said Ramashankar Slngh. The patient, he says, was admitted on 18.3.84 with bomb injury on the lower thing of the right leg and was discharged from the hospital on 12.4.84. P.W. 46 Dr. Bhopal Mazumdar in the autopsy surgeon. On 19.3.84 he was posted as Demonstrator in the Department of Forensic and Slate Medicines, Medical College and Hospital. His medical qualifications are M.B.B.S. and M.D. In Forensic Medicine. He Joined the West Bengal Health Service on 25.2.75. On the date on which he deposed in court, that is, on the 1st February, 1989 he was posted as Assistant Professor and Head of the Department of the Forensic Science and Medicines, North Bengal Medical College. He held post-mortem examination on the dead-body of V.K. Mehta, D.C. Port Division on 19.3.84. He describesas many as 23 injuries found by him externally on the various parts of the deadbody including the face, head, etc. Injury No.9, as found by him. Is a lacerated would 3' x 1' X muscle X bone X meninges X brain on the right fronto-parletal region of the head, being placed half inch right to the mid line and 69 1/2 above the right heel. This is a head injury. He has also describes what he found on dissection. He says that all the Injuries were showing evidence of vital reaction. He openes that death was due to the effect of the injuries as mentioned by him which were ante-mortem and homicidal in nature. He also specifically says that he found 23 external and 4 internal injuries on the deadbody. According to his evidence the cumulative effects of the injuries were sufficient to cause death in the ordinary course of nature. He further says that Injury No.9 might be caused by any hard blunt weapon like iron rod or any other metallic rod and that the victim was in standing position when injury No.9 was Inflicted. He says that the said Injury No.9 was caused by the assailant from the front side of the victim. He further says that the Injury No.9 and the injury No.2 found on dissection were the vital Injuries. He also says that injury No.9 alone was sufficient to cause the death of the victim In the ordinary course of nature. However, the Injury No.9, he says, could not cause instantaneous death. He says that the injury No.23 was caused by pulling the body from leg side and that the injuries sustained by the victim were caused by more than one person. He also describes specifically as to which particular injury could be caused by what type of weapon. The possible weapons named by him include metallic rod, chopper, sword, napala, bhojall, brickbats etc. It may be noted here that the Injury No.9, according to the prosecution case, is connected with the assault made by the appellant-accused Naso on the head of V.K. Mehta with iron rod. The Autopsy Surgeon, P.W. 46 says that he held the post-mortem examination on the deadbody of V.K. Mehta on 19.3.84 at 12-00 noon at Calcutta Police Morgue and Prof. J.B. Mukherjee who was the professor and head of the Department of Forensic and State Medicines, Medical College, Calcutta was present when he held the postmortem examination and that Prof. J.B. Mukherjee supervised the examination. He says that Prof. J.B. Mukherjee concurred with his opinion and made the following remark: The post-mortem examination was conducted under my direct supervision and guidance. I fully concur with the findings and opinion of the Autopsy Surgeon, Dr. B. Mazumdar'. The post-mortem report was however prepared and signed by P.W. 46, Dr. B. Mazumdar and the same has been marked ext.tO. From his evidence the get that by that time he (P.W. 46) had gathered the experience of holding post-mortem examination on nearly four thousand deadbodies. He also held the postmortem examination 19.3.84 at 3-00 p.m. on the deadbody of the constable Moktar All who was the body guard of V.K. Mehta. He also describes the injuries found by him on the deadbody of Moktar All and gives the opinion regarding the effect of the injuries and the cause of death. In his cross-examination, he says that the Injury numbers 1,2,3,4,5,6.12,13,14,15,16 & 22 as found on the deadbody of V.K. Mehta were Incised injuries. The learned Advocate for the appellants contends that the opinion given by the Autopsy Surgeon, P.W.46 Dr. B. Mazumdar to the effect that the injury No.9 alone was sufficient to cause the death of the victim in the ordinary course of nature is not there specifically in the post-mortem report and this hasbeen stated by the Autopsy Surgeon Dr. Mazumdar as his own opinion while giving evidence in the court and this opinion of the Autopsy Surglon, P.W.46 is therefore not supported by the opinion of Prof. J.B. Mukherjee who supervised the post-mortem examination and therefore this opinion of P.W.46 should not be taken into consideration at all In judging the effect of the assault stated to have been made by the accused Naso on the head of the victim Mehta with iron rod. In our opinion this contention is however not acceptable. It is true that Prof. J.B. Mukherjee, obviously as a senior person, supervised the post-mortem examination held by P.W.46 Dr. Mazumdar but that does not mean that the opinion of Dr. Mazumdar on any point is of no merit or consequence unless the same is specifically endorsed by Prof. Mukherjee. P.W. 46, Dr. Mazumdar is also an expert in the matter and as we have seen he has a very rich experience in the matter of holding post-mortem examination. That being so, his opinion also given on the basis of the examination made by him, deserves due consideration and acceptance on merit unless the same otherwise stands discredited or condemned for any good and sufficient reason. Here there is absolutely no reason why we should not accept the opinion of the aulopsy surgeon P.W.46 regarding the effect of the injury No.9 which is a head injury allegedly caused by the accused Naso by inflicting assault on the head of the victim with rod. The learned Advocate for the appellants also submits that according to the evidence of the Autopsy Surgeon P.W. 46 all the Injuries had shown the evidence of vital reaction and therefore no disproportionate importance should be given to the effect of injury No.9. In this connection we are however to mention that even if all the injuries had shown evidence of vital reaction, that does not for that reason alone minimise the gravity of the effect of any particular Injury which according to the autopsy surgeon P.W.46 is alone sufficient to cause the death of the victim in the ordinary course of nature, even though such Injury could not have caused instanteneous death. It is needless to mention that causing of death is an ingradlent of the offence punishable under section 302 IPC and it is not necessary that death In all cases must be caused Instantaneously for bringing the case under section 302 IPC. That apart, when death is the result of a cumulative effect of all the injuries caused to the assailant in prosecution of the common object to commit the offence, each and every assailant is responsible for the offence in view of the section 149 IPC. The learned Advocate for the appellants also contends that the grounds of opinion of the expert are also relevant. Indeed there is no doubt that the autopsy surgeon in the present case has elaborately described all the injuries found by him and obviously his opinion is based on the findings recorded by him. No worthy ground has been brought out in the cross-examination of the autopsy surgeon nor successfully contended before us for which we could hold that the opinion of the autopsy surgeon is not acceptable. We reiterate that we have no reason or ground to discard or disregard the opinion given by the autopsy surgeon P.W.46.</p><p>24. P.W.47 Kanchan Chatterjee is the Judicial Magistrate who held T.I. parade in respect of the accused Nanney Kosal at Allpore Central Jail on 30.5.84. He says that the witness K.K. Sharma (P.W.7) identified the suspect Nanney Kosal stating that he along with others were hurling bombs at Ramnagar Lane near mosque and further stated that while he along withD.C, V.K. Mehta reached the crossing of Ramnagar Lane and Mathorpara entrance while chasing a mob, he saw the suspect hurling bombs along with others.</p><p>25. P.W.51, P.K. Deb is the Judicial Magistrate who recorded the confessional statements of the accused Nanney Kosal and the accused Lokman Shah on 3.4.84 and 9.6.84 respectively. He says that on 2.4.84 the accused Sk. Nanney was produced before him by constable Niranjan Das and the record was also laid before him. He was directed by the S.D.J.M. Allpore to record the confessional statements of Sk. Nanney. His evidence shows that on 2.4.84 the accused Sk. Nanney on being produced from judicial custody, was given cautions by him in open court and he was then sent to jail custody with the direction to the Jail authority, Alipore Central Jail that he should be kept in segregation so that he could get sufficient time for reflection. He says that on 3.4.84 the accused was again produced before him at about 3-00 p.m. In his court room and the accused was again given caution by him regarding the Implication of giving a confessional statement and the accused was kept in his chamber and was given time for an hour to reflect and ponder over the matter, and nobody was present In his chamber except the accused. He specifically says that no policeman was present in his chamber. He says that at 4-00 p.m. he asked the accused whether he was to make a confessional statement in his chamber and the accused Insisted on making a voluntary confessional statement and he recorded the same in his court room. He says that he was satisfied about the volunteriness of the accused in making the statement. The confessional statement of the accused Nanney Kosal as recorded by the Judicial Magistrate, P.K. Deb on 3.4.84 has been marked ext.13. He further says that the accused admitted that the statement had been correctly recorded and he also explained to the accused before he recorded his statement that he was free not make any statement and if he made any statement It might be used against him. He further says that nobody was present Inside the court room when the statement of the accused was recorded. The recording. according to his evidence, was complete by 4-40 p.m. It may be noted here that the accused Nanney Kosai was convicted and sentenced by the trial court in the original trial and reportedly he did not prefer any appeal against such conviction and sentence.</p><p>26. The further evidence of the Judicial Magistrate, P.W. 51, P.K. Deb Is that on 8.6.84, the learned S.D.J.M. Alipore directed him to record the confessional statement of the accused (appellant) Lokman Shah. He says that on that date at about 1-15 p.m. the accused (Lokman) was produced before him and was identified by the constable P. Pramanlk In court room. He says that the accused was cautioned by him and the Implication of making the confessional statement was explained to him. He further says that the accused was produced from Judicial custody and he sent the accused to Jail custody and directed the superintendent of Allpore Central Jail to keep the accused In segregation so that he could get sufficient time for reflection, and directed his production before him on 9.6.84. The accused was produced before him on 9.6.84 at 2-00 p.m. by the constable Ramnarayan Goala in the court room and the accused was given warning and caution and was given one hour's time to think over the matter and was kept In the chamber of the Magistrate where none else was present. According to his evidence at 3-00 p.m. the accused insisted upon making a voluntary confessional statement and he (Magistrate) started recording his confessional statement in the court room at 3-00 p.m. where none else was present. He specifically says that no policeman was present at that time. He also deposes that before he started recording the statement he gave the accused all statutory cautions and started recording his statement after he was satisfied that the accused was making the statement voluntarily. The accused made the statement In Hindi and he recorded the statement in Bengali script. He further saya that after the statement was recorded It was explained to the accused in Hindi and the accused signed the statement in his presence. Ext. 14 is the confessional statement of the accused Lokman Shah as recorded by the Judicial Magistrate P.W.51 P.K. Deb. He further says that the accused admitted that the statement was correctly recorded after it was read over to him. In his cross-examination he says that he cannot say whether on 8.6.84 the accused was directly taken to the jail from his court room or he was taken to some other place before he was finally taken to Jail. It is needless to mention that the accused got sufficient time and opportunity for reflection in jail custody. In his cross-examination the Judicial Magistrate, P.W.51 specifically syas that he was fully satisfied after putting questions to the accused persons that they were voluntarily making statements and that he applied both his subjective and objective satisfactions. He specifically says that he put certain questions and he was satisfied that they were mentally prepared to make such statements. In his cross-examination he further says that he had cautioned Lokman that he would not be sent to police custody If he did not make any statement. It is suggested to him in his cross-examination that the statements were recorded In presence of the I.O. of the case. This is a preposterous suggestion, we must say, that a Judicial Magistrate while recording a confessional statement will allow the I.O. to be present there.</p><p>27. Ext. 34 which is the ordersheet of the court of the S.D.J.M. Alipore shows that the accused Nanney Kosal along with others were produced in court in custody on 20.3.84 and they were all remanded to police custody till 2.4.84 after considering the prayer of the I.O. It also appears that while producing the accused persons before the learned S.D.J.M. from police custody on 2.4.84 the I.O. inter alia made a prayer for recording the confessional statement of Sk. Nanney Kosal under section 164 Cr.PC and the learned S.D.J.M. directed Sri P.K. Deb J.M., 3rd Court for recording the statement under section 164 Cr.PC. The order-sheet dated 30.5.84 shows that the accused Lokman Shah and accused Osman Shah were produced before the S.D.J.M. In custody on 30.5.84. According to the prosecution case the said two accused persons are brothers. On the prayer of the I.O. the S.D.J.M. remanded both the accused Lokman and Osman to police custody till 11.6.84. It also appears that the accused Lokman was produced in court from police custody in advance on 8.6.84 and on considering the prayer of the I.O. to record his confessional statement, the learned S.D.J.M. directed the Judicial Magistrate Sri P.K. Deb to record his confessional statement. On that very day Lokman who produced before P.K. Deb, J.M. and he was given necessary warnings and was remanded to Jail custody and was then produced before the J.M. concerned on 9.6.84 again and his confessional statement was recorded after giving him necessarycautions. It may be mentioned here that the accused Sk. Osman Shah was produced on 9.6.84 and he was remanded to jail custody for reflection but ultimately he declined to make any confessional statement when he was produced before the Magistrate on 11.6.84. It may be noted here that both the accused Nanney Kosal and Lokman Shah who made confessional statements before the Judicial Magistrate, however ultimately retracted such confessional statements by filing petitions before the court on 14.8.84. It has been submitted on behalf of the State that there is no bar in taking into consideration the confessional statements of those two accused persons although they ultimately retracted the same. It is also pointed out that they retracted their confessional statements as late as on 14th August, 1984 although their statements were recorded In the months of April, and June respectively and although they were produced in court a number of limes before 14th August, 1984.</p><p>28. Ext. 3 is the statement of the accused Sk. Nanney recorded by the Judicial Magistrate under section 16A Cr.PC. In his statement under section 164 Cr.PC the accused Nanney Kosal has described some part of the Incident Implicating himself and certain other persons. We have already noted that Nanney Kosal has been convicted and sentenced in the original trial and he did not prefer any appeal against the same. It has been contended on behalf of the appellants that since Nanney Kosal was therefore not being tried Jointly alongwith present appellants in the retrial, his confessional statement recorded under section 164 Cr.PC cannot be taken into consideration against the present appellants under section 30 of the Evidence Act. The learned Advocate for the appellants has in this connection also relied upon certain decisions cited by him which we will refer to at a later stage. Ext. 14 is the statement of the appellant Lokman Shah recorded by the Judicial Magistrate under section 164 Cr.PC. The statement was made by the accused-appellant Lokman before the Judicial Magistrate In Hindi and the Magistrate recorded the same in Bengali script. The English translation of the relevant portion of the statement of the accused Lokman recorded under section 164 Cr.PC as appearing In the paper book is reproduced below :</p><p>'Q. Tell what statement you will make?</p><p> Ans. On 18th date, Sunday (Holiday), the Incident took place. At 10 or 10-30 Naso, Puttan, Akhtar, Chowdhury came to me for price. I asked what you will do by money. They answered quarrel is going on in village road for that weapons are to be purchased by the money. Those persons have set fire to the mosque. If those persons make any trouble here we shall fight out. I said I shall also fight out. After that they fled away. At 11-45 a cry or quarrel came to my heralng. I came out and found that two police officers coming speedily. Many people threw brickbats towards those police officers. The police officer in white dress went towards the house of Mulla. The police officer In Khaki dress came straight. When he was crossing near me I also threw a brickbat. I cannot say whether it hit or not. The police officer In khaki dress entered In the house of Latif Sepot. Many persons entered following him. Amongst them Idris was there. From outside many people threw brickbats. I also threw 2/1 brickbats. I cannot say whether it hit him or not. Aftersometime I found that Naso, Puttan, Akhtar and Chowdhury were coming from the side of Battikal mosque. They took me Inside the house. I found the police officer In khaki dress was standing near the kitchen. (wrong translation). The correct translation is 'standing by the side of Gosalkhana'--'Gosalkhanaka pas khara hayal. That person said he was D.C. Some people said they do not know D.C. etc. After this all people in a batch caught that person. I also caught him. Naso hit by a rod on the head. For this the hard cap fell down. Again rod was used. It hit the head. Saheb fell down. Puttan, Akhtar and some other many people assaulted him on the face with deadly weapons, (wrong translation. The correct translation is 'Puttan, Akhtar & many other persons started assaulting on his face with sharp-cutting weapons--'dharwala hattar se chehar par marne laga'). I could not tolerate the blood-shed. For that I came out. I was then searching for my younger brother. After some time I found those 8/10 persons took D.C. Saheb and entered Inside the house, (wrong translation. The correct translation is 'after a while I saw that those 8/10 persons were going out from Inside the premises taking away D.C. Saheb--Thora der ke bad dekhta o at das admi D.C. Saheb ko le ke bari ke ondar se chala ja raha'). They proceeded towards the Mehar Manzil crossing the house of Israil. ('They took him away towards Mehar Manzil after crossing the house of Israil'--'Israilko par karke Meher Manzil ke taraf le giyal. After that I cannot understand what happened, ('what happened thereafter, I cannot say')--'Usko bad hamko nehi malum haya keya hua'). I worked under port. And I was present at home on that day.</p><p> 'Q. Do you want to say anything more?</p><p> Ans. No. I have forgotten to say one thing. Samsad and Abbas were also present in the Incident.'</p><p>29. It may also be rioted here that from ext. 14 it will appear that the Judicial Magistrate before recording the statement of the accused Lokman Shah put various questions to the accused Lokman for ascertaining whether the accused was making the statement voluntarily and free from any outside influence. As we have seen, the statement was recorded by the Judicial Magistrate on 9.6.84 and on the preceding date i.e. 8.6.84 the accused was sent to jail custody for giving him proper opportunity for reflection. In answering the question put to the accused Lokman on 9.6.84 by the Judicial Magistrate as to whether he was kept in the jail in separate room or not, he said that he was kept In a separate room for thinking and realising. The Magistrate also tells him inter alia that he was not bound to confess and asked him to tell after thinking whether he will make the statement from his mind or not, to which the accused replies that he will make the statement. He also says that he was not terrorised by anyone nor was requested or assured for giving the statement. In answer to the specific question whether he was beaten by any police officer, he replied in the negative. The Judicial Magistrate also told him that he would not be kept under the custody of the police whether he told or not. Even then the accused staled before the Magistrate that he would make the statement willfully and he had come from jail and nobody had given any hope or assurance to him. The Magistrate also cautioned the accused that If any statement was made by him, he might be hanged for the same and thatwhat he would say could go against him. Inspite of that the accused stated to the Magistrate that he would confess according to his sweet will. The Magistrate also appended a certificate under the statement recorded by him to the effect that he believed that the confession was made voluntarily.</p><p>30. The learned Advocate for the appellants has contended that the only evidence on which the prosecution has relied upon for bringing home the charge framed against the accused Lokman ts his alleged confessional statement, ext. 14. It is however contended by him that the law regarding use of confessional statement against maker of such statement is that the court must be satisfied that the confessional statement is truthful and is made voluntarily. He has also cited a number of decisions on this point such as Anathbandhu v. State of West Bengal, 1986(1) CHN. 229, State of West Bengal V. Prosenjit Tafadar 1991(1) CHN 331. Saran Singh v. State of Punjab, : 1957CriLJ1014 , etc. Indeed we are convinced that the same is true and voluntary. While examined under section 313 Cr.PC the accused Lokman even inter alia denies to have made such statement as recorded by the Magistrate and he even went to the absurd extent of telling that the I.O. was standing near him when he made the statement before the Magistrate. It may be noted here that at the retrial one defence witness being D.W.1 Sk. Mumtaz was examined on behalf of the defence. He claims to be an employee of Calcutta Port Trust. He says that he knows the accused Lokman, who was a class-IV staff in the department in which he was working. He says that there was continuous strike in all the ports of India including the Calcutta Port w.e.f. 16.3.84 and during the strike period he used to attend the gate No.8 of the workshop regularly and this gate is one of the entrance gales to the K.P. dock. He further says that like him other people also used to go in front of the gate during the strike. His evidence ts that on 18.3.84 he along with others went in front of that gate at about 8-30/9-00 a.m. and returned to his residence at about 12-45/1-00 p.m. He wants to say that on 18.3.84 when he went In front of that gate he found that the accused Lokman was sitting there. This defence witness has been examined to establish the plea of alibi taken by the accused Lokman. The evidence of this defence witness who was examined at the retrial in June, 1992 long after the occurrence however, does not inspire any confidence. No plausible explanation is coming as to why he was not examined at the time of the original trial if really Lokman was with him in front of the gate of the Calcutta Port Trust at the relevant time on 18.3.84. Also it is significant to note that the date of the Incident namely, 18.3.84 was not only a Sunday, but It was also the day on which the 'holi' festival was being celebrated. That being so, it is difficult to believe that he and other workers Including the accused Lokman would have gone there In front of the gate of their workshop on that day obviously without any purposeful object. Moreover it Is also quite unnatural that when riots and disturbances were going on in the concerned locality, the accused Lokman would have chosen to go and station himself in front of his closed factory gate without any meaningful purpose leaving aside the shelter of his own house, if realty he were a peace-loving person. Having regard to the facts and circumstances, we are not Inclined to place any reliance on the evidence of the defence witness D.W. 1 Sk. Mumtaz. The learned Advocate for the appellants submits that even if the defence plea of alibi falls and the court does not accept thesame, yet that by itself does not prove the prosecution case. In this connection he also refers to the decisions in Shared Blrdhtchand Sarda v. State of Maharashtra, 1984 SCC(Cr.l) 487 and Sk. Firoz v. State of West Bengal 1997. C.Cr.L.R. [Call 251. In connection with the question relating to the nature of use of a confessional statement he refers to the decisions in Pakal Narayan Swami v. Emperor AIR 1931 PC 47, PalblnderKatirv. State of Punjab : 1953CriLJ154 , Ompmkashv. State of Uttar Pradcsh : AIR1960SC409 . There is no doubt that a self exculpatory statement does not amount to confession. It is also true that the statement of the accused will have to be taken as a whole without making any 'pick and choose' of isolated sentences or words divorced or separated from the context in which they have been used. But in the present case on an Indeplh consideration of the statement of Lokman made before the Judicial Magistrate, we find no reason to hold that the same does not amount to a confessional statement. The learned Advocate for the appellants contends that the statement of Lokman as recorded under section 164 Cr.PC would show that he had only thrown some brickbats when the police officer in khaki dress entered in the house of LatlfSepol and he even did not care to notice whether the same hit the police office or not. He also contends that although the statement shows that Lokman caught the D.C. along with others when Naso hit him by a rod on his head as a result of which the cap fell down and Naso again hit the D.C. on his head and the D.C. fell down and other assailants assaulted him wllh sharp culling weapons, yet the statement shows that on seeing blood-shed as a result of assaults made by the assailants on the D.C. Lokman could not tolerate the situation and he withdrew himself and came out. It is submitted on behalf of the appellant Lokman that the conduct of Lokman shows his mental state at the relevant time and would suggest that he had no culpable object or Intention in respect of the commission of the offence. We are, however, unable to accept this defence contention. May be that the accused Lokman was comparatively a timid person and was unable to reconcile himself wllh blood-shed when the same occurred as a result of combined and concerted assault with various weapons upon the D.C. May be that the role played by the accused Lokman was not as aggressive as exhibited by many other more ferocious co-participants, yet the fact remains that when the D.C. was being chased by a mob and the D.C. was running away for safety, he, I.e.. the accused Lokman also threw brickbats at him and later even participated in catching hold of him along with others obviously for facilitating the assault by other persons with various weapons and in fact, the D.C. was assaulted with various lethal weapons Including rod used by the accused Naso on the head of the D.C. The admitted partlcipalion of Lokman in the operation and in the manner described by Lokman in his stalemenl clearly makes out that the statement of Lokman is nothing else but a confession of the commission of the offence and participation by himself in a culpable way in the commission of the same. We fall to understand why the statement of Lokman should be treated as something falling short of confession. We are rather of the opinion that the statement even when taken as a whole and without excluding anything therefrom amounts to a clear confession of the accused Lokman that he participated in the commission of the offence of severely assaulting the D.C. with various dangerous weapons in which the different assailants took part in a conjoint operation obviously with a common object to commit the offence which was being committed and tn that operation Lokman took part by catching hold of the victim along with others while some other assailants were assaulting the victim with various weapons. His withdrawal from the scene at a later stage on seeing blood-head does not exonerate him from the culpability of his act or state of mind which he displayed upto that stage and this is enough for the purpose of finding him guilty of the charge framed against him under section 302/149 IPC, Inasmuch as the D.C. was put to death as a result of a brutal assault perpetrated on him conjointly by the assailants. May be that the D.C. was further assaulted in continuation of the earlier assault even after Lokman withdrew himself from the scene after seeing the blood-shed but that does not, we reiterate, exonerate Lokman from his participative culpability in the commission of the offence till the stage of his withdrawal. We have seen from the evidence of the Autopsy Surgeon that the head injury sustained by the D.C. obviously as a result of assault made by Naso with rod on the head of the D.C. was alone sufficient to cause death and that was done while Lokman was catching the victim along with others obviously for facilitating conjoint assaults not only by the rod but also by other weapons used by the assailants. The statement of Lokman fully satisfies the requirements of a confessional statement and we are also of the opinion that the same is not only voluntary but is also true as the same receives substantial corroboratlon and also coroboratlon in material respects from the other evidence on record, namely, that the D.C. In khankl uniform and his body guard in while uniform were chased by a riotous mob there on that day and at that time, and the D.C. took shelter in that premises where he was attacked and assaulted by the assailants as stated by the eye witness P.W. 24, Md. Hadls. It is true that Lokman has not been specifically named by Md. Hadls but the other descriptions of the Incident as given by Md. Hadls, in our opinion, lends corroboratlon to the material aspects as to how and in what manner the occurrence took place at the concerned premises regarding assault on D.C. Mehta. Such corroboratlon tn respect of material aspects by the evidence of Md. Hadls Inspires sufficient confidence to accept the confessional statement of the accused Lokman as true. That being so, we have no hesitation in accepting the confessional statement of Lokman as voluntary and true. We will discuss more about the confessional statements at a later stage. Here we would like to note that the evidence of P.W.26 Md. Mustafa and P.W. 38 Md. Narln also supported the prosecution case regarding the Involvement of the accused Naso in the commission of the offence, but these two witnesses could not be produced for further cross-examination at the retrial and that is why their evidence was not pressed into service at the retrial. It has been submitted on behalf of the appellants that although the Division Bench while directing retrial directed the evidence already on record to be taken into consideration in writing out a fresh Judgment in the retrial, yet their evidence cannot be taken Into consideration because they could not be produced for further cross-examination at the time of retrial. It may be noted here that the Division Bench while remanding the case for retrial directed that the judgment is to be written on the basis of the evidence already on record, the evidence to be brought on record pursuant to the order of retrial, and the further statements of the appellants, if any, made under section 313 Cr.PC and also directed the trial Judge to give the appellants opportunity of further cross examining the prosecution witnesses. As we have seen, P.W.26 and P.W. 38 who support the prosecution case in respect of the Involvement of the appellant Naso however could not be produced for further cross-examination at the retrial Insplte of best efforts made by the prosecution as their whereabouts could not be traced out. In the circumstances it appears to us that section 33 of the Evidence Act would be attracted. Under section 33 of Evidence Act the evidence given by a witness in a Judicial proceeding is relevant for the purpose of proving in a subsequent Judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or his presence cannot be obtained without an amount of delay or expense which the court considers undesirable, etc., provided the proceeding was between the same parties or their representstive-In-Interest and the adverse party in the first proceeding had the right and opportunity to cross-examine, and the questions in Issue were substantially the same in the first and in the second proceeding. In the present case, at the original trial Involving the same Issue the appellants not only had the right and opportunity to cross-examine both P.W.26 and P.W.38, but in fact they were also cross-examined in extenso. That being so, when Insplte of efforts those two witnesses could not be traced out at the time of retrial plainly their earlier evidence was admissible in evidence at the retrial in view of section 33 of the Evidence Act. It is needless to say that the directions of the Division Bench concerning retrial do not have any connotation that a piece of evidence which is already on record will be excluded from consideration at the retrial even if the same is otherwise admissible in evidence in accordance with the provisions of law. Therefore we are of the opinion that the earlier evidence of P.W.26 and P.W.38 can be taken into consideration at the retrial under section 33 of the Evidence Act although they could not be produced for further cross-examination at the retrial as they could not be traced out after so many years inspile of efforts. In this back-ground it is Interesting to note the submission made by the learned Advocate for the appellants in respect of the question of admlsslbllly of the confessional statement of the accused Nanney Kosal for consideration at the retrial against the appellant Naso. it has been contended in this connection by the learned Advocate for the appellants that though the Division Bench while directing retrial permitted the trial court to take into consideration the evidence already on record, yet that direction is not Intended to nor does tt supersede any provision of law. It has been submitted by the learned Advocate for the appellants that under section 30 of the Evidence Act the confession of a co-accused can be taken into consideration against an accused only if both of them are Jointly tried for the same offence. It is submitted that since the accused Nanney Kosal who was convicted and sentenced in the original trial did not prefer any appeal and since he was not being Jointly tried with the present appellants at the retrial his confession cannot be taken Into consideration under section 30 of the Evidence Act at the retrial relating to the present appellants. In this connection the learned Advocate for the appellants has referred to certain decisions namely Emperor v. Keramot Sardar, 16 CHN 49, Assistant Collector of Customs. New Delhi v. Harbans Lal Sharaf 1980 Cr.LJ 681 (Delhi) and Suresh Budharmal Katati v. State of Mahamstra 1998 SCC(Cr.l.) 1625. The learned Advocate for the appellants thus contends that Inspite of the direction of the Division Bench for taking into consideration at the retrial the evidence already on record the confessional statement of Nanney Kosal cannot be taken Into consideration at the retrial as that Is, in effect, prohibited by section 30 of the Evidence Act and the direction of the Division Bench cannot be construed to supersede any provision of law. We accept this contention and we are also of the opinion that the confessional statement of Nanney Kosal cannot be taken Into consideration now in the retrial against the appellant Naso because Naso and Nanney Kosal were not facing Joint trial at the retrial. But we fall to understand why this same logic should not apply in respect of the earlier evidence of P.W.26 and P.W.38, both of whom were cross-examined at length at the earlier trial but who could not be traced out and produced at the retrial Insplte of efforts. The direction of the Division Bench to produce the witnesses for further cross-examination at the retrial obviously cannot be construed to exclude the operation of a statutory provision, namely, section 33 of the Evidence Act. No doubt that under the direction of the Division Bench both those witnesses were also required to be produced for further cros's-examlnallon at the retrial. But then, in our opinion, the law should take Its own course if in spite of efforts those two witnesses could not be traced out and produced after so many years for further cross-examination at the retrial. In our opinion, section 33 is attracted in the circumstances and there is nothing in the direction of the Division Bench which can be construed as excluding the operation of a statutory provision of law that may be attracted under the law Itself in a particular situation. In our opinion. In the circumstances the earlier evidence of P.W.26 and P.W.38 can be taken Into consideration at the retrial as a matter of law. However, as a matter of fact we keep their evidence out of consideration, and we examine whether even without taking into consideration the earlier evidence of those two witnesses, namely, P.W.26 and P.W.38 the prosecution have been able to establish the concerned charges against the present appellants.</p><p>31. The learned Advocate for appellants contends that the appellants should have been examined under section 313 Cr.PC afresh in respect of the earlier evidence on record but that was not done and that being so, the entire earlier evidence in the case should be kept out of consideration and it should be held that the earlier evidence cannot be used against the appellants for finding them guilty of the concerned charges in the retrial. It may be mentioned here that in the retrial, after the further cross-examination of the witnesses produced by the prosecution were completed, the appellants were further examined under section 313 Cr.PC thereby giving them opportunity to tell whatever they wanted to tell yet. It may also be noted here that the prosecution did not adduce any fresh evidence in the retrial and only the witnesses who were earlier examined and whom the defence wanted for further cross-examination barring P.W.2G and P.W.38, were produced for further cross-examination and even then further examination under section 313 Cr.PC was done in the retrial so that the appellants might get further opportunity to say whatever they yet desired to say. There was absolutely no question of examining the appellants afresh under section 313 Cr.PC in respect of the entire evidence in respect of which they were earlier given opportunity to express their say under section 313 Cr.PC it is a desparate contention raised on behalf of the appellants in despair that the earlier examination of the appellants under section 313 Cr.PC should be altogether excluded and they should have been examined afresh under section 313 Cr.PC in the retrial even in respect of the evidence in respect of which they were given adequate opportunity earlier under section 313 Cr.PC The direction of the Division Bench in this connection also contalnes the expression 'thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure'. The Division Bench used the expression 'further examine' and not fresh examination and there is also absolutely no reason why the earlier examination under section 313 in respect of the evidence earlier adduced should be treated as a nullity in the retrial. The contention raised by the learned Advocate for the appellants in this respect is wholly unacceptable.</p><p>32. The learned Advocate for the appellants contends inter alia that the unexplained delay in examination of P.W. 24 Hadis Khan renders it unsafe to rely on his evidence, The incident took place on 18.8.84 andP.W.24 Hadls Khan, we get it from the evidence of P.W. 1 S.K. Bhattacharjee. the second I.O., was examined by him in the afternoon of 20.8.84 at G-222 Battikal Second Lane. Both the earlier I.O. (P.W.80) and the second I.O.(P.W.l) have as we have seen, described what they did respectively after taking charge of the Investigation. Hadis Khan, as we have seen, was rounded up at about noon on the 19th and placed in a police van that patrolled in the locality and then he and others were in the police lock up at the P.S. from 7-00 p.m. and were later released in the evening of the same date. The second I.O. P.W. 1 took charge of the Investigation in the evening of the 19th and thereafter, as we have see, he took charge of some of the arrested accused persons in the evening and took them to Lalbazar and Interrogated them and on the next day he took steps for producing them before the court and then went to the concerned locality and there he examined Hadls Khan as the first witness to be examined by him and also the mother of the Hadis Khan in the concerned premises. Having regard to the facts and circumstances we cannot say that there was any delay or leapse in the matter of examining P.W.24 Hadls Khan. The learned Advocate for the appellants in this connection has referred to certain decisions namely, Balakrishna v. State of Orissa 1971 Cr LJ 670. Babull v. State of Orissa, 1974 SCC(Crl.) 104 and State of Orissa v. Brambhananda : 1976CriLJ1985 . It is needless to mention that all those decisions are confined in their effect to the particular facts of the respective cases. In Batakrishna v. State of Ortssa (supra) the concerned witness was examined by the I.O. 10/11 days after the incident which definitely is not so in our present case. In the other two cases namely Babull v. State of Orissa and Slate of Ortssa v. Brambhananda (supra) the concerned witnesses did not disclose the names of the assailants to anyone at the earliest available opportunity and there was no satisfactory explanation for the same. In our present case, as we have seen, P.W.24 Hadls disclosed what he saw at the earliest available opportunity on the very same day to P.W.19 Khalll Khan and P.W.21 Abdul Latlf Khan. Having regard to the facts, circumstances and evidence on record we find no reason to disbelieve the evidence of P.W.24 Hadis Khan.</p><p>33. As regards the question whetehr the statement of appellant Lokman recorded under section 164 Cr PC amounts to confession we have earlier discussed and we reiterate our opinion that such statement amouns to confession. We have already discussed that the Magistrate gave all necessary cautions to the appelalnt Lokman before recording his confession and also gave adequate opporutnity for reflection in Jail custody as well as after the accused was produced before him and he recorded the confessional statement after he was fully satisfied that his confessional statement was made voluntarily and the same was true. We also find no reason to hold otherwise in this respect. H has been contended on behalf of the appellant Lokman that there is no other evidence against the said appeallant except his confessional statement and that, too the confessional statement was subsequently retracted by him and that being so no conviction can be based on the retracted confession alone. In this connection the learned Advocate for the appellants has referred to certain decisions of the Supreme Court, namely, Chandrafcant Chfnum Lal v. State of Gujarat 1992(1) Crime 233, Kashmlra Slngh v. State of M.P. : 1952CriLJ839 . It may be noted here that the decision in Chandrafcant Chfman Lal (supra) is virtually based on the earlier decision of the Supreme Court in Kashmlra S(ngh v. State of Madhya Pradesh (supra). In Kashmlra Sfngh (supra) the Supreme Court was concerned with the question how Tar the confession of an accused person can be used against a co-accused. It is evident from a reading of the said decision in Kashmir Stngh that the said decision was not laying down the law that an accused cannot be convicted on the basis of his own confession. Rather what was laid down in effect in that context in Koshmia Singh is that an accused cannot be convicted on the basis of the confessional statement of the co-accused. On the other hand, the learned Advocate for the Slate has referred to certain decisions which we mention below regarding the use of confession. In Sarwan Stngh v. State of Punjab. : 1957CriLJ1014 , it has been held that in law it is always open to the court to convict an accused on his confession Itself though he has retracted it at a later stage and that nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement and that what amount of corroboratton would be necessary in such a case would always be a question of fact to be determlend in the light of the circumstances of each case. In Madi Ganga v. State qj Orfssa 1981 SCC (Crl) 411 it has been held by the Supreme Court that the accused can be convicted on the basis of the confessional statement if the general trend of his confession is substantiated by other evidence. In Param Hans Yadav v. State of Bihar 1987 SCC(Crl) 322 it has been held that although the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial the same can only be used for lending assurance to any substantive evidence. The law on the point has been very succinctly laid down by the Supreme Court in Sfirfsfiad Waaeshl v. State of Maharastra 1985 Cr LJ 1173 where it has been held that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboratlon from other Independent sources and that it can not, however, be the basis for convicting the co-accused though it may be taken Into consideration against the co-accused also. That being the law, it is evident that the retracted confession of the appellant Lokman can form the basis of his conviction if it has received general corroboratlon from other Independent sources as it has in our present case. We have seen that the appellant Lokman made an elaborate statement as to how the offence was being committed upon V.K. Mehta, D.C. by a group of assailants, some of whom were armed with deadly weapons, and as to the place where it occurred and how he participated in that operation. The manner in which the offence was committed upon V.K. Mehla in the concerned premises and how he was chased in that premises and assaulted are in such details that the vivid description itself lends an assurance of credibility for the confessional version. These details, as we have seen, are again corroborated in material particulars by the evidence of P.W.24 Hadts Khan. We have also seen that there.was an Inordinate and unexplained delay in retracting the confession. Having regard to the facts and circumstances, we have therefore no hesitation in accepting that the confessional statement of Lokman as made voluntarily and the same is true and is corroborated generally as well as in material particulars by the other independent evidence, namely, the evidence of P.W.24 Hadis. He have also seen that the appellant Lokman participated in catching hold of the unfortunate victim D.C., Mehta while he was being assaulted by the accused Naso with rod on his head and by other assailants with various lethal weapons on the other vital parts of the body of the victim. There is therefore no escape from the conclusion that the appellant Lokman is guilty of the charge framed under section 302/149 IPC in spite of the fact that at certain stage of the operation he might have withdrawn himself from scene while the others were yet carrying on the operation.</p><p>34. As regards the involvement of the appellant Naso we find no reason to discard the evidence of P.W. 24 Hadis. We have also seen how. Hadls reported to P.W. 19 and P.W.21 what he saw, on that very day. He clearly implicates the appellant Naso and from his evidence it appears that Naso delivered two blows with rod on the head of the D.C. Mehta while he was in unarmed condition. We have also seen that P.W. 16 Ramashankar Slngh has also deposed that he saw Naso amongst others in the mob with bombs. P.W.21 Abdul Latif Khan also saw Naso with others near deadbody and all were armed. We are therefore convinced that Naso was Involved in the commission of the offence along with others and this receives, additional assurance of truth when the confessional statement of the co-accused Lokman is taken into consideration under section 30 of the Evidence Act. We are also convinced from the evidence on record Including the postmortem doctor that the blow which Naso delivered on the head of V.K. Mehta with rod Itself was fatal. It is true that others also assaulted V.K. Mehta with various weapons and V.K, Mehta met with a tragic and as a result of all the assualts on him. The learned Advocate for the appellants submits that even if the prosecution evidence is taken at Its face value yet it is not clear whether the entire assault was held at premises No,G-222and whether some part of the assaults were carried on after taking away V.K. Mehta from that premises. In our opinion this is immaterial in view of the evidence of assault which is on record and the nature of the Injuries described by the Autopsy Surgeon. It is neither expected nor required that the prosecution must prove the entire operation second by second by a cinematographic display of the actions from the start to finish. The direct evidence of chasing of V.K. Mehta by the assailants and the participation of the appellant Naso in the concerned operation of assault on the victim with deadly weapons at premises No.G-222 and the description of the Injuries found by the autopsy surgeon on the deadbody of V.K. Mehta and his opinion about the effect of the same, are sufficient to hold the appellant Naso guilty of the charge framed against him under section 302/149 IPC for the murder of V.K. Mehta. Accordingly we hold both the appellants Naso and Lokman guilty of the charge framed against them under section 302/149 IPC for the murder of V.K. Mehta.</p><p>35. As we have seen, it is in evidence that the deadbody of V.K. Mehta with Injuries was recovered on that very day by the police party from a drain in that locality. From the facts, circumstances and evidence on record there is no doubt that the assailants of V.K. Mehta had thrown the deadbody in the drain, obviously with a view to avoiding easy detection of the evidence of the crime. There is evidence, as we have seen, that Naso participated in assaulting V.K. Mehta. P.W.21 Abdul Latlf Khan, as we have seen, while coming back to his house and reached Battlkal Second Lane at about 12-30/12-45 p.m. noticed some persons armed with weapons present near a deadbody lying by the side of the kancha drain there and he also found the appellant Naso amongst those persons who were all armed. His evidence is that Naso was standing 2 cubits away from the deadbody. He also says that later at the police station he learnt that the deadbody of the Dy. Commissioner was recovered from the place where he had earlier seen the deadbody. Circumstantially the conclusion becomes irresistible that the deadbody was thrown Into the drain there and it must have been done by those persons who vere found present there beside the deadbody. And Naso was one of them, in the circumstances we are of the opinion that the conviction of the appellant Naso under section 201/149 1PC is justified. We are also of the opinion that his conviction under section 148 1PC is also warranted and Justified.</p><p>36. Now we consider the question of sentence so far as the offence under section 302/149 IPC is concerned. Both the appellants Naso and Lokman have been sentenced to death by the trial court for their conviction under section 302/149 1PC in respect of the murder of V.K. Mehta, the Dy. Commissioner of Police, Port Division. The learned Advocate for the appellants contended, without prejudice to his other contention that the appellants were entitled to an order of acquittal, that this was not at all a fit case for death sentence even if the conviction were upheld. In this connection he referred to the decisions in Bachhan Stngh v. State of Punjab, : 1980CriLJ636 , Rajendra Prosad v. State of U.P. : 1979CriLJ792 , Digambar Gope v. State of West Bengal 1997 C.Cr.L.R.(Cal) 139 and Rabindra Prida v. State of West Bengal 1995 C.Cr.L.R (Cal) 210 etc. On the other hand, the learned Advocate for the State has referred to the decisions in Shlo Mohan Stngh v. State 1977 SCC(Cri) 324, Gayasi v. State of Uttar Pradesh. 1981 SCC(Cri) 590, Jay Kr. v. State of Madhya Pradesh 1999 111 AD(Cr.) SC 33 and 1987 SCC(Cri) 322. etc. Indeed it is now a settled law that for an offence of murder life Imprisonment is the normal sentence while the death sentence should be Imposed only in the rarest of rare cases. The guidelines for determining the case where death sentence can be Imposed are to be found in the decisions of the Supreme Court in Bachhan Singh : 1980CriLJ636 , Mechhi Singh v. State of Punjab : 1983CriLJ1457 , Kama Tewari v. State of Madhya Pradesh, 1996 Cr.L.J. 4158. etc. In going to decide whether in a particular case death sentence should be imposed or not the aggravating and the mitigating circumstances in respect of the concerned accused are required to be taken Into consideration. In Jay Kr. v. S(ate p/M.P,(supra) it has been observed by the Supreme Court that the law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment and that while it is true that a sentence disproportionately severe, ought not passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly Inadequate having due regard to the nature of the offence since an Inadequate sentence would fall to produce a deterrent effect on the society at large. It has been further observed therein that punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, but rather for having its due Impact on the society and that while undue harshness is not required yet Inadequate punishment may lead to sufferance of the community at large. In Shtv Mohcin Sfngh v. The State (supra), it has been Inter alia observed by the Supreme Court that the heinousness of the crime is a relevant factor in the choice of the sentence. In Gayasi v. State qfU.P. (supra), the Supreme Court while confirming the death sentence in a case where the victim was a public servant and was murdered while performing his public duties observed that such crimes committed against Public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.</p><p>37. Now let us look to the circumstances in which the crime has been committed in the present case. On receiving information that a disturbance was going on in the concerned locality, V.K. Mehta, the Dy. Commissioner of the Port Division rushed to the spot and the other officers and force also joined him. He of course had no arms or weapon with him. He led the police party for restoring normalcy in the disturbed area. At that time the police party was attacked by the furious mob with brickbats, bombs and the policeparty headed by the Dy. Commissioner took shelter in a mosque. Underthe pressure of the violent and armed mob the Immam of the mosque askedthe police party to leave the mosque. In the circumstances the police partyhad to leave the mosque. As soon as they came out of the mosque theywere again attacked by the violent mob. The D.C. and his body guard MoktarAll proceeded in one direction while the Assistant Commisloner and theother members of the police party could retreat in a different direction. Whilethus retreating the members of the police party were attacked by themembers of the mob as a result of which the Assistant Commissioner andsome other members of the party sustained Injuries. Unfortunately, howeverthe Dy. Commissioner and his body Guard Moktar All proceeded in adifferent direction Isolated from the other members of the police party andthey were also chased by an armed mob. Both the D.C. and his body guardMoktar All were in police uniform. They were there to perform their officialduties to restore peace and maintain law and order. Insplte of that withoutany provocation from them they were hounded up by the ferocious mob asa result of which the D.C. and hts body guard also became separated fromeach other. The body guard was brutally killed by some of the assailants,and the D.C., while on the run for life and safely took shelter in G-222Battlkal Second Lane but there also the chasing mob followed him. In hishelpless bid the D.C. fervently disclosed to his assailants that he was D.C.of police hoping that the same would have a sobering effect on theassailants, but the assailants were in a devellsh mood and even proclaimedthat the they did not care for D.C. An isolated senior police officer of therank of a Deputy Commissioner who had been there for restoring peace andfor maintaining law and order in discharge of his official duty helplesslyfound himself pitiably doomed in a death trap under the devilish controlof the ferocious assailants while he himself was totally unarmed. There wasabsolutely no provocation from the side of the Deputy Commissioner. It wasthe bounden duly of everyone present there to assist the D.C, in discharge of his official duty to restore peace and maintain law and order but Instead, the assailants took devellsh pleasure in committing the diabolical murder of the D.C. In a dastardly manner. The brutality of the assailants on the helpless D.C. can be readily measured by the number and nature of Injuries found by the Autopsy Surgeon on the deadbody. The appellant Naso, as we found, took the lead role as the pioneer in the matter of actual assault on the D.C. after getting him in virtual capacity. Ignoring the appeal of the D.C. as reflected in the fervant disclosure of his Identity the appellant Naso delivered blow with rod on the head of the D.C. from the front side obviously with enormous force so much so that the helmet of the D.C. fell down from his head and the appellant Naso took that opportunity to deliver a second blow on the bare head of the D.C. with the rod and the beastly operation was followed by assaults by others with different other deadly weapons. The Impact of the assault made by the appellant Naso has been projected by the evidence of the Autopsy Surgeon. The head Injury sustained by the D.C. was sufficient to cause death in the normal course. The role played by the appellant Naso in making the dastardly and deadly assault on the helpless and unarmed D.C. who was on duty is studded with such mainfestatlon of depraved ferocity that the case unrringly comes within the arena of a rarest of rare cases. The tragic death of a brave and dutiful public servant in a circumstance like this is sure to have a macabre effect on the society at large and also a demoralising Impact on the public service in particular, unless the justice delivery system matchlngly responds to nuelralllse the same in the Interest of the peace-loving segment of the society. In our considered opinion, and having regard to the facts and circumstances we have no hesitation in holding that this is a fit case where the appellant Naso deserves death sentence in the Interest of the society at large. There is absolutely no mitigating circumstance for awarding the alternative sentence of life Imprisonment to the appellant Naso. In the result we confirm the death sentence Imposed by the trial court on the accused Naso for his conviction under section 302/149 1PC. However, having regard to the low-profile role played by the appellant Lokman Shah we are of the opinion that in his case death sentence need not be Imposed and the alternative sentence of Imprisonment for life for his conviction under section 302/149 1PC will meet the ends of justice. In the result the death referred in respect of the accused Naso is hereby accepted and the appeal filed by him is dismissed. The death sentence as well as the other sentences Imposed upon the appellant Naso by the trial court are all confirmed. The death reference relating to accused Lokman is however rejected and the death sentence Imposed on him by the trial court is set aside and Instead of death sentence, the sentence of imprisonment for life is imposed on the appellant Lokman for his conviction under section 302/149 IPC. Subject to above modification of sentence for conviction under section 302/149 IPC the appeal preferred by the appellant Lokman stands dismissed.</p><p>M.K. Basu, J.</p><p>38. I agree.</p><p>39. Older accordingly<p></p><p>',
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	'title_for_layout' => 'Lokman Shah and anr Vs State of West Bengal - Citation 853066 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '853066',
			'acts' => ' <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 148, 149, 201 and 302;;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 16A, 144, 154, 161, 164, 313 and 366;;Evidence Act, 1972 - Sections 9, 30, 33 and 45;;<a href="/act/52009/arms-act-1959-complete-act">Arms Act, 1959</a> - Sections 25 and 27',
			'appealno' => 'Criminal Appellate Jurisdiction, Crl. Appeal No. 274 of 1992 with Death Reference No. 11 of 1996',
			'appellant' => 'Lokman Shah and anr.',
			'authreffered' => '',
			'casename' => 'Lokman Shah and anr. Vs. State of West Bengal',
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			'casesref' => 'In Gayasi v. State;',
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			'counselplain' => ' Mr. Balai Chandra Roy, ;Mr. Sekhar Kumar Bose, ;Mr. Subrata Kumar Basu and ;Mr. Asim Kumar Roy, Advs.',
			'counseldef' => ' Mr. Tapan Roy Chowdhury and ;Mr. Thakurdas Roy Chowdhury, Advs.',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-12-01',
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			'judge' => 'Gitesh Ranjan Bhattacharjee and ;Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">G.R. Bhattacharjee, J.</p><p style="text-align: justify;">1. Both the above noted Death Reference and the criminal appeal are being dealt with and disposed of by this Judgment as they arise out of the same Judgment of the 3rd court of Additional Sessions Judge, Allpore. The trial court by its judgment and order dated 26-8-92 acquitted the accused Sanda Akhtar and the accused Hossaln Chowdhury but convicted the accused Naslm @ Naso and the accused Lokman Shah under section 302/149 IPC and further convicted the accused Naso under sections 148, 201/149 IPC. Subsequently after giving a hearing on the question of sentence the trial court by Its order dated 31-8-92 sentenced both the accused Naso @ Naslm and Lokman Shah to death for their conviction under section 302/149 IPC for the murder of V.K. Mehta and also sentenced the accused Nase to R.I. for 3 years and fine of Rs. 2.000/- i.d. to R.I. for 6 months for the offence of rioting punishable under section 148 IPC and also sentenced him to R.I. for 3 years and a fine of Rs. 2,000/-I.d. to R.I. for 6 months for the offence punishable under section 148 IPC and also sentenced him to R.I for 7 years and a fine of Rs.6000/- I.d. to R.I. for 1 year and 6th months for the offence punishable under section 201/149 IPC. The substantive sentences of Imprisonment were directed to run concurrently. The trial court then made a reference to this court under section 366 Cr.PC for consideration of confirmation of the death sentence Imposed upon the two accused Nase and Lokman. Correspondingly the said two accused have preferred appeal to this court against the judgment and orders of conviction and sentences passed by the trial court. As we have already noted both the death reference and the criminal appeal are being dealt with and disposed of simultaneously by this Judgment.</p><p style="text-align: justify;">2. It may be noted here that on an earlier occasion the trial court In a trial on the same charges and others passed Judgment and orders of conviction and sentences In S.T. No. l(6)/88 and on that occasion four accused persons namely Naso and Lokman (the present appellants) along with the accused Akhtar (c) Sanda Akhtar and Hossaln Chowdhury were Inter alta convicted under section 302/149 IPC for the murder of V.K. Mehta and sentenced to death. There were also other sentences In respect of different accused persons on that occasion. It is however to be noted specifically here that on that occasion the accused Nanney Kasai was convicted under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and sentenced to R.I. for 6 years and he was further sentenced to R.l. for 2 years for conviction under section 148 IPC with the direction that both the sentences would run concurrently. The said accused Nanney Kasai. we are told, did not prefer any appeal against the conviction and sentences Imposed on him and he rather preferred to undergo the sentences imposed on him by the trial court The four accused named above who were sentenced to death however preferred appeals against their conviction and sentences which were all heard together by a Division Bench of this court along with the death reference for consideration of confirmation of death sentence Imposed upon them by the trial court. The Division Bench hearing the said death reference and the connected criminal appeals disposed of the same by Judgment dated 8-7-91 by which the death reference was rejected and the appeals were allowed and retrial of the said four appellants-accused persons by the trial court was directed to be held In respect of the charges for which they were found guilty by the trial court. The precise ground on which the retrial was directed was that the trial court allowed the prayer of amendmenl of certain heads of charges at the stage of argument at the behest of the learned Special Public Prosecutor, thereby making amendment In respect of the names of the places of occurrence in the concerned charges. In view of such amendment In the concerned charges at the stage of argument before the trial court, the Division Bench hearing the earlier appeals and the death reference felt that the accused persons ought to have been given an opportunity by the trial court to cross-examine the prosecution witnesses after alteration of charges, and only on that ground the Division Bench considered It proper, without entering Into the merit of the prosecution case, to direct retrial of the case by the trial court In the manner directed by the Division Bench which we will mention hereafter. But before that we briefly describe the nature of charges framed against the accused persons including the present appellants. The first charge was one under section 148 IPC for rioting. The second charge was one under section 302/149 IPC for the murder of Mokhtar All, a police constable In white uniform. The third charge was one under section 302/149 IPC for the murder of V.K. Mehta, D.C. Port Division., In Khanki uniform. The fourth and the fifth charges were under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and Mokhtar All respectively. The sixth and last charge was under section 324/149 IPC for causing hurt to K.K. Sharma, Asstt. Commissioner of Police (II), Port Division and to Rama Shankar Slngh, constable.</p><p style="text-align: justify;">3. The direction of the Division Bench for retrial was couched In the following language :--</p><p style="text-align: justify;">'On the conclusion as above, we set aside the order of convictions recorded and sentences Imposed upon the four appellants before us and direct their retrial only in respect of those charges for which they were found guilty by the learned trial Judge. In the retrial the learned Judge will give the appellants an opportunity of further cross-examining those witnesses of the prosecution, who had earlier deposed In respect of the above charges and thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure. The four appellants should then be given an opportunity to adduce evidence on their behalf. On the basis of the evidence already on record, evidence to be brought on record pursuant to this order, and the further statements of the appellants, If any, made under' section 313 of the Code of Criminal Procedure, the learned Judge will write out a fresh judgment after hearing the arguments of the parties. By way of abundant caution, we reiterate that the retrial, in terms of this order Is to be confined to the four appellants only and that too only in respect of the charges for which they were found guilty. Since the appellants are In custody for a pretty length of time, we direct the learned trial Judge to conclude the retrial as expedltiously as possible, preferably within a period of two months from the date of communication of this order. Till then, the four appellants shall continue to remain in custody.</p><p style="text-align: justify;"> The appeals are thus allowed and the reference made by the learned Judge under section 366 of the Code of Criminal Procedure is rejected.</p><p style="text-align: justify;">Consequently the retrial was required to be confined to the charge under section 302/149 IPC against the four accused persons, namely, Naso, Lokman, Sanda Akhtar and Hossain Chowdhury, for the murder of V.K. Mehla and also against the accused Naso to the charge under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta as well as under section 148 IPC for rioting.</p><p style="text-align: justify;">4. The trial court held the retrial pursuant to the above noted direction of the Division Bench. The witnesses whom the accused persons desired to further cross-examine In the retrial were produced by the prosecution and were cross-examined. However, at the retrial the prosecution could not produce two of their Important witnesses namely P.W. 26, Md. Mustafa and P.W. 38. Md. Narln as they were not traceable and this fact was recorded by the trial court In Its order No. 295 dated 28-2-92. Be that as It may, on retrial the accused Sanda Akhtar and the accused Hossaln Chowdhury were given the benefit of doubt and were acquitted and this had to be done, as it appears from paragraph 32 of the Judgment of the trial court, mainly because the evidence of the two prosecution witnesses, namely, P.W. 26 and P.W. 38 were not taken Into consideration as they could not be produced for further cross-examination at the retrial. In paragraph 33 of the Judgment of the trial court, it Is recorded in that connection that the learned Special Public Prosecutor after taking sufficient opportunity finally expressed his Inability to produce those two witnesses and also pointed out that after a lapse of nine years the whereabouts of those witnesses could not be ascertained and It may be that for fear of life they had absconded. However, at the retrial the trial court convicted and sentenced the appellants-accused Naso and Lokman as noted earlier and thereafter made this reference under section 366 Cr.PC for confirmation of death sentence Imposed on them. The said two appellants have also preferred criminal appeals against their conviction and sentences.</p><p style="text-align: justify;">5. The prosecution case has been succinctly stated in the earlier judgment of the Division Bench and we restate the same. The prosecution case in a nutshell is that in the morning of March 18, 1984 communal disturbances broke out at Fathepur Village Road under the Garden Reach Police Station and its adjoining areas which fall within the Port Division of Calcutta Police. On getting information of the disturbances Sri Vinod Kr. Mehta, the then Dy. Commissioner of Police of the Port Division went there alongwlth his securily guard Moktar All. Sri K.K. Sharma (P.VV.7), who was the Asstt. Commissioner of Police of that Division then, also reached there along with his security guard R.S. Singh (P.W. 16) and other police officers. When the police personnel tried to restore peace and normalcy, they were attacked by a riotous mob with brick-bats, bombs etc. To avoid mob fury, Sri Mehta and others entered into a mosque but as they were not allowed to remain there by its [mam, they came out. Then they were again attacked with bombs and other lethal weapons and finding no other alternative Sri Mehta took shelter In the house of Abdul Latif Khan (P.W. 21). a constable attached to the Calcutta Police, at G.222 Battikal Second Lane. Moklar All. In his return, took shelter In a near-by house at Dhankhettl. Unfortunately, however they could not save their lives as they were hacked to death by the riotous mob. Subsequently, the charred body of Moktar All was found In an open space near the premises where he took shelter, while that of Sri Mehta bereft of his uniform, was found floating in a drain near premises No. F/59, Attabag with multiple Injuries on his person. Sri K.K. Sharma and his security guard were also attacked by the riotous mob and injured but fortunately they could save their lives by running away. Sri Sharma lodged an Information about the incident in the evening and on that information Garden Reach Police Station registered a case against 150/200 unknown persons for the murder of V.K. Mehta and Moktar All and for assault on Sri K.K. Sharma and other police personnel. S.I., S.R. Ganguly (P.W. 80) of Garden Reach Police Station took up investigation of the case but under orders of superiors Investigation was subsequently taken up by S.I., S.K. Bhattacharjee (P.W. 1) of the Detective Department (Homicide Squad) of Calcutta Police who submitted charge-sheet.</p><p style="text-align: justify;">6. Having described above the genesis of the present appeal, the charges framed, the prosecution case in a nut-shell and the scope of retrial, we now proceed to examine the merit of the prosecution case on the basis of the facts, circumstances and evidence on record. It Is needless to mention that we are now concerned mainly with the case against the two appellants Nase and Lokman. At the very out set. we may mention here that ext. 3/1 Is the site plan which will be of great assistance in appreciating the facts, circumstances and evidence on record Including their co-relation in respect of different aspects of the matter. We may here also adumbrate a broad categorisation of the different types of prosecution witnesses. P.W. 80, Santl Ranjan Ganguly, S.I. of Police who was attached to Garden Reach Police Station at the relevant time is the first I.O. of the case. P.W. 1, SaroJ Kr. Bhattacharjee, S.I. of Police attached to Homicide Squad. Detective Department, Calcutta Police is the second I.O. who submitted charge-sheet after Investigation of the case. P.W. 2 Is the plan maker. P.Ws. 3, 4, 5 and 6 are photographers. They are all police personnel. P.W. 65 Is a private photographer. P.W. 7, K.K. Sharma is the Assistant Commissioner of Police, Port Division who lodged the FIR and P.Ws. 8, 9, 10, 11. 12, 13 and 16 are all police personnel who had been to the disturbed area for restoring law and order there. P.Ws. 15. 18, 20. 22, 23, 25. 27. 28, 29. 34. 35, 36. 37 and 48 were all declared hostile by the prosecution. However, of the said hostile witnesses, we may have to discuss the evidence of some, namely P.Ws. 15, 18, 20, 22, 23 and 25. The main prosecution witnesses Implicating the present appellant Nase are P.Ws..16, 19,21 and 24. The other two vital witnesses P.Ws. 26 and 38 however, could not be produced for further cross-examination at the retrial. P.W. 46 Is the Autopsy Surgeon who held the post-mortem examination on the dead-body of V.K. Mehta. P.Ws. 44, 66 and 67 are also medical witnesses. P.W. 47 is the Judicial Magistrate who held T.I. parade. P.W. 51 is the Judicial Magistrate who recorded the confessional statements of the two accused Nanney Kosal and Lokman Shah on 3-4-84 and 9-6-84 respectively (vide ext. 13 and ext. 14).</p><p style="text-align: justify;">7. We will now discuss the evidence of some witnesses from which we will get an Idea of the nature of the Incident that took place on 18-3-84 in the concerned locality. P.W. 7, Sri K. K. Sharma was posted at the relevant time as Assistant Commissioner of Police (II). Port Division. He says that late V.K. Mehta was his Dy. Commissioner and he died on 18-3-84. It may be noted here that It is In evidence that 18-3-84 was a Sunday and It was the day on which 'hoiI' festival.was being celebrated. It is the evidence of Sri K. K. Sharma (P.W.7) that on that day while he was at his house he received a telephone from Port Division. Telephone Exchange at about 10-45 a.m. to the effect that a trouble was going on at the Junction of Falherpur Village Road and Paharpur Road and that the D.C. Mr, Mehta wanted his presence there. Then he proceeded to the place In a Jeep accompanied by his body guard Rama Shankar (P.W. 16) who was well acquainted with that place and they reached there at about 11 -30 a.m. and found brick-bats lying on the roads and remants of exploded bombs and he also saw a huge gathering. He also heard nofsy sounds. He says that he saw some local police officers standing there and seen D.C. Port accompanied by one Mr. Sen and local leader came to that place accompanied by some agitated persons and the D.C. told him that they would go out and see what was going on and then he, his guard, D.C., his guard Moktar All and 5/6 armed constables proceeded along the Fatherpur Village Road and entered the Mathorpara Basil and found agitated crowd on both sides of Mathorpara Bastl Lane. According to his evidence they proceeded further and came near Ramnagore Lane when brick-bats, bombs etc. were hurled at them and It was about 11-45 a.m. at that time. He says that there Is a mosque near the place where the Mathorpara Bast! approach meets Ramnagore Lane. His evidence is that due to heavy brick batting and bomb throwing D.C. asked them to take shelter Inside the mosque and In order to save themselves they entered Inside the mosque. He describes that there Is a collapsible gale at the back portion of the mosque and they entered the mosque through the front gate and after some time they noticed that a riotous mob of about 40/50 persons were trying to break open collapsible gale of the mosque and those persons were armed with brick-bals, bombs, swords, daggers etc. and Ihen the Imam of the mosque told them to leave the mosque and then the D.C. told him that they would have to leave the place and to go out and had also some discussion regarding their future course of acllon and also told him lhal they were to disparse the violent mobs. According to him the D.C. further told him that he (A.C.) should try to disperse the mob from Mathorpara Bastl approach and Ramnagore Lane junction while D.C. would disperse the mob from eastern side of the mosque. He estimates that there were about 400/500 persons around the mosque, and say that when they came out he noticed the D.C. In the midst of a crowd and was going towards the east. His evidence is that bombs and brickbats were thrown at them and he was surrounded by some persons and they forced him to sit on the ground and someone took off the helmet from his head and he was praying to God for his life and one person started hitting on his head with a full brick ('then if). He also noticed that some persons had daggers and swords with them. He says that he received bleeding Injury on his head and he was more or less senseless at that time and after some time somehow he managed to get up and could, with difficulties, reach the place wherefrom they had earlier proceeded towards the mob. He says that when he was made to sit forcibly by the mob, the situation was such that he could notice where his security guard was and where the other armed constables were. He also did not see his security guard subsequently on that date. His evidence Is that he met the D.C. Head Quarters, D.C. S.B.-I who were standing there at the place where he returned after sustaining injury, namely, near the junction of Paharpur Road and Fathepur Village Road and on seeing his condition the D.C. Head Quarters advised him to go to Calcutta Hospital for treatment and also ordered one sergeant to accompany him to the hospital and he then went to the Calcutta Medical Research Institute and was treated there. His evidence Is that he reached the hospital at about 12-15 p.m. and his Injury on the head was stitched and from there, Ignoring the advice of the doctor to take admission in the hospital, he went to Lalbazar and reached there at about 2-00 p.m. and met the Commissioner of Police (C.P.) and other high officials and narrated the Incident and from Lalbazar he went home as per the direction of the C.P. His further evidence Is that while at home he got a message that Police Commissioner had gone to the spot and he should go there and then he went to the spot and met the superior officers and came to know that the dismembered charred body of the body-guard of D.C. Mehta had been found in an open space and he also saw the charred body which was beyond recognition to him. He gave the name of the body-guard as Moktar All. He says that he also noticed that metallic buttons used by police constables were lying near the charred body and also found remnants of white uniform used by Calcutta Police Constables. According to his evidence D.C., Port Division V.K. Mehta was still untraced and they conducted search for him and on search the body of V.K. Mehta was recovered from a Kancha Nala and it was found that socks were on his feet and both legs were tied with a rope and he was wearing only one Jangea and the Galnjee was rolled up to his chest and the body had multiple marks of injuries In the eyes, face, chest and other parts and the body was sent to morgue for post-mortem examination. From his evidence it appears that In the T.I. parade he Identified the accused Sk. Nanney and in his evidence he says that he saw the said accused (Nanney) when they were coming out of the mosque. In a very violent and aggreslve mood with a bomb In his hand and he was shouting. His evidence is that after the bodies were sent to morgue, he went to Garden Reach Police Station and there S.I., Santf Ranjan Ganguly (P.W. 80) recorded his statement which was signed by him after going through the same. His statement which was recorded and treated as FIR was marked Ext. 4. In his cross-examination he says that he made the statement to the S.I. at about 8-05 p.m. He also clarifies that the statement fn the FIR (Ext.4) 'after seeing Commissioner of Police I came back to the spot at about 15 hours' is not correct, because he went home from Lalbazar and from home he went to the spot. This he has said In his examination-in-chief and we do not think that there is any substantial discrepancy In the matter. In his cross-examination he says that the police vehicles were parked near the crossing of Paharpur Road and Fatherpur Village Road since the vehicles could not got through Mathorpara. He also says that he was assaulted at Ramnagore Lane near a place where Mathorpara Road meets Ramnagore Lane and after the assault he went to the crossing of Fathepur Village Road via Mathorpara Lane. He says that at Lalbazar he came to know that V.K. Mehta and his body guard were still missing. He also says that dusk to dawn carfew was Imposed in that area on 18-3-84 and he was Informed at the P.S. that section 144 Cr.P.C. had been also promulgated in that area. He says that after the incident due to his Injuries he was completely on bed rest for two months. In his cross-examination in the retrial, he says that the dead body of V.K. Mehta was recovered from a Kanchha Nala and he saw It when it was taken out from that Nala. He however did not see the actual bringing out of the body from the Nala. He first saw the dead body, he says, by the side of the road where It was kept after bringing the same out from the nala. His further evidence Is that about 8 to 10 police personnel Including himself and D.C. Mehta were Inside the mosque and while some of the police personnel were not armed, some were carrying muskets and gas shells. It may be noted here that Ext.4 which Is the statement of P. W. 7, K.K. Sharma that was recorded as FIR on 18-3-84 stands In substantial conformity with the evidence of P.W.7. Sri K.K. Sharma as given in court.</p><p style="text-align: justify;">8. P.W. 8, Sayed All Reza Is an armed constable of police. His evidence is that on 18-3-84 he reported to Lalbazar for duty at 6 a.m. and his duty was allotted to Watgunge P.S. and he went there with a gas gun, and that while he was In that P.S. on standby duty at about 10/10-15 a.m. the Subedar reported that a trouble was going on In Garden Reach area and they were required to go there and accordingly they left for Garden Reach and reached there at about 10-30/10-45 a.m. He says that he saw D.C. Mehta, A.C. and olher police forces and police officers present there and then D.C. Mehta proceeded Inside the bastl along with A.C.. the witness (P.W.8), guards of D.C. and A.C., 5 armed constables, 2 plain clothed constables and 3 police officers In plain cloth. He says that after entering Inside the basti they found a dead body lying there and D.C. asked two police men to guard the dead body and three police officers In civil dress were asked to bring a vehicle and pick up the body. He says that they heard noise coming from Inside the bastl and also heard sounds of bombs and then D.C. Mehta alongwith A.C. proceeded Inside towards that direction and they were with them and when they reached the road through the lane near the mosque they were attacked from both sides of the road and they took shelter in that mosque with the help of a Moulabl and members of the mob were throwing bombs, brick-bats and they had lathi, rods also with them. He says that he noticed that about 20/25 bombs were hurled towards them and when they took shelter In the mosque, a violent mob being armed with weapons were trying to break open the back side collapsible gate of the mosque and the Moulabl was also threatened by the mob with dire consequence if he did not drive out the police parly from the mosque and then on being asked by Moulabl they came out of the mosque and they were attacked with bomb and brick-bats and then the A.C. ran inside the lane through which they had reached the road and they also followed him. He says that as soon as he entered inside the lane he saw that the A.C. was being assaulted on his head With a brick and his helmet was missing. According to his evidence he tried to fire gas from his gun but the gun did not work and then using the gun as a lathi he gave a blow to a boy who was assaulting the A.C. He further says that when he hit that boy with the gun the gas shell burst out. He however says that he could not recognise the boy who assaulted the A.C. with the brick on his head as trouble was going. He further says that when the gas shell burst out, all of the persons fled away from the place and A.C. then stood up and started walking slowly with bleeding Injuries on his head. P.W.8 says that he also received a brickbat blow on his leg when he was going to enter inside the lane after coming out of the mosque. His evidence is that he followed the A.C. keeping watch on the back side and In this way they reached the place where they had come from watgunge P.S. and at that time he noticed the presence of D.C. Headquarters at that place alongwith other police officers and constables and they had a talk with the A.C. His evidence Is that he reported to one police officer that D.C. Mehta had been separated from them and on hearing this the D.C. Headquarters proceeded inside the basti alongwith them in order to ascertain the situation. He says that it was then about 1/1-30 p.m. and he took the D.C. and the others to the mosque and on his way he reported the entire incident to the D.C. Headquarters. He says that the D.C. Headquarters started asking the people of the locality regarding the whereabouts of D.C. Metha and on receiving one information they went to an open space on Ramnagore Lane and saw that a human body was burning. He further says that they noticed a piece of white uniform and a nickel button used by constables lying near that place and so he guessed that It was the body of the guard of D.C.Mehta. That place, he says, is near the mosque. His evidence is that then he and other police constables remained at that place where the dead body was burning and the other police officers went to other place and then at about 5-30/6-00 p.m. they come to know that the dead body of V.K. Mehta had been traced out. His further evidence is that he saw that a dead body was placed by the side of a drain in a lane and the dead body was covered with a white cloth and a police officer lifted that cloth and he found that it was the dead body of Mehta with marks of injuries. In his cross-examination he says that he was 3/4 cubits behind the A.C. when the A.C. was being assaulted and as he was threatening the mob with the gas gun he was not assaulted by any person of that mob. He gives the time as 2/2-30 p.m. when he noticed that the dead body was burning. P.W.9 is also an armed constable attached to the 5th Battalion. He was also sent on duty to Garden Reach area on 18-3-84 after 10-00 a.m. He says that in their party there were 4 armed constables and four had gas guns and some others had lathies and one inspector was with them. His evidence Is that on reaching Paharpur they found a gathering and also heard shouts and D.C. Port, A.C. and other police officers were present at that place. His further evidence Is that D.C. Port, asked four armed constables and four constables with gas guns to accompany him in the adjacent lane and they entered in the lane and after going some distance found a house in blaze and the D.C. placed two armed constables to guard that house and then they along with D.C. were proceeding through an adjacent baeti area and noticed a dead body and D.C. ordered two local police men to guard the dead body and they proceeded further and came to a road near a mosque and when they were on that road they were attacked from both sides with brick-bats, bombs and on being attacked they entered inside the mosque. He says that there were 60/70 persons on both sides of the road. His evidence is that then some persons were trying to break open the gate of the mosque and the Moulabl asked them to get out of the mosque and they came out of the mosque and they were attacked with bombs and brick-bats. He says that he took shelter in a chala and also threw his gas granade but the granade did not burst. He says that from the Chala he came out and started running and he met the A.C. and other police men. He says that A.C. had bleeding injury on his head and finally he boarded the lorry. in his cross-examination he says that D.C., A.C., himself and other police men were together up to the mosque of Paharpur.</p><p style="text-align: justify;">9. P.W.10 is another armed police constable. He was also sent on duty to that place on that day. His evidence is that when they came to the Junction of Paharpur Road and Fathepur Village Road, D.C. Port, V.K. Mehta, his guard, A.C. Port Mr. Sharma, his guard, O.C. Garden Reach P.S. and some local police officers and constables were present there. He says that a house was burning some distance away and a vehicle of Fire Brigade was there. His evidence is that they along with D.C. and A.C. proceeded towards the northern direction and D.C. posted two armed constables near the burning house and proceeding further they found a dead body and D.C. posted the constable of local P.S. there and they proceeded further and noticed an agitated mob and also heard sounds of bombs. He says that they reached Ramnagore Lane near the mosque and up till then the D.C. did not order them to fire. He further says that the D.C. did not pass any order to fire. His evidence-is that when they reached near the mosque, bombs were thrown and they entered inside the mosque. He further says that 20/ 25 persons armed with sharp weapons such as sword, tangi like weapon, klrlch etc. tried to break open the gate of the mosque and when they then all came out of the mosque bombs, brick-bats were thrown at them. He also speaks of assault by one person on A.C. Mr. Sharma and says that his helmet had fallen on the ground and his head was bleeding. He says that at that stage he did not see the D.C. He further says that on their way back he had fired two rounds in the air in order to save themselves as bombs were being hurled from roof-top. He also speaks about the burning of a house and says that Mr. Sharma told the D.C. Headquarters that the D.C. Mehta had been separated from them and then Sharma left for hospital as he has injury on his head and they boarded the lorry. His cross-examination shows that the D.C- Port Division had a shield in his hand at certain stage. P.W. 11, Ashlm Chakraborty is also an armed constable of Calcutta police who was sent on duly there on that day. He says that he was carrying gas gun. He also speaks about the mob found on reaching Fathepur Road arid Paharpur Road crossing. He testified to the presence of D.C. Port. A.C., Port and their guards and officers of Garden Reach P.S. as well as police men of that P.S. He says that they could hear shoutings and sounds of bombs coming from northern side and the D.C. asked them to follow him and than D.C., A.C., their guards and they including the witness along with police officers of the local P.S. and constables proceeded towards north through Fathepur Village Road and through a narrow lane in the basti when they heard sounds of bombs and noise in the Bastt and also they found a deadbody near a two storyed building covered with cloth. He says that the D.C. ordered the two constables of the local P.S. who had muskets to guard the deadbody and also directed the two officers of the local P.S. to make arrangement for removal of the deadbody and then he along with D.C., A.C., their body guards, two armed constables and four gas constables including himself proceeded towards further north and reached Ramnagar Lane near a mosque. He says that many people were shouting, standing on sides of Ramnagar Lane and they were attacked with bombs and brickbats from both sides of the road and then they all entered (n the mosque. His evidence shows that a mob armed with swords, bhojalis were trying to break open the collapsible gate and the D.C. ordered them to come out of the mosque and then they all came out and they were again attacked with bombs and brickbats from both sides of the road. He says that he was hit on his leg with a brickbat. He further says that he fired one round of tear gas shell but it did not explode and then out of fear and to save himself, he took shelter in a tileshed and another constable also took shelter there. He noticed that the A.C. Port Division was going back. He also speaks about the bleeding injury on the head of the A.C. Port Division Then they reached the crossing of Paharpur and Fathepur Village Road where D.C. Headquarters was present. He says that A.C., Port Division talked to the D.C. Headquarters. P.W. 12 Naba Ranjan Dutta is an armed police constable. He says that from Lalbazar they were sent to Garden Reach area and they went there in a lorry and reached Paharpur Road at about 11/11-15 a.m. and found V.K. Mehta. D.C., Port and A.C., Port present there. His evidence also shows that when they reached the road near the mosque a mob of about 150 persons or so on both sides of the road started throwing bombs and brickbats towards them and then they entered inside the mosque and then some persons were trying to break open the collapsible gate of the mosque and were shouting for driving them out of the mosque. He further says that D.C. and A.C. had some conversation with the Moulabl of the mosque and thereafter they all came out and when they came on the road they were again attacked with brickbats and bombs from both sides on the road. He says that he was also hit on his hand and feet by brickbats. He of course cannot say as to which of his companions had gone in what direction but he noticed that the A.C. and 2/3 armed policemen were going towards the lane through which he had come earlier and he followed them. P.W. 13 Ajit Kr. Malty, a constable of Calcutta Police who was in the police party at the relevant time also speaks about that part of the incident which the other police witnesses have described as discussed above.</p><p style="text-align: justify;">10. P.W. 16 Rama Shankar Singh who is a police constable was the security guard of K.K. Sharma (P.W.7), the A.C.-11 (Port) at the relevant time. He went to the spot with the A.C.-II (P.D.) on the relevant date. He says that they reached Fathepur Village Road and Paharpur crossing at about 11-00 a.m. and found the D.C.. Port. Vinod Kr. Mehta and his body guard, both in police uniform, present there as well as the O.C. Garden Reach P.S. and three police officers of South Port Police Station. He also speaks about the presence of some constables of Garden Reach P-S. and police force there. His evidence shows that the people of that locality were in very agitated mood and the D.C. was trying to pacify them and at that time they heard uproars and sounds of bombs coming from Mathorpara side and then the D.C., Port, his body guard, Mr. Sharma, he (the witness), three police officers, two constables of Garden Reach P.S. and six armed constables, [two carrying muskets, two with gas guns and two with gas granades) proceeded towards Mathorpara under the leadership of D.C., Mehta and on reaching Mathorpara they noticed one deadbody lying on the ground near the house of one idrlsh and then the D.C. told the three police officers to make arrangement for removal of the deadbody in a vehicle and the D.C. also posted two Garden Reach P.S. constables near that deadbody. His further evidence is that they then heard roars coming from Ramnagar Lane side and then D.C. Mehta, his body guard. Mr. Sharma, the witness himself and six armed constables proceeded towards that direction and as soon as they reached Ramnagar Lane from Mathorpara they were attacked from the eastern and the western sides of the Ramnogar Lane with brickbats, bombs etc and in order to save their lives they entered in a mosque situated on Ramnagar Lane and they noticed a mob standing behind the collapsible gate of the mosque and trying to break open the gate. He further says that the mob was shouting and asking the imam of the mosque ot drive them out of the mosque and then the Moulabi asked the D.C. to leave the mosque and then the D.C., Mehta had some talks with Mr. Sharma and thereafter they left the mosque. As soon as they came out of the mosque, he says, they were attacked from both sides of the road with bombs, brickbats etc. He says that he received bleeding-injury on his right leg as he was hit with a splinter of bomb and with a brickbat when he was on Ramnagar Lane. He says that he received bleeding injury on the thigh of his right leg and he fell down on the ground and got up within two minutes. His evidence is that at first he could not see any of his companions but subsequently he noticed that the D.C. Mehta and his body guard were running towards the eastern side and a (SIC)b was chasing them with swords, brickbats and bombs. it is to be noted here that from this witness, namely, the body guard of the A.C.. Sri Sharma we get that on being chased by the armed mob, the D.C., Mehta and his body guard ran towards the eastern side. His evidence is that in order to save him he himself started running towards the western side and reached Paharpur road. His evidence read with the evidence of the police witnesses discussed earlier thus indicates how D.C. Mehta and his body guard at that point of time were separated from the other members of the police party on the face of the attack made by the furious and armed mob, and at that point of time when the other members of the police party retreated towards the western side, the D.C., Mehta and his body guard were running in the other direction, namely, the eastern side on being chased by the mob and thus they became isolated from the other members of the police party. P.W.16 says that when he reached Paharpur Road on running away from the place of the trouble, he found a taxi there and he went to Garden Reach P.S. in that taxi and there he reported the incident to one A.S.I, of the P.S. and from the P.S. he went to Calcutta Police Hospital for treatment and was admitted there and he was in the hospital for 26 days. A significant part of his evidence is that he speaks about the presence of Nannay Kasal and Naso (an appellant) and Puttan in the mob having bombs with them when the police parly was attacked by the mob on Ramnagar lane as soon as they reached there from Mathorpara. He also says that he had seen Nannay Kasal to throw bombs towards them. He further says that at that time he also saw Hallm, Naru, Gorachand and llllas, all asked with brickbats and also idrish Rahaman, Kallu armed with bombs. He further says that he had also seen Kasrln in that mob. He says that he knew them previously. in court he also identifies the accused Naso and certain other accused persons. His evidence is that the mob which was throwing bombs etc towards them and the -mob that chased the D.C. and his body guard as well as the mob that was trying to break open the gate were all in angry mood. The evidence of this witness is thus significant as he testifies to the presence of the accused Naso, an appellant herein, with bomb in his hand in the furicus mob that attacked the police parly. in his cross-examination he says that the distance between the mosque and the Paharpur road along Ramnagar Lane will be five to ten minutes walk and the crossing of Ramnagar Lane and Paharpur Road will be about 5 to 10 minutes walk from the crossing of Fathepur village Road and Paharpur Road. He says that they wereinslde the mosque for about 5/ 6 minutes. He also says that both the D.C. and his body guard were in uniform. From his cross-examination we get that the distance between Ramnagar mosque and the Ramnagar oulpost will be less than a mile. He further says that on that day there was trouble in alomost all parts of that area. His evidence is that on that day there was disturbance between Hindu and Muslims. in his cross-examination during retrial he says that after coming out of the mosque he sustained injury on his right leg from a splinter and he fell down and thereafter he managed to go towards Paharpur Road and he went to the Garden Reach P.S. at about 12-45 p.m. and he narrated before the duty officer how he sustained injury and thereafter taking sick report he went to the police hospital. He further says that excepting the disturbance infront of the mosque he had no occasion to see any other disturbance on that day. He also says that when he was in the hospital for 26 days the Police Officer from Lalbazar vlslled him for interrogation. From him we get that he was posted in Garden Reach P.S. for one year from 1980 to 1981.</p><p style="text-align: justify;">11. P.W. 73 Sewnath Slngh was the O.C. of Garden Reach P.S. on 18.3.84. His evidence is that on that day at about 10-15 a.m. S.I.. O.K. Sikdar of Garden Reach P.S. received a massage from Lalbazar Control Room that a disturbance of communal nature was going on in Falhepur village Road area and that information was recorded in the G.D. of the Garden Reach P.S. and thereafter he along wllh S.I., H.P. Dutla. S.I., O.K. Sikdar left the P.S. with available force. He says that he was in his Jeep and the force was in a police vehicle and they reached the concerned area at about 10-30 a.m. and noticed that two groups of agitated mob numbering about 800 or so were throwing brickbats, bombs etc at each other and then he along with his officer and staff chased the crowd and the crowd melted and entered in the lanes and by-lanes. He says that two buildings were on fire and they tried to put off the fire. His further evidence is that the D.C. Port and some other police officers also arrived there, namely, O.C. iqbalpur P.S., O.C. SPPS, S.i. A. Cope, S.i. S. Gupta, Sergeant S. Banerjee and other police men. He also speaks about the presence of the armed body guard of the D.C. He says that when the D.C. came he had his guard Muktar All with him. The D.C., he says, was in his Khaki uniform and his guard was in white uniform. His evidence is that he showed the D.C. the affected place and the D.C. also chased the crowd. He says that other houses were set on fire and they tried to extinguish the fire with the help of local people and the Fire Brigade also arrived there and at that time on receiving and information that a man had been killed on Paharpur Road, he left for Paharpur Road with one or two constables on foot and on arriving there he found that the people were very much agitated and the dead body of one Subrata Bhattacharjee, whom he knew, was lying infront of the premises No.J-146. Paharpur Road and thereafter he pacified the people and came back to Fathepur village Road to make arrangement for the removal of the deadbody. His evidence is that the T.C. Head-quarters S.K. Dasgupta arrived at Fathepur village Road and at that time A.C. (ii) Port Division K.K. Sharma came there with injury on his head and thereafter he himself along with D.C. Headquarters and force proceeded towards Ramnagar Lane through Azhar Motla Bagan as they had no trace about the D.C. Port and his guard. His evidence is that they were searching for the D.C. and his guard at Ramnagar Lane and adjacent areas and K.K. Sharma, A.C. (ii) Port Division was sent to hospital accompanied by Sergeant J.L. Roy. His further evidence is that when they were continuing the search for D.C. and his bodyguard, they found at about 2-30 p.m. a deadbody which was on fire lit by bomboo pieces and other elements in an open plot in front of Mirza Galllb School and a burnt khankl cloth piece and one metal button were found near that place. He says that the fire was extinguished and the charred body was taken charge of by them and he asked his officer to hold inquest of the charred body and the inquest was held by S.i. S. Moitra. His further evidence is that they continued their search for Mr. Mehta and at about 5-30 p.m. the deadbody of Mr. Mohta was found floating in a kancha drain behind the premises No. F-59 and F-201, Atabag. The deadbody, he says, was floating on its back with legs towards north and head towards south with only under-wear on and the body was smeared wllh mud. He clarifies that by underwear he means under-garment. He also speaks of the presence of a pair of socks on legs and a rolled vest on the body. He says that there were injuries on the deadbody of Mehta, mostly on the face and the right part of the head. The body, he says, was taken out from the drain and S.I. S. Moitra prepared the inquest report of the deadbody of V.K. Mehta in their presence and then the charred body and the body of Mr. Mehta were sent to Calcutta Police Morgue for post-mortem examination. He says that the charred body was the body of Moktar All, the security guard of D.C. His evidence is that after the deadbodles were sent to Calcutta Police Morgue, they returned to Garden Reach P.S. at about 8-05 p.m. He further says that the D.C. Port did not carry any revolver on that day. His evidence is that when the security guards go for duty they carry service revolver and ammunallon. in his cross-examination he says that the charred body had no hands and legs and the head was also missing except the occipital region of the skull. He also says that the open space where the charred body was found is situated at the junction of Ramnagar Lane and Battlkal. He says that Ramnagar Lane runs from east to west and Battlkal runs from north to south and the open space extends up to Mirza Galib School from the junction of those two roads and the school is to the north of that junction. He further says in his cross-examination that from Lalbazar Control Room a massage was received that deadbody was floating in the kancha drain. He says that as the situation was abnormal, he cannot remember everything in details and it is difficult for him to say who detected the floating body first as there were many olflcers together in search of the deadbody. He further says that S.J., S.R. Gangull (P.W.80) was the l.O. of the case at the initial stage and thereafter the case was taken over by the Detective Department, Lalbazar. He says in his cross-examination that the D.C. D.D. Mr. H.A. Safwi also came to Ramnagar area a bit late and he was all through with them and curfew was imposed in that area and some persons were apprehended in that area on 18th and 19th March and were challanged in petty cases but he cannot tell the number of the arrested persons now. He also cannot tell in details whether all the arrested persons were challaned in petty cases or some were released after interrogation. He says that curfew was imposed on 18.3.84 in that area and so far he remembers the curfew was in that area for 10/12 days. He also says that as he did not witness all the incidents so he did not start any FiR suomotu. He says that the open plot where the charred body was found was at the Junction of Ramnagar Lane ?,nd Battlkal. He also says that they had been to Ramnagar Mosque at about 12-30 p.m. on that day and at that time there was no gathering there.</p><p style="text-align: justify;">12. P.W.15 Farha Juvoll is the iman of the Dhankhetibari Masjid where the policeparty took shelter on being attacked by the violent mob. This witness, it seems, was treated as hostile by the prosecution. But even then he testifies to the fact that the police party entered in the mosque and had been there for some time. P.W. 17 Abul Hassan is a resident of G-246 Ramnagar Lane. He says that the Maidan to the north of their house is known as Dhankhetl Maidan. in March, 1984, he was working in the wheat grinding shop of his cousin brother Makbul Ahmed at G-247 Ramnagar Lane. He says that on 18.3.84 as usual he went to the shop for his work at 7 a.m. and at about 9-45/10-00 a.m. while he was working in that shop he heard sounds of bombs coming from Mathorpara side and Fathepur village Road side and he found that people were running here and there and he came to know that riot had started between Hindus and Muslims and being afraid he closed the shop and went home at about 10-30/10-40 a.m. He says that he again heard sounds of bombs coming from Ramnagar Lane Dhankheti mosque side and he also heard uproars and he felt that the uproars and sounds of bombs were moving towards their house and he then opened his window partially and noticed that two policemen were running speedily towards Battlkal side, one policeman being in khaki uniform and the other in white uniform. He noticed one wire-net shield in the hand of that policeman who was in khaki uniform, and that brickbats were being thrown at him and he was blocking the blows with his shield. He further noticed that 20/25 persons were chasing the policeman and were hurling brickbats at him. He says that he could recognise some of thepersons in that mob who were throwing brickbats and chasing those policemen and he names Rahamat, Nanney. Corachand, Halim and Matin as the persons whom he could recognise. He says that the mob chased those policemen towards Batlikal side and he become afraid and closed the window. His evidence thus lends support to the prosecution case as well as the other evidence adduced by the prosecution in that behalf that the D.C. V.K. Mehta and his body guard Moktar All were being chased by a violent mob. He further says that at about 12-30 p.m. he heard sounds and uproars coming from Batukal side and subsequently it appeared to him that the roars were coming from Dhankheti Maidan and he again opened his window partly and noticed that a policeman in white uniform was lying on the ground and about 15/20 persons were there around that body. He further noticed that four persons were chopping the hands and legs of that policeman with chopper like weapons and he could recognise Rahamat and Matin who along with two others were chopping the hands and legs of that policeman. He also could recognise Gorachand and Hallm amongst the persons who were standing near the body of the constable. He noticed that some persons were placing bamboo pieces near that body, and he says that being afraid he closed the window. His further evidence Is that at aboul 7/8 p.m. In that night he came to know that D.C. Port had been murdered and his body guard was also murdered and his body was burnt down. He restifies that by the dress of that body he could recognise that he was a police sepoy. His evidence thus lends support to the prosecution case that the body of Moktar Ali, the body guard of D.C. Mehta was dismembered by cutting its limbs and was burnt by fire by the miscreants, and he also could identify some of the miscreants named by him. In his cross-examination he says that curfew was imposed in that area in the afternoon of 18.3.84. He further saus that his father was arrested by police at about 4/4-30 p.m. on 19.3.84 from the crossing of Barttikal and Ramnagar Lane and his father returned in that night at about 7-30/8-00 p.m. He says that In their locality the number of muslims is more than that of the Hindus. He denies the defence suggestion that his father was released by the police on the understanding that he would give evidence on behalf of the prosecution as tutored by the police. P.W. 18. Makbul Ahmed is a resident of premises No. 247 Ramnagar Lane. He testifies to the fact that on 18th March, there was huge mob and people were running here and there at about 10/10-10a.m. He was however treated as hostile by the prosecution. He says that on that day he. Mansoor, TaJ All and 30 others were arrested by police and taken to Garden Reach P.S. and they were released at about 11-00 p.m. P.W.19, Khalil Khan was resident of G-230, Batlikal at the relevant time as a tenant. He Is a police constable who was posted at Lalbazar Headquarters, R.C. Office In March, 1984. From his evidence we get that P.W.21 Abdul Latif Khan is his cousin brother and P.W.24 Hadis Khan Is the son of the said Abdul Latif Khan and that In March, 1984 Hadis was residing at G-222 Batlikal. It may be mentioned here that Abdul Latlf Khan is also a police constable. P.W.19, Khalil Khan says that in March. 1984 Hadis Khan had no employment and he used to keep 2/3 cows and sell milk. He says that the uniform of Calcutta Police constable is white shirt and white pant and also they used buttons on their shirt which were made of brass. He also testifies that the emblom 'C.P.' is also made of brass. He knows Moktar All. He says that 18.3.84 was a holiday and he was In his house and at about 10/10-30 a.m. he heard a huge row coming from Fathepur village Road side and he also heard a row coming from Battikal side and he came out of his house and stood on the road very close to his house and while he was standing near the corner of the house of Kayum which is 228/2 Battikal, he saw that D.C. Mehta and his body guard constable Moktar All were being chased by a mob from the southern side to the northern side and they were throwing brickbats at those two police persons and were shouting 'maro, maro police lokko maro'. He says that the mob and those two police persons were 30/40 yards away from the place where he was standing, He testifies to the fact that the D.C. was in a khaki uniform and Moktar was in white uniform. He says that the house of Nalmmullah Is opposite to his house at a distance of 30/35 yards, the number of that house being G-228/3 Battikal. He saw that the security guard Moktar All entered in the house of Nalmmullah and 30/40 persons were chasing Moktar Ali. He says that he Intervened and stated to them not to assault the police otherwise they would feel the consequence. He says that in the mob some were carrying choppers and some were carrying swords. He also says that he was dashed down by the mob on the ground. He could recognise Gorachand. Sagir, Rahamat, Halim, Wahob and Kallu amongst the persons who were chasing the police constable Moktar Ali. He says that he was dashed down by Rahamat, and Kallu was with Rahamat at that time and that being afraid he then went Inside his house. His further evidence is that 20/25 minutes thereafter his brother's son Hadls (P.W.24) came to his house and reported that Naso and his associates had assaulted the D.C. very serious by in the house of Hadls, and that Hadis also stated that a sepoy was also being assaulted by Rahamat and Kallu on the road. Hadls, he says, was very much purturbed and he was trembling and Hadls told that he was leaving for his father-in-law's house. P.W. 19 Khalil says that he also became afraid apprehending attack on him and the members of his family as he was a police constable and so he along with his family members went to Ramnagar Police Camp. In his cross-examination he says that on that day at about 8-30/9-00 p.m. he went to Garden Reach P.S. after leaving the members of his family at Ramnagar Police Camp and made a statement to the police officer about the Incident seen by him. He says that he made the statement to the duty officer who recorded it in english. He says that his two brothers are also working as Calcutta Police constables and his cousin brother Latif (P.W.21) is also a constable of Calcutta Police. He further says that on that day latif Khan had duty. He says that his office was closed on that day being a Sunday and that the R.O. office remains closed on Sunday and other holidays. He says that he reached Ramnagar Police Camp with his family members at about 2/2-30 p.m. after locking his house. His evidence in cross-examination is that as soon as he came out of his house hearing the row he noticed that D.C. and Moktar crossed him from southern side to northern side speedily. He denies the defence suggestion that his brother's son Aktar was arrested by police and was made an accused but subsequently he was let off and in his place another Aktar was made accused. He however does not remember whether Hadls was arrested by the police. He also denies the defence suggestion that as he is a police constable so he is deposing falsely on being pressurised by hissuperior officers. He says that from Garden Reach P.S. he returned to Ramnagar Camp and stayed there with hts family for the night and in the next morning he returned home at about 8-00 a.m. Hadls, he says, came to his house at about 12/12-30 p.m., and reported to him what he had seen. He denies the defence suggestion that his relations were taken in custody by the police and when he and Latif asked the police officers to release them, they told that they would be released provided they would give evidence. in his cross-examination at the retrial he says that his statement was recorded by the police at the P.S. at about 8/8-30 p.m. on the date of the Incident.</p><p style="text-align: justify;">13. P.W.20 Akil Ahmed is a resident of G-223 Battlkal. He, it seems, was however treated as a hostile witness by the prosecution. From his examination-in-chief we however get that Latif Khan (P.W.21) and P.W.24 Hadls Khan (son of P.W.21) reside in the tileshed house which is adjacent to the house of this witness (P.W.20). We get it from P.W.21 and P.W.24 that the premises in which they reside is G-222 Battikal Second Lane. It is also to be mentioned here that according to the prosecution the incident of assault on D.C. Mehta took place in the said premises No. G-222. Battlkal Second Lane. P.W.20, Akil Ahmed says in his cross-examination that Hadis Khan (P.W.24) used to keep cows and sell milk and he used to keep cows in the courtyard. The prosecution expected this witness to give positive evidence about attack on two police persons but he belled that expectlon. From his examination-in-chief it however appears that their house is a two storied building and one can see the rooms of the tileshed (where Latif Khan and his son Hadls used to reside) from his house (the house of P.W.20) on leaning. However, what the prosecution inter alia suggested to this witness is that he stated to the I.O. during investigation that he found that some minor boys were pouring water In the room where D.C. entered and also on the courtyard, which however he disowns to have made. By this suggestion the prosecution possibly wanted to project a case that blood which had fallen there as a result of assault on D.C. Mehta was washed away with water. P.W.20 wants to say that on the date of the indicent he was not in his house and therefore he did not see anything. In his cross-examination on behalf of the defence he says that he returned home on 19.3.84 and on that day police had arrested Abut Hossain, Sallm and many others. He however, did not see Hadls Khan on 19.3.84. The evidence of this hostile witness thus shows that on 19.3.84 many pesons were arrested or picked up by the police. We will find from the evidence of P.W.24. Hadls Khan that he was also picked up by the police on 19.3.84 which we will discuss later. P.W.20 says in cross-examination that on 19.3.84 he stayed in the house for 2/3 hours and thereafter fled away from that area and went to his sister's house and stayed there for some days. The evidence of this hostile witness P.W.20, we find, lends support to the prosecution case that Latlf and his son Hadls were his neighbours at the relevant time and Hadls used to maintain cows and sell milk and that on 19.3.84 police arrested many persons of that locality.</p><p style="text-align: justify;">14. P.W.21 Abdul Latlf Khan was residing with his family at G-222 Baltikal Second Lane as a tenant at the relevant time and Hadis Khan (P.W.24) is his son. He says that In March, 1984 Hadls used to keep cows and sell milk and that he used to keep his cows in the said premises. Hisevidence is that on 18.3.84 which was the 'holiday' he had stand-by duty to be performed from 12 noon to 8-00 p.m. at P.T.S. Barrack and that at about 12 noon he got the information that a riot had started between the Hindus and Muslims in their area and he then started for his house from P.T.S. Barrack In order to see the members of his family. He says that at about 12-30/12-45 p.m. he reached Battlkal Second Lane and when he advanced ten steps or so he found that 6/7 persons were standing ahead of him and amongst them he could recognise Naso (an appellant), Puttan. Samsad and Abbas who were all armed. He says that some of them had swords, some had choppers, some had Napalas etc and they were standing by the side of kancha drain in Battikal Second Lane. According to his evidence the house of Dr. Hikmat All Mondal was situated near that place and he also noticed that one deadbody was lying by the side of that kancha drain but not inside the drain. He says that he knew those persons named by him as they were his neighbours. He also idenlified the accused Naso in court. He says that those persons were standing very close to that deadbody and that Naso was standing two cubits away from that deadbody which was at a distance of about 30/35 yeards from the place where he (the witness) was standing. He says that so far as he could see, blood was coming from head and the deadbody was smeared with blood. According to his evidence he stopped there and thought that it would not be proper for him to advance further and he became alarmed and then returning back he entered In the premises No. G-350 where his father was residing with his step-mother and he learnt from his father that there was trouble in Battlkal area and his wife and other members of the family had left that area and that he then went to his brother's house at Alif Nagar and came to know that his wife and sons and daughters had not come there and he then went to Kazlpara in the house of the father-in-law of his son. Md. Hadis and there he met Hadls and the other members of the family. Then he says that his son Hadls reported to him that a mob had chased D.C. Port and the D.C., Port took shelter Inside their house and then Naso, Puttan Samsad and some other persons started assaulting D.C. and that Hadis also reported to him that he had seen some miscreants assaulting one constable in front of the house of Naimullah. He testifies to the fact that at that time Mr. Mehta was the D.C., Port. His evidence is that thereafter from Kazipara he went to Garden Reach P.S. at about 8-00 p.m. and at that time there were many police officers who were very busy and at about 9-30 p.m. he could state to a police officer about the Incident seen by him and also heard by him from his son, and his statement was recorded. He also says that he found his brother Md. Khalil (P.W. 19) in the P.S. and his statement was also recorded by the police officer. He further says that at the P.S. he learnt that the deadbody of D.C. was recovered from the place where he had seen the deadbody of a person as stated by him and lhat the deadbody of police constable Moktar was recovered from Dhankheti Maidan. He says that he is residing at G-222 Battikal Second Lane for the last 25/28 years. In his cross-examination he also gives the names of certain other tenents who were living at G-222 Ballikal Second Lane with family. He says that the accused Naso at that time used to reside occasionally in the house of one Nazi Saheb in Battikal Second Lane and occasionally in the house near Match factory by the river side. In his cross-examination he says that he had seen 6/7persons including the persons named by him by the side of the Kancha drain and he became afraid when he saw those persons and he stood there for one minute when he saw those persons but none of them approached him. He specifically says that he became panicky as soon as he noticed the deadbody and those persons and he stood ther for one minute. Dr. Molla. he says, is known as Dr. Hlkmat All Mondal. He says that he was very much unnerved on seeing the deadbody all on a sudden. In his cross-examination he says that he reached Garden Reach P.S. at 8-00 p.m. and after his statement and the statement of his cousing brother Md. Khalil (P.W.19) were recorded, they left Garden Reach P.S. at 10-00 p.m. and he went to P.T.S. and his brother went to Ramnagar Camp. Khalll, he says, is also a Police constable of Calcutta Police. He says that when he reached Garden Reach P.S. he found many senior police officers Including Commissioner of Police and Jt. Commissioner of Police etc. present there. He says they he stated that he had seen something and heard something but no police officer was listening to him and so he could not report as soon as he reached the P.S. and finally he could make statement to the police officer at 9-30 p.m. and it was recorded In English and read over and explained to him. Much has been criticised by the learned Advocate for the appellants that according to this witness he reached Garden Reach P.S. at about 8-00 p.m. but his statement was not recorded by the police till 19-30 p.m. although this witness claims to have seen and heard about some very important facts specifically Involving some accused persons and this, according to the learned Advocate for the appellants, shows that the evidence of this police constables P.W.21 and of other concerned witnesses is the product of concoction and subsequent manupulatlon at the Instance of police. On the other hand, it is submitted by the learned Special Public Prosecutor representing the State that after such a shocking and gruesome Incident resulting In the death of a very senior police officer like Dy. Commissioner and also his constable guard, it was only natural that there would be many top police officers at the concerned P.S., namely. Garden Reach P.S. to take stock of the situation and also to take necessary follow up measures demanded by the situation and in such a state of affairs, it is quite possible that a police person of the rank of a constable like P.W.21 or P.W. 19 could not succeed readily in contacting the proper officer who would Immediately attend to his statements. Having regard to the facts and circumstances we also do not think that In a situation like this there was really any Improbability that the statement of these witnesses were recorded at about 9-30 P.M. at the P.S. although they went there at about 8-00 p.m. In his cross-examination during retrial, he says that uptil now he cannot say, whose deadbody It was, which he saw on that date. We may note here that if the evidence of this witness was really a product of concoction he would have possibly satd that the deadbody which he saw was recognised by him as the deadbody of D.C. Mehta. But he did not say so. He indeed knew D.C. Mehta, as he says but it is nothing unnatural that at that point of time when he suddenly saw the deadbody from a distance of 30/35 yards in the presence of some armed persons and the deadbody was smeared with blood, he did not naturally bother to engage himself In minute observation for detecting the identity of the deadbody, and Instead he left the place being naturally panicky but he was, as we have seen, very specific about the presence of certain armed miscreants named by him Including the appellant Naso.</p><p style="text-align: justify;">15. We now proceed to discuss the evidence of the next vital witness P.W.24, Hadis Khan, the son of P.W.21 Abdul Latif. He says that they reside at G-222 Battikal Second Lane as tenant and in March, 1984 he used to sell cow milk and had four cows and he used to keep two cows in their house and two in another place. He says that he himself and Mustafa, his helper (P.W.26) used to look after the Cows. His evidence is that on 18.3.84, sometime In the morning he came to know that a not between the Hindus and Muslims had started and that at about 11-30/11-40 a.m. again he heard sounds of bombs coming from Ramnagar Lane side when he was in his courtyard and his mother and Mustafa were in the house, but his father had gone for his duty. He next says that at about 12 noon he heard a huge row coming from Southern side when he was in his courtyard and on hearing the same he came out along with Mustafa from his house and stood on the road and notice that many persons were chasing two policemen towards South and one policeman was In a white uniform and the other was in Khaki uniform and the policeman in while uniform entered in the house of Naimullah and some persons also entered that house and those persons were hurling brickbats. His evidence is that the house of Naimullah was at a distance of 50/60 yards from the place where he was standing. He however could not recognise any of the persons who were hurling brickbats and chasing that policeman in white uniform and entered in the house of Naimullah. But his specific evidence is that the other policeman in khaki dress was being chased by the mob and when that policeman came near him he entered in the courtyard of his house and that policeman too entered in that courtyard and the policeman told him that he was D.C. Port and then on his pointing out the D.C. entered into the bathroom (Gasalkhana). The Gasolkhana, he says, was 9/10 cubits away from the place where he was standing and that simultaneously Idris and some other persons armed with brickbats etc. entered Into the courtyard and they were throwing brickbats aiming at the bathroom and simultaneously Naso (an appellant). Puttan, Samsad, Abbas, Mukim entered in the courtyard. He says that Naso had a rod in his hand and others had swords, nepala etc in their hands. He says that he knew those persons from before. The D.C., he says, became frightened on seeing those persons and requested them not to assault him after disclosing his identity as the D.C. of Police but some of those persons replied that they did not know D.C. and then ordered 'maro' and then Naso, Puttan, Samsad, Ahmed, Mukim and some others entered instde the bathroom and then Naso gave a rod-blow on the helmet of D.C. and there was dashing and pushing and the helmet fell down and Naso again assaulted D.C. with the rod on his head. P.W.24, Hadis says that then he came out from the courtyard and went out of the house and some people were throwing brickbats on the tiles of their roof but he cannot tell their names. He says that he then proceeded towards his uncle Khalll Khan's house but on his way when he came near the house of Naimullah he noticed that a pojiceman In white uniform was being assaulted on the road by Gorachand and some other persons and then he entered Inside the house of his uncle and reported the entire Incident to his uncle (meaning P.W.19) and he also reported that he was not going to stay and was going to his father-in-law's place and then he went to his father-in-law's place at Kazlpara at Howrah along with his mother. He says that after sometime hisfather Abdul Latif (P.W.21) came to his father-in-law's place and he reported the entire Incident to his father. He says that his father said that he would be staying in the P.T.S. barrack. He says that he used to keep two cows out of four cows near the power house gate commonly known as 28 number. In his cross-examination he says that he left for his father-in-law's place from his house at 12-30/1-00 p.m. and reached his father-in-law's house at about 2-00/2-30 p.m. His evidence Is that his wife and children had gone to his father-in-law's house on 15.3.84. He says that he and his mother returned home on 19.3.84 at about 6-30/7-00 a.m. from his father-in-law's place and he noticed that many police persons were roaming In their locality. He says that he was examined by the I.O. on 20.3.84 In their house. He further says that on 19.3.94 at about 12-00 noon police arrested him and placed in the van and the van patrolled in their locality and then at about 6-30/7-00 p.m. he was taken to Garden Reach P.S. and many people of their locality were also brought to Garden Reach P.S. on that day. He further says that he was released by the police in that night at about 9/10 p.m. and they were kept in the lock-up of Garden Reach P.S. from 7-00 p.m. till they were released. Much has been criticised by the learned Advocate for the appellants that when the police from the statements of P.W. 19 & P.W.21 could come to know In the very evening of the 18th March that Hadis had seen a vital part of the occurrence and also had named some of the culprits to them, there was no reason why his statement should have been recorded as late as on 20.3.84 in his house inspite of the fact that he was in the custody of police in police van and P.S. Hazat for quite a long time upto about 9-00/10-00 p.m. on the 19th March. This, according to the learned Advocate for the appellants, Indicates thai the prosecution case that Hadls saw a vital part of the incident is a concocted story. We are however not convinced by this submission. The enormity of the Incident, the involvement of a large number of persons and the complexities Inherently Involved In an Investigation of a case of this nature as well as the change of investigating officer on 19th March are indeed some of the factors which have to be taken Into consideration in this context. And that being so, we do not think that there really exists any reason to doubt the veracity of the evidence of this witness Hadls (PW.24). P.W.24, Hadls says in his cross-examination that the bathroom is used by the female inmates of the house and that the size of the bathroom would be about 8 cubits X 8 cubits. He says that the latrine is not inside that bathroom. He further says that the D.C. was Inside the bathroom when he came out from their house. Hefurther says that he came out from their house 6/7 minutes after the D.C. had entered In their courtyard. He also says that when he came out of his house the D.C. was being assaulted and he noticed about 50/60 persons on the road in front of their house. He however does not remember whether he had seen blood coming out from the head of D.C. when he was assaulted on the head by the iron road. His evidence is however clear that the D.C. was assaulted on his head by Iron rod. He denies the defence suggestion that Naso did not give blow with iron rod on the head of D.C. He makes it specific that the bathroom is used for washing hand and feet by the femalefolk of the premises before 'oozu' He says lhat there are no door and walls of that bathroom. Much has been commented upon by the learned Advocate for the appellants as to whether a bathroomof that size could have accommodated so many assailants who are said to have assaulted the D.C. at the relevant time. In this connection we may mention that P. W.2, Ashoke Kr. Bhattacharjee, S.I. of police and official plan maker has given the area of the Gosulkhana (bathroom) as 5m.x4m. Since the Gosulkhana has no walls as we find it from P.W. 24 Hadis, we do not think that there is any improbability in sustaining of assaults by D.C. there from the assallents who chased and cornered him there. He (P.W.24) denies the defence suggestion that he has been tutored by police to give false evidence because his father and uncle are working as police constables. In his further cross-examination during retrial in February, 1932 he however says that his statement was recorded by the police while he was in police lock-up. This, it is submitted on behalf of the appellants, is not insistent with the prosecution case inasmuch as it is the prosecution case that his statement was recorded on 20.3.84 as earlier stated by the witness. He also says in his such further cross-examination that his father went to the P.S. for his release and he talked to his father before release from the P.S. lockup. But he says that at that time his statement was not recorded by the police. This, therefore, lends support to the fact that his slatement was recorded not on 19th but on 20th. He says that his statement was recorded, as he remembers, after his. talk with his father. In his such further cross-examination at the retrial he says that he returned from Kazlpara to his Garden Reach residence three days after the Incident. It should be remembered that he was facing further cross-examination at the retrial In February, 1992. about eight years after the Incident and therefore some minor inconsistencies and confusion in the deposition at such distance of time cannot be ruled out. Whatever may be the confused statement of P.W.24 Hadls eight years after the incident at the time of further cross-examination at the retrial, it may be noted here that even the hostile witness P.W.22 Brion Merces who is the brother-in-law of the appellant Naso testifies to the fact that police arrested him on 19.3.84 and Hadls, Mustafa, and Alamgir also were arrested by the police. Such statement of this hostile witness therefore lends support to the prosecution case that Hadis was arrested from his house on 19th March, at noon after he returned from Kazlpara on that day in the morning, and this fact does not get obliterated by any statement of Hadis which he might have made In a confused state of memory in course of his further cross-examination eight years after the Incident.</p><p style="text-align: justify;">16. P.W.22 Brlon Merces is a resident of C-85, Battlkal. Their balcony faces Battlkal Second Lane. From him we get that the appellant Naso Is his sister's husband. He was however treated as a hostile witness by the prosecution. He says in his examinatlon-in-chief that on 18th March. 1984, which was a Sunday, at about 10-00 a.m. he heard from the people that a not between Hindus and Muslims had started and at about 12 noon they heard great row and then he and his parents came to their balcony. He says that the Hindus and the Muslims were fighting and quarrelling and the Muslims started running shouting, that the Hindus had come to their locality, and that being frightened they (witness and his parents) all came Inside their room and closed the door. His evidence shows that some children and women had taken shelter Inside their house and they were saying that policemen had died. He saw nothing else. As we have alreadynoted, in his cross-examination he says that he was arrested by police on 19.3.84 and Hadis, Mustafa and Alamgir were also arrested by police. P.W.23 Narman Merces is the father of P.W.22 Brion Merces. He was also treated as a hostile witness by the prosecution. In his examination-in-chtef he says that on 18th March, 1984-which was a holiday, at about 10-00 a.m. they heard from the people of their locality that a trouble had broken out at Fathepur and they also heard some sounds of bombs and learnt that a riot had started between Hindus and Muslims. He says that then at about 12 noon he, his wife and his son came out of the room and stood on the balcony and noticed a huge mob on Battlkal Second Lane which was at a distance of 60 to 80 ft. from the balcony. He also speaks about throwing of breakbats. He says that he then came Inside the room and locked the door from Inside and after half an hour the area became very quiet. The accused Naso, he says is his son-in-law. P.W.25 Sakll Ahmed is the brother of P.W.20 Akil Ahmed and a resident of G-223 Batllkal Second Lane. He was however treated as a hostile witness by the prosecution. In his cross-examination on behalf of the defence he says that G-222 Battlkal Is to the north of his house where Latif constable (P.W.21) resides and he knows Hadls, the son of Latif constable. He says that he occasionally goes to G-222 Battlkal to Hadls for bringing cow milk. In his further cross-examination at the time of retrial he says that Aki-ka-Kurbani can be performed on any day of the year and after performance of this Kurbani a marking by palm with the blood of the sacrifice is given on the outer wall of the residence or on the outer door and some times this marking is also given in interior wall or door. This has been possibly taken in cross-examination to explain away blood marks. P.W.S 27, 28, 29, 34, 35, 36, 37 & 48 were all treated as hostile witnesses by the prosecution.</p><p style="text-align: justify;">17. P.W.14 Mansoor Ali is a resident of C-247 Ramnagar Lane and he is the owner of the ration shop situated on the ground floor of the same premises. His evidence is that on 18.3.84 at about 10-00/10-30 a.m. while he was in his house he heard sounds of bombs and he opened the windows and noticed that people were running hither and thither. These people, he says, were 200 yards away from his building, and he gives the number of the people as 150 or so. He says that he came down the stairs and closed the ration shop and again went up along with his brother. He says that he noticed that 3/4 police constable came out of the mosque and that many people went to the western side of the mosque and some people went to the eastern side and those people were running probably out of fear as police had come. He also speaks about throwing of brickbats upon the police party. He says that the police were in the middle part and on both sides there were mobs. He also heard sounds of firing and he closed the window and went inside the room. His evidence shows that after some time he heard row near his house and also sounds coming from the northern side of the mosque. They went to the roof of their house and noticed that a constable in white uniform was lying with his face and chest on the ground and many people were standing surrounding the constable and amongst those persons he could recognise Rahamat, Gorachand, Idris, Haltm, Nanney Kosal, Wahab, Saglr and Matil. He says that It appeared to him that the constable who was lying on the ground was dead. He further says that thereafter the mob burnt the deadbody of the constable with split bamboos. He also namesRahamat, Gorachand, Idris, Wahab, Halim and Nanney Kosai as some of the persons who were burning the deadbody of the constable. He says that after burning the deadbody of the constable all the miscreants fled away from the place and police came at about 3-00 p.m. He also says that the police had seized one button with ring, piece of burnt cloth, etc under a seizure list which was signed by him (Ext. 5/1). He says that the mob was armed with brickbats when they were throwing brickbats at the police party. He further says that he was in his house when police came at 3-00 p.m. and called him. He also says that the body of the constable which was lying on the open space was at a distance of forty yards from his residence. He further says that he noticed that Rahamat. Matil and 2/3 others whom he could not recognise were cutting the hands and legs of that constable with choppers. In his cross-examination he says that as the incident occurred long ago, he does not remember everything vividly but he remembers that Idris and Nanney Kosai were hurling bombs at the police.</p><p style="text-align: justify;">18. P.W.49 Haridas Mollra is the Senior Scientific Officer-curn-Asslt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He says that on 22.3.84 as per the direction of D.C.. D.D., Calcutta, he visited Ramnagar area with his colleague P.K. Sengupta. Sr. Scientific Officer. He says that he visited the place which is an open field near a school building and he collected from the debris some partly burnt pieces of cloths, some metallic buttons with rings and one ring. He says that he asked the Investigating officer who was with them to collect those articles, and those articles were seized by the I.O. and a seizure list was prepared In his presence and he signed the seizure list. He Identifies his signature, Ext. 12/1. It has been criticised on behalf of the appellants that those articles were seized only on 22.3.84 when the Scientific Officer of the Forensic Science Laboratory went there with the I.O., but the police could not seize those articles earlier although the police had been to all those places in the meantime after the date of occurrence. In our opinion, this Is inconsequential in view of the totality of the facts, circumstances and evidence on record. P.W.78, Prasanta Kr. Sengupta is the other Senior Scientific Offlcer-cum-Asstt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He examined in his laboratory certain articles which were sent to him for examination and he submitted his report which is Ext. 29. In his cross-examination at the retrial he says that he accompanied the expert. P.W.49 Haridas Moitra to Garden Reach, that Is, the place of occurrence In connection with this case and from that area they came back together. P.W.69 Pradip Shankar Chakraborly was an S.I. of police in March, 1984. attached to Homicides Squad. Detective Department. Lalbazar. He says that on 22.3.84 as per the direction of S.I. S.K. Bhattacharjee. the I.O., he accompanied him to Forensic Science Laboratory to bring the experts and they reached the laboratory at about 10-30 a.m. He says that after giving some directions the I.O. left and he (the witness) brought Sri H. Moitra (P.W.49). Expert to Garden Reach area and showed him the place where constable Moktar All was burnt and the murders of V.K. Mehta and his body guard were committed. He says that the expert examined the premises No. G-222 Battikal including the Gusalkhana and from there they went to the open place known as Dhanketl Maldan. The learned Advocate for theappellants submits that the expert (P.W.49) does not say that he went to the premises No. G. 222 Battikal and Gusalkhana there which this witness (P.W.69) wants to say. In our opinion, this is inconsequential because it is not necessary that every witness must state everything in details. P.W.69 says that the expert could trace out one metalic ring, some burnt clothes with two metallic buttons with rings attached to burnt clothes from Dhankheti Maidan. He (witness) seized those articles. He says that on 22.3.84 at 14-10 hours as per order of O.C., Homicide squad, he accompanied S.I., S. Bhattacharjee along with O.C., Homicide squad and other officers and men and accused Sk. Nanney in custody with two Doms, Narayan (P.W.41) and Bindeswari (P.W.40) and arrived at Garden Reach and on being led by the accused Nanney they went near a Kancha drain which was flowing in between premises No. G-13 Batttkal and F-55 Atabag Basti and also near premises No. G-222 Battikal. He says that the accused Nanney showed the spot inside the kancha drain having muddy water and stated that he and others dropped Incriminating articles there, about which he had made statement to the S.I. S. Bhattacharjee at that spot. He further says that being instructed by S.I. S. Bhattacharjee and O.C. Homicide Squad the accused got down inside the waist deep kancha nala and those two Doms also entered in the drain to assit the accused, If necessary, his evidence is that the accused (Nanney) then himself brought out from the said nala the following articles namely (1) one Dhal (shield) used by police, (2) one helmet, the front portion of which was partially dented and broken, with some hairs sticking inside the helmet. (3) one brown coloured leather belt having a nickel metal plate fitted with Inscription I.P.S. on it. (4) one black leather belt fitted with metallic emblam 'Calcutta Police', (5) one big sword about 30' in length, (6) piece of cloth partly torn and fitted with button, (7) one small sword about 20' length and (8) one brown coloured chappal of the right foot. P.W.69 further says that he seized those articles in presence of witnesses. He identifies Exl. 8 as that selzer list. He further says that thereafter he along with S.I. D.K. Dasgupta, as per instruction of I.O. and O.C. Homicide Squad, went to G-77 Batlikal which was a club room of Battikal Young Boys Committee and on search In presence of the witnesses certain articles were recovered and seized from that club room, namely, one pointed Iron red measuring about 29' In length including wooden handle, one bhojall, one book ofletter head pad and seized all those articles under the seizure list Ext. 17. He also says that he made certain other seizures from the road between premises Nos. G-227 & G-222, such as, Khaki coloured buttons and partly burnt pieces of cloths. Ext. 18 is the relevant seizure list. He also says that on that day between 5-30 and 5-40 p.m. he seized one wooden piri measuring about 15' X 8' having stains of blood from Inside the premises No. G-222 Battikal. The pirl, he says, was lying near the entrance door of the room situated at the north-east corner of that premises. Ext. 19 is the concerned seizure list. In his further cross-examination at the retrial he says that they arrived at premises No. G-222 Battikal at 15 hours on 22.3.84 and they stayed there for about 15 minutes and it was his first visit. He further says that F.S. Expert was with them up to 4-35 p.m. on that day. He says that the expert was with him while he was Inside premises No. G-222. It will thus appear lhat the expert was not with this police officer when he seized the wooden piri at G-222 Battikabetween 5-30--5-40 p.m. It may be noted here that the evidence of the P.W.s 40 & 41, the Doms, also corborate the evidence of P.W.69. P.S. Chakraborty, S.I. of police regarding the recovery of Incriminating articles from the drain by the concerned accused.</p><p style="text-align: justify;">19. P.W.64 Haripada Dutta is S.I. of police who was attached to Garden Reach P.S. in March, 1984. His evidence is that on 19.3.84 as per direction of the O.C.. Garden Reach P.S. he had been to premises No. G-229A Batllkal and took scrapplngs of dried up blood with few hairs from the door leaf of that premises, etc between 3-35 p.m. and 3-55 p.m. In presence of witnesses and prepared the seizure list, Ext. 10. in his cross-examination he says that FIR of Garden Reach Case No. 45. dated 18.3.84 Ext. A was written and signed by him. That FIR relates to the Incident that occurred in Fatepur Village Road and Mathorpara and Balsnabpara. He says that he took up the investigation initially of that case. That was a different case. The present appeal relates to the P.S. Case No. 46 dated 18.3.84. P.W.68 Sibaprasanna Dutta was posted as S.I. of police in Port Division in March, 1984. He had arrested Sanda Akatar @ Aktar Alam who was an accused in the Garden Reach P.S. Case No. 46 dated 18.3.84. He says that he arrested him on 20.7.84 at about 7-30 p.m. at the fly-over of Sealdah. P.W.70 Sudhlsh Ranjan Nag is S.I. of police who was attached to docolly and robbery squad D.D., Lalbazar. He says that on 19.3.84 the D.C., D.D. told him and S.I. U.S. Lahiri that the murder case of Mehta had been taken up by the Homicide Squad and S.I. S.K. Bhattacharjee was the I.O. of that case. and directed them to asslt him in apprehending the accused of that case and that the D.C. further told that he had Information that some of the accused persons namely, Sk. Nanney, Gorachand, Md. Halim, Sk. Nuru and Wahabuddln might be available at Surinam Jetty and asked them to keep watch over that place and to arrest the said accused persons. If possible. His evidence is that at about 6-20 p.m. they arrested those accused persons and took them to Garden Reach P.S. where D.C./D.D. and other officers were present and they placed the accused persons before them and I.O. took charge of those accused persons. He says that on being directed by D.C. D.D. to search for the other accused persons at Batllkal, Chlrlamore, Ramnagar and Mathorpara Complex, he. U.S. Lahiri and force had been to those places in search of the miscreants but none could be arrested and they returned to Lalbazar at about 10-10 p.m. and made over the supplementary caase diary to the i.O. S.K. Bhattacharjee, He further says that they had also arrested Md. Idris and Sakil Ahmed. In his cross-examination, he says that Idris was arrested from Gaya on 27.3.84. P.W.71 Samir Kr. Moltra was attached to Garden Reach P.S. as S.I. of police In March. 1984. He accompanied the Commissioner of Police in Ramnagar area on 18.3.84 In connection with the murder of D.C. Mehta and his body guard. Between 4-00 p.m. and 5-00 p.m. on that day he seized certain articles such as pieces of partly burnt bamboos, pieces of charred bone-like substance, pieces of charred cloth, burnt metallic button fitted with ring, belt, two swords etc from an open field in front of premises No. G.-100/1, Ramnagar Lane, also know as Dhanketl. The seizure list prepared by him is Ext. 5. He had also held the inquest of the deadbodles of V.K. Mehta and the body guard Moktar Ali and prepared inquest reports. In the inquest report relating to the dead-body of B.K. Mehta it is noted that the deadbody of Mehta was lying in front of premises No. G-221, Dhanketl. The witness however saysthat it was premises No G-221, Battikal and it was wrongly mentioned as G-221, Dhanketi in the inquest report. In his cross-examination he says that he had detected this mistake in court at the time of giving evidence. It seems to be a case of bona fide accidental mistake.</p><p style="text-align: justify;">20. P.W.80 Santi Ranjan Ganguli was attached to Garden Reach P.S. on 18.3.84 as S.I. of police. The FIR of this case was drawn up by him. His evidence Is that the fromal FIR was drawn up at 8-05 p.m. at Garden Reach P.S. on the basis of Statement of K.K. Sharma, Asstt. Commissioner of Police, Port Division. He says that the statement of Sri Sharma was also recorded by him as per the order of the O.C. of Garden Reach P.S. He also took up the investigation of the case under the order of the O.C., Garden Reach P.S. on that date at 8-05 p.m. He says that he then recorded the statements of the two witnesses namely Abdul Latif Khan (P.W.21) & Md. Khali Khan (P.W.19) under section 161 Cr.PC at Garden Reach P.S. and then at 11-00 p.m. he had been to Mathorpara, Rnmnagar Lane etc of the affected areas of Garden Reach with force and after contacting sources there he returned to the P.S. at 11-50 p.m. He says that on 19.3.84 at 6-40 p.m. he had shown formal arrest of four accused persons, namely Nanney Kosal, Gorachand, Halim and Nuru who were arrested by the police officers of the Detective Department. He further says that on 18.3.84 after returning to the P.S. from the affected area he prepared respective requisitions for postmortem examination of V.K. Mehta and his security guard. Moktar Ali and on 19.3.84 at 10-00 a.m. he sent those requisitions to the Prof. of Forensic and State Medicine and on that day at 7-40 p.m. he handed over the case diary to S.I. S.K. Bhattacharjee of Homicide Squad who had taken up the investigation and he also handed all other connected documents under the orders of his O.C. and the D.C.D.D. at Garden Reach P.S. In his cross-examination he says that on 18.3.84 he was in Garden Reach P.S. after mid-day and that he had also seen the G.D. Entry regarding the disturbances at Fatepur Village Road. He says that on that night i.e. on 18.3.84 another case being Garden Reach P.S. Case No. 45 dated 18.3.84 was also recorded and that FIR was recorded by S.I. H.P. Dutta(P.W.64). In his cross-examination he says that going to the locale he questioned some persons, but did not record their statements under section 161 Cr.PC and that he had tried to collect the names of the assailants but could not succeed to obtain the same from those persons. Much has been criticised by the learned Advocate for the appellants that if really the first I.O. (P.W.80) had recorded the statements of the constables P.W.19 Khalll Khan and P.W.21 Abdul Latif Khan on 18.3.84, he must have obtained from them the names of the assailants before he went to the locale in that night and therefore there was not question of trying to collect the names of the assailants at the locale in that night and this shows that the evidence of the said P.W. 19 and P.W.21 or for that matter the entire prosecution case implicating the appellants is a product of concoction. We however find ourselves unable to accept this critism. It is true that the I.O. got some names from P.W. 19 and P.W. 21 on 18.3.84, but obviously there was no reason to suppose that those were the only culprits involved in the occurrence. It Is therefore only natural that the I.O. while visiting the locale will try to obtain from persons the new names of other culprits as well as confirmation of the names of culprits already obtained by him from P.W.19 and P.W.21 before going to the locale.</p><p style="text-align: justify;">21. P.W.1 S.K. Bhattacharjee was attached to Homicide Squad, Detective Department as S.I. of police in 1984. He is the Second investigating Officer of this case. He says that under the order of the D.C.D.D. he took up the investigation of the Garden Reach P.S. Case No. 46 dated 18.3.84 and submitted charge-sheet against 43 accused persons after completion of investigation showing as many as 18 accused persons are absconders. He says that six of those 18 absconders were subsequently apprehended and 12 were still at large while he was deposing on 12.9.88. He was however examined further next on behalf of the prosecution on 11.4.89, He says that on 19.3.84 the D.C.. D.D. verbally ordered him at 5-00 p.m. to take up the investigation of the case and then at about 5-30 p.m. he, D.C., D.D., A.C. D.D.-1. O.C. Homicide Squad, S.I. P.S. Chakraborty of Homicide Squad and two constables of Homicide Squad started for Garden Reach P.S. He further says that prior to that D.C., D.D. told him that he had already sent two S.I.s of Detective Department, namely U.S. Lahiri and S.R. Nag (P.W.70) to work out an Information received by him in respect of some accused persons. He says that at 6-05 p.m. they all reached Garden Reach P.S. and met the O.C. of that P.S. there, he also says that at about 6-40 p.m. S.I. S.R. Nag (P.W.70) and S.I. U.S. Lahiri brought under arrest five accused persons namely Sk. Nanney, Md. Halim, Wahabuddln, Gorachand and Sk. Nuru to the Garden Reach P.S. and those five arrested persons were produced before the D.C., D.D. and the then I.O. of the case S.I. S.R. Ganguly (P.W.80) showed those accused persons as arrested in this case. He further says that at 7-45 p.m. he took charge of those arrested accused persons, case diary and other connected papers along with alamat from S.R. Ganguli, and under order of the D.C., D.D. he came to Lalbazar with those five accused persons, S.I. P.S. Chakraborty and two constables. His evidence shows that they left the Garden Reach P.S. at 8-10 p.m. and reached Lalbazar at 8-40 p.m. and then he started interrogation of those five arrested persons and thereafter he perused the case diary and other connected papers. He says that at 10-30 p.m. he received the supplementary case diary from S.I. S.R. Nag who arrested the five accused persons. His evidence is that on 20.3.84 he met D.C., D-D. in his office and received his instruction regarding the next follow up action. He says that he came to know (hat a team had been raised to assist him in the Investigation of the case. He also names the officers who were Included In the team. He also names Sanat Kr. Gupta, A.C. D.D. (I) as the persons who was placed as overall in-charge of the team. On 20.3.84 he produced all the five accused persons in the court of the S.D.J.M., Allpore and also prayed for their police remand, and then on that day at 2-30 p.m. he along with D.C., D.D., A.C. D.D. (1), O.C. Homicide Squad, S.I. Samir Ganguli left for the spot with force for investigation. According to his evidence they reached Garden Reach P.S. at 3-00 p.m. and then on being led by the O.C. Garden Reach P.S. under the order of D.C., D.D. they all went to Ramnagar Lane in front of the mosque where D.C., D.D. and others had allegedly taken shelter and stayed there upto 3-35 p.m. His further evidence is that then on being led by O.C. Garden Reach P.S. they went to a vacant plot of land at 4-00 p.m. wherefrom the charred body of the security guard had been allegedly recovered and he found some burnt substances there and from that place they went to the premises No. G-222, Battikal Second Lane and reached there at 4-25 P.M.and there he met Hadis Khan (P.W.24) and his mother, Kaflabibi and herecorded their statements there. According to his evidence then they wentto premises No. 228/3 Battikal Second Lane which is the house of Md.Naimullah (since deceased). He also then describes his further activities inthat locality. It appears from his evidence that on 21.3.84 he, O.C.,Homicide Squad, S.I. Samir Ganguli went to 222 Battikal Second Lane andfrom there he went to G-247 Ramnagar Lane. Then on being Informed byS.I. Samlr Gangull that the Commissioner of Police had already arrived atpremises No. 222 Battikal Second Lane with A.C. D.D. (1). he went to thatplace and as per direction of the Commissioner of Police, he seizedscrapplngs of blood looking stains with control from the outer wall of a roomof premises No. G-222 Batllkal Second Lane and prepared the seizure listext. 31. On 22.3.84. according to his evidence, he met the Director of F.S.L.and then the Director deputed H. Moltra (P.W.49) and P.K. Sengupta(P.W.78) both senior officers of F.S.L. to visit the P.O. He says that at thattime Mr. Moltra reported that he would visit the P.O. In the afternoon, andMr. P.K. Sengupta was out at that point of time and he (the witness)instructed S.I. P.S. Chakraborry to take Mr. Moltra and Mr. Sengupta tothe P.O. and he left for Lalbazar. His evidence shows that on that day heexamined Norman Merces (P.W.23) and Brion Merces (P.W.22) and recordedtheir statements and then they along with those two persons went to theresident of the absconding accused Naso and there they found the wife ofNaso Karolin and ascertained the particulars of Naso from her and fromthat place they again came to premises No. G-85 Battlkal First Lane andquestioned some Inmates and at that time S.I. P.S. Chakraborry came andreported that the F.S.L. experts had arrived and they were at G-222 BattlkalSecond Lane and then he (the witness) went there and met them. He saysthat the experts made Inspection at different places of that premises andthen requested to take them to the place wherefrom the charred body ofMoktar was recovered and they were taken there and the experts madethorough search in the burnt substances and ultimately discovered metallcring, a piece of burnt cloth fitted with metallic buttons with ring, and thosearticles were seized. His evidence is that on 23.3.84 he examined Sk. NanneyKosal who made a statement leading to the recovery of some Incriminatingarticles. He also speaks about recovery of Incriminating articles pursuantto the statement made by the accused Sk. Nanney Kosal. His evidence showsthat the accused Nanney made statement to him to the effect that he hadthrown one helmet, one dhal, two swords in the water of kancha drain andhe would be able to lead the police party to the spot where he and othersthrew away those weapons and other things and If those things were stillthere he would be able to bring them out. The evidence of the I.O. (P.W.I)shows that the accused Nanney was taken (on 23.3.84) to the concernedarea pursuant to the statements made by him and the accused Sk. Nancyled them in front of a kancha drain on the northern side of the premisesNo. G-221 Battlkal and G-213 Battlkal and the accused then pointed outa place inside the kancha drain to be the place where the articles as statedby him were thrown and then being asked the accused got down In the waistdeep water of the kancha drain and brought out one by one, one shieldmade of wire net, one helmet, two swords, two belts of which one hadmetallic plate having 'IPS' inscription, one black belt used by constable. Healso speaks about the recovery of a chappal of a right foot. The recovered articles were then seized. His evidence shows that on 26.3.84 also at night they conducted a raid in the concerned area and searched for certain accused persons Including Naso but could not trace them out. His evidence also shows that on 4.4.84 they went to G-85 Battikal Second Lane which is the residence of the father-in-law of the accused Naso but there also Naso was not found. His evidence is that on 30.5.84 the accused Lokman Shah and Osman Shah, two brothers, were arrested from their residence in a night raid between 1-40 a.m. and 2-00 a.m. He says that on 7.6.84 the accused Lokman Shah during Interrogation, stated that he wanted to make a confessional statement and so on 8.6.84 he (I.O.) forwarded Lokman to the learned S.D.J.M. with prayer for recording his confessional statement and his confessional statement was recorded by the learned S.D.J.M., 3rd Court Allpore on 9.6.84. It appears that the I.O. obtained an order of police remand for the accused Lokman after he was produced before the S.D.J.M. after arrest and the accused Lokman expressed his desire to make confessional statement to the I.O. on 7.6.84 while he was under police remand. The I.O. (P.W.I) says that on 16.6.84 he submitted charge-sheet against 43 accused persons of whom 24 were In custody and the rest were absconding. He further says that after the submission of the charge-sheet seven absconding accused persons had been arrested. He says that on 28.2.85 at 3-00 p.m. acting on a secret Information he with the help of S.I. Rajkumar Chatterjee of the Detective Department and others arrested Nasim Khan Naso from the station road near Kallghat Railway Station. He further says that the accused Naso was arrested with the revolver which was given to constable Moktar All for his duty, with three rounds of ammunition for which a specific case has been started on his complaint under section 25 and section 27 of the Arms Act. While confronted with this in examination under section 313 Cr.P.C. the accused Naso only says that the witness (P.W. 1) told lie that he (Naso) was absconding and he was arrested on 28.2.85 at 3-00 p.m. from the Station Road near Kallghat Railway Station or that he had any revolver in his possession at the time of his arrest. Besides such bare denial he however does not say anything as to on what date and wherefrom he was arrested.</p><p style="text-align: justify;">22. In his cross-examination P.W.I (the second I.O.) says that he did not go to Garden Reach area between 18.3.84 and 5-00 p.m. of 19.3.84. He says that on 20.3.84 the first witness he examined was Hadls Khan of G-222 Battikal Second Lane in that premises. His evidence shows that on 19.3.84 he first interrogated the five arrested accused persons (Including Sk. Nanney) but he did not record their statements. His evidence Is that on 20.3.84 he forwarded the five arrested accused to court with prayer for police remand upto 2.4.84 and the learned S.D.J.M. allowed the prayer for police remand. He says that he could not interrogate any of the accused persons on 20.3.84 as he had no time for such interrogation. He also says that on 20.3.84 he went to Garden Reach area along with his superiors, namely. D.C. D.D., A.C. D.D. (1) and O.C.. Homicide Squad and reached there at 3-25 p.m. His evidence Is that they first went to the Garden Reach P.S. and then the O.C. of the Garden Reach P.S. led them to the area where the Incident occured and there he examined Hadls Khan first and also Kaflabibi. the mother of Hadls Khan. He has however not shown Kaflabibias a witness in the charge-sheet. He says that on 20.3.84 he reached G-222 Battlkal Second Lane at 4-25 p.m. are remained there till 5-30 p.m. He also says that they were in Battlkal Second Lane area on 20.3.84 from 3-25 p.m. till 10-15 p.m. and that dusk to dawn curfew was imposed in that area and order under section 144 Cr.PC was also promulgated there and police picket was posted in different parts of that area. His evidence in cross-examination is that the blood looking stains were found on the outside wall of the western room of the premises No. G-222 Battlkal Second Lane, and he says so with reference to the seizure list, ext. 31. He says that the experts had arrived at premises No.G-222 Battlkal sometime before 3-00 p.m. and he went there at 3-05 p.m. and the experts H. Motlra and P.K. Sengupta of F.S.L. Inspected the premises and courtyard of G-222 Battlkal Second Lane and from that house, being accompanied by them, the experts went to open plot of land known as Dhankhell Maldan. He denies the defence suggestion that he had advised constable Latif Khan to procure persons of his choice who would support the prosecution case. He also denies the defence suggestion that Hadis Khan and Md. Mustafa gave statements at his tutoring. He says that the statement of Nanney Kosai was recorded by him on 23.3.84 between 8-50 a.m. and 10-10 a.m. and with the accused and other police of lines he left for the P.O. to verify the statement of the Nanney Kasal and reached in front of the kancha drain at 2-55 p.m. He says that the accused Lokman was forwarded to court on 8.6.84 with a prayer for recording his confessional statement. He has acknowledged that both the two accused Sk. Nanney and Lokman retracted their confessional statements by filing petitions but he cannot say the date on which such petition was filed after the submission of the charge-sheet. He cannot say whether those petition were filed on 14.8.84. In his cross-examination he denies the defence suggestion that Naso was arrested from the factory gate of Sultan Hossain.</p><p style="text-align: justify;">23. Of the medical witnesses, P.W. 44 Dr. Sunil Dey of the Calcutta Medical Research Institute examined Sr. K. Sharma (P.W.7). Asstt. Commissioner of Police on 18.3.84 at 12-30 p.m- In the Emergency. He also describes the Injury found and treated by him. P.W.66 Dr. Bhlbutlbhusan Blswas who was attached to Calcutta Police Hospital at the relevant time speaks about the Injuries of constable Ramshankar Singh (P.W.16) which were found by him. He says that the said constable was admitted on 18.3.84. He also describes the Injuries found by him. P.W.67 Dr. Gopi Ranjan Samanta was also attached to Calcutta Police Hospital at the relevant time. He proves the discharge certificate in respect of said Ramashankar Slngh. The patient, he says, was admitted on 18.3.84 with bomb injury on the lower thing of the right leg and was discharged from the hospital on 12.4.84. P.W. 46 Dr. Bhopal Mazumdar in the autopsy surgeon. On 19.3.84 he was posted as Demonstrator in the Department of Forensic and Slate Medicines, Medical College and Hospital. His medical qualifications are M.B.B.S. and M.D. In Forensic Medicine. He Joined the West Bengal Health Service on 25.2.75. On the date on which he deposed in court, that is, on the 1st February, 1989 he was posted as Assistant Professor and Head of the Department of the Forensic Science and Medicines, North Bengal Medical College. He held post-mortem examination on the dead-body of V.K. Mehta, D.C. Port Division on 19.3.84. He describesas many as 23 injuries found by him externally on the various parts of the deadbody including the face, head, etc. Injury No.9, as found by him. Is a lacerated would 3' x 1' X muscle X bone X meninges X brain on the right fronto-parletal region of the head, being placed half inch right to the mid line and 69 1/2 above the right heel. This is a head injury. He has also describes what he found on dissection. He says that all the Injuries were showing evidence of vital reaction. He openes that death was due to the effect of the injuries as mentioned by him which were ante-mortem and homicidal in nature. He also specifically says that he found 23 external and 4 internal injuries on the deadbody. According to his evidence the cumulative effects of the injuries were sufficient to cause death in the ordinary course of nature. He further says that Injury No.9 might be caused by any hard blunt weapon like iron rod or any other metallic rod and that the victim was in standing position when injury No.9 was Inflicted. He says that the said Injury No.9 was caused by the assailant from the front side of the victim. He further says that the Injury No.9 and the injury No.2 found on dissection were the vital Injuries. He also says that injury No.9 alone was sufficient to cause the death of the victim In the ordinary course of nature. However, the Injury No.9, he says, could not cause instantaneous death. He says that the injury No.23 was caused by pulling the body from leg side and that the injuries sustained by the victim were caused by more than one person. He also describes specifically as to which particular injury could be caused by what type of weapon. The possible weapons named by him include metallic rod, chopper, sword, napala, bhojall, brickbats etc. It may be noted here that the Injury No.9, according to the prosecution case, is connected with the assault made by the appellant-accused Naso on the head of V.K. Mehta with iron rod. The Autopsy Surgeon, P.W. 46 says that he held the post-mortem examination on the deadbody of V.K. Mehta on 19.3.84 at 12-00 noon at Calcutta Police Morgue and Prof. J.B. Mukherjee who was the professor and head of the Department of Forensic and State Medicines, Medical College, Calcutta was present when he held the postmortem examination and that Prof. J.B. Mukherjee supervised the examination. He says that Prof. J.B. Mukherjee concurred with his opinion and made the following remark: The post-mortem examination was conducted under my direct supervision and guidance. I fully concur with the findings and opinion of the Autopsy Surgeon, Dr. B. Mazumdar'. The post-mortem report was however prepared and signed by P.W. 46, Dr. B. Mazumdar and the same has been marked ext.tO. From his evidence the get that by that time he (P.W. 46) had gathered the experience of holding post-mortem examination on nearly four thousand deadbodies. He also held the postmortem examination 19.3.84 at 3-00 p.m. on the deadbody of the constable Moktar All who was the body guard of V.K. Mehta. He also describes the injuries found by him on the deadbody of Moktar All and gives the opinion regarding the effect of the injuries and the cause of death. In his cross-examination, he says that the Injury numbers 1,2,3,4,5,6.12,13,14,15,16 & 22 as found on the deadbody of V.K. Mehta were Incised injuries. The learned Advocate for the appellants contends that the opinion given by the Autopsy Surgeon, P.W.46 Dr. B. Mazumdar to the effect that the injury No.9 alone was sufficient to cause the death of the victim in the ordinary course of nature is not there specifically in the post-mortem report and this hasbeen stated by the Autopsy Surgeon Dr. Mazumdar as his own opinion while giving evidence in the court and this opinion of the Autopsy Surglon, P.W.46 is therefore not supported by the opinion of Prof. J.B. Mukherjee who supervised the post-mortem examination and therefore this opinion of P.W.46 should not be taken into consideration at all In judging the effect of the assault stated to have been made by the accused Naso on the head of the victim Mehta with iron rod. In our opinion this contention is however not acceptable. It is true that Prof. J.B. Mukherjee, obviously as a senior person, supervised the post-mortem examination held by P.W.46 Dr. Mazumdar but that does not mean that the opinion of Dr. Mazumdar on any point is of no merit or consequence unless the same is specifically endorsed by Prof. Mukherjee. P.W. 46, Dr. Mazumdar is also an expert in the matter and as we have seen he has a very rich experience in the matter of holding post-mortem examination. That being so, his opinion also given on the basis of the examination made by him, deserves due consideration and acceptance on merit unless the same otherwise stands discredited or condemned for any good and sufficient reason. Here there is absolutely no reason why we should not accept the opinion of the aulopsy surgeon P.W.46 regarding the effect of the injury No.9 which is a head injury allegedly caused by the accused Naso by inflicting assault on the head of the victim with rod. The learned Advocate for the appellants also submits that according to the evidence of the Autopsy Surgeon P.W. 46 all the Injuries had shown the evidence of vital reaction and therefore no disproportionate importance should be given to the effect of injury No.9. In this connection we are however to mention that even if all the injuries had shown evidence of vital reaction, that does not for that reason alone minimise the gravity of the effect of any particular Injury which according to the autopsy surgeon P.W.46 is alone sufficient to cause the death of the victim in the ordinary course of nature, even though such Injury could not have caused instanteneous death. It is needless to mention that causing of death is an ingradlent of the offence punishable under section 302 IPC and it is not necessary that death In all cases must be caused Instantaneously for bringing the case under section 302 IPC. That apart, when death is the result of a cumulative effect of all the injuries caused to the assailant in prosecution of the common object to commit the offence, each and every assailant is responsible for the offence in view of the section 149 IPC. The learned Advocate for the appellants also contends that the grounds of opinion of the expert are also relevant. Indeed there is no doubt that the autopsy surgeon in the present case has elaborately described all the injuries found by him and obviously his opinion is based on the findings recorded by him. No worthy ground has been brought out in the cross-examination of the autopsy surgeon nor successfully contended before us for which we could hold that the opinion of the autopsy surgeon is not acceptable. We reiterate that we have no reason or ground to discard or disregard the opinion given by the autopsy surgeon P.W.46.</p><p style="text-align: justify;">24. P.W.47 Kanchan Chatterjee is the Judicial Magistrate who held T.I. parade in respect of the accused Nanney Kosal at Allpore Central Jail on 30.5.84. He says that the witness K.K. Sharma (P.W.7) identified the suspect Nanney Kosal stating that he along with others were hurling bombs at Ramnagar Lane near mosque and further stated that while he along withD.C, V.K. Mehta reached the crossing of Ramnagar Lane and Mathorpara entrance while chasing a mob, he saw the suspect hurling bombs along with others.</p><p style="text-align: justify;">25. P.W.51, P.K. Deb is the Judicial Magistrate who recorded the confessional statements of the accused Nanney Kosal and the accused Lokman Shah on 3.4.84 and 9.6.84 respectively. He says that on 2.4.84 the accused Sk. Nanney was produced before him by constable Niranjan Das and the record was also laid before him. He was directed by the S.D.J.M. Allpore to record the confessional statements of Sk. Nanney. His evidence shows that on 2.4.84 the accused Sk. Nanney on being produced from judicial custody, was given cautions by him in open court and he was then sent to jail custody with the direction to the Jail authority, Alipore Central Jail that he should be kept in segregation so that he could get sufficient time for reflection. He says that on 3.4.84 the accused was again produced before him at about 3-00 p.m. In his court room and the accused was again given caution by him regarding the Implication of giving a confessional statement and the accused was kept in his chamber and was given time for an hour to reflect and ponder over the matter, and nobody was present In his chamber except the accused. He specifically says that no policeman was present in his chamber. He says that at 4-00 p.m. he asked the accused whether he was to make a confessional statement in his chamber and the accused Insisted on making a voluntary confessional statement and he recorded the same in his court room. He says that he was satisfied about the volunteriness of the accused in making the statement. The confessional statement of the accused Nanney Kosal as recorded by the Judicial Magistrate, P.K. Deb on 3.4.84 has been marked ext.13. He further says that the accused admitted that the statement had been correctly recorded and he also explained to the accused before he recorded his statement that he was free not make any statement and if he made any statement It might be used against him. He further says that nobody was present Inside the court room when the statement of the accused was recorded. The recording. according to his evidence, was complete by 4-40 p.m. It may be noted here that the accused Nanney Kosai was convicted and sentenced by the trial court in the original trial and reportedly he did not prefer any appeal against such conviction and sentence.</p><p style="text-align: justify;">26. The further evidence of the Judicial Magistrate, P.W. 51, P.K. Deb Is that on 8.6.84, the learned S.D.J.M. Alipore directed him to record the confessional statement of the accused (appellant) Lokman Shah. He says that on that date at about 1-15 p.m. the accused (Lokman) was produced before him and was identified by the constable P. Pramanlk In court room. He says that the accused was cautioned by him and the Implication of making the confessional statement was explained to him. He further says that the accused was produced from Judicial custody and he sent the accused to Jail custody and directed the superintendent of Allpore Central Jail to keep the accused In segregation so that he could get sufficient time for reflection, and directed his production before him on 9.6.84. The accused was produced before him on 9.6.84 at 2-00 p.m. by the constable Ramnarayan Goala in the court room and the accused was given warning and caution and was given one hour's time to think over the matter and was kept In the chamber of the Magistrate where none else was present. According to his evidence at 3-00 p.m. the accused insisted upon making a voluntary confessional statement and he (Magistrate) started recording his confessional statement in the court room at 3-00 p.m. where none else was present. He specifically says that no policeman was present at that time. He also deposes that before he started recording the statement he gave the accused all statutory cautions and started recording his statement after he was satisfied that the accused was making the statement voluntarily. The accused made the statement In Hindi and he recorded the statement in Bengali script. He further saya that after the statement was recorded It was explained to the accused in Hindi and the accused signed the statement in his presence. Ext. 14 is the confessional statement of the accused Lokman Shah as recorded by the Judicial Magistrate P.W.51 P.K. Deb. He further says that the accused admitted that the statement was correctly recorded after it was read over to him. In his cross-examination he says that he cannot say whether on 8.6.84 the accused was directly taken to the jail from his court room or he was taken to some other place before he was finally taken to Jail. It is needless to mention that the accused got sufficient time and opportunity for reflection in jail custody. In his cross-examination the Judicial Magistrate, P.W.51 specifically syas that he was fully satisfied after putting questions to the accused persons that they were voluntarily making statements and that he applied both his subjective and objective satisfactions. He specifically says that he put certain questions and he was satisfied that they were mentally prepared to make such statements. In his cross-examination he further says that he had cautioned Lokman that he would not be sent to police custody If he did not make any statement. It is suggested to him in his cross-examination that the statements were recorded In presence of the I.O. of the case. This is a preposterous suggestion, we must say, that a Judicial Magistrate while recording a confessional statement will allow the I.O. to be present there.</p><p style="text-align: justify;">27. Ext. 34 which is the ordersheet of the court of the S.D.J.M. Alipore shows that the accused Nanney Kosal along with others were produced in court in custody on 20.3.84 and they were all remanded to police custody till 2.4.84 after considering the prayer of the I.O. It also appears that while producing the accused persons before the learned S.D.J.M. from police custody on 2.4.84 the I.O. inter alia made a prayer for recording the confessional statement of Sk. Nanney Kosal under section 164 Cr.PC and the learned S.D.J.M. directed Sri P.K. Deb J.M., 3rd Court for recording the statement under section 164 Cr.PC. The order-sheet dated 30.5.84 shows that the accused Lokman Shah and accused Osman Shah were produced before the S.D.J.M. In custody on 30.5.84. According to the prosecution case the said two accused persons are brothers. On the prayer of the I.O. the S.D.J.M. remanded both the accused Lokman and Osman to police custody till 11.6.84. It also appears that the accused Lokman was produced in court from police custody in advance on 8.6.84 and on considering the prayer of the I.O. to record his confessional statement, the learned S.D.J.M. directed the Judicial Magistrate Sri P.K. Deb to record his confessional statement. On that very day Lokman who produced before P.K. Deb, J.M. and he was given necessary warnings and was remanded to Jail custody and was then produced before the J.M. concerned on 9.6.84 again and his confessional statement was recorded after giving him necessarycautions. It may be mentioned here that the accused Sk. Osman Shah was produced on 9.6.84 and he was remanded to jail custody for reflection but ultimately he declined to make any confessional statement when he was produced before the Magistrate on 11.6.84. It may be noted here that both the accused Nanney Kosal and Lokman Shah who made confessional statements before the Judicial Magistrate, however ultimately retracted such confessional statements by filing petitions before the court on 14.8.84. It has been submitted on behalf of the State that there is no bar in taking into consideration the confessional statements of those two accused persons although they ultimately retracted the same. It is also pointed out that they retracted their confessional statements as late as on 14th August, 1984 although their statements were recorded In the months of April, and June respectively and although they were produced in court a number of limes before 14th August, 1984.</p><p style="text-align: justify;">28. Ext. 3 is the statement of the accused Sk. Nanney recorded by the Judicial Magistrate under section 16A Cr.PC. In his statement under section 164 Cr.PC the accused Nanney Kosal has described some part of the Incident Implicating himself and certain other persons. We have already noted that Nanney Kosal has been convicted and sentenced in the original trial and he did not prefer any appeal against the same. It has been contended on behalf of the appellants that since Nanney Kosal was therefore not being tried Jointly alongwith present appellants in the retrial, his confessional statement recorded under section 164 Cr.PC cannot be taken into consideration against the present appellants under section 30 of the Evidence Act. The learned Advocate for the appellants has in this connection also relied upon certain decisions cited by him which we will refer to at a later stage. Ext. 14 is the statement of the appellant Lokman Shah recorded by the Judicial Magistrate under section 164 Cr.PC. The statement was made by the accused-appellant Lokman before the Judicial Magistrate In Hindi and the Magistrate recorded the same in Bengali script. The English translation of the relevant portion of the statement of the accused Lokman recorded under section 164 Cr.PC as appearing In the paper book is reproduced below :</p><p style="text-align: justify;">'Q. Tell what statement you will make?</p><p style="text-align: justify;"> Ans. On 18th date, Sunday (Holiday), the Incident took place. At 10 or 10-30 Naso, Puttan, Akhtar, Chowdhury came to me for price. I asked what you will do by money. They answered quarrel is going on in village road for that weapons are to be purchased by the money. Those persons have set fire to the mosque. If those persons make any trouble here we shall fight out. I said I shall also fight out. After that they fled away. At 11-45 a cry or quarrel came to my heralng. I came out and found that two police officers coming speedily. Many people threw brickbats towards those police officers. The police officer in white dress went towards the house of Mulla. The police officer In Khaki dress came straight. When he was crossing near me I also threw a brickbat. I cannot say whether it hit or not. The police officer In khaki dress entered In the house of Latif Sepot. Many persons entered following him. Amongst them Idris was there. From outside many people threw brickbats. I also threw 2/1 brickbats. I cannot say whether it hit him or not. Aftersometime I found that Naso, Puttan, Akhtar and Chowdhury were coming from the side of Battikal mosque. They took me Inside the house. I found the police officer In khaki dress was standing near the kitchen. (wrong translation). The correct translation is 'standing by the side of Gosalkhana'--'Gosalkhanaka pas khara hayal. That person said he was D.C. Some people said they do not know D.C. etc. After this all people in a batch caught that person. I also caught him. Naso hit by a rod on the head. For this the hard cap fell down. Again rod was used. It hit the head. Saheb fell down. Puttan, Akhtar and some other many people assaulted him on the face with deadly weapons, (wrong translation. The correct translation is 'Puttan, Akhtar & many other persons started assaulting on his face with sharp-cutting weapons--'dharwala hattar se chehar par marne laga'). I could not tolerate the blood-shed. For that I came out. I was then searching for my younger brother. After some time I found those 8/10 persons took D.C. Saheb and entered Inside the house, (wrong translation. The correct translation is 'after a while I saw that those 8/10 persons were going out from Inside the premises taking away D.C. Saheb--Thora der ke bad dekhta o at das admi D.C. Saheb ko le ke bari ke ondar se chala ja raha'). They proceeded towards the Mehar Manzil crossing the house of Israil. ('They took him away towards Mehar Manzil after crossing the house of Israil'--'Israilko par karke Meher Manzil ke taraf le giyal. After that I cannot understand what happened, ('what happened thereafter, I cannot say')--'Usko bad hamko nehi malum haya keya hua'). I worked under port. And I was present at home on that day.</p><p style="text-align: justify;"> 'Q. Do you want to say anything more?</p><p style="text-align: justify;"> Ans. No. I have forgotten to say one thing. Samsad and Abbas were also present in the Incident.'</p><p style="text-align: justify;">29. It may also be rioted here that from ext. 14 it will appear that the Judicial Magistrate before recording the statement of the accused Lokman Shah put various questions to the accused Lokman for ascertaining whether the accused was making the statement voluntarily and free from any outside influence. As we have seen, the statement was recorded by the Judicial Magistrate on 9.6.84 and on the preceding date i.e. 8.6.84 the accused was sent to jail custody for giving him proper opportunity for reflection. In answering the question put to the accused Lokman on 9.6.84 by the Judicial Magistrate as to whether he was kept in the jail in separate room or not, he said that he was kept In a separate room for thinking and realising. The Magistrate also tells him inter alia that he was not bound to confess and asked him to tell after thinking whether he will make the statement from his mind or not, to which the accused replies that he will make the statement. He also says that he was not terrorised by anyone nor was requested or assured for giving the statement. In answer to the specific question whether he was beaten by any police officer, he replied in the negative. The Judicial Magistrate also told him that he would not be kept under the custody of the police whether he told or not. Even then the accused staled before the Magistrate that he would make the statement willfully and he had come from jail and nobody had given any hope or assurance to him. The Magistrate also cautioned the accused that If any statement was made by him, he might be hanged for the same and thatwhat he would say could go against him. Inspite of that the accused stated to the Magistrate that he would confess according to his sweet will. The Magistrate also appended a certificate under the statement recorded by him to the effect that he believed that the confession was made voluntarily.</p><p style="text-align: justify;">30. The learned Advocate for the appellants has contended that the only evidence on which the prosecution has relied upon for bringing home the charge framed against the accused Lokman ts his alleged confessional statement, ext. 14. It is however contended by him that the law regarding use of confessional statement against maker of such statement is that the court must be satisfied that the confessional statement is truthful and is made voluntarily. He has also cited a number of decisions on this point such as Anathbandhu v. State of West Bengal, 1986(1) CHN. 229, State of West Bengal V. Prosenjit Tafadar 1991(1) CHN 331. Saran Singh v. State of Punjab, : 1957CriLJ1014 , etc. Indeed we are convinced that the same is true and voluntary. While examined under section 313 Cr.PC the accused Lokman even inter alia denies to have made such statement as recorded by the Magistrate and he even went to the absurd extent of telling that the I.O. was standing near him when he made the statement before the Magistrate. It may be noted here that at the retrial one defence witness being D.W.1 Sk. Mumtaz was examined on behalf of the defence. He claims to be an employee of Calcutta Port Trust. He says that he knows the accused Lokman, who was a class-IV staff in the department in which he was working. He says that there was continuous strike in all the ports of India including the Calcutta Port w.e.f. 16.3.84 and during the strike period he used to attend the gate No.8 of the workshop regularly and this gate is one of the entrance gales to the K.P. dock. He further says that like him other people also used to go in front of the gate during the strike. His evidence ts that on 18.3.84 he along with others went in front of that gate at about 8-30/9-00 a.m. and returned to his residence at about 12-45/1-00 p.m. He wants to say that on 18.3.84 when he went In front of that gate he found that the accused Lokman was sitting there. This defence witness has been examined to establish the plea of alibi taken by the accused Lokman. The evidence of this defence witness who was examined at the retrial in June, 1992 long after the occurrence however, does not inspire any confidence. No plausible explanation is coming as to why he was not examined at the time of the original trial if really Lokman was with him in front of the gate of the Calcutta Port Trust at the relevant time on 18.3.84. Also it is significant to note that the date of the Incident namely, 18.3.84 was not only a Sunday, but It was also the day on which the 'holi' festival was being celebrated. That being so, it is difficult to believe that he and other workers Including the accused Lokman would have gone there In front of the gate of their workshop on that day obviously without any purposeful object. Moreover it Is also quite unnatural that when riots and disturbances were going on in the concerned locality, the accused Lokman would have chosen to go and station himself in front of his closed factory gate without any meaningful purpose leaving aside the shelter of his own house, if realty he were a peace-loving person. Having regard to the facts and circumstances, we are not Inclined to place any reliance on the evidence of the defence witness D.W. 1 Sk. Mumtaz. The learned Advocate for the appellants submits that even if the defence plea of alibi falls and the court does not accept thesame, yet that by itself does not prove the prosecution case. In this connection he also refers to the decisions in Shared Blrdhtchand Sarda v. State of Maharashtra, 1984 SCC(Cr.l) 487 and Sk. Firoz v. State of West Bengal 1997. C.Cr.L.R. [Call 251. In connection with the question relating to the nature of use of a confessional statement he refers to the decisions in Pakal Narayan Swami v. Emperor AIR 1931 PC 47, PalblnderKatirv. State of Punjab : 1953CriLJ154 , Ompmkashv. State of Uttar Pradcsh : AIR1960SC409 . There is no doubt that a self exculpatory statement does not amount to confession. It is also true that the statement of the accused will have to be taken as a whole without making any 'pick and choose' of isolated sentences or words divorced or separated from the context in which they have been used. But in the present case on an Indeplh consideration of the statement of Lokman made before the Judicial Magistrate, we find no reason to hold that the same does not amount to a confessional statement. The learned Advocate for the appellants contends that the statement of Lokman as recorded under section 164 Cr.PC would show that he had only thrown some brickbats when the police officer in khaki dress entered in the house of LatlfSepol and he even did not care to notice whether the same hit the police office or not. He also contends that although the statement shows that Lokman caught the D.C. along with others when Naso hit him by a rod on his head as a result of which the cap fell down and Naso again hit the D.C. on his head and the D.C. fell down and other assailants assaulted him wllh sharp culling weapons, yet the statement shows that on seeing blood-shed as a result of assaults made by the assailants on the D.C. Lokman could not tolerate the situation and he withdrew himself and came out. It is submitted on behalf of the appellant Lokman that the conduct of Lokman shows his mental state at the relevant time and would suggest that he had no culpable object or Intention in respect of the commission of the offence. We are, however, unable to accept this defence contention. May be that the accused Lokman was comparatively a timid person and was unable to reconcile himself wllh blood-shed when the same occurred as a result of combined and concerted assault with various weapons upon the D.C. May be that the role played by the accused Lokman was not as aggressive as exhibited by many other more ferocious co-participants, yet the fact remains that when the D.C. was being chased by a mob and the D.C. was running away for safety, he, I.e.. the accused Lokman also threw brickbats at him and later even participated in catching hold of him along with others obviously for facilitating the assault by other persons with various weapons and in fact, the D.C. was assaulted with various lethal weapons Including rod used by the accused Naso on the head of the D.C. The admitted partlcipalion of Lokman in the operation and in the manner described by Lokman in his stalemenl clearly makes out that the statement of Lokman is nothing else but a confession of the commission of the offence and participation by himself in a culpable way in the commission of the same. We fall to understand why the statement of Lokman should be treated as something falling short of confession. We are rather of the opinion that the statement even when taken as a whole and without excluding anything therefrom amounts to a clear confession of the accused Lokman that he participated in the commission of the offence of severely assaulting the D.C. with various dangerous weapons in which the different assailants took part in a conjoint operation obviously with a common object to commit the offence which was being committed and tn that operation Lokman took part by catching hold of the victim along with others while some other assailants were assaulting the victim with various weapons. His withdrawal from the scene at a later stage on seeing blood-head does not exonerate him from the culpability of his act or state of mind which he displayed upto that stage and this is enough for the purpose of finding him guilty of the charge framed against him under section 302/149 IPC, Inasmuch as the D.C. was put to death as a result of a brutal assault perpetrated on him conjointly by the assailants. May be that the D.C. was further assaulted in continuation of the earlier assault even after Lokman withdrew himself from the scene after seeing the blood-shed but that does not, we reiterate, exonerate Lokman from his participative culpability in the commission of the offence till the stage of his withdrawal. We have seen from the evidence of the Autopsy Surgeon that the head injury sustained by the D.C. obviously as a result of assault made by Naso with rod on the head of the D.C. was alone sufficient to cause death and that was done while Lokman was catching the victim along with others obviously for facilitating conjoint assaults not only by the rod but also by other weapons used by the assailants. The statement of Lokman fully satisfies the requirements of a confessional statement and we are also of the opinion that the same is not only voluntary but is also true as the same receives substantial corroboratlon and also coroboratlon in material respects from the other evidence on record, namely, that the D.C. In khankl uniform and his body guard in while uniform were chased by a riotous mob there on that day and at that time, and the D.C. took shelter in that premises where he was attacked and assaulted by the assailants as stated by the eye witness P.W. 24, Md. Hadls. It is true that Lokman has not been specifically named by Md. Hadls but the other descriptions of the Incident as given by Md. Hadls, in our opinion, lends corroboratlon to the material aspects as to how and in what manner the occurrence took place at the concerned premises regarding assault on D.C. Mehta. Such corroboratlon tn respect of material aspects by the evidence of Md. Hadls Inspires sufficient confidence to accept the confessional statement of the accused Lokman as true. That being so, we have no hesitation in accepting the confessional statement of Lokman as voluntary and true. We will discuss more about the confessional statements at a later stage. Here we would like to note that the evidence of P.W.26 Md. Mustafa and P.W. 38 Md. Narln also supported the prosecution case regarding the Involvement of the accused Naso in the commission of the offence, but these two witnesses could not be produced for further cross-examination at the retrial and that is why their evidence was not pressed into service at the retrial. It has been submitted on behalf of the appellants that although the Division Bench while directing retrial directed the evidence already on record to be taken into consideration in writing out a fresh Judgment in the retrial, yet their evidence cannot be taken Into consideration because they could not be produced for further cross-examination at the time of retrial. It may be noted here that the Division Bench while remanding the case for retrial directed that the judgment is to be written on the basis of the evidence already on record, the evidence to be brought on record pursuant to the order of retrial, and the further statements of the appellants, if any, made under section 313 Cr.PC and also directed the trial Judge to give the appellants opportunity of further cross examining the prosecution witnesses. As we have seen, P.W.26 and P.W. 38 who support the prosecution case in respect of the Involvement of the appellant Naso however could not be produced for further cross-examination at the retrial Insplte of best efforts made by the prosecution as their whereabouts could not be traced out. In the circumstances it appears to us that section 33 of the Evidence Act would be attracted. Under section 33 of Evidence Act the evidence given by a witness in a Judicial proceeding is relevant for the purpose of proving in a subsequent Judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or his presence cannot be obtained without an amount of delay or expense which the court considers undesirable, etc., provided the proceeding was between the same parties or their representstive-In-Interest and the adverse party in the first proceeding had the right and opportunity to cross-examine, and the questions in Issue were substantially the same in the first and in the second proceeding. In the present case, at the original trial Involving the same Issue the appellants not only had the right and opportunity to cross-examine both P.W.26 and P.W.38, but in fact they were also cross-examined in extenso. That being so, when Insplte of efforts those two witnesses could not be traced out at the time of retrial plainly their earlier evidence was admissible in evidence at the retrial in view of section 33 of the Evidence Act. It is needless to say that the directions of the Division Bench concerning retrial do not have any connotation that a piece of evidence which is already on record will be excluded from consideration at the retrial even if the same is otherwise admissible in evidence in accordance with the provisions of law. Therefore we are of the opinion that the earlier evidence of P.W.26 and P.W.38 can be taken into consideration at the retrial under section 33 of the Evidence Act although they could not be produced for further cross-examination at the retrial as they could not be traced out after so many years inspile of efforts. In this back-ground it is Interesting to note the submission made by the learned Advocate for the appellants in respect of the question of admlsslbllly of the confessional statement of the accused Nanney Kosal for consideration at the retrial against the appellant Naso. it has been contended in this connection by the learned Advocate for the appellants that though the Division Bench while directing retrial permitted the trial court to take into consideration the evidence already on record, yet that direction is not Intended to nor does tt supersede any provision of law. It has been submitted by the learned Advocate for the appellants that under section 30 of the Evidence Act the confession of a co-accused can be taken into consideration against an accused only if both of them are Jointly tried for the same offence. It is submitted that since the accused Nanney Kosal who was convicted and sentenced in the original trial did not prefer any appeal and since he was not being Jointly tried with the present appellants at the retrial his confession cannot be taken Into consideration under section 30 of the Evidence Act at the retrial relating to the present appellants. In this connection the learned Advocate for the appellants has referred to certain decisions namely Emperor v. Keramot Sardar, 16 CHN 49, Assistant Collector of Customs. New Delhi v. Harbans Lal Sharaf 1980 Cr.LJ 681 (Delhi) and Suresh Budharmal Katati v. State of Mahamstra 1998 SCC(Cr.l.) 1625. The learned Advocate for the appellants thus contends that Inspite of the direction of the Division Bench for taking into consideration at the retrial the evidence already on record the confessional statement of Nanney Kosal cannot be taken Into consideration at the retrial as that Is, in effect, prohibited by section 30 of the Evidence Act and the direction of the Division Bench cannot be construed to supersede any provision of law. We accept this contention and we are also of the opinion that the confessional statement of Nanney Kosal cannot be taken Into consideration now in the retrial against the appellant Naso because Naso and Nanney Kosal were not facing Joint trial at the retrial. But we fall to understand why this same logic should not apply in respect of the earlier evidence of P.W.26 and P.W.38, both of whom were cross-examined at length at the earlier trial but who could not be traced out and produced at the retrial Insplte of efforts. The direction of the Division Bench to produce the witnesses for further cross-examination at the retrial obviously cannot be construed to exclude the operation of a statutory provision, namely, section 33 of the Evidence Act. No doubt that under the direction of the Division Bench both those witnesses were also required to be produced for further cros's-examlnallon at the retrial. But then, in our opinion, the law should take Its own course if in spite of efforts those two witnesses could not be traced out and produced after so many years for further cross-examination at the retrial. In our opinion, section 33 is attracted in the circumstances and there is nothing in the direction of the Division Bench which can be construed as excluding the operation of a statutory provision of law that may be attracted under the law Itself in a particular situation. In our opinion. In the circumstances the earlier evidence of P.W.26 and P.W.38 can be taken Into consideration at the retrial as a matter of law. However, as a matter of fact we keep their evidence out of consideration, and we examine whether even without taking into consideration the earlier evidence of those two witnesses, namely, P.W.26 and P.W.38 the prosecution have been able to establish the concerned charges against the present appellants.</p><p style="text-align: justify;">31. The learned Advocate for appellants contends that the appellants should have been examined under section 313 Cr.PC afresh in respect of the earlier evidence on record but that was not done and that being so, the entire earlier evidence in the case should be kept out of consideration and it should be held that the earlier evidence cannot be used against the appellants for finding them guilty of the concerned charges in the retrial. It may be mentioned here that in the retrial, after the further cross-examination of the witnesses produced by the prosecution were completed, the appellants were further examined under section 313 Cr.PC thereby giving them opportunity to tell whatever they wanted to tell yet. It may also be noted here that the prosecution did not adduce any fresh evidence in the retrial and only the witnesses who were earlier examined and whom the defence wanted for further cross-examination barring P.W.2G and P.W.38, were produced for further cross-examination and even then further examination under section 313 Cr.PC was done in the retrial so that the appellants might get further opportunity to say whatever they yet desired to say. There was absolutely no question of examining the appellants afresh under section 313 Cr.PC in respect of the entire evidence in respect of which they were earlier given opportunity to express their say under section 313 Cr.PC it is a desparate contention raised on behalf of the appellants in despair that the earlier examination of the appellants under section 313 Cr.PC should be altogether excluded and they should have been examined afresh under section 313 Cr.PC in the retrial even in respect of the evidence in respect of which they were given adequate opportunity earlier under section 313 Cr.PC The direction of the Division Bench in this connection also contalnes the expression 'thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure'. The Division Bench used the expression 'further examine' and not fresh examination and there is also absolutely no reason why the earlier examination under section 313 in respect of the evidence earlier adduced should be treated as a nullity in the retrial. The contention raised by the learned Advocate for the appellants in this respect is wholly unacceptable.</p><p style="text-align: justify;">32. The learned Advocate for the appellants contends inter alia that the unexplained delay in examination of P.W. 24 Hadis Khan renders it unsafe to rely on his evidence, The incident took place on 18.8.84 andP.W.24 Hadls Khan, we get it from the evidence of P.W. 1 S.K. Bhattacharjee. the second I.O., was examined by him in the afternoon of 20.8.84 at G-222 Battikal Second Lane. Both the earlier I.O. (P.W.80) and the second I.O.(P.W.l) have as we have seen, described what they did respectively after taking charge of the Investigation. Hadis Khan, as we have seen, was rounded up at about noon on the 19th and placed in a police van that patrolled in the locality and then he and others were in the police lock up at the P.S. from 7-00 p.m. and were later released in the evening of the same date. The second I.O. P.W. 1 took charge of the Investigation in the evening of the 19th and thereafter, as we have see, he took charge of some of the arrested accused persons in the evening and took them to Lalbazar and Interrogated them and on the next day he took steps for producing them before the court and then went to the concerned locality and there he examined Hadls Khan as the first witness to be examined by him and also the mother of the Hadis Khan in the concerned premises. Having regard to the facts and circumstances we cannot say that there was any delay or leapse in the matter of examining P.W.24 Hadls Khan. The learned Advocate for the appellants in this connection has referred to certain decisions namely, Balakrishna v. State of Orissa 1971 Cr LJ 670. Babull v. State of Orissa, 1974 SCC(Crl.) 104 and State of Orissa v. Brambhananda : 1976CriLJ1985 . It is needless to mention that all those decisions are confined in their effect to the particular facts of the respective cases. In Batakrishna v. State of Ortssa (supra) the concerned witness was examined by the I.O. 10/11 days after the incident which definitely is not so in our present case. In the other two cases namely Babull v. State of Orissa and Slate of Ortssa v. Brambhananda (supra) the concerned witnesses did not disclose the names of the assailants to anyone at the earliest available opportunity and there was no satisfactory explanation for the same. In our present case, as we have seen, P.W.24 Hadls disclosed what he saw at the earliest available opportunity on the very same day to P.W.19 Khalll Khan and P.W.21 Abdul Latlf Khan. Having regard to the facts, circumstances and evidence on record we find no reason to disbelieve the evidence of P.W.24 Hadis Khan.</p><p style="text-align: justify;">33. As regards the question whetehr the statement of appellant Lokman recorded under section 164 Cr PC amounts to confession we have earlier discussed and we reiterate our opinion that such statement amouns to confession. We have already discussed that the Magistrate gave all necessary cautions to the appelalnt Lokman before recording his confession and also gave adequate opporutnity for reflection in Jail custody as well as after the accused was produced before him and he recorded the confessional statement after he was fully satisfied that his confessional statement was made voluntarily and the same was true. We also find no reason to hold otherwise in this respect. H has been contended on behalf of the appellant Lokman that there is no other evidence against the said appeallant except his confessional statement and that, too the confessional statement was subsequently retracted by him and that being so no conviction can be based on the retracted confession alone. In this connection the learned Advocate for the appellants has referred to certain decisions of the Supreme Court, namely, Chandrafcant Chfnum Lal v. State of Gujarat 1992(1) Crime 233, Kashmlra Slngh v. State of M.P. : 1952CriLJ839 . It may be noted here that the decision in Chandrafcant Chfman Lal (supra) is virtually based on the earlier decision of the Supreme Court in Kashmlra S(ngh v. State of Madhya Pradesh (supra). In Kashmlra Sfngh (supra) the Supreme Court was concerned with the question how Tar the confession of an accused person can be used against a co-accused. It is evident from a reading of the said decision in Kashmir Stngh that the said decision was not laying down the law that an accused cannot be convicted on the basis of his own confession. Rather what was laid down in effect in that context in Koshmia Singh is that an accused cannot be convicted on the basis of the confessional statement of the co-accused. On the other hand, the learned Advocate for the Slate has referred to certain decisions which we mention below regarding the use of confession. In Sarwan Stngh v. State of Punjab. : 1957CriLJ1014 , it has been held that in law it is always open to the court to convict an accused on his confession Itself though he has retracted it at a later stage and that nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement and that what amount of corroboratton would be necessary in such a case would always be a question of fact to be determlend in the light of the circumstances of each case. In Madi Ganga v. State qj Orfssa 1981 SCC (Crl) 411 it has been held by the Supreme Court that the accused can be convicted on the basis of the confessional statement if the general trend of his confession is substantiated by other evidence. In Param Hans Yadav v. State of Bihar 1987 SCC(Crl) 322 it has been held that although the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial the same can only be used for lending assurance to any substantive evidence. The law on the point has been very succinctly laid down by the Supreme Court in Sfirfsfiad Waaeshl v. State of Maharastra 1985 Cr LJ 1173 where it has been held that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboratlon from other Independent sources and that it can not, however, be the basis for convicting the co-accused though it may be taken Into consideration against the co-accused also. That being the law, it is evident that the retracted confession of the appellant Lokman can form the basis of his conviction if it has received general corroboratlon from other Independent sources as it has in our present case. We have seen that the appellant Lokman made an elaborate statement as to how the offence was being committed upon V.K. Mehta, D.C. by a group of assailants, some of whom were armed with deadly weapons, and as to the place where it occurred and how he participated in that operation. The manner in which the offence was committed upon V.K. Mehla in the concerned premises and how he was chased in that premises and assaulted are in such details that the vivid description itself lends an assurance of credibility for the confessional version. These details, as we have seen, are again corroborated in material particulars by the evidence of P.W.24 Hadts Khan. We have also seen that there.was an Inordinate and unexplained delay in retracting the confession. Having regard to the facts and circumstances, we have therefore no hesitation in accepting that the confessional statement of Lokman as made voluntarily and the same is true and is corroborated generally as well as in material particulars by the other independent evidence, namely, the evidence of P.W.24 Hadis. He have also seen that the appellant Lokman participated in catching hold of the unfortunate victim D.C., Mehta while he was being assaulted by the accused Naso with rod on his head and by other assailants with various lethal weapons on the other vital parts of the body of the victim. There is therefore no escape from the conclusion that the appellant Lokman is guilty of the charge framed under section 302/149 IPC in spite of the fact that at certain stage of the operation he might have withdrawn himself from scene while the others were yet carrying on the operation.</p><p style="text-align: justify;">34. As regards the involvement of the appellant Naso we find no reason to discard the evidence of P.W. 24 Hadis. We have also seen how. Hadls reported to P.W. 19 and P.W.21 what he saw, on that very day. He clearly implicates the appellant Naso and from his evidence it appears that Naso delivered two blows with rod on the head of the D.C. Mehta while he was in unarmed condition. We have also seen that P.W. 16 Ramashankar Slngh has also deposed that he saw Naso amongst others in the mob with bombs. P.W.21 Abdul Latif Khan also saw Naso with others near deadbody and all were armed. We are therefore convinced that Naso was Involved in the commission of the offence along with others and this receives, additional assurance of truth when the confessional statement of the co-accused Lokman is taken into consideration under section 30 of the Evidence Act. We are also convinced from the evidence on record Including the postmortem doctor that the blow which Naso delivered on the head of V.K. Mehta with rod Itself was fatal. It is true that others also assaulted V.K. Mehta with various weapons and V.K, Mehta met with a tragic and as a result of all the assualts on him. The learned Advocate for the appellants submits that even if the prosecution evidence is taken at Its face value yet it is not clear whether the entire assault was held at premises No,G-222and whether some part of the assaults were carried on after taking away V.K. Mehta from that premises. In our opinion this is immaterial in view of the evidence of assault which is on record and the nature of the Injuries described by the Autopsy Surgeon. It is neither expected nor required that the prosecution must prove the entire operation second by second by a cinematographic display of the actions from the start to finish. The direct evidence of chasing of V.K. Mehta by the assailants and the participation of the appellant Naso in the concerned operation of assault on the victim with deadly weapons at premises No.G-222 and the description of the Injuries found by the autopsy surgeon on the deadbody of V.K. Mehta and his opinion about the effect of the same, are sufficient to hold the appellant Naso guilty of the charge framed against him under section 302/149 IPC for the murder of V.K. Mehta. Accordingly we hold both the appellants Naso and Lokman guilty of the charge framed against them under section 302/149 IPC for the murder of V.K. Mehta.</p><p style="text-align: justify;">35. As we have seen, it is in evidence that the deadbody of V.K. Mehta with Injuries was recovered on that very day by the police party from a drain in that locality. From the facts, circumstances and evidence on record there is no doubt that the assailants of V.K. Mehta had thrown the deadbody in the drain, obviously with a view to avoiding easy detection of the evidence of the crime. There is evidence, as we have seen, that Naso participated in assaulting V.K. Mehta. P.W.21 Abdul Latlf Khan, as we have seen, while coming back to his house and reached Battlkal Second Lane at about 12-30/12-45 p.m. noticed some persons armed with weapons present near a deadbody lying by the side of the kancha drain there and he also found the appellant Naso amongst those persons who were all armed. His evidence is that Naso was standing 2 cubits away from the deadbody. He also says that later at the police station he learnt that the deadbody of the Dy. Commissioner was recovered from the place where he had earlier seen the deadbody. Circumstantially the conclusion becomes irresistible that the deadbody was thrown Into the drain there and it must have been done by those persons who vere found present there beside the deadbody. And Naso was one of them, in the circumstances we are of the opinion that the conviction of the appellant Naso under section 201/149 1PC is justified. We are also of the opinion that his conviction under section 148 1PC is also warranted and Justified.</p><p style="text-align: justify;">36. Now we consider the question of sentence so far as the offence under section 302/149 IPC is concerned. Both the appellants Naso and Lokman have been sentenced to death by the trial court for their conviction under section 302/149 1PC in respect of the murder of V.K. Mehta, the Dy. Commissioner of Police, Port Division. The learned Advocate for the appellants contended, without prejudice to his other contention that the appellants were entitled to an order of acquittal, that this was not at all a fit case for death sentence even if the conviction were upheld. In this connection he referred to the decisions in Bachhan Stngh v. State of Punjab, : 1980CriLJ636 , Rajendra Prosad v. State of U.P. : 1979CriLJ792 , Digambar Gope v. State of West Bengal 1997 C.Cr.L.R.(Cal) 139 and Rabindra Prida v. State of West Bengal 1995 C.Cr.L.R (Cal) 210 etc. On the other hand, the learned Advocate for the State has referred to the decisions in Shlo Mohan Stngh v. State 1977 SCC(Cri) 324, Gayasi v. State of Uttar Pradesh. 1981 SCC(Cri) 590, Jay Kr. v. State of Madhya Pradesh 1999 111 AD(Cr.) SC 33 and 1987 SCC(Cri) 322. etc. Indeed it is now a settled law that for an offence of murder life Imprisonment is the normal sentence while the death sentence should be Imposed only in the rarest of rare cases. The guidelines for determining the case where death sentence can be Imposed are to be found in the decisions of the Supreme Court in Bachhan Singh : 1980CriLJ636 , Mechhi Singh v. State of Punjab : 1983CriLJ1457 , Kama Tewari v. State of Madhya Pradesh, 1996 Cr.L.J. 4158. etc. In going to decide whether in a particular case death sentence should be imposed or not the aggravating and the mitigating circumstances in respect of the concerned accused are required to be taken Into consideration. In Jay Kr. v. S(ate p/M.P,(supra) it has been observed by the Supreme Court that the law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment and that while it is true that a sentence disproportionately severe, ought not passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly Inadequate having due regard to the nature of the offence since an Inadequate sentence would fall to produce a deterrent effect on the society at large. It has been further observed therein that punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, but rather for having its due Impact on the society and that while undue harshness is not required yet Inadequate punishment may lead to sufferance of the community at large. In Shtv Mohcin Sfngh v. The State (supra), it has been Inter alia observed by the Supreme Court that the heinousness of the crime is a relevant factor in the choice of the sentence. In Gayasi v. State qfU.P. (supra), the Supreme Court while confirming the death sentence in a case where the victim was a public servant and was murdered while performing his public duties observed that such crimes committed against Public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.</p><p style="text-align: justify;">37. Now let us look to the circumstances in which the crime has been committed in the present case. On receiving information that a disturbance was going on in the concerned locality, V.K. Mehta, the Dy. Commissioner of the Port Division rushed to the spot and the other officers and force also joined him. He of course had no arms or weapon with him. He led the police party for restoring normalcy in the disturbed area. At that time the police party was attacked by the furious mob with brickbats, bombs and the policeparty headed by the Dy. Commissioner took shelter in a mosque. Underthe pressure of the violent and armed mob the Immam of the mosque askedthe police party to leave the mosque. In the circumstances the police partyhad to leave the mosque. As soon as they came out of the mosque theywere again attacked by the violent mob. The D.C. and his body guard MoktarAll proceeded in one direction while the Assistant Commisloner and theother members of the police party could retreat in a different direction. Whilethus retreating the members of the police party were attacked by themembers of the mob as a result of which the Assistant Commissioner andsome other members of the party sustained Injuries. Unfortunately, howeverthe Dy. Commissioner and his body Guard Moktar All proceeded in adifferent direction Isolated from the other members of the police party andthey were also chased by an armed mob. Both the D.C. and his body guardMoktar All were in police uniform. They were there to perform their officialduties to restore peace and maintain law and order. Insplte of that withoutany provocation from them they were hounded up by the ferocious mob asa result of which the D.C. and hts body guard also became separated fromeach other. The body guard was brutally killed by some of the assailants,and the D.C., while on the run for life and safely took shelter in G-222Battlkal Second Lane but there also the chasing mob followed him. In hishelpless bid the D.C. fervently disclosed to his assailants that he was D.C.of police hoping that the same would have a sobering effect on theassailants, but the assailants were in a devellsh mood and even proclaimedthat the they did not care for D.C. An isolated senior police officer of therank of a Deputy Commissioner who had been there for restoring peace andfor maintaining law and order in discharge of his official duty helplesslyfound himself pitiably doomed in a death trap under the devilish controlof the ferocious assailants while he himself was totally unarmed. There wasabsolutely no provocation from the side of the Deputy Commissioner. It wasthe bounden duly of everyone present there to assist the D.C, in discharge of his official duty to restore peace and maintain law and order but Instead, the assailants took devellsh pleasure in committing the diabolical murder of the D.C. In a dastardly manner. The brutality of the assailants on the helpless D.C. can be readily measured by the number and nature of Injuries found by the Autopsy Surgeon on the deadbody. The appellant Naso, as we found, took the lead role as the pioneer in the matter of actual assault on the D.C. after getting him in virtual capacity. Ignoring the appeal of the D.C. as reflected in the fervant disclosure of his Identity the appellant Naso delivered blow with rod on the head of the D.C. from the front side obviously with enormous force so much so that the helmet of the D.C. fell down from his head and the appellant Naso took that opportunity to deliver a second blow on the bare head of the D.C. with the rod and the beastly operation was followed by assaults by others with different other deadly weapons. The Impact of the assault made by the appellant Naso has been projected by the evidence of the Autopsy Surgeon. The head Injury sustained by the D.C. was sufficient to cause death in the normal course. The role played by the appellant Naso in making the dastardly and deadly assault on the helpless and unarmed D.C. who was on duty is studded with such mainfestatlon of depraved ferocity that the case unrringly comes within the arena of a rarest of rare cases. The tragic death of a brave and dutiful public servant in a circumstance like this is sure to have a macabre effect on the society at large and also a demoralising Impact on the public service in particular, unless the justice delivery system matchlngly responds to nuelralllse the same in the Interest of the peace-loving segment of the society. In our considered opinion, and having regard to the facts and circumstances we have no hesitation in holding that this is a fit case where the appellant Naso deserves death sentence in the Interest of the society at large. There is absolutely no mitigating circumstance for awarding the alternative sentence of life Imprisonment to the appellant Naso. In the result we confirm the death sentence Imposed by the trial court on the accused Naso for his conviction under section 302/149 1PC. However, having regard to the low-profile role played by the appellant Lokman Shah we are of the opinion that in his case death sentence need not be Imposed and the alternative sentence of Imprisonment for life for his conviction under section 302/149 1PC will meet the ends of justice. In the result the death referred in respect of the accused Naso is hereby accepted and the appeal filed by him is dismissed. The death sentence as well as the other sentences Imposed upon the appellant Naso by the trial court are all confirmed. The death reference relating to accused Lokman is however rejected and the death sentence Imposed on him by the trial court is set aside and Instead of death sentence, the sentence of imprisonment for life is imposed on the appellant Lokman for his conviction under section 302/149 IPC. Subject to above modification of sentence for conviction under section 302/149 IPC the appeal preferred by the appellant Lokman stands dismissed.</p><p style="text-align: justify;">M.K. Basu, J.</p><p style="text-align: justify;">38. I agree.</p><p style="text-align: justify;">39. Older accordingly<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(2000)1CALLT107(HC),2000(1)CHN245',
			'ratiodecidendi' => '',
			'respondent' => 'State of West Bengal',
			'sub' => 'Criminal ',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'lokman-shah-anr-vs-state-west-bengal',
	'args' => array(
		(int) 0 => '853066',
		(int) 1 => 'lokman-shah-anr-vs-state-west-bengal'
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$title_for_layout = 'Lokman Shah and anr Vs State of West Bengal - Citation 853066 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '853066',
		'acts' => ' <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 148, 149, 201 and 302;;<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 16A, 144, 154, 161, 164, 313 and 366;;Evidence Act, 1972 - Sections 9, 30, 33 and 45;;<a href="/act/52009/arms-act-1959-complete-act">Arms Act, 1959</a> - Sections 25 and 27',
		'appealno' => 'Criminal Appellate Jurisdiction, Crl. Appeal No. 274 of 1992 with Death Reference No. 11 of 1996',
		'appellant' => 'Lokman Shah and anr.',
		'authreffered' => '',
		'casename' => 'Lokman Shah and anr. Vs. State of West Bengal',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'In Gayasi v. State;',
		'citingcases' => '',
		'counselplain' => ' Mr. Balai Chandra Roy, ;Mr. Sekhar Kumar Bose, ;Mr. Subrata Kumar Basu and ;Mr. Asim Kumar Roy, Advs.',
		'counseldef' => ' Mr. Tapan Roy Chowdhury and ;Mr. Thakurdas Roy Chowdhury, Advs.',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-12-01',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Gitesh Ranjan Bhattacharjee and ;Malay Kumar Basu, JJ.',
		'judgement' => '<p>G.R. Bhattacharjee, J.</p><p>1. Both the above noted Death Reference and the criminal appeal are being dealt with and disposed of by this Judgment as they arise out of the same Judgment of the 3rd court of Additional Sessions Judge, Allpore. The trial court by its judgment and order dated 26-8-92 acquitted the accused Sanda Akhtar and the accused Hossaln Chowdhury but convicted the accused Naslm @ Naso and the accused Lokman Shah under section 302/149 IPC and further convicted the accused Naso under sections 148, 201/149 IPC. Subsequently after giving a hearing on the question of sentence the trial court by Its order dated 31-8-92 sentenced both the accused Naso @ Naslm and Lokman Shah to death for their conviction under section 302/149 IPC for the murder of V.K. Mehta and also sentenced the accused Nase to R.I. for 3 years and fine of Rs. 2.000/- i.d. to R.I. for 6 months for the offence of rioting punishable under section 148 IPC and also sentenced him to R.I. for 3 years and a fine of Rs. 2,000/-I.d. to R.I. for 6 months for the offence punishable under section 148 IPC and also sentenced him to R.I for 7 years and a fine of Rs.6000/- I.d. to R.I. for 1 year and 6th months for the offence punishable under section 201/149 IPC. The substantive sentences of Imprisonment were directed to run concurrently. The trial court then made a reference to this court under section 366 Cr.PC for consideration of confirmation of the death sentence Imposed upon the two accused Nase and Lokman. Correspondingly the said two accused have preferred appeal to this court against the judgment and orders of conviction and sentences passed by the trial court. As we have already noted both the death reference and the criminal appeal are being dealt with and disposed of simultaneously by this Judgment.</p><p>2. It may be noted here that on an earlier occasion the trial court In a trial on the same charges and others passed Judgment and orders of conviction and sentences In S.T. No. l(6)/88 and on that occasion four accused persons namely Naso and Lokman (the present appellants) along with the accused Akhtar (c) Sanda Akhtar and Hossaln Chowdhury were Inter alta convicted under section 302/149 IPC for the murder of V.K. Mehta and sentenced to death. There were also other sentences In respect of different accused persons on that occasion. It is however to be noted specifically here that on that occasion the accused Nanney Kasai was convicted under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and sentenced to R.I. for 6 years and he was further sentenced to R.l. for 2 years for conviction under section 148 IPC with the direction that both the sentences would run concurrently. The said accused Nanney Kasai. we are told, did not prefer any appeal against the conviction and sentences Imposed on him and he rather preferred to undergo the sentences imposed on him by the trial court The four accused named above who were sentenced to death however preferred appeals against their conviction and sentences which were all heard together by a Division Bench of this court along with the death reference for consideration of confirmation of death sentence Imposed upon them by the trial court. The Division Bench hearing the said death reference and the connected criminal appeals disposed of the same by Judgment dated 8-7-91 by which the death reference was rejected and the appeals were allowed and retrial of the said four appellants-accused persons by the trial court was directed to be held In respect of the charges for which they were found guilty by the trial court. The precise ground on which the retrial was directed was that the trial court allowed the prayer of amendmenl of certain heads of charges at the stage of argument at the behest of the learned Special Public Prosecutor, thereby making amendment In respect of the names of the places of occurrence in the concerned charges. In view of such amendment In the concerned charges at the stage of argument before the trial court, the Division Bench hearing the earlier appeals and the death reference felt that the accused persons ought to have been given an opportunity by the trial court to cross-examine the prosecution witnesses after alteration of charges, and only on that ground the Division Bench considered It proper, without entering Into the merit of the prosecution case, to direct retrial of the case by the trial court In the manner directed by the Division Bench which we will mention hereafter. But before that we briefly describe the nature of charges framed against the accused persons including the present appellants. The first charge was one under section 148 IPC for rioting. The second charge was one under section 302/149 IPC for the murder of Mokhtar All, a police constable In white uniform. The third charge was one under section 302/149 IPC for the murder of V.K. Mehta, D.C. Port Division., In Khanki uniform. The fourth and the fifth charges were under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and Mokhtar All respectively. The sixth and last charge was under section 324/149 IPC for causing hurt to K.K. Sharma, Asstt. Commissioner of Police (II), Port Division and to Rama Shankar Slngh, constable.</p><p>3. The direction of the Division Bench for retrial was couched In the following language :--</p><p>'On the conclusion as above, we set aside the order of convictions recorded and sentences Imposed upon the four appellants before us and direct their retrial only in respect of those charges for which they were found guilty by the learned trial Judge. In the retrial the learned Judge will give the appellants an opportunity of further cross-examining those witnesses of the prosecution, who had earlier deposed In respect of the above charges and thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure. The four appellants should then be given an opportunity to adduce evidence on their behalf. On the basis of the evidence already on record, evidence to be brought on record pursuant to this order, and the further statements of the appellants, If any, made under' section 313 of the Code of Criminal Procedure, the learned Judge will write out a fresh judgment after hearing the arguments of the parties. By way of abundant caution, we reiterate that the retrial, in terms of this order Is to be confined to the four appellants only and that too only in respect of the charges for which they were found guilty. Since the appellants are In custody for a pretty length of time, we direct the learned trial Judge to conclude the retrial as expedltiously as possible, preferably within a period of two months from the date of communication of this order. Till then, the four appellants shall continue to remain in custody.</p><p> The appeals are thus allowed and the reference made by the learned Judge under section 366 of the Code of Criminal Procedure is rejected.</p><p>Consequently the retrial was required to be confined to the charge under section 302/149 IPC against the four accused persons, namely, Naso, Lokman, Sanda Akhtar and Hossain Chowdhury, for the murder of V.K. Mehla and also against the accused Naso to the charge under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta as well as under section 148 IPC for rioting.</p><p>4. The trial court held the retrial pursuant to the above noted direction of the Division Bench. The witnesses whom the accused persons desired to further cross-examine In the retrial were produced by the prosecution and were cross-examined. However, at the retrial the prosecution could not produce two of their Important witnesses namely P.W. 26, Md. Mustafa and P.W. 38. Md. Narln as they were not traceable and this fact was recorded by the trial court In Its order No. 295 dated 28-2-92. Be that as It may, on retrial the accused Sanda Akhtar and the accused Hossaln Chowdhury were given the benefit of doubt and were acquitted and this had to be done, as it appears from paragraph 32 of the Judgment of the trial court, mainly because the evidence of the two prosecution witnesses, namely, P.W. 26 and P.W. 38 were not taken Into consideration as they could not be produced for further cross-examination at the retrial. In paragraph 33 of the Judgment of the trial court, it Is recorded in that connection that the learned Special Public Prosecutor after taking sufficient opportunity finally expressed his Inability to produce those two witnesses and also pointed out that after a lapse of nine years the whereabouts of those witnesses could not be ascertained and It may be that for fear of life they had absconded. However, at the retrial the trial court convicted and sentenced the appellants-accused Naso and Lokman as noted earlier and thereafter made this reference under section 366 Cr.PC for confirmation of death sentence Imposed on them. The said two appellants have also preferred criminal appeals against their conviction and sentences.</p><p>5. The prosecution case has been succinctly stated in the earlier judgment of the Division Bench and we restate the same. The prosecution case in a nutshell is that in the morning of March 18, 1984 communal disturbances broke out at Fathepur Village Road under the Garden Reach Police Station and its adjoining areas which fall within the Port Division of Calcutta Police. On getting information of the disturbances Sri Vinod Kr. Mehta, the then Dy. Commissioner of Police of the Port Division went there alongwlth his securily guard Moktar All. Sri K.K. Sharma (P.VV.7), who was the Asstt. Commissioner of Police of that Division then, also reached there along with his security guard R.S. Singh (P.W. 16) and other police officers. When the police personnel tried to restore peace and normalcy, they were attacked by a riotous mob with brick-bats, bombs etc. To avoid mob fury, Sri Mehta and others entered into a mosque but as they were not allowed to remain there by its [mam, they came out. Then they were again attacked with bombs and other lethal weapons and finding no other alternative Sri Mehta took shelter In the house of Abdul Latif Khan (P.W. 21). a constable attached to the Calcutta Police, at G.222 Battikal Second Lane. Moklar All. In his return, took shelter In a near-by house at Dhankhettl. Unfortunately, however they could not save their lives as they were hacked to death by the riotous mob. Subsequently, the charred body of Moktar All was found In an open space near the premises where he took shelter, while that of Sri Mehta bereft of his uniform, was found floating in a drain near premises No. F/59, Attabag with multiple Injuries on his person. Sri K.K. Sharma and his security guard were also attacked by the riotous mob and injured but fortunately they could save their lives by running away. Sri Sharma lodged an Information about the incident in the evening and on that information Garden Reach Police Station registered a case against 150/200 unknown persons for the murder of V.K. Mehta and Moktar All and for assault on Sri K.K. Sharma and other police personnel. S.I., S.R. Ganguly (P.W. 80) of Garden Reach Police Station took up investigation of the case but under orders of superiors Investigation was subsequently taken up by S.I., S.K. Bhattacharjee (P.W. 1) of the Detective Department (Homicide Squad) of Calcutta Police who submitted charge-sheet.</p><p>6. Having described above the genesis of the present appeal, the charges framed, the prosecution case in a nut-shell and the scope of retrial, we now proceed to examine the merit of the prosecution case on the basis of the facts, circumstances and evidence on record. It Is needless to mention that we are now concerned mainly with the case against the two appellants Nase and Lokman. At the very out set. we may mention here that ext. 3/1 Is the site plan which will be of great assistance in appreciating the facts, circumstances and evidence on record Including their co-relation in respect of different aspects of the matter. We may here also adumbrate a broad categorisation of the different types of prosecution witnesses. P.W. 80, Santl Ranjan Ganguly, S.I. of Police who was attached to Garden Reach Police Station at the relevant time is the first I.O. of the case. P.W. 1, SaroJ Kr. Bhattacharjee, S.I. of Police attached to Homicide Squad. Detective Department, Calcutta Police is the second I.O. who submitted charge-sheet after Investigation of the case. P.W. 2 Is the plan maker. P.Ws. 3, 4, 5 and 6 are photographers. They are all police personnel. P.W. 65 Is a private photographer. P.W. 7, K.K. Sharma is the Assistant Commissioner of Police, Port Division who lodged the FIR and P.Ws. 8, 9, 10, 11. 12, 13 and 16 are all police personnel who had been to the disturbed area for restoring law and order there. P.Ws. 15. 18, 20. 22, 23, 25. 27. 28, 29. 34. 35, 36. 37 and 48 were all declared hostile by the prosecution. However, of the said hostile witnesses, we may have to discuss the evidence of some, namely P.Ws. 15, 18, 20, 22, 23 and 25. The main prosecution witnesses Implicating the present appellant Nase are P.Ws..16, 19,21 and 24. The other two vital witnesses P.Ws. 26 and 38 however, could not be produced for further cross-examination at the retrial. P.W. 46 Is the Autopsy Surgeon who held the post-mortem examination on the dead-body of V.K. Mehta. P.Ws. 44, 66 and 67 are also medical witnesses. P.W. 47 is the Judicial Magistrate who held T.I. parade. P.W. 51 is the Judicial Magistrate who recorded the confessional statements of the two accused Nanney Kosal and Lokman Shah on 3-4-84 and 9-6-84 respectively (vide ext. 13 and ext. 14).</p><p>7. We will now discuss the evidence of some witnesses from which we will get an Idea of the nature of the Incident that took place on 18-3-84 in the concerned locality. P.W. 7, Sri K. K. Sharma was posted at the relevant time as Assistant Commissioner of Police (II). Port Division. He says that late V.K. Mehta was his Dy. Commissioner and he died on 18-3-84. It may be noted here that It is In evidence that 18-3-84 was a Sunday and It was the day on which 'hoiI' festival.was being celebrated. It is the evidence of Sri K. K. Sharma (P.W.7) that on that day while he was at his house he received a telephone from Port Division. Telephone Exchange at about 10-45 a.m. to the effect that a trouble was going on at the Junction of Falherpur Village Road and Paharpur Road and that the D.C. Mr, Mehta wanted his presence there. Then he proceeded to the place In a Jeep accompanied by his body guard Rama Shankar (P.W. 16) who was well acquainted with that place and they reached there at about 11 -30 a.m. and found brick-bats lying on the roads and remants of exploded bombs and he also saw a huge gathering. He also heard nofsy sounds. He says that he saw some local police officers standing there and seen D.C. Port accompanied by one Mr. Sen and local leader came to that place accompanied by some agitated persons and the D.C. told him that they would go out and see what was going on and then he, his guard, D.C., his guard Moktar All and 5/6 armed constables proceeded along the Fatherpur Village Road and entered the Mathorpara Basil and found agitated crowd on both sides of Mathorpara Bastl Lane. According to his evidence they proceeded further and came near Ramnagore Lane when brick-bats, bombs etc. were hurled at them and It was about 11-45 a.m. at that time. He says that there Is a mosque near the place where the Mathorpara Bast! approach meets Ramnagore Lane. His evidence is that due to heavy brick batting and bomb throwing D.C. asked them to take shelter Inside the mosque and In order to save themselves they entered Inside the mosque. He describes that there Is a collapsible gale at the back portion of the mosque and they entered the mosque through the front gate and after some time they noticed that a riotous mob of about 40/50 persons were trying to break open collapsible gale of the mosque and those persons were armed with brick-bals, bombs, swords, daggers etc. and Ihen the Imam of the mosque told them to leave the mosque and then the D.C. told him that they would have to leave the place and to go out and had also some discussion regarding their future course of acllon and also told him lhal they were to disparse the violent mobs. According to him the D.C. further told him that he (A.C.) should try to disperse the mob from Mathorpara Bastl approach and Ramnagore Lane junction while D.C. would disperse the mob from eastern side of the mosque. He estimates that there were about 400/500 persons around the mosque, and say that when they came out he noticed the D.C. In the midst of a crowd and was going towards the east. His evidence is that bombs and brickbats were thrown at them and he was surrounded by some persons and they forced him to sit on the ground and someone took off the helmet from his head and he was praying to God for his life and one person started hitting on his head with a full brick ('then if). He also noticed that some persons had daggers and swords with them. He says that he received bleeding Injury on his head and he was more or less senseless at that time and after some time somehow he managed to get up and could, with difficulties, reach the place wherefrom they had earlier proceeded towards the mob. He says that when he was made to sit forcibly by the mob, the situation was such that he could notice where his security guard was and where the other armed constables were. He also did not see his security guard subsequently on that date. His evidence Is that he met the D.C. Head Quarters, D.C. S.B.-I who were standing there at the place where he returned after sustaining injury, namely, near the junction of Paharpur Road and Fathepur Village Road and on seeing his condition the D.C. Head Quarters advised him to go to Calcutta Hospital for treatment and also ordered one sergeant to accompany him to the hospital and he then went to the Calcutta Medical Research Institute and was treated there. His evidence Is that he reached the hospital at about 12-15 p.m. and his Injury on the head was stitched and from there, Ignoring the advice of the doctor to take admission in the hospital, he went to Lalbazar and reached there at about 2-00 p.m. and met the Commissioner of Police (C.P.) and other high officials and narrated the Incident and from Lalbazar he went home as per the direction of the C.P. His further evidence Is that while at home he got a message that Police Commissioner had gone to the spot and he should go there and then he went to the spot and met the superior officers and came to know that the dismembered charred body of the body-guard of D.C. Mehta had been found in an open space and he also saw the charred body which was beyond recognition to him. He gave the name of the body-guard as Moktar All. He says that he also noticed that metallic buttons used by police constables were lying near the charred body and also found remnants of white uniform used by Calcutta Police Constables. According to his evidence D.C., Port Division V.K. Mehta was still untraced and they conducted search for him and on search the body of V.K. Mehta was recovered from a Kancha Nala and it was found that socks were on his feet and both legs were tied with a rope and he was wearing only one Jangea and the Galnjee was rolled up to his chest and the body had multiple marks of injuries In the eyes, face, chest and other parts and the body was sent to morgue for post-mortem examination. From his evidence it appears that In the T.I. parade he Identified the accused Sk. Nanney and in his evidence he says that he saw the said accused (Nanney) when they were coming out of the mosque. In a very violent and aggreslve mood with a bomb In his hand and he was shouting. His evidence is that after the bodies were sent to morgue, he went to Garden Reach Police Station and there S.I., Santf Ranjan Ganguly (P.W. 80) recorded his statement which was signed by him after going through the same. His statement which was recorded and treated as FIR was marked Ext. 4. In his cross-examination he says that he made the statement to the S.I. at about 8-05 p.m. He also clarifies that the statement fn the FIR (Ext.4) 'after seeing Commissioner of Police I came back to the spot at about 15 hours' is not correct, because he went home from Lalbazar and from home he went to the spot. This he has said In his examination-in-chief and we do not think that there is any substantial discrepancy In the matter. In his cross-examination he says that the police vehicles were parked near the crossing of Paharpur Road and Fatherpur Village Road since the vehicles could not got through Mathorpara. He also says that he was assaulted at Ramnagore Lane near a place where Mathorpara Road meets Ramnagore Lane and after the assault he went to the crossing of Fathepur Village Road via Mathorpara Lane. He says that at Lalbazar he came to know that V.K. Mehta and his body guard were still missing. He also says that dusk to dawn carfew was Imposed in that area on 18-3-84 and he was Informed at the P.S. that section 144 Cr.P.C. had been also promulgated in that area. He says that after the incident due to his Injuries he was completely on bed rest for two months. In his cross-examination in the retrial, he says that the dead body of V.K. Mehta was recovered from a Kanchha Nala and he saw It when it was taken out from that Nala. He however did not see the actual bringing out of the body from the Nala. He first saw the dead body, he says, by the side of the road where It was kept after bringing the same out from the nala. His further evidence Is that about 8 to 10 police personnel Including himself and D.C. Mehta were Inside the mosque and while some of the police personnel were not armed, some were carrying muskets and gas shells. It may be noted here that Ext.4 which Is the statement of P. W. 7, K.K. Sharma that was recorded as FIR on 18-3-84 stands In substantial conformity with the evidence of P.W.7. Sri K.K. Sharma as given in court.</p><p>8. P.W. 8, Sayed All Reza Is an armed constable of police. His evidence is that on 18-3-84 he reported to Lalbazar for duty at 6 a.m. and his duty was allotted to Watgunge P.S. and he went there with a gas gun, and that while he was In that P.S. on standby duty at about 10/10-15 a.m. the Subedar reported that a trouble was going on In Garden Reach area and they were required to go there and accordingly they left for Garden Reach and reached there at about 10-30/10-45 a.m. He says that he saw D.C. Mehta, A.C. and olher police forces and police officers present there and then D.C. Mehta proceeded Inside the bastl along with A.C.. the witness (P.W.8), guards of D.C. and A.C., 5 armed constables, 2 plain clothed constables and 3 police officers In plain cloth. He says that after entering Inside the basti they found a dead body lying there and D.C. asked two police men to guard the dead body and three police officers In civil dress were asked to bring a vehicle and pick up the body. He says that they heard noise coming from Inside the bastl and also heard sounds of bombs and then D.C. Mehta alongwith A.C. proceeded Inside towards that direction and they were with them and when they reached the road through the lane near the mosque they were attacked from both sides of the road and they took shelter in that mosque with the help of a Moulabl and members of the mob were throwing bombs, brick-bats and they had lathi, rods also with them. He says that he noticed that about 20/25 bombs were hurled towards them and when they took shelter In the mosque, a violent mob being armed with weapons were trying to break open the back side collapsible gate of the mosque and the Moulabl was also threatened by the mob with dire consequence if he did not drive out the police parly from the mosque and then on being asked by Moulabl they came out of the mosque and they were attacked with bomb and brick-bats and then the A.C. ran inside the lane through which they had reached the road and they also followed him. He says that as soon as he entered inside the lane he saw that the A.C. was being assaulted on his head With a brick and his helmet was missing. According to his evidence he tried to fire gas from his gun but the gun did not work and then using the gun as a lathi he gave a blow to a boy who was assaulting the A.C. He further says that when he hit that boy with the gun the gas shell burst out. He however says that he could not recognise the boy who assaulted the A.C. with the brick on his head as trouble was going. He further says that when the gas shell burst out, all of the persons fled away from the place and A.C. then stood up and started walking slowly with bleeding Injuries on his head. P.W.8 says that he also received a brickbat blow on his leg when he was going to enter inside the lane after coming out of the mosque. His evidence is that he followed the A.C. keeping watch on the back side and In this way they reached the place where they had come from watgunge P.S. and at that time he noticed the presence of D.C. Headquarters at that place alongwith other police officers and constables and they had a talk with the A.C. His evidence Is that he reported to one police officer that D.C. Mehta had been separated from them and on hearing this the D.C. Headquarters proceeded inside the basti alongwith them in order to ascertain the situation. He says that it was then about 1/1-30 p.m. and he took the D.C. and the others to the mosque and on his way he reported the entire incident to the D.C. Headquarters. He says that the D.C. Headquarters started asking the people of the locality regarding the whereabouts of D.C. Metha and on receiving one information they went to an open space on Ramnagore Lane and saw that a human body was burning. He further says that they noticed a piece of white uniform and a nickel button used by constables lying near that place and so he guessed that It was the body of the guard of D.C.Mehta. That place, he says, is near the mosque. His evidence is that then he and other police constables remained at that place where the dead body was burning and the other police officers went to other place and then at about 5-30/6-00 p.m. they come to know that the dead body of V.K. Mehta had been traced out. His further evidence is that he saw that a dead body was placed by the side of a drain in a lane and the dead body was covered with a white cloth and a police officer lifted that cloth and he found that it was the dead body of Mehta with marks of injuries. In his cross-examination he says that he was 3/4 cubits behind the A.C. when the A.C. was being assaulted and as he was threatening the mob with the gas gun he was not assaulted by any person of that mob. He gives the time as 2/2-30 p.m. when he noticed that the dead body was burning. P.W.9 is also an armed constable attached to the 5th Battalion. He was also sent on duty to Garden Reach area on 18-3-84 after 10-00 a.m. He says that in their party there were 4 armed constables and four had gas guns and some others had lathies and one inspector was with them. His evidence Is that on reaching Paharpur they found a gathering and also heard shouts and D.C. Port, A.C. and other police officers were present at that place. His further evidence Is that D.C. Port, asked four armed constables and four constables with gas guns to accompany him in the adjacent lane and they entered in the lane and after going some distance found a house in blaze and the D.C. placed two armed constables to guard that house and then they along with D.C. were proceeding through an adjacent baeti area and noticed a dead body and D.C. ordered two local police men to guard the dead body and they proceeded further and came to a road near a mosque and when they were on that road they were attacked from both sides with brick-bats, bombs and on being attacked they entered inside the mosque. He says that there were 60/70 persons on both sides of the road. His evidence is that then some persons were trying to break open the gate of the mosque and the Moulabl asked them to get out of the mosque and they came out of the mosque and they were attacked with bombs and brick-bats. He says that he took shelter in a chala and also threw his gas granade but the granade did not burst. He says that from the Chala he came out and started running and he met the A.C. and other police men. He says that A.C. had bleeding injury on his head and finally he boarded the lorry. in his cross-examination he says that D.C., A.C., himself and other police men were together up to the mosque of Paharpur.</p><p>9. P.W.10 is another armed police constable. He was also sent on duty to that place on that day. His evidence is that when they came to the Junction of Paharpur Road and Fathepur Village Road, D.C. Port, V.K. Mehta, his guard, A.C. Port Mr. Sharma, his guard, O.C. Garden Reach P.S. and some local police officers and constables were present there. He says that a house was burning some distance away and a vehicle of Fire Brigade was there. His evidence is that they along with D.C. and A.C. proceeded towards the northern direction and D.C. posted two armed constables near the burning house and proceeding further they found a dead body and D.C. posted the constable of local P.S. there and they proceeded further and noticed an agitated mob and also heard sounds of bombs. He says that they reached Ramnagore Lane near the mosque and up till then the D.C. did not order them to fire. He further says that the D.C. did not pass any order to fire. His evidence-is that when they reached near the mosque, bombs were thrown and they entered inside the mosque. He further says that 20/ 25 persons armed with sharp weapons such as sword, tangi like weapon, klrlch etc. tried to break open the gate of the mosque and when they then all came out of the mosque bombs, brick-bats were thrown at them. He also speaks of assault by one person on A.C. Mr. Sharma and says that his helmet had fallen on the ground and his head was bleeding. He says that at that stage he did not see the D.C. He further says that on their way back he had fired two rounds in the air in order to save themselves as bombs were being hurled from roof-top. He also speaks about the burning of a house and says that Mr. Sharma told the D.C. Headquarters that the D.C. Mehta had been separated from them and then Sharma left for hospital as he has injury on his head and they boarded the lorry. His cross-examination shows that the D.C- Port Division had a shield in his hand at certain stage. P.W. 11, Ashlm Chakraborty is also an armed constable of Calcutta police who was sent on duly there on that day. He says that he was carrying gas gun. He also speaks about the mob found on reaching Fathepur Road arid Paharpur Road crossing. He testified to the presence of D.C. Port. A.C., Port and their guards and officers of Garden Reach P.S. as well as police men of that P.S. He says that they could hear shoutings and sounds of bombs coming from northern side and the D.C. asked them to follow him and than D.C., A.C., their guards and they including the witness along with police officers of the local P.S. and constables proceeded towards north through Fathepur Village Road and through a narrow lane in the basti when they heard sounds of bombs and noise in the Bastt and also they found a deadbody near a two storyed building covered with cloth. He says that the D.C. ordered the two constables of the local P.S. who had muskets to guard the deadbody and also directed the two officers of the local P.S. to make arrangement for removal of the deadbody and then he along with D.C., A.C., their body guards, two armed constables and four gas constables including himself proceeded towards further north and reached Ramnagar Lane near a mosque. He says that many people were shouting, standing on sides of Ramnagar Lane and they were attacked with bombs and brickbats from both sides of the road and then they all entered (n the mosque. His evidence shows that a mob armed with swords, bhojalis were trying to break open the collapsible gate and the D.C. ordered them to come out of the mosque and then they all came out and they were again attacked with bombs and brickbats from both sides of the road. He says that he was hit on his leg with a brickbat. He further says that he fired one round of tear gas shell but it did not explode and then out of fear and to save himself, he took shelter in a tileshed and another constable also took shelter there. He noticed that the A.C. Port Division was going back. He also speaks about the bleeding injury on the head of the A.C. Port Division Then they reached the crossing of Paharpur and Fathepur Village Road where D.C. Headquarters was present. He says that A.C., Port Division talked to the D.C. Headquarters. P.W. 12 Naba Ranjan Dutta is an armed police constable. He says that from Lalbazar they were sent to Garden Reach area and they went there in a lorry and reached Paharpur Road at about 11/11-15 a.m. and found V.K. Mehta. D.C., Port and A.C., Port present there. His evidence also shows that when they reached the road near the mosque a mob of about 150 persons or so on both sides of the road started throwing bombs and brickbats towards them and then they entered inside the mosque and then some persons were trying to break open the collapsible gate of the mosque and were shouting for driving them out of the mosque. He further says that D.C. and A.C. had some conversation with the Moulabl of the mosque and thereafter they all came out and when they came on the road they were again attacked with brickbats and bombs from both sides on the road. He says that he was also hit on his hand and feet by brickbats. He of course cannot say as to which of his companions had gone in what direction but he noticed that the A.C. and 2/3 armed policemen were going towards the lane through which he had come earlier and he followed them. P.W. 13 Ajit Kr. Malty, a constable of Calcutta Police who was in the police party at the relevant time also speaks about that part of the incident which the other police witnesses have described as discussed above.</p><p>10. P.W. 16 Rama Shankar Singh who is a police constable was the security guard of K.K. Sharma (P.W.7), the A.C.-11 (Port) at the relevant time. He went to the spot with the A.C.-II (P.D.) on the relevant date. He says that they reached Fathepur Village Road and Paharpur crossing at about 11-00 a.m. and found the D.C.. Port. Vinod Kr. Mehta and his body guard, both in police uniform, present there as well as the O.C. Garden Reach P.S. and three police officers of South Port Police Station. He also speaks about the presence of some constables of Garden Reach P-S. and police force there. His evidence shows that the people of that locality were in very agitated mood and the D.C. was trying to pacify them and at that time they heard uproars and sounds of bombs coming from Mathorpara side and then the D.C., Port, his body guard, Mr. Sharma, he (the witness), three police officers, two constables of Garden Reach P.S. and six armed constables, [two carrying muskets, two with gas guns and two with gas granades) proceeded towards Mathorpara under the leadership of D.C., Mehta and on reaching Mathorpara they noticed one deadbody lying on the ground near the house of one idrlsh and then the D.C. told the three police officers to make arrangement for removal of the deadbody in a vehicle and the D.C. also posted two Garden Reach P.S. constables near that deadbody. His further evidence is that they then heard roars coming from Ramnagar Lane side and then D.C. Mehta, his body guard. Mr. Sharma, the witness himself and six armed constables proceeded towards that direction and as soon as they reached Ramnagar Lane from Mathorpara they were attacked from the eastern and the western sides of the Ramnogar Lane with brickbats, bombs etc and in order to save their lives they entered in a mosque situated on Ramnagar Lane and they noticed a mob standing behind the collapsible gate of the mosque and trying to break open the gate. He further says that the mob was shouting and asking the imam of the mosque ot drive them out of the mosque and then the Moulabi asked the D.C. to leave the mosque and then the D.C., Mehta had some talks with Mr. Sharma and thereafter they left the mosque. As soon as they came out of the mosque, he says, they were attacked from both sides of the road with bombs, brickbats etc. He says that he received bleeding-injury on his right leg as he was hit with a splinter of bomb and with a brickbat when he was on Ramnagar Lane. He says that he received bleeding injury on the thigh of his right leg and he fell down on the ground and got up within two minutes. His evidence is that at first he could not see any of his companions but subsequently he noticed that the D.C. Mehta and his body guard were running towards the eastern side and a (SIC)b was chasing them with swords, brickbats and bombs. it is to be noted here that from this witness, namely, the body guard of the A.C.. Sri Sharma we get that on being chased by the armed mob, the D.C., Mehta and his body guard ran towards the eastern side. His evidence is that in order to save him he himself started running towards the western side and reached Paharpur road. His evidence read with the evidence of the police witnesses discussed earlier thus indicates how D.C. Mehta and his body guard at that point of time were separated from the other members of the police party on the face of the attack made by the furious and armed mob, and at that point of time when the other members of the police party retreated towards the western side, the D.C., Mehta and his body guard were running in the other direction, namely, the eastern side on being chased by the mob and thus they became isolated from the other members of the police party. P.W.16 says that when he reached Paharpur Road on running away from the place of the trouble, he found a taxi there and he went to Garden Reach P.S. in that taxi and there he reported the incident to one A.S.I, of the P.S. and from the P.S. he went to Calcutta Police Hospital for treatment and was admitted there and he was in the hospital for 26 days. A significant part of his evidence is that he speaks about the presence of Nannay Kasal and Naso (an appellant) and Puttan in the mob having bombs with them when the police parly was attacked by the mob on Ramnagar lane as soon as they reached there from Mathorpara. He also says that he had seen Nannay Kasal to throw bombs towards them. He further says that at that time he also saw Hallm, Naru, Gorachand and llllas, all asked with brickbats and also idrish Rahaman, Kallu armed with bombs. He further says that he had also seen Kasrln in that mob. He says that he knew them previously. in court he also identifies the accused Naso and certain other accused persons. His evidence is that the mob which was throwing bombs etc towards them and the -mob that chased the D.C. and his body guard as well as the mob that was trying to break open the gate were all in angry mood. The evidence of this witness is thus significant as he testifies to the presence of the accused Naso, an appellant herein, with bomb in his hand in the furicus mob that attacked the police parly. in his cross-examination he says that the distance between the mosque and the Paharpur road along Ramnagar Lane will be five to ten minutes walk and the crossing of Ramnagar Lane and Paharpur Road will be about 5 to 10 minutes walk from the crossing of Fathepur village Road and Paharpur Road. He says that they wereinslde the mosque for about 5/ 6 minutes. He also says that both the D.C. and his body guard were in uniform. From his cross-examination we get that the distance between Ramnagar mosque and the Ramnagar oulpost will be less than a mile. He further says that on that day there was trouble in alomost all parts of that area. His evidence is that on that day there was disturbance between Hindu and Muslims. in his cross-examination during retrial he says that after coming out of the mosque he sustained injury on his right leg from a splinter and he fell down and thereafter he managed to go towards Paharpur Road and he went to the Garden Reach P.S. at about 12-45 p.m. and he narrated before the duty officer how he sustained injury and thereafter taking sick report he went to the police hospital. He further says that excepting the disturbance infront of the mosque he had no occasion to see any other disturbance on that day. He also says that when he was in the hospital for 26 days the Police Officer from Lalbazar vlslled him for interrogation. From him we get that he was posted in Garden Reach P.S. for one year from 1980 to 1981.</p><p>11. P.W. 73 Sewnath Slngh was the O.C. of Garden Reach P.S. on 18.3.84. His evidence is that on that day at about 10-15 a.m. S.I.. O.K. Sikdar of Garden Reach P.S. received a massage from Lalbazar Control Room that a disturbance of communal nature was going on in Falhepur village Road area and that information was recorded in the G.D. of the Garden Reach P.S. and thereafter he along wllh S.I., H.P. Dutla. S.I., O.K. Sikdar left the P.S. with available force. He says that he was in his Jeep and the force was in a police vehicle and they reached the concerned area at about 10-30 a.m. and noticed that two groups of agitated mob numbering about 800 or so were throwing brickbats, bombs etc at each other and then he along with his officer and staff chased the crowd and the crowd melted and entered in the lanes and by-lanes. He says that two buildings were on fire and they tried to put off the fire. His further evidence is that the D.C. Port and some other police officers also arrived there, namely, O.C. iqbalpur P.S., O.C. SPPS, S.i. A. Cope, S.i. S. Gupta, Sergeant S. Banerjee and other police men. He also speaks about the presence of the armed body guard of the D.C. He says that when the D.C. came he had his guard Muktar All with him. The D.C., he says, was in his Khaki uniform and his guard was in white uniform. His evidence is that he showed the D.C. the affected place and the D.C. also chased the crowd. He says that other houses were set on fire and they tried to extinguish the fire with the help of local people and the Fire Brigade also arrived there and at that time on receiving and information that a man had been killed on Paharpur Road, he left for Paharpur Road with one or two constables on foot and on arriving there he found that the people were very much agitated and the dead body of one Subrata Bhattacharjee, whom he knew, was lying infront of the premises No.J-146. Paharpur Road and thereafter he pacified the people and came back to Fathepur village Road to make arrangement for the removal of the deadbody. His evidence is that the T.C. Head-quarters S.K. Dasgupta arrived at Fathepur village Road and at that time A.C. (ii) Port Division K.K. Sharma came there with injury on his head and thereafter he himself along with D.C. Headquarters and force proceeded towards Ramnagar Lane through Azhar Motla Bagan as they had no trace about the D.C. Port and his guard. His evidence is that they were searching for the D.C. and his guard at Ramnagar Lane and adjacent areas and K.K. Sharma, A.C. (ii) Port Division was sent to hospital accompanied by Sergeant J.L. Roy. His further evidence is that when they were continuing the search for D.C. and his bodyguard, they found at about 2-30 p.m. a deadbody which was on fire lit by bomboo pieces and other elements in an open plot in front of Mirza Galllb School and a burnt khankl cloth piece and one metal button were found near that place. He says that the fire was extinguished and the charred body was taken charge of by them and he asked his officer to hold inquest of the charred body and the inquest was held by S.i. S. Moitra. His further evidence is that they continued their search for Mr. Mehta and at about 5-30 p.m. the deadbody of Mr. Mohta was found floating in a kancha drain behind the premises No. F-59 and F-201, Atabag. The deadbody, he says, was floating on its back with legs towards north and head towards south with only under-wear on and the body was smeared wllh mud. He clarifies that by underwear he means under-garment. He also speaks of the presence of a pair of socks on legs and a rolled vest on the body. He says that there were injuries on the deadbody of Mehta, mostly on the face and the right part of the head. The body, he says, was taken out from the drain and S.I. S. Moitra prepared the inquest report of the deadbody of V.K. Mehta in their presence and then the charred body and the body of Mr. Mehta were sent to Calcutta Police Morgue for post-mortem examination. He says that the charred body was the body of Moktar All, the security guard of D.C. His evidence is that after the deadbodles were sent to Calcutta Police Morgue, they returned to Garden Reach P.S. at about 8-05 p.m. He further says that the D.C. Port did not carry any revolver on that day. His evidence is that when the security guards go for duty they carry service revolver and ammunallon. in his cross-examination he says that the charred body had no hands and legs and the head was also missing except the occipital region of the skull. He also says that the open space where the charred body was found is situated at the junction of Ramnagar Lane and Battlkal. He says that Ramnagar Lane runs from east to west and Battlkal runs from north to south and the open space extends up to Mirza Galib School from the junction of those two roads and the school is to the north of that junction. He further says in his cross-examination that from Lalbazar Control Room a massage was received that deadbody was floating in the kancha drain. He says that as the situation was abnormal, he cannot remember everything in details and it is difficult for him to say who detected the floating body first as there were many olflcers together in search of the deadbody. He further says that S.J., S.R. Gangull (P.W.80) was the l.O. of the case at the initial stage and thereafter the case was taken over by the Detective Department, Lalbazar. He says in his cross-examination that the D.C. D.D. Mr. H.A. Safwi also came to Ramnagar area a bit late and he was all through with them and curfew was imposed in that area and some persons were apprehended in that area on 18th and 19th March and were challanged in petty cases but he cannot tell the number of the arrested persons now. He also cannot tell in details whether all the arrested persons were challaned in petty cases or some were released after interrogation. He says that curfew was imposed on 18.3.84 in that area and so far he remembers the curfew was in that area for 10/12 days. He also says that as he did not witness all the incidents so he did not start any FiR suomotu. He says that the open plot where the charred body was found was at the Junction of Ramnagar Lane ?,nd Battlkal. He also says that they had been to Ramnagar Mosque at about 12-30 p.m. on that day and at that time there was no gathering there.</p><p>12. P.W.15 Farha Juvoll is the iman of the Dhankhetibari Masjid where the policeparty took shelter on being attacked by the violent mob. This witness, it seems, was treated as hostile by the prosecution. But even then he testifies to the fact that the police party entered in the mosque and had been there for some time. P.W. 17 Abul Hassan is a resident of G-246 Ramnagar Lane. He says that the Maidan to the north of their house is known as Dhankhetl Maidan. in March, 1984, he was working in the wheat grinding shop of his cousin brother Makbul Ahmed at G-247 Ramnagar Lane. He says that on 18.3.84 as usual he went to the shop for his work at 7 a.m. and at about 9-45/10-00 a.m. while he was working in that shop he heard sounds of bombs coming from Mathorpara side and Fathepur village Road side and he found that people were running here and there and he came to know that riot had started between Hindus and Muslims and being afraid he closed the shop and went home at about 10-30/10-40 a.m. He says that he again heard sounds of bombs coming from Ramnagar Lane Dhankheti mosque side and he also heard uproars and he felt that the uproars and sounds of bombs were moving towards their house and he then opened his window partially and noticed that two policemen were running speedily towards Battlkal side, one policeman being in khaki uniform and the other in white uniform. He noticed one wire-net shield in the hand of that policeman who was in khaki uniform, and that brickbats were being thrown at him and he was blocking the blows with his shield. He further noticed that 20/25 persons were chasing the policeman and were hurling brickbats at him. He says that he could recognise some of thepersons in that mob who were throwing brickbats and chasing those policemen and he names Rahamat, Nanney. Corachand, Halim and Matin as the persons whom he could recognise. He says that the mob chased those policemen towards Batlikal side and he become afraid and closed the window. His evidence thus lends support to the prosecution case as well as the other evidence adduced by the prosecution in that behalf that the D.C. V.K. Mehta and his body guard Moktar All were being chased by a violent mob. He further says that at about 12-30 p.m. he heard sounds and uproars coming from Batukal side and subsequently it appeared to him that the roars were coming from Dhankheti Maidan and he again opened his window partly and noticed that a policeman in white uniform was lying on the ground and about 15/20 persons were there around that body. He further noticed that four persons were chopping the hands and legs of that policeman with chopper like weapons and he could recognise Rahamat and Matin who along with two others were chopping the hands and legs of that policeman. He also could recognise Gorachand and Hallm amongst the persons who were standing near the body of the constable. He noticed that some persons were placing bamboo pieces near that body, and he says that being afraid he closed the window. His further evidence Is that at aboul 7/8 p.m. In that night he came to know that D.C. Port had been murdered and his body guard was also murdered and his body was burnt down. He restifies that by the dress of that body he could recognise that he was a police sepoy. His evidence thus lends support to the prosecution case that the body of Moktar Ali, the body guard of D.C. Mehta was dismembered by cutting its limbs and was burnt by fire by the miscreants, and he also could identify some of the miscreants named by him. In his cross-examination he says that curfew was imposed in that area in the afternoon of 18.3.84. He further saus that his father was arrested by police at about 4/4-30 p.m. on 19.3.84 from the crossing of Barttikal and Ramnagar Lane and his father returned in that night at about 7-30/8-00 p.m. He says that In their locality the number of muslims is more than that of the Hindus. He denies the defence suggestion that his father was released by the police on the understanding that he would give evidence on behalf of the prosecution as tutored by the police. P.W. 18. Makbul Ahmed is a resident of premises No. 247 Ramnagar Lane. He testifies to the fact that on 18th March, there was huge mob and people were running here and there at about 10/10-10a.m. He was however treated as hostile by the prosecution. He says that on that day he. Mansoor, TaJ All and 30 others were arrested by police and taken to Garden Reach P.S. and they were released at about 11-00 p.m. P.W.19, Khalil Khan was resident of G-230, Batlikal at the relevant time as a tenant. He Is a police constable who was posted at Lalbazar Headquarters, R.C. Office In March, 1984. From his evidence we get that P.W.21 Abdul Latif Khan is his cousin brother and P.W.24 Hadis Khan Is the son of the said Abdul Latif Khan and that In March, 1984 Hadis was residing at G-222 Batlikal. It may be mentioned here that Abdul Latlf Khan is also a police constable. P.W.19, Khalil Khan says that in March. 1984 Hadis Khan had no employment and he used to keep 2/3 cows and sell milk. He says that the uniform of Calcutta Police constable is white shirt and white pant and also they used buttons on their shirt which were made of brass. He also testifies that the emblom 'C.P.' is also made of brass. He knows Moktar All. He says that 18.3.84 was a holiday and he was In his house and at about 10/10-30 a.m. he heard a huge row coming from Fathepur village Road side and he also heard a row coming from Battikal side and he came out of his house and stood on the road very close to his house and while he was standing near the corner of the house of Kayum which is 228/2 Battikal, he saw that D.C. Mehta and his body guard constable Moktar All were being chased by a mob from the southern side to the northern side and they were throwing brickbats at those two police persons and were shouting 'maro, maro police lokko maro'. He says that the mob and those two police persons were 30/40 yards away from the place where he was standing, He testifies to the fact that the D.C. was in a khaki uniform and Moktar was in white uniform. He says that the house of Nalmmullah Is opposite to his house at a distance of 30/35 yards, the number of that house being G-228/3 Battikal. He saw that the security guard Moktar All entered in the house of Nalmmullah and 30/40 persons were chasing Moktar Ali. He says that he Intervened and stated to them not to assault the police otherwise they would feel the consequence. He says that in the mob some were carrying choppers and some were carrying swords. He also says that he was dashed down by the mob on the ground. He could recognise Gorachand. Sagir, Rahamat, Halim, Wahob and Kallu amongst the persons who were chasing the police constable Moktar Ali. He says that he was dashed down by Rahamat, and Kallu was with Rahamat at that time and that being afraid he then went Inside his house. His further evidence is that 20/25 minutes thereafter his brother's son Hadls (P.W.24) came to his house and reported that Naso and his associates had assaulted the D.C. very serious by in the house of Hadls, and that Hadis also stated that a sepoy was also being assaulted by Rahamat and Kallu on the road. Hadls, he says, was very much purturbed and he was trembling and Hadls told that he was leaving for his father-in-law's house. P.W. 19 Khalil says that he also became afraid apprehending attack on him and the members of his family as he was a police constable and so he along with his family members went to Ramnagar Police Camp. In his cross-examination he says that on that day at about 8-30/9-00 p.m. he went to Garden Reach P.S. after leaving the members of his family at Ramnagar Police Camp and made a statement to the police officer about the Incident seen by him. He says that he made the statement to the duty officer who recorded it in english. He says that his two brothers are also working as Calcutta Police constables and his cousin brother Latif (P.W.21) is also a constable of Calcutta Police. He further says that on that day latif Khan had duty. He says that his office was closed on that day being a Sunday and that the R.O. office remains closed on Sunday and other holidays. He says that he reached Ramnagar Police Camp with his family members at about 2/2-30 p.m. after locking his house. His evidence in cross-examination is that as soon as he came out of his house hearing the row he noticed that D.C. and Moktar crossed him from southern side to northern side speedily. He denies the defence suggestion that his brother's son Aktar was arrested by police and was made an accused but subsequently he was let off and in his place another Aktar was made accused. He however does not remember whether Hadls was arrested by the police. He also denies the defence suggestion that as he is a police constable so he is deposing falsely on being pressurised by hissuperior officers. He says that from Garden Reach P.S. he returned to Ramnagar Camp and stayed there with hts family for the night and in the next morning he returned home at about 8-00 a.m. Hadls, he says, came to his house at about 12/12-30 p.m., and reported to him what he had seen. He denies the defence suggestion that his relations were taken in custody by the police and when he and Latif asked the police officers to release them, they told that they would be released provided they would give evidence. in his cross-examination at the retrial he says that his statement was recorded by the police at the P.S. at about 8/8-30 p.m. on the date of the Incident.</p><p>13. P.W.20 Akil Ahmed is a resident of G-223 Battlkal. He, it seems, was however treated as a hostile witness by the prosecution. From his examination-in-chief we however get that Latif Khan (P.W.21) and P.W.24 Hadls Khan (son of P.W.21) reside in the tileshed house which is adjacent to the house of this witness (P.W.20). We get it from P.W.21 and P.W.24 that the premises in which they reside is G-222 Battikal Second Lane. It is also to be mentioned here that according to the prosecution the incident of assault on D.C. Mehta took place in the said premises No. G-222. Battlkal Second Lane. P.W.20, Akil Ahmed says in his cross-examination that Hadis Khan (P.W.24) used to keep cows and sell milk and he used to keep cows in the courtyard. The prosecution expected this witness to give positive evidence about attack on two police persons but he belled that expectlon. From his examination-in-chief it however appears that their house is a two storied building and one can see the rooms of the tileshed (where Latif Khan and his son Hadls used to reside) from his house (the house of P.W.20) on leaning. However, what the prosecution inter alia suggested to this witness is that he stated to the I.O. during investigation that he found that some minor boys were pouring water In the room where D.C. entered and also on the courtyard, which however he disowns to have made. By this suggestion the prosecution possibly wanted to project a case that blood which had fallen there as a result of assault on D.C. Mehta was washed away with water. P.W.20 wants to say that on the date of the indicent he was not in his house and therefore he did not see anything. In his cross-examination on behalf of the defence he says that he returned home on 19.3.84 and on that day police had arrested Abut Hossain, Sallm and many others. He however, did not see Hadls Khan on 19.3.84. The evidence of this hostile witness thus shows that on 19.3.84 many pesons were arrested or picked up by the police. We will find from the evidence of P.W.24. Hadls Khan that he was also picked up by the police on 19.3.84 which we will discuss later. P.W.20 says in cross-examination that on 19.3.84 he stayed in the house for 2/3 hours and thereafter fled away from that area and went to his sister's house and stayed there for some days. The evidence of this hostile witness P.W.20, we find, lends support to the prosecution case that Latlf and his son Hadls were his neighbours at the relevant time and Hadls used to maintain cows and sell milk and that on 19.3.84 police arrested many persons of that locality.</p><p>14. P.W.21 Abdul Latlf Khan was residing with his family at G-222 Baltikal Second Lane as a tenant at the relevant time and Hadis Khan (P.W.24) is his son. He says that In March, 1984 Hadls used to keep cows and sell milk and that he used to keep his cows in the said premises. Hisevidence is that on 18.3.84 which was the 'holiday' he had stand-by duty to be performed from 12 noon to 8-00 p.m. at P.T.S. Barrack and that at about 12 noon he got the information that a riot had started between the Hindus and Muslims in their area and he then started for his house from P.T.S. Barrack In order to see the members of his family. He says that at about 12-30/12-45 p.m. he reached Battlkal Second Lane and when he advanced ten steps or so he found that 6/7 persons were standing ahead of him and amongst them he could recognise Naso (an appellant), Puttan. Samsad and Abbas who were all armed. He says that some of them had swords, some had choppers, some had Napalas etc and they were standing by the side of kancha drain in Battikal Second Lane. According to his evidence the house of Dr. Hikmat All Mondal was situated near that place and he also noticed that one deadbody was lying by the side of that kancha drain but not inside the drain. He says that he knew those persons named by him as they were his neighbours. He also idenlified the accused Naso in court. He says that those persons were standing very close to that deadbody and that Naso was standing two cubits away from that deadbody which was at a distance of about 30/35 yeards from the place where he (the witness) was standing. He says that so far as he could see, blood was coming from head and the deadbody was smeared with blood. According to his evidence he stopped there and thought that it would not be proper for him to advance further and he became alarmed and then returning back he entered In the premises No. G-350 where his father was residing with his step-mother and he learnt from his father that there was trouble in Battlkal area and his wife and other members of the family had left that area and that he then went to his brother's house at Alif Nagar and came to know that his wife and sons and daughters had not come there and he then went to Kazlpara in the house of the father-in-law of his son. Md. Hadis and there he met Hadls and the other members of the family. Then he says that his son Hadls reported to him that a mob had chased D.C. Port and the D.C., Port took shelter Inside their house and then Naso, Puttan Samsad and some other persons started assaulting D.C. and that Hadis also reported to him that he had seen some miscreants assaulting one constable in front of the house of Naimullah. He testifies to the fact that at that time Mr. Mehta was the D.C., Port. His evidence is that thereafter from Kazipara he went to Garden Reach P.S. at about 8-00 p.m. and at that time there were many police officers who were very busy and at about 9-30 p.m. he could state to a police officer about the Incident seen by him and also heard by him from his son, and his statement was recorded. He also says that he found his brother Md. Khalil (P.W. 19) in the P.S. and his statement was also recorded by the police officer. He further says that at the P.S. he learnt that the deadbody of D.C. was recovered from the place where he had seen the deadbody of a person as stated by him and lhat the deadbody of police constable Moktar was recovered from Dhankheti Maidan. He says that he is residing at G-222 Battikal Second Lane for the last 25/28 years. In his cross-examination he also gives the names of certain other tenents who were living at G-222 Ballikal Second Lane with family. He says that the accused Naso at that time used to reside occasionally in the house of one Nazi Saheb in Battikal Second Lane and occasionally in the house near Match factory by the river side. In his cross-examination he says that he had seen 6/7persons including the persons named by him by the side of the Kancha drain and he became afraid when he saw those persons and he stood there for one minute when he saw those persons but none of them approached him. He specifically says that he became panicky as soon as he noticed the deadbody and those persons and he stood ther for one minute. Dr. Molla. he says, is known as Dr. Hlkmat All Mondal. He says that he was very much unnerved on seeing the deadbody all on a sudden. In his cross-examination he says that he reached Garden Reach P.S. at 8-00 p.m. and after his statement and the statement of his cousing brother Md. Khalil (P.W.19) were recorded, they left Garden Reach P.S. at 10-00 p.m. and he went to P.T.S. and his brother went to Ramnagar Camp. Khalll, he says, is also a Police constable of Calcutta Police. He says that when he reached Garden Reach P.S. he found many senior police officers Including Commissioner of Police and Jt. Commissioner of Police etc. present there. He says they he stated that he had seen something and heard something but no police officer was listening to him and so he could not report as soon as he reached the P.S. and finally he could make statement to the police officer at 9-30 p.m. and it was recorded In English and read over and explained to him. Much has been criticised by the learned Advocate for the appellants that according to this witness he reached Garden Reach P.S. at about 8-00 p.m. but his statement was not recorded by the police till 19-30 p.m. although this witness claims to have seen and heard about some very important facts specifically Involving some accused persons and this, according to the learned Advocate for the appellants, shows that the evidence of this police constables P.W.21 and of other concerned witnesses is the product of concoction and subsequent manupulatlon at the Instance of police. On the other hand, it is submitted by the learned Special Public Prosecutor representing the State that after such a shocking and gruesome Incident resulting In the death of a very senior police officer like Dy. Commissioner and also his constable guard, it was only natural that there would be many top police officers at the concerned P.S., namely. Garden Reach P.S. to take stock of the situation and also to take necessary follow up measures demanded by the situation and in such a state of affairs, it is quite possible that a police person of the rank of a constable like P.W.21 or P.W. 19 could not succeed readily in contacting the proper officer who would Immediately attend to his statements. Having regard to the facts and circumstances we also do not think that In a situation like this there was really any Improbability that the statement of these witnesses were recorded at about 9-30 P.M. at the P.S. although they went there at about 8-00 p.m. In his cross-examination during retrial, he says that uptil now he cannot say, whose deadbody It was, which he saw on that date. We may note here that if the evidence of this witness was really a product of concoction he would have possibly satd that the deadbody which he saw was recognised by him as the deadbody of D.C. Mehta. But he did not say so. He indeed knew D.C. Mehta, as he says but it is nothing unnatural that at that point of time when he suddenly saw the deadbody from a distance of 30/35 yards in the presence of some armed persons and the deadbody was smeared with blood, he did not naturally bother to engage himself In minute observation for detecting the identity of the deadbody, and Instead he left the place being naturally panicky but he was, as we have seen, very specific about the presence of certain armed miscreants named by him Including the appellant Naso.</p><p>15. We now proceed to discuss the evidence of the next vital witness P.W.24, Hadis Khan, the son of P.W.21 Abdul Latif. He says that they reside at G-222 Battikal Second Lane as tenant and in March, 1984 he used to sell cow milk and had four cows and he used to keep two cows in their house and two in another place. He says that he himself and Mustafa, his helper (P.W.26) used to look after the Cows. His evidence is that on 18.3.84, sometime In the morning he came to know that a not between the Hindus and Muslims had started and that at about 11-30/11-40 a.m. again he heard sounds of bombs coming from Ramnagar Lane side when he was in his courtyard and his mother and Mustafa were in the house, but his father had gone for his duty. He next says that at about 12 noon he heard a huge row coming from Southern side when he was in his courtyard and on hearing the same he came out along with Mustafa from his house and stood on the road and notice that many persons were chasing two policemen towards South and one policeman was In a white uniform and the other was in Khaki uniform and the policeman in while uniform entered in the house of Naimullah and some persons also entered that house and those persons were hurling brickbats. His evidence is that the house of Naimullah was at a distance of 50/60 yards from the place where he was standing. He however could not recognise any of the persons who were hurling brickbats and chasing that policeman in white uniform and entered in the house of Naimullah. But his specific evidence is that the other policeman in khaki dress was being chased by the mob and when that policeman came near him he entered in the courtyard of his house and that policeman too entered in that courtyard and the policeman told him that he was D.C. Port and then on his pointing out the D.C. entered into the bathroom (Gasalkhana). The Gasolkhana, he says, was 9/10 cubits away from the place where he was standing and that simultaneously Idris and some other persons armed with brickbats etc. entered Into the courtyard and they were throwing brickbats aiming at the bathroom and simultaneously Naso (an appellant). Puttan, Samsad, Abbas, Mukim entered in the courtyard. He says that Naso had a rod in his hand and others had swords, nepala etc in their hands. He says that he knew those persons from before. The D.C., he says, became frightened on seeing those persons and requested them not to assault him after disclosing his identity as the D.C. of Police but some of those persons replied that they did not know D.C. and then ordered 'maro' and then Naso, Puttan, Samsad, Ahmed, Mukim and some others entered instde the bathroom and then Naso gave a rod-blow on the helmet of D.C. and there was dashing and pushing and the helmet fell down and Naso again assaulted D.C. with the rod on his head. P.W.24, Hadis says that then he came out from the courtyard and went out of the house and some people were throwing brickbats on the tiles of their roof but he cannot tell their names. He says that he then proceeded towards his uncle Khalll Khan's house but on his way when he came near the house of Naimullah he noticed that a pojiceman In white uniform was being assaulted on the road by Gorachand and some other persons and then he entered Inside the house of his uncle and reported the entire Incident to his uncle (meaning P.W.19) and he also reported that he was not going to stay and was going to his father-in-law's place and then he went to his father-in-law's place at Kazlpara at Howrah along with his mother. He says that after sometime hisfather Abdul Latif (P.W.21) came to his father-in-law's place and he reported the entire Incident to his father. He says that his father said that he would be staying in the P.T.S. barrack. He says that he used to keep two cows out of four cows near the power house gate commonly known as 28 number. In his cross-examination he says that he left for his father-in-law's place from his house at 12-30/1-00 p.m. and reached his father-in-law's house at about 2-00/2-30 p.m. His evidence Is that his wife and children had gone to his father-in-law's house on 15.3.84. He says that he and his mother returned home on 19.3.84 at about 6-30/7-00 a.m. from his father-in-law's place and he noticed that many police persons were roaming In their locality. He says that he was examined by the I.O. on 20.3.84 In their house. He further says that on 19.3.94 at about 12-00 noon police arrested him and placed in the van and the van patrolled in their locality and then at about 6-30/7-00 p.m. he was taken to Garden Reach P.S. and many people of their locality were also brought to Garden Reach P.S. on that day. He further says that he was released by the police in that night at about 9/10 p.m. and they were kept in the lock-up of Garden Reach P.S. from 7-00 p.m. till they were released. Much has been criticised by the learned Advocate for the appellants that when the police from the statements of P.W. 19 & P.W.21 could come to know In the very evening of the 18th March that Hadis had seen a vital part of the occurrence and also had named some of the culprits to them, there was no reason why his statement should have been recorded as late as on 20.3.84 in his house inspite of the fact that he was in the custody of police in police van and P.S. Hazat for quite a long time upto about 9-00/10-00 p.m. on the 19th March. This, according to the learned Advocate for the appellants, Indicates thai the prosecution case that Hadls saw a vital part of the incident is a concocted story. We are however not convinced by this submission. The enormity of the Incident, the involvement of a large number of persons and the complexities Inherently Involved In an Investigation of a case of this nature as well as the change of investigating officer on 19th March are indeed some of the factors which have to be taken Into consideration in this context. And that being so, we do not think that there really exists any reason to doubt the veracity of the evidence of this witness Hadls (PW.24). P.W.24, Hadls says in his cross-examination that the bathroom is used by the female inmates of the house and that the size of the bathroom would be about 8 cubits X 8 cubits. He says that the latrine is not inside that bathroom. He further says that the D.C. was Inside the bathroom when he came out from their house. Hefurther says that he came out from their house 6/7 minutes after the D.C. had entered In their courtyard. He also says that when he came out of his house the D.C. was being assaulted and he noticed about 50/60 persons on the road in front of their house. He however does not remember whether he had seen blood coming out from the head of D.C. when he was assaulted on the head by the iron road. His evidence is however clear that the D.C. was assaulted on his head by Iron rod. He denies the defence suggestion that Naso did not give blow with iron rod on the head of D.C. He makes it specific that the bathroom is used for washing hand and feet by the femalefolk of the premises before 'oozu' He says lhat there are no door and walls of that bathroom. Much has been commented upon by the learned Advocate for the appellants as to whether a bathroomof that size could have accommodated so many assailants who are said to have assaulted the D.C. at the relevant time. In this connection we may mention that P. W.2, Ashoke Kr. Bhattacharjee, S.I. of police and official plan maker has given the area of the Gosulkhana (bathroom) as 5m.x4m. Since the Gosulkhana has no walls as we find it from P.W. 24 Hadis, we do not think that there is any improbability in sustaining of assaults by D.C. there from the assallents who chased and cornered him there. He (P.W.24) denies the defence suggestion that he has been tutored by police to give false evidence because his father and uncle are working as police constables. In his further cross-examination during retrial in February, 1932 he however says that his statement was recorded by the police while he was in police lock-up. This, it is submitted on behalf of the appellants, is not insistent with the prosecution case inasmuch as it is the prosecution case that his statement was recorded on 20.3.84 as earlier stated by the witness. He also says in his such further cross-examination that his father went to the P.S. for his release and he talked to his father before release from the P.S. lockup. But he says that at that time his statement was not recorded by the police. This, therefore, lends support to the fact that his slatement was recorded not on 19th but on 20th. He says that his statement was recorded, as he remembers, after his. talk with his father. In his such further cross-examination at the retrial he says that he returned from Kazlpara to his Garden Reach residence three days after the Incident. It should be remembered that he was facing further cross-examination at the retrial In February, 1992. about eight years after the Incident and therefore some minor inconsistencies and confusion in the deposition at such distance of time cannot be ruled out. Whatever may be the confused statement of P.W.24 Hadls eight years after the incident at the time of further cross-examination at the retrial, it may be noted here that even the hostile witness P.W.22 Brion Merces who is the brother-in-law of the appellant Naso testifies to the fact that police arrested him on 19.3.84 and Hadls, Mustafa, and Alamgir also were arrested by the police. Such statement of this hostile witness therefore lends support to the prosecution case that Hadis was arrested from his house on 19th March, at noon after he returned from Kazlpara on that day in the morning, and this fact does not get obliterated by any statement of Hadis which he might have made In a confused state of memory in course of his further cross-examination eight years after the Incident.</p><p>16. P.W.22 Brlon Merces is a resident of C-85, Battlkal. Their balcony faces Battlkal Second Lane. From him we get that the appellant Naso Is his sister's husband. He was however treated as a hostile witness by the prosecution. He says in his examinatlon-in-chief that on 18th March. 1984, which was a Sunday, at about 10-00 a.m. he heard from the people that a not between Hindus and Muslims had started and at about 12 noon they heard great row and then he and his parents came to their balcony. He says that the Hindus and the Muslims were fighting and quarrelling and the Muslims started running shouting, that the Hindus had come to their locality, and that being frightened they (witness and his parents) all came Inside their room and closed the door. His evidence shows that some children and women had taken shelter Inside their house and they were saying that policemen had died. He saw nothing else. As we have alreadynoted, in his cross-examination he says that he was arrested by police on 19.3.84 and Hadis, Mustafa and Alamgir were also arrested by police. P.W.23 Narman Merces is the father of P.W.22 Brion Merces. He was also treated as a hostile witness by the prosecution. In his examination-in-chtef he says that on 18th March, 1984-which was a holiday, at about 10-00 a.m. they heard from the people of their locality that a trouble had broken out at Fathepur and they also heard some sounds of bombs and learnt that a riot had started between Hindus and Muslims. He says that then at about 12 noon he, his wife and his son came out of the room and stood on the balcony and noticed a huge mob on Battlkal Second Lane which was at a distance of 60 to 80 ft. from the balcony. He also speaks about throwing of breakbats. He says that he then came Inside the room and locked the door from Inside and after half an hour the area became very quiet. The accused Naso, he says is his son-in-law. P.W.25 Sakll Ahmed is the brother of P.W.20 Akil Ahmed and a resident of G-223 Batllkal Second Lane. He was however treated as a hostile witness by the prosecution. In his cross-examination on behalf of the defence he says that G-222 Battlkal Is to the north of his house where Latif constable (P.W.21) resides and he knows Hadls, the son of Latif constable. He says that he occasionally goes to G-222 Battlkal to Hadls for bringing cow milk. In his further cross-examination at the time of retrial he says that Aki-ka-Kurbani can be performed on any day of the year and after performance of this Kurbani a marking by palm with the blood of the sacrifice is given on the outer wall of the residence or on the outer door and some times this marking is also given in interior wall or door. This has been possibly taken in cross-examination to explain away blood marks. P.W.S 27, 28, 29, 34, 35, 36, 37 & 48 were all treated as hostile witnesses by the prosecution.</p><p>17. P.W.14 Mansoor Ali is a resident of C-247 Ramnagar Lane and he is the owner of the ration shop situated on the ground floor of the same premises. His evidence is that on 18.3.84 at about 10-00/10-30 a.m. while he was in his house he heard sounds of bombs and he opened the windows and noticed that people were running hither and thither. These people, he says, were 200 yards away from his building, and he gives the number of the people as 150 or so. He says that he came down the stairs and closed the ration shop and again went up along with his brother. He says that he noticed that 3/4 police constable came out of the mosque and that many people went to the western side of the mosque and some people went to the eastern side and those people were running probably out of fear as police had come. He also speaks about throwing of brickbats upon the police party. He says that the police were in the middle part and on both sides there were mobs. He also heard sounds of firing and he closed the window and went inside the room. His evidence shows that after some time he heard row near his house and also sounds coming from the northern side of the mosque. They went to the roof of their house and noticed that a constable in white uniform was lying with his face and chest on the ground and many people were standing surrounding the constable and amongst those persons he could recognise Rahamat, Gorachand, Idris, Haltm, Nanney Kosal, Wahab, Saglr and Matil. He says that It appeared to him that the constable who was lying on the ground was dead. He further says that thereafter the mob burnt the deadbody of the constable with split bamboos. He also namesRahamat, Gorachand, Idris, Wahab, Halim and Nanney Kosai as some of the persons who were burning the deadbody of the constable. He says that after burning the deadbody of the constable all the miscreants fled away from the place and police came at about 3-00 p.m. He also says that the police had seized one button with ring, piece of burnt cloth, etc under a seizure list which was signed by him (Ext. 5/1). He says that the mob was armed with brickbats when they were throwing brickbats at the police party. He further says that he was in his house when police came at 3-00 p.m. and called him. He also says that the body of the constable which was lying on the open space was at a distance of forty yards from his residence. He further says that he noticed that Rahamat. Matil and 2/3 others whom he could not recognise were cutting the hands and legs of that constable with choppers. In his cross-examination he says that as the incident occurred long ago, he does not remember everything vividly but he remembers that Idris and Nanney Kosai were hurling bombs at the police.</p><p>18. P.W.49 Haridas Mollra is the Senior Scientific Officer-curn-Asslt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He says that on 22.3.84 as per the direction of D.C.. D.D., Calcutta, he visited Ramnagar area with his colleague P.K. Sengupta. Sr. Scientific Officer. He says that he visited the place which is an open field near a school building and he collected from the debris some partly burnt pieces of cloths, some metallic buttons with rings and one ring. He says that he asked the Investigating officer who was with them to collect those articles, and those articles were seized by the I.O. and a seizure list was prepared In his presence and he signed the seizure list. He Identifies his signature, Ext. 12/1. It has been criticised on behalf of the appellants that those articles were seized only on 22.3.84 when the Scientific Officer of the Forensic Science Laboratory went there with the I.O., but the police could not seize those articles earlier although the police had been to all those places in the meantime after the date of occurrence. In our opinion, this Is inconsequential in view of the totality of the facts, circumstances and evidence on record. P.W.78, Prasanta Kr. Sengupta is the other Senior Scientific Offlcer-cum-Asstt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He examined in his laboratory certain articles which were sent to him for examination and he submitted his report which is Ext. 29. In his cross-examination at the retrial he says that he accompanied the expert. P.W.49 Haridas Moitra to Garden Reach, that Is, the place of occurrence In connection with this case and from that area they came back together. P.W.69 Pradip Shankar Chakraborly was an S.I. of police in March, 1984. attached to Homicides Squad. Detective Department. Lalbazar. He says that on 22.3.84 as per the direction of S.I. S.K. Bhattacharjee. the I.O., he accompanied him to Forensic Science Laboratory to bring the experts and they reached the laboratory at about 10-30 a.m. He says that after giving some directions the I.O. left and he (the witness) brought Sri H. Moitra (P.W.49). Expert to Garden Reach area and showed him the place where constable Moktar All was burnt and the murders of V.K. Mehta and his body guard were committed. He says that the expert examined the premises No. G-222 Battikal including the Gusalkhana and from there they went to the open place known as Dhanketl Maldan. The learned Advocate for theappellants submits that the expert (P.W.49) does not say that he went to the premises No. G. 222 Battikal and Gusalkhana there which this witness (P.W.69) wants to say. In our opinion, this is inconsequential because it is not necessary that every witness must state everything in details. P.W.69 says that the expert could trace out one metalic ring, some burnt clothes with two metallic buttons with rings attached to burnt clothes from Dhankheti Maidan. He (witness) seized those articles. He says that on 22.3.84 at 14-10 hours as per order of O.C., Homicide squad, he accompanied S.I., S. Bhattacharjee along with O.C., Homicide squad and other officers and men and accused Sk. Nanney in custody with two Doms, Narayan (P.W.41) and Bindeswari (P.W.40) and arrived at Garden Reach and on being led by the accused Nanney they went near a Kancha drain which was flowing in between premises No. G-13 Batttkal and F-55 Atabag Basti and also near premises No. G-222 Battikal. He says that the accused Nanney showed the spot inside the kancha drain having muddy water and stated that he and others dropped Incriminating articles there, about which he had made statement to the S.I. S. Bhattacharjee at that spot. He further says that being instructed by S.I. S. Bhattacharjee and O.C. Homicide Squad the accused got down inside the waist deep kancha nala and those two Doms also entered in the drain to assit the accused, If necessary, his evidence is that the accused (Nanney) then himself brought out from the said nala the following articles namely (1) one Dhal (shield) used by police, (2) one helmet, the front portion of which was partially dented and broken, with some hairs sticking inside the helmet. (3) one brown coloured leather belt having a nickel metal plate fitted with Inscription I.P.S. on it. (4) one black leather belt fitted with metallic emblam 'Calcutta Police', (5) one big sword about 30' in length, (6) piece of cloth partly torn and fitted with button, (7) one small sword about 20' length and (8) one brown coloured chappal of the right foot. P.W.69 further says that he seized those articles in presence of witnesses. He identifies Exl. 8 as that selzer list. He further says that thereafter he along with S.I. D.K. Dasgupta, as per instruction of I.O. and O.C. Homicide Squad, went to G-77 Batlikal which was a club room of Battikal Young Boys Committee and on search In presence of the witnesses certain articles were recovered and seized from that club room, namely, one pointed Iron red measuring about 29' In length including wooden handle, one bhojall, one book ofletter head pad and seized all those articles under the seizure list Ext. 17. He also says that he made certain other seizures from the road between premises Nos. G-227 & G-222, such as, Khaki coloured buttons and partly burnt pieces of cloths. Ext. 18 is the relevant seizure list. He also says that on that day between 5-30 and 5-40 p.m. he seized one wooden piri measuring about 15' X 8' having stains of blood from Inside the premises No. G-222 Battikal. The pirl, he says, was lying near the entrance door of the room situated at the north-east corner of that premises. Ext. 19 is the concerned seizure list. In his further cross-examination at the retrial he says that they arrived at premises No. G-222 Battikal at 15 hours on 22.3.84 and they stayed there for about 15 minutes and it was his first visit. He further says that F.S. Expert was with them up to 4-35 p.m. on that day. He says that the expert was with him while he was Inside premises No. G-222. It will thus appear lhat the expert was not with this police officer when he seized the wooden piri at G-222 Battikabetween 5-30--5-40 p.m. It may be noted here that the evidence of the P.W.s 40 & 41, the Doms, also corborate the evidence of P.W.69. P.S. Chakraborty, S.I. of police regarding the recovery of Incriminating articles from the drain by the concerned accused.</p><p>19. P.W.64 Haripada Dutta is S.I. of police who was attached to Garden Reach P.S. in March, 1984. His evidence is that on 19.3.84 as per direction of the O.C.. Garden Reach P.S. he had been to premises No. G-229A Batllkal and took scrapplngs of dried up blood with few hairs from the door leaf of that premises, etc between 3-35 p.m. and 3-55 p.m. In presence of witnesses and prepared the seizure list, Ext. 10. in his cross-examination he says that FIR of Garden Reach Case No. 45. dated 18.3.84 Ext. A was written and signed by him. That FIR relates to the Incident that occurred in Fatepur Village Road and Mathorpara and Balsnabpara. He says that he took up the investigation initially of that case. That was a different case. The present appeal relates to the P.S. Case No. 46 dated 18.3.84. P.W.68 Sibaprasanna Dutta was posted as S.I. of police in Port Division in March, 1984. He had arrested Sanda Akatar @ Aktar Alam who was an accused in the Garden Reach P.S. Case No. 46 dated 18.3.84. He says that he arrested him on 20.7.84 at about 7-30 p.m. at the fly-over of Sealdah. P.W.70 Sudhlsh Ranjan Nag is S.I. of police who was attached to docolly and robbery squad D.D., Lalbazar. He says that on 19.3.84 the D.C., D.D. told him and S.I. U.S. Lahiri that the murder case of Mehta had been taken up by the Homicide Squad and S.I. S.K. Bhattacharjee was the I.O. of that case. and directed them to asslt him in apprehending the accused of that case and that the D.C. further told that he had Information that some of the accused persons namely, Sk. Nanney, Gorachand, Md. Halim, Sk. Nuru and Wahabuddln might be available at Surinam Jetty and asked them to keep watch over that place and to arrest the said accused persons. If possible. His evidence is that at about 6-20 p.m. they arrested those accused persons and took them to Garden Reach P.S. where D.C./D.D. and other officers were present and they placed the accused persons before them and I.O. took charge of those accused persons. He says that on being directed by D.C. D.D. to search for the other accused persons at Batllkal, Chlrlamore, Ramnagar and Mathorpara Complex, he. U.S. Lahiri and force had been to those places in search of the miscreants but none could be arrested and they returned to Lalbazar at about 10-10 p.m. and made over the supplementary caase diary to the i.O. S.K. Bhattacharjee, He further says that they had also arrested Md. Idris and Sakil Ahmed. In his cross-examination, he says that Idris was arrested from Gaya on 27.3.84. P.W.71 Samir Kr. Moltra was attached to Garden Reach P.S. as S.I. of police In March. 1984. He accompanied the Commissioner of Police in Ramnagar area on 18.3.84 In connection with the murder of D.C. Mehta and his body guard. Between 4-00 p.m. and 5-00 p.m. on that day he seized certain articles such as pieces of partly burnt bamboos, pieces of charred bone-like substance, pieces of charred cloth, burnt metallic button fitted with ring, belt, two swords etc from an open field in front of premises No. G.-100/1, Ramnagar Lane, also know as Dhanketl. The seizure list prepared by him is Ext. 5. He had also held the inquest of the deadbodles of V.K. Mehta and the body guard Moktar Ali and prepared inquest reports. In the inquest report relating to the dead-body of B.K. Mehta it is noted that the deadbody of Mehta was lying in front of premises No. G-221, Dhanketl. The witness however saysthat it was premises No G-221, Battikal and it was wrongly mentioned as G-221, Dhanketi in the inquest report. In his cross-examination he says that he had detected this mistake in court at the time of giving evidence. It seems to be a case of bona fide accidental mistake.</p><p>20. P.W.80 Santi Ranjan Ganguli was attached to Garden Reach P.S. on 18.3.84 as S.I. of police. The FIR of this case was drawn up by him. His evidence Is that the fromal FIR was drawn up at 8-05 p.m. at Garden Reach P.S. on the basis of Statement of K.K. Sharma, Asstt. Commissioner of Police, Port Division. He says that the statement of Sri Sharma was also recorded by him as per the order of the O.C. of Garden Reach P.S. He also took up the investigation of the case under the order of the O.C., Garden Reach P.S. on that date at 8-05 p.m. He says that he then recorded the statements of the two witnesses namely Abdul Latif Khan (P.W.21) & Md. Khali Khan (P.W.19) under section 161 Cr.PC at Garden Reach P.S. and then at 11-00 p.m. he had been to Mathorpara, Rnmnagar Lane etc of the affected areas of Garden Reach with force and after contacting sources there he returned to the P.S. at 11-50 p.m. He says that on 19.3.84 at 6-40 p.m. he had shown formal arrest of four accused persons, namely Nanney Kosal, Gorachand, Halim and Nuru who were arrested by the police officers of the Detective Department. He further says that on 18.3.84 after returning to the P.S. from the affected area he prepared respective requisitions for postmortem examination of V.K. Mehta and his security guard. Moktar Ali and on 19.3.84 at 10-00 a.m. he sent those requisitions to the Prof. of Forensic and State Medicine and on that day at 7-40 p.m. he handed over the case diary to S.I. S.K. Bhattacharjee of Homicide Squad who had taken up the investigation and he also handed all other connected documents under the orders of his O.C. and the D.C.D.D. at Garden Reach P.S. In his cross-examination he says that on 18.3.84 he was in Garden Reach P.S. after mid-day and that he had also seen the G.D. Entry regarding the disturbances at Fatepur Village Road. He says that on that night i.e. on 18.3.84 another case being Garden Reach P.S. Case No. 45 dated 18.3.84 was also recorded and that FIR was recorded by S.I. H.P. Dutta(P.W.64). In his cross-examination he says that going to the locale he questioned some persons, but did not record their statements under section 161 Cr.PC and that he had tried to collect the names of the assailants but could not succeed to obtain the same from those persons. Much has been criticised by the learned Advocate for the appellants that if really the first I.O. (P.W.80) had recorded the statements of the constables P.W.19 Khalll Khan and P.W.21 Abdul Latif Khan on 18.3.84, he must have obtained from them the names of the assailants before he went to the locale in that night and therefore there was not question of trying to collect the names of the assailants at the locale in that night and this shows that the evidence of the said P.W. 19 and P.W.21 or for that matter the entire prosecution case implicating the appellants is a product of concoction. We however find ourselves unable to accept this critism. It is true that the I.O. got some names from P.W. 19 and P.W. 21 on 18.3.84, but obviously there was no reason to suppose that those were the only culprits involved in the occurrence. It Is therefore only natural that the I.O. while visiting the locale will try to obtain from persons the new names of other culprits as well as confirmation of the names of culprits already obtained by him from P.W.19 and P.W.21 before going to the locale.</p><p>21. P.W.1 S.K. Bhattacharjee was attached to Homicide Squad, Detective Department as S.I. of police in 1984. He is the Second investigating Officer of this case. He says that under the order of the D.C.D.D. he took up the investigation of the Garden Reach P.S. Case No. 46 dated 18.3.84 and submitted charge-sheet against 43 accused persons after completion of investigation showing as many as 18 accused persons are absconders. He says that six of those 18 absconders were subsequently apprehended and 12 were still at large while he was deposing on 12.9.88. He was however examined further next on behalf of the prosecution on 11.4.89, He says that on 19.3.84 the D.C.. D.D. verbally ordered him at 5-00 p.m. to take up the investigation of the case and then at about 5-30 p.m. he, D.C., D.D., A.C. D.D.-1. O.C. Homicide Squad, S.I. P.S. Chakraborty of Homicide Squad and two constables of Homicide Squad started for Garden Reach P.S. He further says that prior to that D.C., D.D. told him that he had already sent two S.I.s of Detective Department, namely U.S. Lahiri and S.R. Nag (P.W.70) to work out an Information received by him in respect of some accused persons. He says that at 6-05 p.m. they all reached Garden Reach P.S. and met the O.C. of that P.S. there, he also says that at about 6-40 p.m. S.I. S.R. Nag (P.W.70) and S.I. U.S. Lahiri brought under arrest five accused persons namely Sk. Nanney, Md. Halim, Wahabuddln, Gorachand and Sk. Nuru to the Garden Reach P.S. and those five arrested persons were produced before the D.C., D.D. and the then I.O. of the case S.I. S.R. Ganguly (P.W.80) showed those accused persons as arrested in this case. He further says that at 7-45 p.m. he took charge of those arrested accused persons, case diary and other connected papers along with alamat from S.R. Ganguli, and under order of the D.C., D.D. he came to Lalbazar with those five accused persons, S.I. P.S. Chakraborty and two constables. His evidence shows that they left the Garden Reach P.S. at 8-10 p.m. and reached Lalbazar at 8-40 p.m. and then he started interrogation of those five arrested persons and thereafter he perused the case diary and other connected papers. He says that at 10-30 p.m. he received the supplementary case diary from S.I. S.R. Nag who arrested the five accused persons. His evidence is that on 20.3.84 he met D.C., D-D. in his office and received his instruction regarding the next follow up action. He says that he came to know (hat a team had been raised to assist him in the Investigation of the case. He also names the officers who were Included In the team. He also names Sanat Kr. Gupta, A.C. D.D. (I) as the persons who was placed as overall in-charge of the team. On 20.3.84 he produced all the five accused persons in the court of the S.D.J.M., Allpore and also prayed for their police remand, and then on that day at 2-30 p.m. he along with D.C., D.D., A.C. D.D. (1), O.C. Homicide Squad, S.I. Samir Ganguli left for the spot with force for investigation. According to his evidence they reached Garden Reach P.S. at 3-00 p.m. and then on being led by the O.C. Garden Reach P.S. under the order of D.C., D.D. they all went to Ramnagar Lane in front of the mosque where D.C., D.D. and others had allegedly taken shelter and stayed there upto 3-35 p.m. His further evidence is that then on being led by O.C. Garden Reach P.S. they went to a vacant plot of land at 4-00 p.m. wherefrom the charred body of the security guard had been allegedly recovered and he found some burnt substances there and from that place they went to the premises No. G-222, Battikal Second Lane and reached there at 4-25 P.M.and there he met Hadis Khan (P.W.24) and his mother, Kaflabibi and herecorded their statements there. According to his evidence then they wentto premises No. 228/3 Battikal Second Lane which is the house of Md.Naimullah (since deceased). He also then describes his further activities inthat locality. It appears from his evidence that on 21.3.84 he, O.C.,Homicide Squad, S.I. Samir Ganguli went to 222 Battikal Second Lane andfrom there he went to G-247 Ramnagar Lane. Then on being Informed byS.I. Samlr Gangull that the Commissioner of Police had already arrived atpremises No. 222 Battikal Second Lane with A.C. D.D. (1). he went to thatplace and as per direction of the Commissioner of Police, he seizedscrapplngs of blood looking stains with control from the outer wall of a roomof premises No. G-222 Batllkal Second Lane and prepared the seizure listext. 31. On 22.3.84. according to his evidence, he met the Director of F.S.L.and then the Director deputed H. Moltra (P.W.49) and P.K. Sengupta(P.W.78) both senior officers of F.S.L. to visit the P.O. He says that at thattime Mr. Moltra reported that he would visit the P.O. In the afternoon, andMr. P.K. Sengupta was out at that point of time and he (the witness)instructed S.I. P.S. Chakraborry to take Mr. Moltra and Mr. Sengupta tothe P.O. and he left for Lalbazar. His evidence shows that on that day heexamined Norman Merces (P.W.23) and Brion Merces (P.W.22) and recordedtheir statements and then they along with those two persons went to theresident of the absconding accused Naso and there they found the wife ofNaso Karolin and ascertained the particulars of Naso from her and fromthat place they again came to premises No. G-85 Battlkal First Lane andquestioned some Inmates and at that time S.I. P.S. Chakraborry came andreported that the F.S.L. experts had arrived and they were at G-222 BattlkalSecond Lane and then he (the witness) went there and met them. He saysthat the experts made Inspection at different places of that premises andthen requested to take them to the place wherefrom the charred body ofMoktar was recovered and they were taken there and the experts madethorough search in the burnt substances and ultimately discovered metallcring, a piece of burnt cloth fitted with metallic buttons with ring, and thosearticles were seized. His evidence is that on 23.3.84 he examined Sk. NanneyKosal who made a statement leading to the recovery of some Incriminatingarticles. He also speaks about recovery of Incriminating articles pursuantto the statement made by the accused Sk. Nanney Kosal. His evidence showsthat the accused Nanney made statement to him to the effect that he hadthrown one helmet, one dhal, two swords in the water of kancha drain andhe would be able to lead the police party to the spot where he and othersthrew away those weapons and other things and If those things were stillthere he would be able to bring them out. The evidence of the I.O. (P.W.I)shows that the accused Nanney was taken (on 23.3.84) to the concernedarea pursuant to the statements made by him and the accused Sk. Nancyled them in front of a kancha drain on the northern side of the premisesNo. G-221 Battlkal and G-213 Battlkal and the accused then pointed outa place inside the kancha drain to be the place where the articles as statedby him were thrown and then being asked the accused got down In the waistdeep water of the kancha drain and brought out one by one, one shieldmade of wire net, one helmet, two swords, two belts of which one hadmetallic plate having 'IPS' inscription, one black belt used by constable. Healso speaks about the recovery of a chappal of a right foot. The recovered articles were then seized. His evidence shows that on 26.3.84 also at night they conducted a raid in the concerned area and searched for certain accused persons Including Naso but could not trace them out. His evidence also shows that on 4.4.84 they went to G-85 Battikal Second Lane which is the residence of the father-in-law of the accused Naso but there also Naso was not found. His evidence is that on 30.5.84 the accused Lokman Shah and Osman Shah, two brothers, were arrested from their residence in a night raid between 1-40 a.m. and 2-00 a.m. He says that on 7.6.84 the accused Lokman Shah during Interrogation, stated that he wanted to make a confessional statement and so on 8.6.84 he (I.O.) forwarded Lokman to the learned S.D.J.M. with prayer for recording his confessional statement and his confessional statement was recorded by the learned S.D.J.M., 3rd Court Allpore on 9.6.84. It appears that the I.O. obtained an order of police remand for the accused Lokman after he was produced before the S.D.J.M. after arrest and the accused Lokman expressed his desire to make confessional statement to the I.O. on 7.6.84 while he was under police remand. The I.O. (P.W.I) says that on 16.6.84 he submitted charge-sheet against 43 accused persons of whom 24 were In custody and the rest were absconding. He further says that after the submission of the charge-sheet seven absconding accused persons had been arrested. He says that on 28.2.85 at 3-00 p.m. acting on a secret Information he with the help of S.I. Rajkumar Chatterjee of the Detective Department and others arrested Nasim Khan Naso from the station road near Kallghat Railway Station. He further says that the accused Naso was arrested with the revolver which was given to constable Moktar All for his duty, with three rounds of ammunition for which a specific case has been started on his complaint under section 25 and section 27 of the Arms Act. While confronted with this in examination under section 313 Cr.P.C. the accused Naso only says that the witness (P.W. 1) told lie that he (Naso) was absconding and he was arrested on 28.2.85 at 3-00 p.m. from the Station Road near Kallghat Railway Station or that he had any revolver in his possession at the time of his arrest. Besides such bare denial he however does not say anything as to on what date and wherefrom he was arrested.</p><p>22. In his cross-examination P.W.I (the second I.O.) says that he did not go to Garden Reach area between 18.3.84 and 5-00 p.m. of 19.3.84. He says that on 20.3.84 the first witness he examined was Hadls Khan of G-222 Battikal Second Lane in that premises. His evidence shows that on 19.3.84 he first interrogated the five arrested accused persons (Including Sk. Nanney) but he did not record their statements. His evidence Is that on 20.3.84 he forwarded the five arrested accused to court with prayer for police remand upto 2.4.84 and the learned S.D.J.M. allowed the prayer for police remand. He says that he could not interrogate any of the accused persons on 20.3.84 as he had no time for such interrogation. He also says that on 20.3.84 he went to Garden Reach area along with his superiors, namely. D.C. D.D., A.C. D.D. (1) and O.C.. Homicide Squad and reached there at 3-25 p.m. His evidence Is that they first went to the Garden Reach P.S. and then the O.C. of the Garden Reach P.S. led them to the area where the Incident occured and there he examined Hadls Khan first and also Kaflabibi. the mother of Hadls Khan. He has however not shown Kaflabibias a witness in the charge-sheet. He says that on 20.3.84 he reached G-222 Battlkal Second Lane at 4-25 p.m. are remained there till 5-30 p.m. He also says that they were in Battlkal Second Lane area on 20.3.84 from 3-25 p.m. till 10-15 p.m. and that dusk to dawn curfew was imposed in that area and order under section 144 Cr.PC was also promulgated there and police picket was posted in different parts of that area. His evidence in cross-examination is that the blood looking stains were found on the outside wall of the western room of the premises No. G-222 Battlkal Second Lane, and he says so with reference to the seizure list, ext. 31. He says that the experts had arrived at premises No.G-222 Battlkal sometime before 3-00 p.m. and he went there at 3-05 p.m. and the experts H. Motlra and P.K. Sengupta of F.S.L. Inspected the premises and courtyard of G-222 Battlkal Second Lane and from that house, being accompanied by them, the experts went to open plot of land known as Dhankhell Maldan. He denies the defence suggestion that he had advised constable Latif Khan to procure persons of his choice who would support the prosecution case. He also denies the defence suggestion that Hadis Khan and Md. Mustafa gave statements at his tutoring. He says that the statement of Nanney Kosai was recorded by him on 23.3.84 between 8-50 a.m. and 10-10 a.m. and with the accused and other police of lines he left for the P.O. to verify the statement of the Nanney Kasal and reached in front of the kancha drain at 2-55 p.m. He says that the accused Lokman was forwarded to court on 8.6.84 with a prayer for recording his confessional statement. He has acknowledged that both the two accused Sk. Nanney and Lokman retracted their confessional statements by filing petitions but he cannot say the date on which such petition was filed after the submission of the charge-sheet. He cannot say whether those petition were filed on 14.8.84. In his cross-examination he denies the defence suggestion that Naso was arrested from the factory gate of Sultan Hossain.</p><p>23. Of the medical witnesses, P.W. 44 Dr. Sunil Dey of the Calcutta Medical Research Institute examined Sr. K. Sharma (P.W.7). Asstt. Commissioner of Police on 18.3.84 at 12-30 p.m- In the Emergency. He also describes the Injury found and treated by him. P.W.66 Dr. Bhlbutlbhusan Blswas who was attached to Calcutta Police Hospital at the relevant time speaks about the Injuries of constable Ramshankar Singh (P.W.16) which were found by him. He says that the said constable was admitted on 18.3.84. He also describes the Injuries found by him. P.W.67 Dr. Gopi Ranjan Samanta was also attached to Calcutta Police Hospital at the relevant time. He proves the discharge certificate in respect of said Ramashankar Slngh. The patient, he says, was admitted on 18.3.84 with bomb injury on the lower thing of the right leg and was discharged from the hospital on 12.4.84. P.W. 46 Dr. Bhopal Mazumdar in the autopsy surgeon. On 19.3.84 he was posted as Demonstrator in the Department of Forensic and Slate Medicines, Medical College and Hospital. His medical qualifications are M.B.B.S. and M.D. In Forensic Medicine. He Joined the West Bengal Health Service on 25.2.75. On the date on which he deposed in court, that is, on the 1st February, 1989 he was posted as Assistant Professor and Head of the Department of the Forensic Science and Medicines, North Bengal Medical College. He held post-mortem examination on the dead-body of V.K. Mehta, D.C. Port Division on 19.3.84. He describesas many as 23 injuries found by him externally on the various parts of the deadbody including the face, head, etc. Injury No.9, as found by him. Is a lacerated would 3' x 1' X muscle X bone X meninges X brain on the right fronto-parletal region of the head, being placed half inch right to the mid line and 69 1/2 above the right heel. This is a head injury. He has also describes what he found on dissection. He says that all the Injuries were showing evidence of vital reaction. He openes that death was due to the effect of the injuries as mentioned by him which were ante-mortem and homicidal in nature. He also specifically says that he found 23 external and 4 internal injuries on the deadbody. According to his evidence the cumulative effects of the injuries were sufficient to cause death in the ordinary course of nature. He further says that Injury No.9 might be caused by any hard blunt weapon like iron rod or any other metallic rod and that the victim was in standing position when injury No.9 was Inflicted. He says that the said Injury No.9 was caused by the assailant from the front side of the victim. He further says that the Injury No.9 and the injury No.2 found on dissection were the vital Injuries. He also says that injury No.9 alone was sufficient to cause the death of the victim In the ordinary course of nature. However, the Injury No.9, he says, could not cause instantaneous death. He says that the injury No.23 was caused by pulling the body from leg side and that the injuries sustained by the victim were caused by more than one person. He also describes specifically as to which particular injury could be caused by what type of weapon. The possible weapons named by him include metallic rod, chopper, sword, napala, bhojall, brickbats etc. It may be noted here that the Injury No.9, according to the prosecution case, is connected with the assault made by the appellant-accused Naso on the head of V.K. Mehta with iron rod. The Autopsy Surgeon, P.W. 46 says that he held the post-mortem examination on the deadbody of V.K. Mehta on 19.3.84 at 12-00 noon at Calcutta Police Morgue and Prof. J.B. Mukherjee who was the professor and head of the Department of Forensic and State Medicines, Medical College, Calcutta was present when he held the postmortem examination and that Prof. J.B. Mukherjee supervised the examination. He says that Prof. J.B. Mukherjee concurred with his opinion and made the following remark: The post-mortem examination was conducted under my direct supervision and guidance. I fully concur with the findings and opinion of the Autopsy Surgeon, Dr. B. Mazumdar'. The post-mortem report was however prepared and signed by P.W. 46, Dr. B. Mazumdar and the same has been marked ext.tO. From his evidence the get that by that time he (P.W. 46) had gathered the experience of holding post-mortem examination on nearly four thousand deadbodies. He also held the postmortem examination 19.3.84 at 3-00 p.m. on the deadbody of the constable Moktar All who was the body guard of V.K. Mehta. He also describes the injuries found by him on the deadbody of Moktar All and gives the opinion regarding the effect of the injuries and the cause of death. In his cross-examination, he says that the Injury numbers 1,2,3,4,5,6.12,13,14,15,16 & 22 as found on the deadbody of V.K. Mehta were Incised injuries. The learned Advocate for the appellants contends that the opinion given by the Autopsy Surgeon, P.W.46 Dr. B. Mazumdar to the effect that the injury No.9 alone was sufficient to cause the death of the victim in the ordinary course of nature is not there specifically in the post-mortem report and this hasbeen stated by the Autopsy Surgeon Dr. Mazumdar as his own opinion while giving evidence in the court and this opinion of the Autopsy Surglon, P.W.46 is therefore not supported by the opinion of Prof. J.B. Mukherjee who supervised the post-mortem examination and therefore this opinion of P.W.46 should not be taken into consideration at all In judging the effect of the assault stated to have been made by the accused Naso on the head of the victim Mehta with iron rod. In our opinion this contention is however not acceptable. It is true that Prof. J.B. Mukherjee, obviously as a senior person, supervised the post-mortem examination held by P.W.46 Dr. Mazumdar but that does not mean that the opinion of Dr. Mazumdar on any point is of no merit or consequence unless the same is specifically endorsed by Prof. Mukherjee. P.W. 46, Dr. Mazumdar is also an expert in the matter and as we have seen he has a very rich experience in the matter of holding post-mortem examination. That being so, his opinion also given on the basis of the examination made by him, deserves due consideration and acceptance on merit unless the same otherwise stands discredited or condemned for any good and sufficient reason. Here there is absolutely no reason why we should not accept the opinion of the aulopsy surgeon P.W.46 regarding the effect of the injury No.9 which is a head injury allegedly caused by the accused Naso by inflicting assault on the head of the victim with rod. The learned Advocate for the appellants also submits that according to the evidence of the Autopsy Surgeon P.W. 46 all the Injuries had shown the evidence of vital reaction and therefore no disproportionate importance should be given to the effect of injury No.9. In this connection we are however to mention that even if all the injuries had shown evidence of vital reaction, that does not for that reason alone minimise the gravity of the effect of any particular Injury which according to the autopsy surgeon P.W.46 is alone sufficient to cause the death of the victim in the ordinary course of nature, even though such Injury could not have caused instanteneous death. It is needless to mention that causing of death is an ingradlent of the offence punishable under section 302 IPC and it is not necessary that death In all cases must be caused Instantaneously for bringing the case under section 302 IPC. That apart, when death is the result of a cumulative effect of all the injuries caused to the assailant in prosecution of the common object to commit the offence, each and every assailant is responsible for the offence in view of the section 149 IPC. The learned Advocate for the appellants also contends that the grounds of opinion of the expert are also relevant. Indeed there is no doubt that the autopsy surgeon in the present case has elaborately described all the injuries found by him and obviously his opinion is based on the findings recorded by him. No worthy ground has been brought out in the cross-examination of the autopsy surgeon nor successfully contended before us for which we could hold that the opinion of the autopsy surgeon is not acceptable. We reiterate that we have no reason or ground to discard or disregard the opinion given by the autopsy surgeon P.W.46.</p><p>24. P.W.47 Kanchan Chatterjee is the Judicial Magistrate who held T.I. parade in respect of the accused Nanney Kosal at Allpore Central Jail on 30.5.84. He says that the witness K.K. Sharma (P.W.7) identified the suspect Nanney Kosal stating that he along with others were hurling bombs at Ramnagar Lane near mosque and further stated that while he along withD.C, V.K. Mehta reached the crossing of Ramnagar Lane and Mathorpara entrance while chasing a mob, he saw the suspect hurling bombs along with others.</p><p>25. P.W.51, P.K. Deb is the Judicial Magistrate who recorded the confessional statements of the accused Nanney Kosal and the accused Lokman Shah on 3.4.84 and 9.6.84 respectively. He says that on 2.4.84 the accused Sk. Nanney was produced before him by constable Niranjan Das and the record was also laid before him. He was directed by the S.D.J.M. Allpore to record the confessional statements of Sk. Nanney. His evidence shows that on 2.4.84 the accused Sk. Nanney on being produced from judicial custody, was given cautions by him in open court and he was then sent to jail custody with the direction to the Jail authority, Alipore Central Jail that he should be kept in segregation so that he could get sufficient time for reflection. He says that on 3.4.84 the accused was again produced before him at about 3-00 p.m. In his court room and the accused was again given caution by him regarding the Implication of giving a confessional statement and the accused was kept in his chamber and was given time for an hour to reflect and ponder over the matter, and nobody was present In his chamber except the accused. He specifically says that no policeman was present in his chamber. He says that at 4-00 p.m. he asked the accused whether he was to make a confessional statement in his chamber and the accused Insisted on making a voluntary confessional statement and he recorded the same in his court room. He says that he was satisfied about the volunteriness of the accused in making the statement. The confessional statement of the accused Nanney Kosal as recorded by the Judicial Magistrate, P.K. Deb on 3.4.84 has been marked ext.13. He further says that the accused admitted that the statement had been correctly recorded and he also explained to the accused before he recorded his statement that he was free not make any statement and if he made any statement It might be used against him. He further says that nobody was present Inside the court room when the statement of the accused was recorded. The recording. according to his evidence, was complete by 4-40 p.m. It may be noted here that the accused Nanney Kosai was convicted and sentenced by the trial court in the original trial and reportedly he did not prefer any appeal against such conviction and sentence.</p><p>26. The further evidence of the Judicial Magistrate, P.W. 51, P.K. Deb Is that on 8.6.84, the learned S.D.J.M. Alipore directed him to record the confessional statement of the accused (appellant) Lokman Shah. He says that on that date at about 1-15 p.m. the accused (Lokman) was produced before him and was identified by the constable P. Pramanlk In court room. He says that the accused was cautioned by him and the Implication of making the confessional statement was explained to him. He further says that the accused was produced from Judicial custody and he sent the accused to Jail custody and directed the superintendent of Allpore Central Jail to keep the accused In segregation so that he could get sufficient time for reflection, and directed his production before him on 9.6.84. The accused was produced before him on 9.6.84 at 2-00 p.m. by the constable Ramnarayan Goala in the court room and the accused was given warning and caution and was given one hour's time to think over the matter and was kept In the chamber of the Magistrate where none else was present. According to his evidence at 3-00 p.m. the accused insisted upon making a voluntary confessional statement and he (Magistrate) started recording his confessional statement in the court room at 3-00 p.m. where none else was present. He specifically says that no policeman was present at that time. He also deposes that before he started recording the statement he gave the accused all statutory cautions and started recording his statement after he was satisfied that the accused was making the statement voluntarily. The accused made the statement In Hindi and he recorded the statement in Bengali script. He further saya that after the statement was recorded It was explained to the accused in Hindi and the accused signed the statement in his presence. Ext. 14 is the confessional statement of the accused Lokman Shah as recorded by the Judicial Magistrate P.W.51 P.K. Deb. He further says that the accused admitted that the statement was correctly recorded after it was read over to him. In his cross-examination he says that he cannot say whether on 8.6.84 the accused was directly taken to the jail from his court room or he was taken to some other place before he was finally taken to Jail. It is needless to mention that the accused got sufficient time and opportunity for reflection in jail custody. In his cross-examination the Judicial Magistrate, P.W.51 specifically syas that he was fully satisfied after putting questions to the accused persons that they were voluntarily making statements and that he applied both his subjective and objective satisfactions. He specifically says that he put certain questions and he was satisfied that they were mentally prepared to make such statements. In his cross-examination he further says that he had cautioned Lokman that he would not be sent to police custody If he did not make any statement. It is suggested to him in his cross-examination that the statements were recorded In presence of the I.O. of the case. This is a preposterous suggestion, we must say, that a Judicial Magistrate while recording a confessional statement will allow the I.O. to be present there.</p><p>27. Ext. 34 which is the ordersheet of the court of the S.D.J.M. Alipore shows that the accused Nanney Kosal along with others were produced in court in custody on 20.3.84 and they were all remanded to police custody till 2.4.84 after considering the prayer of the I.O. It also appears that while producing the accused persons before the learned S.D.J.M. from police custody on 2.4.84 the I.O. inter alia made a prayer for recording the confessional statement of Sk. Nanney Kosal under section 164 Cr.PC and the learned S.D.J.M. directed Sri P.K. Deb J.M., 3rd Court for recording the statement under section 164 Cr.PC. The order-sheet dated 30.5.84 shows that the accused Lokman Shah and accused Osman Shah were produced before the S.D.J.M. In custody on 30.5.84. According to the prosecution case the said two accused persons are brothers. On the prayer of the I.O. the S.D.J.M. remanded both the accused Lokman and Osman to police custody till 11.6.84. It also appears that the accused Lokman was produced in court from police custody in advance on 8.6.84 and on considering the prayer of the I.O. to record his confessional statement, the learned S.D.J.M. directed the Judicial Magistrate Sri P.K. Deb to record his confessional statement. On that very day Lokman who produced before P.K. Deb, J.M. and he was given necessary warnings and was remanded to Jail custody and was then produced before the J.M. concerned on 9.6.84 again and his confessional statement was recorded after giving him necessarycautions. It may be mentioned here that the accused Sk. Osman Shah was produced on 9.6.84 and he was remanded to jail custody for reflection but ultimately he declined to make any confessional statement when he was produced before the Magistrate on 11.6.84. It may be noted here that both the accused Nanney Kosal and Lokman Shah who made confessional statements before the Judicial Magistrate, however ultimately retracted such confessional statements by filing petitions before the court on 14.8.84. It has been submitted on behalf of the State that there is no bar in taking into consideration the confessional statements of those two accused persons although they ultimately retracted the same. It is also pointed out that they retracted their confessional statements as late as on 14th August, 1984 although their statements were recorded In the months of April, and June respectively and although they were produced in court a number of limes before 14th August, 1984.</p><p>28. Ext. 3 is the statement of the accused Sk. Nanney recorded by the Judicial Magistrate under section 16A Cr.PC. In his statement under section 164 Cr.PC the accused Nanney Kosal has described some part of the Incident Implicating himself and certain other persons. We have already noted that Nanney Kosal has been convicted and sentenced in the original trial and he did not prefer any appeal against the same. It has been contended on behalf of the appellants that since Nanney Kosal was therefore not being tried Jointly alongwith present appellants in the retrial, his confessional statement recorded under section 164 Cr.PC cannot be taken into consideration against the present appellants under section 30 of the Evidence Act. The learned Advocate for the appellants has in this connection also relied upon certain decisions cited by him which we will refer to at a later stage. Ext. 14 is the statement of the appellant Lokman Shah recorded by the Judicial Magistrate under section 164 Cr.PC. The statement was made by the accused-appellant Lokman before the Judicial Magistrate In Hindi and the Magistrate recorded the same in Bengali script. The English translation of the relevant portion of the statement of the accused Lokman recorded under section 164 Cr.PC as appearing In the paper book is reproduced below :</p><p>'Q. Tell what statement you will make?</p><p> Ans. On 18th date, Sunday (Holiday), the Incident took place. At 10 or 10-30 Naso, Puttan, Akhtar, Chowdhury came to me for price. I asked what you will do by money. They answered quarrel is going on in village road for that weapons are to be purchased by the money. Those persons have set fire to the mosque. If those persons make any trouble here we shall fight out. I said I shall also fight out. After that they fled away. At 11-45 a cry or quarrel came to my heralng. I came out and found that two police officers coming speedily. Many people threw brickbats towards those police officers. The police officer in white dress went towards the house of Mulla. The police officer In Khaki dress came straight. When he was crossing near me I also threw a brickbat. I cannot say whether it hit or not. The police officer In khaki dress entered In the house of Latif Sepot. Many persons entered following him. Amongst them Idris was there. From outside many people threw brickbats. I also threw 2/1 brickbats. I cannot say whether it hit him or not. Aftersometime I found that Naso, Puttan, Akhtar and Chowdhury were coming from the side of Battikal mosque. They took me Inside the house. I found the police officer In khaki dress was standing near the kitchen. (wrong translation). The correct translation is 'standing by the side of Gosalkhana'--'Gosalkhanaka pas khara hayal. That person said he was D.C. Some people said they do not know D.C. etc. After this all people in a batch caught that person. I also caught him. Naso hit by a rod on the head. For this the hard cap fell down. Again rod was used. It hit the head. Saheb fell down. Puttan, Akhtar and some other many people assaulted him on the face with deadly weapons, (wrong translation. The correct translation is 'Puttan, Akhtar & many other persons started assaulting on his face with sharp-cutting weapons--'dharwala hattar se chehar par marne laga'). I could not tolerate the blood-shed. For that I came out. I was then searching for my younger brother. After some time I found those 8/10 persons took D.C. Saheb and entered Inside the house, (wrong translation. The correct translation is 'after a while I saw that those 8/10 persons were going out from Inside the premises taking away D.C. Saheb--Thora der ke bad dekhta o at das admi D.C. Saheb ko le ke bari ke ondar se chala ja raha'). They proceeded towards the Mehar Manzil crossing the house of Israil. ('They took him away towards Mehar Manzil after crossing the house of Israil'--'Israilko par karke Meher Manzil ke taraf le giyal. After that I cannot understand what happened, ('what happened thereafter, I cannot say')--'Usko bad hamko nehi malum haya keya hua'). I worked under port. And I was present at home on that day.</p><p> 'Q. Do you want to say anything more?</p><p> Ans. No. I have forgotten to say one thing. Samsad and Abbas were also present in the Incident.'</p><p>29. It may also be rioted here that from ext. 14 it will appear that the Judicial Magistrate before recording the statement of the accused Lokman Shah put various questions to the accused Lokman for ascertaining whether the accused was making the statement voluntarily and free from any outside influence. As we have seen, the statement was recorded by the Judicial Magistrate on 9.6.84 and on the preceding date i.e. 8.6.84 the accused was sent to jail custody for giving him proper opportunity for reflection. In answering the question put to the accused Lokman on 9.6.84 by the Judicial Magistrate as to whether he was kept in the jail in separate room or not, he said that he was kept In a separate room for thinking and realising. The Magistrate also tells him inter alia that he was not bound to confess and asked him to tell after thinking whether he will make the statement from his mind or not, to which the accused replies that he will make the statement. He also says that he was not terrorised by anyone nor was requested or assured for giving the statement. In answer to the specific question whether he was beaten by any police officer, he replied in the negative. The Judicial Magistrate also told him that he would not be kept under the custody of the police whether he told or not. Even then the accused staled before the Magistrate that he would make the statement willfully and he had come from jail and nobody had given any hope or assurance to him. The Magistrate also cautioned the accused that If any statement was made by him, he might be hanged for the same and thatwhat he would say could go against him. Inspite of that the accused stated to the Magistrate that he would confess according to his sweet will. The Magistrate also appended a certificate under the statement recorded by him to the effect that he believed that the confession was made voluntarily.</p><p>30. The learned Advocate for the appellants has contended that the only evidence on which the prosecution has relied upon for bringing home the charge framed against the accused Lokman ts his alleged confessional statement, ext. 14. It is however contended by him that the law regarding use of confessional statement against maker of such statement is that the court must be satisfied that the confessional statement is truthful and is made voluntarily. He has also cited a number of decisions on this point such as Anathbandhu v. State of West Bengal, 1986(1) CHN. 229, State of West Bengal V. Prosenjit Tafadar 1991(1) CHN 331. Saran Singh v. State of Punjab, : 1957CriLJ1014 , etc. Indeed we are convinced that the same is true and voluntary. While examined under section 313 Cr.PC the accused Lokman even inter alia denies to have made such statement as recorded by the Magistrate and he even went to the absurd extent of telling that the I.O. was standing near him when he made the statement before the Magistrate. It may be noted here that at the retrial one defence witness being D.W.1 Sk. Mumtaz was examined on behalf of the defence. He claims to be an employee of Calcutta Port Trust. He says that he knows the accused Lokman, who was a class-IV staff in the department in which he was working. He says that there was continuous strike in all the ports of India including the Calcutta Port w.e.f. 16.3.84 and during the strike period he used to attend the gate No.8 of the workshop regularly and this gate is one of the entrance gales to the K.P. dock. He further says that like him other people also used to go in front of the gate during the strike. His evidence ts that on 18.3.84 he along with others went in front of that gate at about 8-30/9-00 a.m. and returned to his residence at about 12-45/1-00 p.m. He wants to say that on 18.3.84 when he went In front of that gate he found that the accused Lokman was sitting there. This defence witness has been examined to establish the plea of alibi taken by the accused Lokman. The evidence of this defence witness who was examined at the retrial in June, 1992 long after the occurrence however, does not inspire any confidence. No plausible explanation is coming as to why he was not examined at the time of the original trial if really Lokman was with him in front of the gate of the Calcutta Port Trust at the relevant time on 18.3.84. Also it is significant to note that the date of the Incident namely, 18.3.84 was not only a Sunday, but It was also the day on which the 'holi' festival was being celebrated. That being so, it is difficult to believe that he and other workers Including the accused Lokman would have gone there In front of the gate of their workshop on that day obviously without any purposeful object. Moreover it Is also quite unnatural that when riots and disturbances were going on in the concerned locality, the accused Lokman would have chosen to go and station himself in front of his closed factory gate without any meaningful purpose leaving aside the shelter of his own house, if realty he were a peace-loving person. Having regard to the facts and circumstances, we are not Inclined to place any reliance on the evidence of the defence witness D.W. 1 Sk. Mumtaz. The learned Advocate for the appellants submits that even if the defence plea of alibi falls and the court does not accept thesame, yet that by itself does not prove the prosecution case. In this connection he also refers to the decisions in Shared Blrdhtchand Sarda v. State of Maharashtra, 1984 SCC(Cr.l) 487 and Sk. Firoz v. State of West Bengal 1997. C.Cr.L.R. [Call 251. In connection with the question relating to the nature of use of a confessional statement he refers to the decisions in Pakal Narayan Swami v. Emperor AIR 1931 PC 47, PalblnderKatirv. State of Punjab : 1953CriLJ154 , Ompmkashv. State of Uttar Pradcsh : AIR1960SC409 . There is no doubt that a self exculpatory statement does not amount to confession. It is also true that the statement of the accused will have to be taken as a whole without making any 'pick and choose' of isolated sentences or words divorced or separated from the context in which they have been used. But in the present case on an Indeplh consideration of the statement of Lokman made before the Judicial Magistrate, we find no reason to hold that the same does not amount to a confessional statement. The learned Advocate for the appellants contends that the statement of Lokman as recorded under section 164 Cr.PC would show that he had only thrown some brickbats when the police officer in khaki dress entered in the house of LatlfSepol and he even did not care to notice whether the same hit the police office or not. He also contends that although the statement shows that Lokman caught the D.C. along with others when Naso hit him by a rod on his head as a result of which the cap fell down and Naso again hit the D.C. on his head and the D.C. fell down and other assailants assaulted him wllh sharp culling weapons, yet the statement shows that on seeing blood-shed as a result of assaults made by the assailants on the D.C. Lokman could not tolerate the situation and he withdrew himself and came out. It is submitted on behalf of the appellant Lokman that the conduct of Lokman shows his mental state at the relevant time and would suggest that he had no culpable object or Intention in respect of the commission of the offence. We are, however, unable to accept this defence contention. May be that the accused Lokman was comparatively a timid person and was unable to reconcile himself wllh blood-shed when the same occurred as a result of combined and concerted assault with various weapons upon the D.C. May be that the role played by the accused Lokman was not as aggressive as exhibited by many other more ferocious co-participants, yet the fact remains that when the D.C. was being chased by a mob and the D.C. was running away for safety, he, I.e.. the accused Lokman also threw brickbats at him and later even participated in catching hold of him along with others obviously for facilitating the assault by other persons with various weapons and in fact, the D.C. was assaulted with various lethal weapons Including rod used by the accused Naso on the head of the D.C. The admitted partlcipalion of Lokman in the operation and in the manner described by Lokman in his stalemenl clearly makes out that the statement of Lokman is nothing else but a confession of the commission of the offence and participation by himself in a culpable way in the commission of the same. We fall to understand why the statement of Lokman should be treated as something falling short of confession. We are rather of the opinion that the statement even when taken as a whole and without excluding anything therefrom amounts to a clear confession of the accused Lokman that he participated in the commission of the offence of severely assaulting the D.C. with various dangerous weapons in which the different assailants took part in a conjoint operation obviously with a common object to commit the offence which was being committed and tn that operation Lokman took part by catching hold of the victim along with others while some other assailants were assaulting the victim with various weapons. His withdrawal from the scene at a later stage on seeing blood-head does not exonerate him from the culpability of his act or state of mind which he displayed upto that stage and this is enough for the purpose of finding him guilty of the charge framed against him under section 302/149 IPC, Inasmuch as the D.C. was put to death as a result of a brutal assault perpetrated on him conjointly by the assailants. May be that the D.C. was further assaulted in continuation of the earlier assault even after Lokman withdrew himself from the scene after seeing the blood-shed but that does not, we reiterate, exonerate Lokman from his participative culpability in the commission of the offence till the stage of his withdrawal. We have seen from the evidence of the Autopsy Surgeon that the head injury sustained by the D.C. obviously as a result of assault made by Naso with rod on the head of the D.C. was alone sufficient to cause death and that was done while Lokman was catching the victim along with others obviously for facilitating conjoint assaults not only by the rod but also by other weapons used by the assailants. The statement of Lokman fully satisfies the requirements of a confessional statement and we are also of the opinion that the same is not only voluntary but is also true as the same receives substantial corroboratlon and also coroboratlon in material respects from the other evidence on record, namely, that the D.C. In khankl uniform and his body guard in while uniform were chased by a riotous mob there on that day and at that time, and the D.C. took shelter in that premises where he was attacked and assaulted by the assailants as stated by the eye witness P.W. 24, Md. Hadls. It is true that Lokman has not been specifically named by Md. Hadls but the other descriptions of the Incident as given by Md. Hadls, in our opinion, lends corroboratlon to the material aspects as to how and in what manner the occurrence took place at the concerned premises regarding assault on D.C. Mehta. Such corroboratlon tn respect of material aspects by the evidence of Md. Hadls Inspires sufficient confidence to accept the confessional statement of the accused Lokman as true. That being so, we have no hesitation in accepting the confessional statement of Lokman as voluntary and true. We will discuss more about the confessional statements at a later stage. Here we would like to note that the evidence of P.W.26 Md. Mustafa and P.W. 38 Md. Narln also supported the prosecution case regarding the Involvement of the accused Naso in the commission of the offence, but these two witnesses could not be produced for further cross-examination at the retrial and that is why their evidence was not pressed into service at the retrial. It has been submitted on behalf of the appellants that although the Division Bench while directing retrial directed the evidence already on record to be taken into consideration in writing out a fresh Judgment in the retrial, yet their evidence cannot be taken Into consideration because they could not be produced for further cross-examination at the time of retrial. It may be noted here that the Division Bench while remanding the case for retrial directed that the judgment is to be written on the basis of the evidence already on record, the evidence to be brought on record pursuant to the order of retrial, and the further statements of the appellants, if any, made under section 313 Cr.PC and also directed the trial Judge to give the appellants opportunity of further cross examining the prosecution witnesses. As we have seen, P.W.26 and P.W. 38 who support the prosecution case in respect of the Involvement of the appellant Naso however could not be produced for further cross-examination at the retrial Insplte of best efforts made by the prosecution as their whereabouts could not be traced out. In the circumstances it appears to us that section 33 of the Evidence Act would be attracted. Under section 33 of Evidence Act the evidence given by a witness in a Judicial proceeding is relevant for the purpose of proving in a subsequent Judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or his presence cannot be obtained without an amount of delay or expense which the court considers undesirable, etc., provided the proceeding was between the same parties or their representstive-In-Interest and the adverse party in the first proceeding had the right and opportunity to cross-examine, and the questions in Issue were substantially the same in the first and in the second proceeding. In the present case, at the original trial Involving the same Issue the appellants not only had the right and opportunity to cross-examine both P.W.26 and P.W.38, but in fact they were also cross-examined in extenso. That being so, when Insplte of efforts those two witnesses could not be traced out at the time of retrial plainly their earlier evidence was admissible in evidence at the retrial in view of section 33 of the Evidence Act. It is needless to say that the directions of the Division Bench concerning retrial do not have any connotation that a piece of evidence which is already on record will be excluded from consideration at the retrial even if the same is otherwise admissible in evidence in accordance with the provisions of law. Therefore we are of the opinion that the earlier evidence of P.W.26 and P.W.38 can be taken into consideration at the retrial under section 33 of the Evidence Act although they could not be produced for further cross-examination at the retrial as they could not be traced out after so many years inspile of efforts. In this back-ground it is Interesting to note the submission made by the learned Advocate for the appellants in respect of the question of admlsslbllly of the confessional statement of the accused Nanney Kosal for consideration at the retrial against the appellant Naso. it has been contended in this connection by the learned Advocate for the appellants that though the Division Bench while directing retrial permitted the trial court to take into consideration the evidence already on record, yet that direction is not Intended to nor does tt supersede any provision of law. It has been submitted by the learned Advocate for the appellants that under section 30 of the Evidence Act the confession of a co-accused can be taken into consideration against an accused only if both of them are Jointly tried for the same offence. It is submitted that since the accused Nanney Kosal who was convicted and sentenced in the original trial did not prefer any appeal and since he was not being Jointly tried with the present appellants at the retrial his confession cannot be taken Into consideration under section 30 of the Evidence Act at the retrial relating to the present appellants. In this connection the learned Advocate for the appellants has referred to certain decisions namely Emperor v. Keramot Sardar, 16 CHN 49, Assistant Collector of Customs. New Delhi v. Harbans Lal Sharaf 1980 Cr.LJ 681 (Delhi) and Suresh Budharmal Katati v. State of Mahamstra 1998 SCC(Cr.l.) 1625. The learned Advocate for the appellants thus contends that Inspite of the direction of the Division Bench for taking into consideration at the retrial the evidence already on record the confessional statement of Nanney Kosal cannot be taken Into consideration at the retrial as that Is, in effect, prohibited by section 30 of the Evidence Act and the direction of the Division Bench cannot be construed to supersede any provision of law. We accept this contention and we are also of the opinion that the confessional statement of Nanney Kosal cannot be taken Into consideration now in the retrial against the appellant Naso because Naso and Nanney Kosal were not facing Joint trial at the retrial. But we fall to understand why this same logic should not apply in respect of the earlier evidence of P.W.26 and P.W.38, both of whom were cross-examined at length at the earlier trial but who could not be traced out and produced at the retrial Insplte of efforts. The direction of the Division Bench to produce the witnesses for further cross-examination at the retrial obviously cannot be construed to exclude the operation of a statutory provision, namely, section 33 of the Evidence Act. No doubt that under the direction of the Division Bench both those witnesses were also required to be produced for further cros's-examlnallon at the retrial. But then, in our opinion, the law should take Its own course if in spite of efforts those two witnesses could not be traced out and produced after so many years for further cross-examination at the retrial. In our opinion, section 33 is attracted in the circumstances and there is nothing in the direction of the Division Bench which can be construed as excluding the operation of a statutory provision of law that may be attracted under the law Itself in a particular situation. In our opinion. In the circumstances the earlier evidence of P.W.26 and P.W.38 can be taken Into consideration at the retrial as a matter of law. However, as a matter of fact we keep their evidence out of consideration, and we examine whether even without taking into consideration the earlier evidence of those two witnesses, namely, P.W.26 and P.W.38 the prosecution have been able to establish the concerned charges against the present appellants.</p><p>31. The learned Advocate for appellants contends that the appellants should have been examined under section 313 Cr.PC afresh in respect of the earlier evidence on record but that was not done and that being so, the entire earlier evidence in the case should be kept out of consideration and it should be held that the earlier evidence cannot be used against the appellants for finding them guilty of the concerned charges in the retrial. It may be mentioned here that in the retrial, after the further cross-examination of the witnesses produced by the prosecution were completed, the appellants were further examined under section 313 Cr.PC thereby giving them opportunity to tell whatever they wanted to tell yet. It may also be noted here that the prosecution did not adduce any fresh evidence in the retrial and only the witnesses who were earlier examined and whom the defence wanted for further cross-examination barring P.W.2G and P.W.38, were produced for further cross-examination and even then further examination under section 313 Cr.PC was done in the retrial so that the appellants might get further opportunity to say whatever they yet desired to say. There was absolutely no question of examining the appellants afresh under section 313 Cr.PC in respect of the entire evidence in respect of which they were earlier given opportunity to express their say under section 313 Cr.PC it is a desparate contention raised on behalf of the appellants in despair that the earlier examination of the appellants under section 313 Cr.PC should be altogether excluded and they should have been examined afresh under section 313 Cr.PC in the retrial even in respect of the evidence in respect of which they were given adequate opportunity earlier under section 313 Cr.PC The direction of the Division Bench in this connection also contalnes the expression 'thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure'. The Division Bench used the expression 'further examine' and not fresh examination and there is also absolutely no reason why the earlier examination under section 313 in respect of the evidence earlier adduced should be treated as a nullity in the retrial. The contention raised by the learned Advocate for the appellants in this respect is wholly unacceptable.</p><p>32. The learned Advocate for the appellants contends inter alia that the unexplained delay in examination of P.W. 24 Hadis Khan renders it unsafe to rely on his evidence, The incident took place on 18.8.84 andP.W.24 Hadls Khan, we get it from the evidence of P.W. 1 S.K. Bhattacharjee. the second I.O., was examined by him in the afternoon of 20.8.84 at G-222 Battikal Second Lane. Both the earlier I.O. (P.W.80) and the second I.O.(P.W.l) have as we have seen, described what they did respectively after taking charge of the Investigation. Hadis Khan, as we have seen, was rounded up at about noon on the 19th and placed in a police van that patrolled in the locality and then he and others were in the police lock up at the P.S. from 7-00 p.m. and were later released in the evening of the same date. The second I.O. P.W. 1 took charge of the Investigation in the evening of the 19th and thereafter, as we have see, he took charge of some of the arrested accused persons in the evening and took them to Lalbazar and Interrogated them and on the next day he took steps for producing them before the court and then went to the concerned locality and there he examined Hadls Khan as the first witness to be examined by him and also the mother of the Hadis Khan in the concerned premises. Having regard to the facts and circumstances we cannot say that there was any delay or leapse in the matter of examining P.W.24 Hadls Khan. The learned Advocate for the appellants in this connection has referred to certain decisions namely, Balakrishna v. State of Orissa 1971 Cr LJ 670. Babull v. State of Orissa, 1974 SCC(Crl.) 104 and State of Orissa v. Brambhananda : 1976CriLJ1985 . It is needless to mention that all those decisions are confined in their effect to the particular facts of the respective cases. In Batakrishna v. State of Ortssa (supra) the concerned witness was examined by the I.O. 10/11 days after the incident which definitely is not so in our present case. In the other two cases namely Babull v. State of Orissa and Slate of Ortssa v. Brambhananda (supra) the concerned witnesses did not disclose the names of the assailants to anyone at the earliest available opportunity and there was no satisfactory explanation for the same. In our present case, as we have seen, P.W.24 Hadls disclosed what he saw at the earliest available opportunity on the very same day to P.W.19 Khalll Khan and P.W.21 Abdul Latlf Khan. Having regard to the facts, circumstances and evidence on record we find no reason to disbelieve the evidence of P.W.24 Hadis Khan.</p><p>33. As regards the question whetehr the statement of appellant Lokman recorded under section 164 Cr PC amounts to confession we have earlier discussed and we reiterate our opinion that such statement amouns to confession. We have already discussed that the Magistrate gave all necessary cautions to the appelalnt Lokman before recording his confession and also gave adequate opporutnity for reflection in Jail custody as well as after the accused was produced before him and he recorded the confessional statement after he was fully satisfied that his confessional statement was made voluntarily and the same was true. We also find no reason to hold otherwise in this respect. H has been contended on behalf of the appellant Lokman that there is no other evidence against the said appeallant except his confessional statement and that, too the confessional statement was subsequently retracted by him and that being so no conviction can be based on the retracted confession alone. In this connection the learned Advocate for the appellants has referred to certain decisions of the Supreme Court, namely, Chandrafcant Chfnum Lal v. State of Gujarat 1992(1) Crime 233, Kashmlra Slngh v. State of M.P. : 1952CriLJ839 . It may be noted here that the decision in Chandrafcant Chfman Lal (supra) is virtually based on the earlier decision of the Supreme Court in Kashmlra S(ngh v. State of Madhya Pradesh (supra). In Kashmlra Sfngh (supra) the Supreme Court was concerned with the question how Tar the confession of an accused person can be used against a co-accused. It is evident from a reading of the said decision in Kashmir Stngh that the said decision was not laying down the law that an accused cannot be convicted on the basis of his own confession. Rather what was laid down in effect in that context in Koshmia Singh is that an accused cannot be convicted on the basis of the confessional statement of the co-accused. On the other hand, the learned Advocate for the Slate has referred to certain decisions which we mention below regarding the use of confession. In Sarwan Stngh v. State of Punjab. : 1957CriLJ1014 , it has been held that in law it is always open to the court to convict an accused on his confession Itself though he has retracted it at a later stage and that nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement and that what amount of corroboratton would be necessary in such a case would always be a question of fact to be determlend in the light of the circumstances of each case. In Madi Ganga v. State qj Orfssa 1981 SCC (Crl) 411 it has been held by the Supreme Court that the accused can be convicted on the basis of the confessional statement if the general trend of his confession is substantiated by other evidence. In Param Hans Yadav v. State of Bihar 1987 SCC(Crl) 322 it has been held that although the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial the same can only be used for lending assurance to any substantive evidence. The law on the point has been very succinctly laid down by the Supreme Court in Sfirfsfiad Waaeshl v. State of Maharastra 1985 Cr LJ 1173 where it has been held that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboratlon from other Independent sources and that it can not, however, be the basis for convicting the co-accused though it may be taken Into consideration against the co-accused also. That being the law, it is evident that the retracted confession of the appellant Lokman can form the basis of his conviction if it has received general corroboratlon from other Independent sources as it has in our present case. We have seen that the appellant Lokman made an elaborate statement as to how the offence was being committed upon V.K. Mehta, D.C. by a group of assailants, some of whom were armed with deadly weapons, and as to the place where it occurred and how he participated in that operation. The manner in which the offence was committed upon V.K. Mehla in the concerned premises and how he was chased in that premises and assaulted are in such details that the vivid description itself lends an assurance of credibility for the confessional version. These details, as we have seen, are again corroborated in material particulars by the evidence of P.W.24 Hadts Khan. We have also seen that there.was an Inordinate and unexplained delay in retracting the confession. Having regard to the facts and circumstances, we have therefore no hesitation in accepting that the confessional statement of Lokman as made voluntarily and the same is true and is corroborated generally as well as in material particulars by the other independent evidence, namely, the evidence of P.W.24 Hadis. He have also seen that the appellant Lokman participated in catching hold of the unfortunate victim D.C., Mehta while he was being assaulted by the accused Naso with rod on his head and by other assailants with various lethal weapons on the other vital parts of the body of the victim. There is therefore no escape from the conclusion that the appellant Lokman is guilty of the charge framed under section 302/149 IPC in spite of the fact that at certain stage of the operation he might have withdrawn himself from scene while the others were yet carrying on the operation.</p><p>34. As regards the involvement of the appellant Naso we find no reason to discard the evidence of P.W. 24 Hadis. We have also seen how. Hadls reported to P.W. 19 and P.W.21 what he saw, on that very day. He clearly implicates the appellant Naso and from his evidence it appears that Naso delivered two blows with rod on the head of the D.C. Mehta while he was in unarmed condition. We have also seen that P.W. 16 Ramashankar Slngh has also deposed that he saw Naso amongst others in the mob with bombs. P.W.21 Abdul Latif Khan also saw Naso with others near deadbody and all were armed. We are therefore convinced that Naso was Involved in the commission of the offence along with others and this receives, additional assurance of truth when the confessional statement of the co-accused Lokman is taken into consideration under section 30 of the Evidence Act. We are also convinced from the evidence on record Including the postmortem doctor that the blow which Naso delivered on the head of V.K. Mehta with rod Itself was fatal. It is true that others also assaulted V.K. Mehta with various weapons and V.K, Mehta met with a tragic and as a result of all the assualts on him. The learned Advocate for the appellants submits that even if the prosecution evidence is taken at Its face value yet it is not clear whether the entire assault was held at premises No,G-222and whether some part of the assaults were carried on after taking away V.K. Mehta from that premises. In our opinion this is immaterial in view of the evidence of assault which is on record and the nature of the Injuries described by the Autopsy Surgeon. It is neither expected nor required that the prosecution must prove the entire operation second by second by a cinematographic display of the actions from the start to finish. The direct evidence of chasing of V.K. Mehta by the assailants and the participation of the appellant Naso in the concerned operation of assault on the victim with deadly weapons at premises No.G-222 and the description of the Injuries found by the autopsy surgeon on the deadbody of V.K. Mehta and his opinion about the effect of the same, are sufficient to hold the appellant Naso guilty of the charge framed against him under section 302/149 IPC for the murder of V.K. Mehta. Accordingly we hold both the appellants Naso and Lokman guilty of the charge framed against them under section 302/149 IPC for the murder of V.K. Mehta.</p><p>35. As we have seen, it is in evidence that the deadbody of V.K. Mehta with Injuries was recovered on that very day by the police party from a drain in that locality. From the facts, circumstances and evidence on record there is no doubt that the assailants of V.K. Mehta had thrown the deadbody in the drain, obviously with a view to avoiding easy detection of the evidence of the crime. There is evidence, as we have seen, that Naso participated in assaulting V.K. Mehta. P.W.21 Abdul Latlf Khan, as we have seen, while coming back to his house and reached Battlkal Second Lane at about 12-30/12-45 p.m. noticed some persons armed with weapons present near a deadbody lying by the side of the kancha drain there and he also found the appellant Naso amongst those persons who were all armed. His evidence is that Naso was standing 2 cubits away from the deadbody. He also says that later at the police station he learnt that the deadbody of the Dy. Commissioner was recovered from the place where he had earlier seen the deadbody. Circumstantially the conclusion becomes irresistible that the deadbody was thrown Into the drain there and it must have been done by those persons who vere found present there beside the deadbody. And Naso was one of them, in the circumstances we are of the opinion that the conviction of the appellant Naso under section 201/149 1PC is justified. We are also of the opinion that his conviction under section 148 1PC is also warranted and Justified.</p><p>36. Now we consider the question of sentence so far as the offence under section 302/149 IPC is concerned. Both the appellants Naso and Lokman have been sentenced to death by the trial court for their conviction under section 302/149 1PC in respect of the murder of V.K. Mehta, the Dy. Commissioner of Police, Port Division. The learned Advocate for the appellants contended, without prejudice to his other contention that the appellants were entitled to an order of acquittal, that this was not at all a fit case for death sentence even if the conviction were upheld. In this connection he referred to the decisions in Bachhan Stngh v. State of Punjab, : 1980CriLJ636 , Rajendra Prosad v. State of U.P. : 1979CriLJ792 , Digambar Gope v. State of West Bengal 1997 C.Cr.L.R.(Cal) 139 and Rabindra Prida v. State of West Bengal 1995 C.Cr.L.R (Cal) 210 etc. On the other hand, the learned Advocate for the State has referred to the decisions in Shlo Mohan Stngh v. State 1977 SCC(Cri) 324, Gayasi v. State of Uttar Pradesh. 1981 SCC(Cri) 590, Jay Kr. v. State of Madhya Pradesh 1999 111 AD(Cr.) SC 33 and 1987 SCC(Cri) 322. etc. Indeed it is now a settled law that for an offence of murder life Imprisonment is the normal sentence while the death sentence should be Imposed only in the rarest of rare cases. The guidelines for determining the case where death sentence can be Imposed are to be found in the decisions of the Supreme Court in Bachhan Singh : 1980CriLJ636 , Mechhi Singh v. State of Punjab : 1983CriLJ1457 , Kama Tewari v. State of Madhya Pradesh, 1996 Cr.L.J. 4158. etc. In going to decide whether in a particular case death sentence should be imposed or not the aggravating and the mitigating circumstances in respect of the concerned accused are required to be taken Into consideration. In Jay Kr. v. S(ate p/M.P,(supra) it has been observed by the Supreme Court that the law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment and that while it is true that a sentence disproportionately severe, ought not passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly Inadequate having due regard to the nature of the offence since an Inadequate sentence would fall to produce a deterrent effect on the society at large. It has been further observed therein that punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, but rather for having its due Impact on the society and that while undue harshness is not required yet Inadequate punishment may lead to sufferance of the community at large. In Shtv Mohcin Sfngh v. The State (supra), it has been Inter alia observed by the Supreme Court that the heinousness of the crime is a relevant factor in the choice of the sentence. In Gayasi v. State qfU.P. (supra), the Supreme Court while confirming the death sentence in a case where the victim was a public servant and was murdered while performing his public duties observed that such crimes committed against Public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.</p><p>37. Now let us look to the circumstances in which the crime has been committed in the present case. On receiving information that a disturbance was going on in the concerned locality, V.K. Mehta, the Dy. Commissioner of the Port Division rushed to the spot and the other officers and force also joined him. He of course had no arms or weapon with him. He led the police party for restoring normalcy in the disturbed area. At that time the police party was attacked by the furious mob with brickbats, bombs and the policeparty headed by the Dy. Commissioner took shelter in a mosque. Underthe pressure of the violent and armed mob the Immam of the mosque askedthe police party to leave the mosque. In the circumstances the police partyhad to leave the mosque. As soon as they came out of the mosque theywere again attacked by the violent mob. The D.C. and his body guard MoktarAll proceeded in one direction while the Assistant Commisloner and theother members of the police party could retreat in a different direction. Whilethus retreating the members of the police party were attacked by themembers of the mob as a result of which the Assistant Commissioner andsome other members of the party sustained Injuries. Unfortunately, howeverthe Dy. Commissioner and his body Guard Moktar All proceeded in adifferent direction Isolated from the other members of the police party andthey were also chased by an armed mob. Both the D.C. and his body guardMoktar All were in police uniform. They were there to perform their officialduties to restore peace and maintain law and order. Insplte of that withoutany provocation from them they were hounded up by the ferocious mob asa result of which the D.C. and hts body guard also became separated fromeach other. The body guard was brutally killed by some of the assailants,and the D.C., while on the run for life and safely took shelter in G-222Battlkal Second Lane but there also the chasing mob followed him. In hishelpless bid the D.C. fervently disclosed to his assailants that he was D.C.of police hoping that the same would have a sobering effect on theassailants, but the assailants were in a devellsh mood and even proclaimedthat the they did not care for D.C. An isolated senior police officer of therank of a Deputy Commissioner who had been there for restoring peace andfor maintaining law and order in discharge of his official duty helplesslyfound himself pitiably doomed in a death trap under the devilish controlof the ferocious assailants while he himself was totally unarmed. There wasabsolutely no provocation from the side of the Deputy Commissioner. It wasthe bounden duly of everyone present there to assist the D.C, in discharge of his official duty to restore peace and maintain law and order but Instead, the assailants took devellsh pleasure in committing the diabolical murder of the D.C. In a dastardly manner. The brutality of the assailants on the helpless D.C. can be readily measured by the number and nature of Injuries found by the Autopsy Surgeon on the deadbody. The appellant Naso, as we found, took the lead role as the pioneer in the matter of actual assault on the D.C. after getting him in virtual capacity. Ignoring the appeal of the D.C. as reflected in the fervant disclosure of his Identity the appellant Naso delivered blow with rod on the head of the D.C. from the front side obviously with enormous force so much so that the helmet of the D.C. fell down from his head and the appellant Naso took that opportunity to deliver a second blow on the bare head of the D.C. with the rod and the beastly operation was followed by assaults by others with different other deadly weapons. The Impact of the assault made by the appellant Naso has been projected by the evidence of the Autopsy Surgeon. The head Injury sustained by the D.C. was sufficient to cause death in the normal course. The role played by the appellant Naso in making the dastardly and deadly assault on the helpless and unarmed D.C. who was on duty is studded with such mainfestatlon of depraved ferocity that the case unrringly comes within the arena of a rarest of rare cases. The tragic death of a brave and dutiful public servant in a circumstance like this is sure to have a macabre effect on the society at large and also a demoralising Impact on the public service in particular, unless the justice delivery system matchlngly responds to nuelralllse the same in the Interest of the peace-loving segment of the society. In our considered opinion, and having regard to the facts and circumstances we have no hesitation in holding that this is a fit case where the appellant Naso deserves death sentence in the Interest of the society at large. There is absolutely no mitigating circumstance for awarding the alternative sentence of life Imprisonment to the appellant Naso. In the result we confirm the death sentence Imposed by the trial court on the accused Naso for his conviction under section 302/149 1PC. However, having regard to the low-profile role played by the appellant Lokman Shah we are of the opinion that in his case death sentence need not be Imposed and the alternative sentence of Imprisonment for life for his conviction under section 302/149 1PC will meet the ends of justice. In the result the death referred in respect of the accused Naso is hereby accepted and the appeal filed by him is dismissed. The death sentence as well as the other sentences Imposed upon the appellant Naso by the trial court are all confirmed. The death reference relating to accused Lokman is however rejected and the death sentence Imposed on him by the trial court is set aside and Instead of death sentence, the sentence of imprisonment for life is imposed on the appellant Lokman for his conviction under section 302/149 IPC. Subject to above modification of sentence for conviction under section 302/149 IPC the appeal preferred by the appellant Lokman stands dismissed.</p><p>M.K. Basu, J.</p><p>38. I agree.</p><p>39. Older accordingly<p></p><p>',
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G.R. Bhattacharjee, J.

1. Both the above noted Death Reference and the criminal appeal are being dealt with and disposed of by this Judgment as they arise out of the same Judgment of the 3rd court of Additional Sessions Judge, Allpore. The trial court by its judgment and order dated 26-8-92 acquitted the accused Sanda Akhtar and the accused Hossaln Chowdhury but convicted the accused Naslm @ Naso and the accused Lokman Shah under section 302/149 IPC and further convicted the accused Naso under sections 148, 201/149 IPC. Subsequently after giving a hearing on the question of sentence the trial court by Its order dated 31-8-92 sentenced both the accused Naso @ Naslm and Lokman Shah to death for their conviction under section 302/149 IPC for the murder of V.K. Mehta and also sentenced the accused Nase to R.I. for 3 years and fine of Rs. 2.000/- i.d. to R.I. for 6 months for the offence of rioting punishable under section 148 IPC and also sentenced him to R.I. for 3 years and a fine of Rs. 2,000/-I.d. to R.I. for 6 months for the offence punishable under section 148 IPC and also sentenced him to R.I for 7 years and a fine of Rs.6000/- I.d. to R.I. for 1 year and 6th months for the offence punishable under section 201/149 IPC. The substantive sentences of Imprisonment were directed to run concurrently. The trial court then made a reference to this court under section 366 Cr.PC for consideration of confirmation of the death sentence Imposed upon the two accused Nase and Lokman. Correspondingly the said two accused have preferred appeal to this court against the judgment and orders of conviction and sentences passed by the trial court. As we have already noted both the death reference and the criminal appeal are being dealt with and disposed of simultaneously by this Judgment.

2. It may be noted here that on an earlier occasion the trial court In a trial on the same charges and others passed Judgment and orders of conviction and sentences In S.T. No. l(6)/88 and on that occasion four accused persons namely Naso and Lokman (the present appellants) along with the accused Akhtar (c) Sanda Akhtar and Hossaln Chowdhury were Inter alta convicted under section 302/149 IPC for the murder of V.K. Mehta and sentenced to death. There were also other sentences In respect of different accused persons on that occasion. It is however to be noted specifically here that on that occasion the accused Nanney Kasai was convicted under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and sentenced to R.I. for 6 years and he was further sentenced to R.l. for 2 years for conviction under section 148 IPC with the direction that both the sentences would run concurrently. The said accused Nanney Kasai. we are told, did not prefer any appeal against the conviction and sentences Imposed on him and he rather preferred to undergo the sentences imposed on him by the trial court The four accused named above who were sentenced to death however preferred appeals against their conviction and sentences which were all heard together by a Division Bench of this court along with the death reference for consideration of confirmation of death sentence Imposed upon them by the trial court. The Division Bench hearing the said death reference and the connected criminal appeals disposed of the same by Judgment dated 8-7-91 by which the death reference was rejected and the appeals were allowed and retrial of the said four appellants-accused persons by the trial court was directed to be held In respect of the charges for which they were found guilty by the trial court. The precise ground on which the retrial was directed was that the trial court allowed the prayer of amendmenl of certain heads of charges at the stage of argument at the behest of the learned Special Public Prosecutor, thereby making amendment In respect of the names of the places of occurrence in the concerned charges. In view of such amendment In the concerned charges at the stage of argument before the trial court, the Division Bench hearing the earlier appeals and the death reference felt that the accused persons ought to have been given an opportunity by the trial court to cross-examine the prosecution witnesses after alteration of charges, and only on that ground the Division Bench considered It proper, without entering Into the merit of the prosecution case, to direct retrial of the case by the trial court In the manner directed by the Division Bench which we will mention hereafter. But before that we briefly describe the nature of charges framed against the accused persons including the present appellants. The first charge was one under section 148 IPC for rioting. The second charge was one under section 302/149 IPC for the murder of Mokhtar All, a police constable In white uniform. The third charge was one under section 302/149 IPC for the murder of V.K. Mehta, D.C. Port Division., In Khanki uniform. The fourth and the fifth charges were under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta and Mokhtar All respectively. The sixth and last charge was under section 324/149 IPC for causing hurt to K.K. Sharma, Asstt. Commissioner of Police (II), Port Division and to Rama Shankar Slngh, constable.

3. The direction of the Division Bench for retrial was couched In the following language :--

'On the conclusion as above, we set aside the order of convictions recorded and sentences Imposed upon the four appellants before us and direct their retrial only in respect of those charges for which they were found guilty by the learned trial Judge. In the retrial the learned Judge will give the appellants an opportunity of further cross-examining those witnesses of the prosecution, who had earlier deposed In respect of the above charges and thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure. The four appellants should then be given an opportunity to adduce evidence on their behalf. On the basis of the evidence already on record, evidence to be brought on record pursuant to this order, and the further statements of the appellants, If any, made under' section 313 of the Code of Criminal Procedure, the learned Judge will write out a fresh judgment after hearing the arguments of the parties. By way of abundant caution, we reiterate that the retrial, in terms of this order Is to be confined to the four appellants only and that too only in respect of the charges for which they were found guilty. Since the appellants are In custody for a pretty length of time, we direct the learned trial Judge to conclude the retrial as expedltiously as possible, preferably within a period of two months from the date of communication of this order. Till then, the four appellants shall continue to remain in custody.

The appeals are thus allowed and the reference made by the learned Judge under section 366 of the Code of Criminal Procedure is rejected.

Consequently the retrial was required to be confined to the charge under section 302/149 IPC against the four accused persons, namely, Naso, Lokman, Sanda Akhtar and Hossain Chowdhury, for the murder of V.K. Mehla and also against the accused Naso to the charge under section 201/149 IPC for causing disappearance of the evidence of murder of V.K. Mehta as well as under section 148 IPC for rioting.

4. The trial court held the retrial pursuant to the above noted direction of the Division Bench. The witnesses whom the accused persons desired to further cross-examine In the retrial were produced by the prosecution and were cross-examined. However, at the retrial the prosecution could not produce two of their Important witnesses namely P.W. 26, Md. Mustafa and P.W. 38. Md. Narln as they were not traceable and this fact was recorded by the trial court In Its order No. 295 dated 28-2-92. Be that as It may, on retrial the accused Sanda Akhtar and the accused Hossaln Chowdhury were given the benefit of doubt and were acquitted and this had to be done, as it appears from paragraph 32 of the Judgment of the trial court, mainly because the evidence of the two prosecution witnesses, namely, P.W. 26 and P.W. 38 were not taken Into consideration as they could not be produced for further cross-examination at the retrial. In paragraph 33 of the Judgment of the trial court, it Is recorded in that connection that the learned Special Public Prosecutor after taking sufficient opportunity finally expressed his Inability to produce those two witnesses and also pointed out that after a lapse of nine years the whereabouts of those witnesses could not be ascertained and It may be that for fear of life they had absconded. However, at the retrial the trial court convicted and sentenced the appellants-accused Naso and Lokman as noted earlier and thereafter made this reference under section 366 Cr.PC for confirmation of death sentence Imposed on them. The said two appellants have also preferred criminal appeals against their conviction and sentences.

5. The prosecution case has been succinctly stated in the earlier judgment of the Division Bench and we restate the same. The prosecution case in a nutshell is that in the morning of March 18, 1984 communal disturbances broke out at Fathepur Village Road under the Garden Reach Police Station and its adjoining areas which fall within the Port Division of Calcutta Police. On getting information of the disturbances Sri Vinod Kr. Mehta, the then Dy. Commissioner of Police of the Port Division went there alongwlth his securily guard Moktar All. Sri K.K. Sharma (P.VV.7), who was the Asstt. Commissioner of Police of that Division then, also reached there along with his security guard R.S. Singh (P.W. 16) and other police officers. When the police personnel tried to restore peace and normalcy, they were attacked by a riotous mob with brick-bats, bombs etc. To avoid mob fury, Sri Mehta and others entered into a mosque but as they were not allowed to remain there by its [mam, they came out. Then they were again attacked with bombs and other lethal weapons and finding no other alternative Sri Mehta took shelter In the house of Abdul Latif Khan (P.W. 21). a constable attached to the Calcutta Police, at G.222 Battikal Second Lane. Moklar All. In his return, took shelter In a near-by house at Dhankhettl. Unfortunately, however they could not save their lives as they were hacked to death by the riotous mob. Subsequently, the charred body of Moktar All was found In an open space near the premises where he took shelter, while that of Sri Mehta bereft of his uniform, was found floating in a drain near premises No. F/59, Attabag with multiple Injuries on his person. Sri K.K. Sharma and his security guard were also attacked by the riotous mob and injured but fortunately they could save their lives by running away. Sri Sharma lodged an Information about the incident in the evening and on that information Garden Reach Police Station registered a case against 150/200 unknown persons for the murder of V.K. Mehta and Moktar All and for assault on Sri K.K. Sharma and other police personnel. S.I., S.R. Ganguly (P.W. 80) of Garden Reach Police Station took up investigation of the case but under orders of superiors Investigation was subsequently taken up by S.I., S.K. Bhattacharjee (P.W. 1) of the Detective Department (Homicide Squad) of Calcutta Police who submitted charge-sheet.

6. Having described above the genesis of the present appeal, the charges framed, the prosecution case in a nut-shell and the scope of retrial, we now proceed to examine the merit of the prosecution case on the basis of the facts, circumstances and evidence on record. It Is needless to mention that we are now concerned mainly with the case against the two appellants Nase and Lokman. At the very out set. we may mention here that ext. 3/1 Is the site plan which will be of great assistance in appreciating the facts, circumstances and evidence on record Including their co-relation in respect of different aspects of the matter. We may here also adumbrate a broad categorisation of the different types of prosecution witnesses. P.W. 80, Santl Ranjan Ganguly, S.I. of Police who was attached to Garden Reach Police Station at the relevant time is the first I.O. of the case. P.W. 1, SaroJ Kr. Bhattacharjee, S.I. of Police attached to Homicide Squad. Detective Department, Calcutta Police is the second I.O. who submitted charge-sheet after Investigation of the case. P.W. 2 Is the plan maker. P.Ws. 3, 4, 5 and 6 are photographers. They are all police personnel. P.W. 65 Is a private photographer. P.W. 7, K.K. Sharma is the Assistant Commissioner of Police, Port Division who lodged the FIR and P.Ws. 8, 9, 10, 11. 12, 13 and 16 are all police personnel who had been to the disturbed area for restoring law and order there. P.Ws. 15. 18, 20. 22, 23, 25. 27. 28, 29. 34. 35, 36. 37 and 48 were all declared hostile by the prosecution. However, of the said hostile witnesses, we may have to discuss the evidence of some, namely P.Ws. 15, 18, 20, 22, 23 and 25. The main prosecution witnesses Implicating the present appellant Nase are P.Ws..16, 19,21 and 24. The other two vital witnesses P.Ws. 26 and 38 however, could not be produced for further cross-examination at the retrial. P.W. 46 Is the Autopsy Surgeon who held the post-mortem examination on the dead-body of V.K. Mehta. P.Ws. 44, 66 and 67 are also medical witnesses. P.W. 47 is the Judicial Magistrate who held T.I. parade. P.W. 51 is the Judicial Magistrate who recorded the confessional statements of the two accused Nanney Kosal and Lokman Shah on 3-4-84 and 9-6-84 respectively (vide ext. 13 and ext. 14).

7. We will now discuss the evidence of some witnesses from which we will get an Idea of the nature of the Incident that took place on 18-3-84 in the concerned locality. P.W. 7, Sri K. K. Sharma was posted at the relevant time as Assistant Commissioner of Police (II). Port Division. He says that late V.K. Mehta was his Dy. Commissioner and he died on 18-3-84. It may be noted here that It is In evidence that 18-3-84 was a Sunday and It was the day on which 'hoiI' festival.was being celebrated. It is the evidence of Sri K. K. Sharma (P.W.7) that on that day while he was at his house he received a telephone from Port Division. Telephone Exchange at about 10-45 a.m. to the effect that a trouble was going on at the Junction of Falherpur Village Road and Paharpur Road and that the D.C. Mr, Mehta wanted his presence there. Then he proceeded to the place In a Jeep accompanied by his body guard Rama Shankar (P.W. 16) who was well acquainted with that place and they reached there at about 11 -30 a.m. and found brick-bats lying on the roads and remants of exploded bombs and he also saw a huge gathering. He also heard nofsy sounds. He says that he saw some local police officers standing there and seen D.C. Port accompanied by one Mr. Sen and local leader came to that place accompanied by some agitated persons and the D.C. told him that they would go out and see what was going on and then he, his guard, D.C., his guard Moktar All and 5/6 armed constables proceeded along the Fatherpur Village Road and entered the Mathorpara Basil and found agitated crowd on both sides of Mathorpara Bastl Lane. According to his evidence they proceeded further and came near Ramnagore Lane when brick-bats, bombs etc. were hurled at them and It was about 11-45 a.m. at that time. He says that there Is a mosque near the place where the Mathorpara Bast! approach meets Ramnagore Lane. His evidence is that due to heavy brick batting and bomb throwing D.C. asked them to take shelter Inside the mosque and In order to save themselves they entered Inside the mosque. He describes that there Is a collapsible gale at the back portion of the mosque and they entered the mosque through the front gate and after some time they noticed that a riotous mob of about 40/50 persons were trying to break open collapsible gale of the mosque and those persons were armed with brick-bals, bombs, swords, daggers etc. and Ihen the Imam of the mosque told them to leave the mosque and then the D.C. told him that they would have to leave the place and to go out and had also some discussion regarding their future course of acllon and also told him lhal they were to disparse the violent mobs. According to him the D.C. further told him that he (A.C.) should try to disperse the mob from Mathorpara Bastl approach and Ramnagore Lane junction while D.C. would disperse the mob from eastern side of the mosque. He estimates that there were about 400/500 persons around the mosque, and say that when they came out he noticed the D.C. In the midst of a crowd and was going towards the east. His evidence is that bombs and brickbats were thrown at them and he was surrounded by some persons and they forced him to sit on the ground and someone took off the helmet from his head and he was praying to God for his life and one person started hitting on his head with a full brick ('then if). He also noticed that some persons had daggers and swords with them. He says that he received bleeding Injury on his head and he was more or less senseless at that time and after some time somehow he managed to get up and could, with difficulties, reach the place wherefrom they had earlier proceeded towards the mob. He says that when he was made to sit forcibly by the mob, the situation was such that he could notice where his security guard was and where the other armed constables were. He also did not see his security guard subsequently on that date. His evidence Is that he met the D.C. Head Quarters, D.C. S.B.-I who were standing there at the place where he returned after sustaining injury, namely, near the junction of Paharpur Road and Fathepur Village Road and on seeing his condition the D.C. Head Quarters advised him to go to Calcutta Hospital for treatment and also ordered one sergeant to accompany him to the hospital and he then went to the Calcutta Medical Research Institute and was treated there. His evidence Is that he reached the hospital at about 12-15 p.m. and his Injury on the head was stitched and from there, Ignoring the advice of the doctor to take admission in the hospital, he went to Lalbazar and reached there at about 2-00 p.m. and met the Commissioner of Police (C.P.) and other high officials and narrated the Incident and from Lalbazar he went home as per the direction of the C.P. His further evidence Is that while at home he got a message that Police Commissioner had gone to the spot and he should go there and then he went to the spot and met the superior officers and came to know that the dismembered charred body of the body-guard of D.C. Mehta had been found in an open space and he also saw the charred body which was beyond recognition to him. He gave the name of the body-guard as Moktar All. He says that he also noticed that metallic buttons used by police constables were lying near the charred body and also found remnants of white uniform used by Calcutta Police Constables. According to his evidence D.C., Port Division V.K. Mehta was still untraced and they conducted search for him and on search the body of V.K. Mehta was recovered from a Kancha Nala and it was found that socks were on his feet and both legs were tied with a rope and he was wearing only one Jangea and the Galnjee was rolled up to his chest and the body had multiple marks of injuries In the eyes, face, chest and other parts and the body was sent to morgue for post-mortem examination. From his evidence it appears that In the T.I. parade he Identified the accused Sk. Nanney and in his evidence he says that he saw the said accused (Nanney) when they were coming out of the mosque. In a very violent and aggreslve mood with a bomb In his hand and he was shouting. His evidence is that after the bodies were sent to morgue, he went to Garden Reach Police Station and there S.I., Santf Ranjan Ganguly (P.W. 80) recorded his statement which was signed by him after going through the same. His statement which was recorded and treated as FIR was marked Ext. 4. In his cross-examination he says that he made the statement to the S.I. at about 8-05 p.m. He also clarifies that the statement fn the FIR (Ext.4) 'after seeing Commissioner of Police I came back to the spot at about 15 hours' is not correct, because he went home from Lalbazar and from home he went to the spot. This he has said In his examination-in-chief and we do not think that there is any substantial discrepancy In the matter. In his cross-examination he says that the police vehicles were parked near the crossing of Paharpur Road and Fatherpur Village Road since the vehicles could not got through Mathorpara. He also says that he was assaulted at Ramnagore Lane near a place where Mathorpara Road meets Ramnagore Lane and after the assault he went to the crossing of Fathepur Village Road via Mathorpara Lane. He says that at Lalbazar he came to know that V.K. Mehta and his body guard were still missing. He also says that dusk to dawn carfew was Imposed in that area on 18-3-84 and he was Informed at the P.S. that section 144 Cr.P.C. had been also promulgated in that area. He says that after the incident due to his Injuries he was completely on bed rest for two months. In his cross-examination in the retrial, he says that the dead body of V.K. Mehta was recovered from a Kanchha Nala and he saw It when it was taken out from that Nala. He however did not see the actual bringing out of the body from the Nala. He first saw the dead body, he says, by the side of the road where It was kept after bringing the same out from the nala. His further evidence Is that about 8 to 10 police personnel Including himself and D.C. Mehta were Inside the mosque and while some of the police personnel were not armed, some were carrying muskets and gas shells. It may be noted here that Ext.4 which Is the statement of P. W. 7, K.K. Sharma that was recorded as FIR on 18-3-84 stands In substantial conformity with the evidence of P.W.7. Sri K.K. Sharma as given in court.

8. P.W. 8, Sayed All Reza Is an armed constable of police. His evidence is that on 18-3-84 he reported to Lalbazar for duty at 6 a.m. and his duty was allotted to Watgunge P.S. and he went there with a gas gun, and that while he was In that P.S. on standby duty at about 10/10-15 a.m. the Subedar reported that a trouble was going on In Garden Reach area and they were required to go there and accordingly they left for Garden Reach and reached there at about 10-30/10-45 a.m. He says that he saw D.C. Mehta, A.C. and olher police forces and police officers present there and then D.C. Mehta proceeded Inside the bastl along with A.C.. the witness (P.W.8), guards of D.C. and A.C., 5 armed constables, 2 plain clothed constables and 3 police officers In plain cloth. He says that after entering Inside the basti they found a dead body lying there and D.C. asked two police men to guard the dead body and three police officers In civil dress were asked to bring a vehicle and pick up the body. He says that they heard noise coming from Inside the bastl and also heard sounds of bombs and then D.C. Mehta alongwith A.C. proceeded Inside towards that direction and they were with them and when they reached the road through the lane near the mosque they were attacked from both sides of the road and they took shelter in that mosque with the help of a Moulabl and members of the mob were throwing bombs, brick-bats and they had lathi, rods also with them. He says that he noticed that about 20/25 bombs were hurled towards them and when they took shelter In the mosque, a violent mob being armed with weapons were trying to break open the back side collapsible gate of the mosque and the Moulabl was also threatened by the mob with dire consequence if he did not drive out the police parly from the mosque and then on being asked by Moulabl they came out of the mosque and they were attacked with bomb and brick-bats and then the A.C. ran inside the lane through which they had reached the road and they also followed him. He says that as soon as he entered inside the lane he saw that the A.C. was being assaulted on his head With a brick and his helmet was missing. According to his evidence he tried to fire gas from his gun but the gun did not work and then using the gun as a lathi he gave a blow to a boy who was assaulting the A.C. He further says that when he hit that boy with the gun the gas shell burst out. He however says that he could not recognise the boy who assaulted the A.C. with the brick on his head as trouble was going. He further says that when the gas shell burst out, all of the persons fled away from the place and A.C. then stood up and started walking slowly with bleeding Injuries on his head. P.W.8 says that he also received a brickbat blow on his leg when he was going to enter inside the lane after coming out of the mosque. His evidence is that he followed the A.C. keeping watch on the back side and In this way they reached the place where they had come from watgunge P.S. and at that time he noticed the presence of D.C. Headquarters at that place alongwith other police officers and constables and they had a talk with the A.C. His evidence Is that he reported to one police officer that D.C. Mehta had been separated from them and on hearing this the D.C. Headquarters proceeded inside the basti alongwith them in order to ascertain the situation. He says that it was then about 1/1-30 p.m. and he took the D.C. and the others to the mosque and on his way he reported the entire incident to the D.C. Headquarters. He says that the D.C. Headquarters started asking the people of the locality regarding the whereabouts of D.C. Metha and on receiving one information they went to an open space on Ramnagore Lane and saw that a human body was burning. He further says that they noticed a piece of white uniform and a nickel button used by constables lying near that place and so he guessed that It was the body of the guard of D.C.Mehta. That place, he says, is near the mosque. His evidence is that then he and other police constables remained at that place where the dead body was burning and the other police officers went to other place and then at about 5-30/6-00 p.m. they come to know that the dead body of V.K. Mehta had been traced out. His further evidence is that he saw that a dead body was placed by the side of a drain in a lane and the dead body was covered with a white cloth and a police officer lifted that cloth and he found that it was the dead body of Mehta with marks of injuries. In his cross-examination he says that he was 3/4 cubits behind the A.C. when the A.C. was being assaulted and as he was threatening the mob with the gas gun he was not assaulted by any person of that mob. He gives the time as 2/2-30 p.m. when he noticed that the dead body was burning. P.W.9 is also an armed constable attached to the 5th Battalion. He was also sent on duty to Garden Reach area on 18-3-84 after 10-00 a.m. He says that in their party there were 4 armed constables and four had gas guns and some others had lathies and one inspector was with them. His evidence Is that on reaching Paharpur they found a gathering and also heard shouts and D.C. Port, A.C. and other police officers were present at that place. His further evidence Is that D.C. Port, asked four armed constables and four constables with gas guns to accompany him in the adjacent lane and they entered in the lane and after going some distance found a house in blaze and the D.C. placed two armed constables to guard that house and then they along with D.C. were proceeding through an adjacent baeti area and noticed a dead body and D.C. ordered two local police men to guard the dead body and they proceeded further and came to a road near a mosque and when they were on that road they were attacked from both sides with brick-bats, bombs and on being attacked they entered inside the mosque. He says that there were 60/70 persons on both sides of the road. His evidence is that then some persons were trying to break open the gate of the mosque and the Moulabl asked them to get out of the mosque and they came out of the mosque and they were attacked with bombs and brick-bats. He says that he took shelter in a chala and also threw his gas granade but the granade did not burst. He says that from the Chala he came out and started running and he met the A.C. and other police men. He says that A.C. had bleeding injury on his head and finally he boarded the lorry. in his cross-examination he says that D.C., A.C., himself and other police men were together up to the mosque of Paharpur.

9. P.W.10 is another armed police constable. He was also sent on duty to that place on that day. His evidence is that when they came to the Junction of Paharpur Road and Fathepur Village Road, D.C. Port, V.K. Mehta, his guard, A.C. Port Mr. Sharma, his guard, O.C. Garden Reach P.S. and some local police officers and constables were present there. He says that a house was burning some distance away and a vehicle of Fire Brigade was there. His evidence is that they along with D.C. and A.C. proceeded towards the northern direction and D.C. posted two armed constables near the burning house and proceeding further they found a dead body and D.C. posted the constable of local P.S. there and they proceeded further and noticed an agitated mob and also heard sounds of bombs. He says that they reached Ramnagore Lane near the mosque and up till then the D.C. did not order them to fire. He further says that the D.C. did not pass any order to fire. His evidence-is that when they reached near the mosque, bombs were thrown and they entered inside the mosque. He further says that 20/ 25 persons armed with sharp weapons such as sword, tangi like weapon, klrlch etc. tried to break open the gate of the mosque and when they then all came out of the mosque bombs, brick-bats were thrown at them. He also speaks of assault by one person on A.C. Mr. Sharma and says that his helmet had fallen on the ground and his head was bleeding. He says that at that stage he did not see the D.C. He further says that on their way back he had fired two rounds in the air in order to save themselves as bombs were being hurled from roof-top. He also speaks about the burning of a house and says that Mr. Sharma told the D.C. Headquarters that the D.C. Mehta had been separated from them and then Sharma left for hospital as he has injury on his head and they boarded the lorry. His cross-examination shows that the D.C- Port Division had a shield in his hand at certain stage. P.W. 11, Ashlm Chakraborty is also an armed constable of Calcutta police who was sent on duly there on that day. He says that he was carrying gas gun. He also speaks about the mob found on reaching Fathepur Road arid Paharpur Road crossing. He testified to the presence of D.C. Port. A.C., Port and their guards and officers of Garden Reach P.S. as well as police men of that P.S. He says that they could hear shoutings and sounds of bombs coming from northern side and the D.C. asked them to follow him and than D.C., A.C., their guards and they including the witness along with police officers of the local P.S. and constables proceeded towards north through Fathepur Village Road and through a narrow lane in the basti when they heard sounds of bombs and noise in the Bastt and also they found a deadbody near a two storyed building covered with cloth. He says that the D.C. ordered the two constables of the local P.S. who had muskets to guard the deadbody and also directed the two officers of the local P.S. to make arrangement for removal of the deadbody and then he along with D.C., A.C., their body guards, two armed constables and four gas constables including himself proceeded towards further north and reached Ramnagar Lane near a mosque. He says that many people were shouting, standing on sides of Ramnagar Lane and they were attacked with bombs and brickbats from both sides of the road and then they all entered (n the mosque. His evidence shows that a mob armed with swords, bhojalis were trying to break open the collapsible gate and the D.C. ordered them to come out of the mosque and then they all came out and they were again attacked with bombs and brickbats from both sides of the road. He says that he was hit on his leg with a brickbat. He further says that he fired one round of tear gas shell but it did not explode and then out of fear and to save himself, he took shelter in a tileshed and another constable also took shelter there. He noticed that the A.C. Port Division was going back. He also speaks about the bleeding injury on the head of the A.C. Port Division Then they reached the crossing of Paharpur and Fathepur Village Road where D.C. Headquarters was present. He says that A.C., Port Division talked to the D.C. Headquarters. P.W. 12 Naba Ranjan Dutta is an armed police constable. He says that from Lalbazar they were sent to Garden Reach area and they went there in a lorry and reached Paharpur Road at about 11/11-15 a.m. and found V.K. Mehta. D.C., Port and A.C., Port present there. His evidence also shows that when they reached the road near the mosque a mob of about 150 persons or so on both sides of the road started throwing bombs and brickbats towards them and then they entered inside the mosque and then some persons were trying to break open the collapsible gate of the mosque and were shouting for driving them out of the mosque. He further says that D.C. and A.C. had some conversation with the Moulabl of the mosque and thereafter they all came out and when they came on the road they were again attacked with brickbats and bombs from both sides on the road. He says that he was also hit on his hand and feet by brickbats. He of course cannot say as to which of his companions had gone in what direction but he noticed that the A.C. and 2/3 armed policemen were going towards the lane through which he had come earlier and he followed them. P.W. 13 Ajit Kr. Malty, a constable of Calcutta Police who was in the police party at the relevant time also speaks about that part of the incident which the other police witnesses have described as discussed above.

10. P.W. 16 Rama Shankar Singh who is a police constable was the security guard of K.K. Sharma (P.W.7), the A.C.-11 (Port) at the relevant time. He went to the spot with the A.C.-II (P.D.) on the relevant date. He says that they reached Fathepur Village Road and Paharpur crossing at about 11-00 a.m. and found the D.C.. Port. Vinod Kr. Mehta and his body guard, both in police uniform, present there as well as the O.C. Garden Reach P.S. and three police officers of South Port Police Station. He also speaks about the presence of some constables of Garden Reach P-S. and police force there. His evidence shows that the people of that locality were in very agitated mood and the D.C. was trying to pacify them and at that time they heard uproars and sounds of bombs coming from Mathorpara side and then the D.C., Port, his body guard, Mr. Sharma, he (the witness), three police officers, two constables of Garden Reach P.S. and six armed constables, [two carrying muskets, two with gas guns and two with gas granades) proceeded towards Mathorpara under the leadership of D.C., Mehta and on reaching Mathorpara they noticed one deadbody lying on the ground near the house of one idrlsh and then the D.C. told the three police officers to make arrangement for removal of the deadbody in a vehicle and the D.C. also posted two Garden Reach P.S. constables near that deadbody. His further evidence is that they then heard roars coming from Ramnagar Lane side and then D.C. Mehta, his body guard. Mr. Sharma, the witness himself and six armed constables proceeded towards that direction and as soon as they reached Ramnagar Lane from Mathorpara they were attacked from the eastern and the western sides of the Ramnogar Lane with brickbats, bombs etc and in order to save their lives they entered in a mosque situated on Ramnagar Lane and they noticed a mob standing behind the collapsible gate of the mosque and trying to break open the gate. He further says that the mob was shouting and asking the imam of the mosque ot drive them out of the mosque and then the Moulabi asked the D.C. to leave the mosque and then the D.C., Mehta had some talks with Mr. Sharma and thereafter they left the mosque. As soon as they came out of the mosque, he says, they were attacked from both sides of the road with bombs, brickbats etc. He says that he received bleeding-injury on his right leg as he was hit with a splinter of bomb and with a brickbat when he was on Ramnagar Lane. He says that he received bleeding injury on the thigh of his right leg and he fell down on the ground and got up within two minutes. His evidence is that at first he could not see any of his companions but subsequently he noticed that the D.C. Mehta and his body guard were running towards the eastern side and a (SIC)b was chasing them with swords, brickbats and bombs. it is to be noted here that from this witness, namely, the body guard of the A.C.. Sri Sharma we get that on being chased by the armed mob, the D.C., Mehta and his body guard ran towards the eastern side. His evidence is that in order to save him he himself started running towards the western side and reached Paharpur road. His evidence read with the evidence of the police witnesses discussed earlier thus indicates how D.C. Mehta and his body guard at that point of time were separated from the other members of the police party on the face of the attack made by the furious and armed mob, and at that point of time when the other members of the police party retreated towards the western side, the D.C., Mehta and his body guard were running in the other direction, namely, the eastern side on being chased by the mob and thus they became isolated from the other members of the police party. P.W.16 says that when he reached Paharpur Road on running away from the place of the trouble, he found a taxi there and he went to Garden Reach P.S. in that taxi and there he reported the incident to one A.S.I, of the P.S. and from the P.S. he went to Calcutta Police Hospital for treatment and was admitted there and he was in the hospital for 26 days. A significant part of his evidence is that he speaks about the presence of Nannay Kasal and Naso (an appellant) and Puttan in the mob having bombs with them when the police parly was attacked by the mob on Ramnagar lane as soon as they reached there from Mathorpara. He also says that he had seen Nannay Kasal to throw bombs towards them. He further says that at that time he also saw Hallm, Naru, Gorachand and llllas, all asked with brickbats and also idrish Rahaman, Kallu armed with bombs. He further says that he had also seen Kasrln in that mob. He says that he knew them previously. in court he also identifies the accused Naso and certain other accused persons. His evidence is that the mob which was throwing bombs etc towards them and the -mob that chased the D.C. and his body guard as well as the mob that was trying to break open the gate were all in angry mood. The evidence of this witness is thus significant as he testifies to the presence of the accused Naso, an appellant herein, with bomb in his hand in the furicus mob that attacked the police parly. in his cross-examination he says that the distance between the mosque and the Paharpur road along Ramnagar Lane will be five to ten minutes walk and the crossing of Ramnagar Lane and Paharpur Road will be about 5 to 10 minutes walk from the crossing of Fathepur village Road and Paharpur Road. He says that they wereinslde the mosque for about 5/ 6 minutes. He also says that both the D.C. and his body guard were in uniform. From his cross-examination we get that the distance between Ramnagar mosque and the Ramnagar oulpost will be less than a mile. He further says that on that day there was trouble in alomost all parts of that area. His evidence is that on that day there was disturbance between Hindu and Muslims. in his cross-examination during retrial he says that after coming out of the mosque he sustained injury on his right leg from a splinter and he fell down and thereafter he managed to go towards Paharpur Road and he went to the Garden Reach P.S. at about 12-45 p.m. and he narrated before the duty officer how he sustained injury and thereafter taking sick report he went to the police hospital. He further says that excepting the disturbance infront of the mosque he had no occasion to see any other disturbance on that day. He also says that when he was in the hospital for 26 days the Police Officer from Lalbazar vlslled him for interrogation. From him we get that he was posted in Garden Reach P.S. for one year from 1980 to 1981.

11. P.W. 73 Sewnath Slngh was the O.C. of Garden Reach P.S. on 18.3.84. His evidence is that on that day at about 10-15 a.m. S.I.. O.K. Sikdar of Garden Reach P.S. received a massage from Lalbazar Control Room that a disturbance of communal nature was going on in Falhepur village Road area and that information was recorded in the G.D. of the Garden Reach P.S. and thereafter he along wllh S.I., H.P. Dutla. S.I., O.K. Sikdar left the P.S. with available force. He says that he was in his Jeep and the force was in a police vehicle and they reached the concerned area at about 10-30 a.m. and noticed that two groups of agitated mob numbering about 800 or so were throwing brickbats, bombs etc at each other and then he along with his officer and staff chased the crowd and the crowd melted and entered in the lanes and by-lanes. He says that two buildings were on fire and they tried to put off the fire. His further evidence is that the D.C. Port and some other police officers also arrived there, namely, O.C. iqbalpur P.S., O.C. SPPS, S.i. A. Cope, S.i. S. Gupta, Sergeant S. Banerjee and other police men. He also speaks about the presence of the armed body guard of the D.C. He says that when the D.C. came he had his guard Muktar All with him. The D.C., he says, was in his Khaki uniform and his guard was in white uniform. His evidence is that he showed the D.C. the affected place and the D.C. also chased the crowd. He says that other houses were set on fire and they tried to extinguish the fire with the help of local people and the Fire Brigade also arrived there and at that time on receiving and information that a man had been killed on Paharpur Road, he left for Paharpur Road with one or two constables on foot and on arriving there he found that the people were very much agitated and the dead body of one Subrata Bhattacharjee, whom he knew, was lying infront of the premises No.J-146. Paharpur Road and thereafter he pacified the people and came back to Fathepur village Road to make arrangement for the removal of the deadbody. His evidence is that the T.C. Head-quarters S.K. Dasgupta arrived at Fathepur village Road and at that time A.C. (ii) Port Division K.K. Sharma came there with injury on his head and thereafter he himself along with D.C. Headquarters and force proceeded towards Ramnagar Lane through Azhar Motla Bagan as they had no trace about the D.C. Port and his guard. His evidence is that they were searching for the D.C. and his guard at Ramnagar Lane and adjacent areas and K.K. Sharma, A.C. (ii) Port Division was sent to hospital accompanied by Sergeant J.L. Roy. His further evidence is that when they were continuing the search for D.C. and his bodyguard, they found at about 2-30 p.m. a deadbody which was on fire lit by bomboo pieces and other elements in an open plot in front of Mirza Galllb School and a burnt khankl cloth piece and one metal button were found near that place. He says that the fire was extinguished and the charred body was taken charge of by them and he asked his officer to hold inquest of the charred body and the inquest was held by S.i. S. Moitra. His further evidence is that they continued their search for Mr. Mehta and at about 5-30 p.m. the deadbody of Mr. Mohta was found floating in a kancha drain behind the premises No. F-59 and F-201, Atabag. The deadbody, he says, was floating on its back with legs towards north and head towards south with only under-wear on and the body was smeared wllh mud. He clarifies that by underwear he means under-garment. He also speaks of the presence of a pair of socks on legs and a rolled vest on the body. He says that there were injuries on the deadbody of Mehta, mostly on the face and the right part of the head. The body, he says, was taken out from the drain and S.I. S. Moitra prepared the inquest report of the deadbody of V.K. Mehta in their presence and then the charred body and the body of Mr. Mehta were sent to Calcutta Police Morgue for post-mortem examination. He says that the charred body was the body of Moktar All, the security guard of D.C. His evidence is that after the deadbodles were sent to Calcutta Police Morgue, they returned to Garden Reach P.S. at about 8-05 p.m. He further says that the D.C. Port did not carry any revolver on that day. His evidence is that when the security guards go for duty they carry service revolver and ammunallon. in his cross-examination he says that the charred body had no hands and legs and the head was also missing except the occipital region of the skull. He also says that the open space where the charred body was found is situated at the junction of Ramnagar Lane and Battlkal. He says that Ramnagar Lane runs from east to west and Battlkal runs from north to south and the open space extends up to Mirza Galib School from the junction of those two roads and the school is to the north of that junction. He further says in his cross-examination that from Lalbazar Control Room a massage was received that deadbody was floating in the kancha drain. He says that as the situation was abnormal, he cannot remember everything in details and it is difficult for him to say who detected the floating body first as there were many olflcers together in search of the deadbody. He further says that S.J., S.R. Gangull (P.W.80) was the l.O. of the case at the initial stage and thereafter the case was taken over by the Detective Department, Lalbazar. He says in his cross-examination that the D.C. D.D. Mr. H.A. Safwi also came to Ramnagar area a bit late and he was all through with them and curfew was imposed in that area and some persons were apprehended in that area on 18th and 19th March and were challanged in petty cases but he cannot tell the number of the arrested persons now. He also cannot tell in details whether all the arrested persons were challaned in petty cases or some were released after interrogation. He says that curfew was imposed on 18.3.84 in that area and so far he remembers the curfew was in that area for 10/12 days. He also says that as he did not witness all the incidents so he did not start any FiR suomotu. He says that the open plot where the charred body was found was at the Junction of Ramnagar Lane ?,nd Battlkal. He also says that they had been to Ramnagar Mosque at about 12-30 p.m. on that day and at that time there was no gathering there.

12. P.W.15 Farha Juvoll is the iman of the Dhankhetibari Masjid where the policeparty took shelter on being attacked by the violent mob. This witness, it seems, was treated as hostile by the prosecution. But even then he testifies to the fact that the police party entered in the mosque and had been there for some time. P.W. 17 Abul Hassan is a resident of G-246 Ramnagar Lane. He says that the Maidan to the north of their house is known as Dhankhetl Maidan. in March, 1984, he was working in the wheat grinding shop of his cousin brother Makbul Ahmed at G-247 Ramnagar Lane. He says that on 18.3.84 as usual he went to the shop for his work at 7 a.m. and at about 9-45/10-00 a.m. while he was working in that shop he heard sounds of bombs coming from Mathorpara side and Fathepur village Road side and he found that people were running here and there and he came to know that riot had started between Hindus and Muslims and being afraid he closed the shop and went home at about 10-30/10-40 a.m. He says that he again heard sounds of bombs coming from Ramnagar Lane Dhankheti mosque side and he also heard uproars and he felt that the uproars and sounds of bombs were moving towards their house and he then opened his window partially and noticed that two policemen were running speedily towards Battlkal side, one policeman being in khaki uniform and the other in white uniform. He noticed one wire-net shield in the hand of that policeman who was in khaki uniform, and that brickbats were being thrown at him and he was blocking the blows with his shield. He further noticed that 20/25 persons were chasing the policeman and were hurling brickbats at him. He says that he could recognise some of thepersons in that mob who were throwing brickbats and chasing those policemen and he names Rahamat, Nanney. Corachand, Halim and Matin as the persons whom he could recognise. He says that the mob chased those policemen towards Batlikal side and he become afraid and closed the window. His evidence thus lends support to the prosecution case as well as the other evidence adduced by the prosecution in that behalf that the D.C. V.K. Mehta and his body guard Moktar All were being chased by a violent mob. He further says that at about 12-30 p.m. he heard sounds and uproars coming from Batukal side and subsequently it appeared to him that the roars were coming from Dhankheti Maidan and he again opened his window partly and noticed that a policeman in white uniform was lying on the ground and about 15/20 persons were there around that body. He further noticed that four persons were chopping the hands and legs of that policeman with chopper like weapons and he could recognise Rahamat and Matin who along with two others were chopping the hands and legs of that policeman. He also could recognise Gorachand and Hallm amongst the persons who were standing near the body of the constable. He noticed that some persons were placing bamboo pieces near that body, and he says that being afraid he closed the window. His further evidence Is that at aboul 7/8 p.m. In that night he came to know that D.C. Port had been murdered and his body guard was also murdered and his body was burnt down. He restifies that by the dress of that body he could recognise that he was a police sepoy. His evidence thus lends support to the prosecution case that the body of Moktar Ali, the body guard of D.C. Mehta was dismembered by cutting its limbs and was burnt by fire by the miscreants, and he also could identify some of the miscreants named by him. In his cross-examination he says that curfew was imposed in that area in the afternoon of 18.3.84. He further saus that his father was arrested by police at about 4/4-30 p.m. on 19.3.84 from the crossing of Barttikal and Ramnagar Lane and his father returned in that night at about 7-30/8-00 p.m. He says that In their locality the number of muslims is more than that of the Hindus. He denies the defence suggestion that his father was released by the police on the understanding that he would give evidence on behalf of the prosecution as tutored by the police. P.W. 18. Makbul Ahmed is a resident of premises No. 247 Ramnagar Lane. He testifies to the fact that on 18th March, there was huge mob and people were running here and there at about 10/10-10a.m. He was however treated as hostile by the prosecution. He says that on that day he. Mansoor, TaJ All and 30 others were arrested by police and taken to Garden Reach P.S. and they were released at about 11-00 p.m. P.W.19, Khalil Khan was resident of G-230, Batlikal at the relevant time as a tenant. He Is a police constable who was posted at Lalbazar Headquarters, R.C. Office In March, 1984. From his evidence we get that P.W.21 Abdul Latif Khan is his cousin brother and P.W.24 Hadis Khan Is the son of the said Abdul Latif Khan and that In March, 1984 Hadis was residing at G-222 Batlikal. It may be mentioned here that Abdul Latlf Khan is also a police constable. P.W.19, Khalil Khan says that in March. 1984 Hadis Khan had no employment and he used to keep 2/3 cows and sell milk. He says that the uniform of Calcutta Police constable is white shirt and white pant and also they used buttons on their shirt which were made of brass. He also testifies that the emblom 'C.P.' is also made of brass. He knows Moktar All. He says that 18.3.84 was a holiday and he was In his house and at about 10/10-30 a.m. he heard a huge row coming from Fathepur village Road side and he also heard a row coming from Battikal side and he came out of his house and stood on the road very close to his house and while he was standing near the corner of the house of Kayum which is 228/2 Battikal, he saw that D.C. Mehta and his body guard constable Moktar All were being chased by a mob from the southern side to the northern side and they were throwing brickbats at those two police persons and were shouting 'maro, maro police lokko maro'. He says that the mob and those two police persons were 30/40 yards away from the place where he was standing, He testifies to the fact that the D.C. was in a khaki uniform and Moktar was in white uniform. He says that the house of Nalmmullah Is opposite to his house at a distance of 30/35 yards, the number of that house being G-228/3 Battikal. He saw that the security guard Moktar All entered in the house of Nalmmullah and 30/40 persons were chasing Moktar Ali. He says that he Intervened and stated to them not to assault the police otherwise they would feel the consequence. He says that in the mob some were carrying choppers and some were carrying swords. He also says that he was dashed down by the mob on the ground. He could recognise Gorachand. Sagir, Rahamat, Halim, Wahob and Kallu amongst the persons who were chasing the police constable Moktar Ali. He says that he was dashed down by Rahamat, and Kallu was with Rahamat at that time and that being afraid he then went Inside his house. His further evidence is that 20/25 minutes thereafter his brother's son Hadls (P.W.24) came to his house and reported that Naso and his associates had assaulted the D.C. very serious by in the house of Hadls, and that Hadis also stated that a sepoy was also being assaulted by Rahamat and Kallu on the road. Hadls, he says, was very much purturbed and he was trembling and Hadls told that he was leaving for his father-in-law's house. P.W. 19 Khalil says that he also became afraid apprehending attack on him and the members of his family as he was a police constable and so he along with his family members went to Ramnagar Police Camp. In his cross-examination he says that on that day at about 8-30/9-00 p.m. he went to Garden Reach P.S. after leaving the members of his family at Ramnagar Police Camp and made a statement to the police officer about the Incident seen by him. He says that he made the statement to the duty officer who recorded it in english. He says that his two brothers are also working as Calcutta Police constables and his cousin brother Latif (P.W.21) is also a constable of Calcutta Police. He further says that on that day latif Khan had duty. He says that his office was closed on that day being a Sunday and that the R.O. office remains closed on Sunday and other holidays. He says that he reached Ramnagar Police Camp with his family members at about 2/2-30 p.m. after locking his house. His evidence in cross-examination is that as soon as he came out of his house hearing the row he noticed that D.C. and Moktar crossed him from southern side to northern side speedily. He denies the defence suggestion that his brother's son Aktar was arrested by police and was made an accused but subsequently he was let off and in his place another Aktar was made accused. He however does not remember whether Hadls was arrested by the police. He also denies the defence suggestion that as he is a police constable so he is deposing falsely on being pressurised by hissuperior officers. He says that from Garden Reach P.S. he returned to Ramnagar Camp and stayed there with hts family for the night and in the next morning he returned home at about 8-00 a.m. Hadls, he says, came to his house at about 12/12-30 p.m., and reported to him what he had seen. He denies the defence suggestion that his relations were taken in custody by the police and when he and Latif asked the police officers to release them, they told that they would be released provided they would give evidence. in his cross-examination at the retrial he says that his statement was recorded by the police at the P.S. at about 8/8-30 p.m. on the date of the Incident.

13. P.W.20 Akil Ahmed is a resident of G-223 Battlkal. He, it seems, was however treated as a hostile witness by the prosecution. From his examination-in-chief we however get that Latif Khan (P.W.21) and P.W.24 Hadls Khan (son of P.W.21) reside in the tileshed house which is adjacent to the house of this witness (P.W.20). We get it from P.W.21 and P.W.24 that the premises in which they reside is G-222 Battikal Second Lane. It is also to be mentioned here that according to the prosecution the incident of assault on D.C. Mehta took place in the said premises No. G-222. Battlkal Second Lane. P.W.20, Akil Ahmed says in his cross-examination that Hadis Khan (P.W.24) used to keep cows and sell milk and he used to keep cows in the courtyard. The prosecution expected this witness to give positive evidence about attack on two police persons but he belled that expectlon. From his examination-in-chief it however appears that their house is a two storied building and one can see the rooms of the tileshed (where Latif Khan and his son Hadls used to reside) from his house (the house of P.W.20) on leaning. However, what the prosecution inter alia suggested to this witness is that he stated to the I.O. during investigation that he found that some minor boys were pouring water In the room where D.C. entered and also on the courtyard, which however he disowns to have made. By this suggestion the prosecution possibly wanted to project a case that blood which had fallen there as a result of assault on D.C. Mehta was washed away with water. P.W.20 wants to say that on the date of the indicent he was not in his house and therefore he did not see anything. In his cross-examination on behalf of the defence he says that he returned home on 19.3.84 and on that day police had arrested Abut Hossain, Sallm and many others. He however, did not see Hadls Khan on 19.3.84. The evidence of this hostile witness thus shows that on 19.3.84 many pesons were arrested or picked up by the police. We will find from the evidence of P.W.24. Hadls Khan that he was also picked up by the police on 19.3.84 which we will discuss later. P.W.20 says in cross-examination that on 19.3.84 he stayed in the house for 2/3 hours and thereafter fled away from that area and went to his sister's house and stayed there for some days. The evidence of this hostile witness P.W.20, we find, lends support to the prosecution case that Latlf and his son Hadls were his neighbours at the relevant time and Hadls used to maintain cows and sell milk and that on 19.3.84 police arrested many persons of that locality.

14. P.W.21 Abdul Latlf Khan was residing with his family at G-222 Baltikal Second Lane as a tenant at the relevant time and Hadis Khan (P.W.24) is his son. He says that In March, 1984 Hadls used to keep cows and sell milk and that he used to keep his cows in the said premises. Hisevidence is that on 18.3.84 which was the 'holiday' he had stand-by duty to be performed from 12 noon to 8-00 p.m. at P.T.S. Barrack and that at about 12 noon he got the information that a riot had started between the Hindus and Muslims in their area and he then started for his house from P.T.S. Barrack In order to see the members of his family. He says that at about 12-30/12-45 p.m. he reached Battlkal Second Lane and when he advanced ten steps or so he found that 6/7 persons were standing ahead of him and amongst them he could recognise Naso (an appellant), Puttan. Samsad and Abbas who were all armed. He says that some of them had swords, some had choppers, some had Napalas etc and they were standing by the side of kancha drain in Battikal Second Lane. According to his evidence the house of Dr. Hikmat All Mondal was situated near that place and he also noticed that one deadbody was lying by the side of that kancha drain but not inside the drain. He says that he knew those persons named by him as they were his neighbours. He also idenlified the accused Naso in court. He says that those persons were standing very close to that deadbody and that Naso was standing two cubits away from that deadbody which was at a distance of about 30/35 yeards from the place where he (the witness) was standing. He says that so far as he could see, blood was coming from head and the deadbody was smeared with blood. According to his evidence he stopped there and thought that it would not be proper for him to advance further and he became alarmed and then returning back he entered In the premises No. G-350 where his father was residing with his step-mother and he learnt from his father that there was trouble in Battlkal area and his wife and other members of the family had left that area and that he then went to his brother's house at Alif Nagar and came to know that his wife and sons and daughters had not come there and he then went to Kazlpara in the house of the father-in-law of his son. Md. Hadis and there he met Hadls and the other members of the family. Then he says that his son Hadls reported to him that a mob had chased D.C. Port and the D.C., Port took shelter Inside their house and then Naso, Puttan Samsad and some other persons started assaulting D.C. and that Hadis also reported to him that he had seen some miscreants assaulting one constable in front of the house of Naimullah. He testifies to the fact that at that time Mr. Mehta was the D.C., Port. His evidence is that thereafter from Kazipara he went to Garden Reach P.S. at about 8-00 p.m. and at that time there were many police officers who were very busy and at about 9-30 p.m. he could state to a police officer about the Incident seen by him and also heard by him from his son, and his statement was recorded. He also says that he found his brother Md. Khalil (P.W. 19) in the P.S. and his statement was also recorded by the police officer. He further says that at the P.S. he learnt that the deadbody of D.C. was recovered from the place where he had seen the deadbody of a person as stated by him and lhat the deadbody of police constable Moktar was recovered from Dhankheti Maidan. He says that he is residing at G-222 Battikal Second Lane for the last 25/28 years. In his cross-examination he also gives the names of certain other tenents who were living at G-222 Ballikal Second Lane with family. He says that the accused Naso at that time used to reside occasionally in the house of one Nazi Saheb in Battikal Second Lane and occasionally in the house near Match factory by the river side. In his cross-examination he says that he had seen 6/7persons including the persons named by him by the side of the Kancha drain and he became afraid when he saw those persons and he stood there for one minute when he saw those persons but none of them approached him. He specifically says that he became panicky as soon as he noticed the deadbody and those persons and he stood ther for one minute. Dr. Molla. he says, is known as Dr. Hlkmat All Mondal. He says that he was very much unnerved on seeing the deadbody all on a sudden. In his cross-examination he says that he reached Garden Reach P.S. at 8-00 p.m. and after his statement and the statement of his cousing brother Md. Khalil (P.W.19) were recorded, they left Garden Reach P.S. at 10-00 p.m. and he went to P.T.S. and his brother went to Ramnagar Camp. Khalll, he says, is also a Police constable of Calcutta Police. He says that when he reached Garden Reach P.S. he found many senior police officers Including Commissioner of Police and Jt. Commissioner of Police etc. present there. He says they he stated that he had seen something and heard something but no police officer was listening to him and so he could not report as soon as he reached the P.S. and finally he could make statement to the police officer at 9-30 p.m. and it was recorded In English and read over and explained to him. Much has been criticised by the learned Advocate for the appellants that according to this witness he reached Garden Reach P.S. at about 8-00 p.m. but his statement was not recorded by the police till 19-30 p.m. although this witness claims to have seen and heard about some very important facts specifically Involving some accused persons and this, according to the learned Advocate for the appellants, shows that the evidence of this police constables P.W.21 and of other concerned witnesses is the product of concoction and subsequent manupulatlon at the Instance of police. On the other hand, it is submitted by the learned Special Public Prosecutor representing the State that after such a shocking and gruesome Incident resulting In the death of a very senior police officer like Dy. Commissioner and also his constable guard, it was only natural that there would be many top police officers at the concerned P.S., namely. Garden Reach P.S. to take stock of the situation and also to take necessary follow up measures demanded by the situation and in such a state of affairs, it is quite possible that a police person of the rank of a constable like P.W.21 or P.W. 19 could not succeed readily in contacting the proper officer who would Immediately attend to his statements. Having regard to the facts and circumstances we also do not think that In a situation like this there was really any Improbability that the statement of these witnesses were recorded at about 9-30 P.M. at the P.S. although they went there at about 8-00 p.m. In his cross-examination during retrial, he says that uptil now he cannot say, whose deadbody It was, which he saw on that date. We may note here that if the evidence of this witness was really a product of concoction he would have possibly satd that the deadbody which he saw was recognised by him as the deadbody of D.C. Mehta. But he did not say so. He indeed knew D.C. Mehta, as he says but it is nothing unnatural that at that point of time when he suddenly saw the deadbody from a distance of 30/35 yards in the presence of some armed persons and the deadbody was smeared with blood, he did not naturally bother to engage himself In minute observation for detecting the identity of the deadbody, and Instead he left the place being naturally panicky but he was, as we have seen, very specific about the presence of certain armed miscreants named by him Including the appellant Naso.

15. We now proceed to discuss the evidence of the next vital witness P.W.24, Hadis Khan, the son of P.W.21 Abdul Latif. He says that they reside at G-222 Battikal Second Lane as tenant and in March, 1984 he used to sell cow milk and had four cows and he used to keep two cows in their house and two in another place. He says that he himself and Mustafa, his helper (P.W.26) used to look after the Cows. His evidence is that on 18.3.84, sometime In the morning he came to know that a not between the Hindus and Muslims had started and that at about 11-30/11-40 a.m. again he heard sounds of bombs coming from Ramnagar Lane side when he was in his courtyard and his mother and Mustafa were in the house, but his father had gone for his duty. He next says that at about 12 noon he heard a huge row coming from Southern side when he was in his courtyard and on hearing the same he came out along with Mustafa from his house and stood on the road and notice that many persons were chasing two policemen towards South and one policeman was In a white uniform and the other was in Khaki uniform and the policeman in while uniform entered in the house of Naimullah and some persons also entered that house and those persons were hurling brickbats. His evidence is that the house of Naimullah was at a distance of 50/60 yards from the place where he was standing. He however could not recognise any of the persons who were hurling brickbats and chasing that policeman in white uniform and entered in the house of Naimullah. But his specific evidence is that the other policeman in khaki dress was being chased by the mob and when that policeman came near him he entered in the courtyard of his house and that policeman too entered in that courtyard and the policeman told him that he was D.C. Port and then on his pointing out the D.C. entered into the bathroom (Gasalkhana). The Gasolkhana, he says, was 9/10 cubits away from the place where he was standing and that simultaneously Idris and some other persons armed with brickbats etc. entered Into the courtyard and they were throwing brickbats aiming at the bathroom and simultaneously Naso (an appellant). Puttan, Samsad, Abbas, Mukim entered in the courtyard. He says that Naso had a rod in his hand and others had swords, nepala etc in their hands. He says that he knew those persons from before. The D.C., he says, became frightened on seeing those persons and requested them not to assault him after disclosing his identity as the D.C. of Police but some of those persons replied that they did not know D.C. and then ordered 'maro' and then Naso, Puttan, Samsad, Ahmed, Mukim and some others entered instde the bathroom and then Naso gave a rod-blow on the helmet of D.C. and there was dashing and pushing and the helmet fell down and Naso again assaulted D.C. with the rod on his head. P.W.24, Hadis says that then he came out from the courtyard and went out of the house and some people were throwing brickbats on the tiles of their roof but he cannot tell their names. He says that he then proceeded towards his uncle Khalll Khan's house but on his way when he came near the house of Naimullah he noticed that a pojiceman In white uniform was being assaulted on the road by Gorachand and some other persons and then he entered Inside the house of his uncle and reported the entire Incident to his uncle (meaning P.W.19) and he also reported that he was not going to stay and was going to his father-in-law's place and then he went to his father-in-law's place at Kazlpara at Howrah along with his mother. He says that after sometime hisfather Abdul Latif (P.W.21) came to his father-in-law's place and he reported the entire Incident to his father. He says that his father said that he would be staying in the P.T.S. barrack. He says that he used to keep two cows out of four cows near the power house gate commonly known as 28 number. In his cross-examination he says that he left for his father-in-law's place from his house at 12-30/1-00 p.m. and reached his father-in-law's house at about 2-00/2-30 p.m. His evidence Is that his wife and children had gone to his father-in-law's house on 15.3.84. He says that he and his mother returned home on 19.3.84 at about 6-30/7-00 a.m. from his father-in-law's place and he noticed that many police persons were roaming In their locality. He says that he was examined by the I.O. on 20.3.84 In their house. He further says that on 19.3.94 at about 12-00 noon police arrested him and placed in the van and the van patrolled in their locality and then at about 6-30/7-00 p.m. he was taken to Garden Reach P.S. and many people of their locality were also brought to Garden Reach P.S. on that day. He further says that he was released by the police in that night at about 9/10 p.m. and they were kept in the lock-up of Garden Reach P.S. from 7-00 p.m. till they were released. Much has been criticised by the learned Advocate for the appellants that when the police from the statements of P.W. 19 & P.W.21 could come to know In the very evening of the 18th March that Hadis had seen a vital part of the occurrence and also had named some of the culprits to them, there was no reason why his statement should have been recorded as late as on 20.3.84 in his house inspite of the fact that he was in the custody of police in police van and P.S. Hazat for quite a long time upto about 9-00/10-00 p.m. on the 19th March. This, according to the learned Advocate for the appellants, Indicates thai the prosecution case that Hadls saw a vital part of the incident is a concocted story. We are however not convinced by this submission. The enormity of the Incident, the involvement of a large number of persons and the complexities Inherently Involved In an Investigation of a case of this nature as well as the change of investigating officer on 19th March are indeed some of the factors which have to be taken Into consideration in this context. And that being so, we do not think that there really exists any reason to doubt the veracity of the evidence of this witness Hadls (PW.24). P.W.24, Hadls says in his cross-examination that the bathroom is used by the female inmates of the house and that the size of the bathroom would be about 8 cubits X 8 cubits. He says that the latrine is not inside that bathroom. He further says that the D.C. was Inside the bathroom when he came out from their house. Hefurther says that he came out from their house 6/7 minutes after the D.C. had entered In their courtyard. He also says that when he came out of his house the D.C. was being assaulted and he noticed about 50/60 persons on the road in front of their house. He however does not remember whether he had seen blood coming out from the head of D.C. when he was assaulted on the head by the iron road. His evidence is however clear that the D.C. was assaulted on his head by Iron rod. He denies the defence suggestion that Naso did not give blow with iron rod on the head of D.C. He makes it specific that the bathroom is used for washing hand and feet by the femalefolk of the premises before 'oozu' He says lhat there are no door and walls of that bathroom. Much has been commented upon by the learned Advocate for the appellants as to whether a bathroomof that size could have accommodated so many assailants who are said to have assaulted the D.C. at the relevant time. In this connection we may mention that P. W.2, Ashoke Kr. Bhattacharjee, S.I. of police and official plan maker has given the area of the Gosulkhana (bathroom) as 5m.x4m. Since the Gosulkhana has no walls as we find it from P.W. 24 Hadis, we do not think that there is any improbability in sustaining of assaults by D.C. there from the assallents who chased and cornered him there. He (P.W.24) denies the defence suggestion that he has been tutored by police to give false evidence because his father and uncle are working as police constables. In his further cross-examination during retrial in February, 1932 he however says that his statement was recorded by the police while he was in police lock-up. This, it is submitted on behalf of the appellants, is not insistent with the prosecution case inasmuch as it is the prosecution case that his statement was recorded on 20.3.84 as earlier stated by the witness. He also says in his such further cross-examination that his father went to the P.S. for his release and he talked to his father before release from the P.S. lockup. But he says that at that time his statement was not recorded by the police. This, therefore, lends support to the fact that his slatement was recorded not on 19th but on 20th. He says that his statement was recorded, as he remembers, after his. talk with his father. In his such further cross-examination at the retrial he says that he returned from Kazlpara to his Garden Reach residence three days after the Incident. It should be remembered that he was facing further cross-examination at the retrial In February, 1992. about eight years after the Incident and therefore some minor inconsistencies and confusion in the deposition at such distance of time cannot be ruled out. Whatever may be the confused statement of P.W.24 Hadls eight years after the incident at the time of further cross-examination at the retrial, it may be noted here that even the hostile witness P.W.22 Brion Merces who is the brother-in-law of the appellant Naso testifies to the fact that police arrested him on 19.3.84 and Hadls, Mustafa, and Alamgir also were arrested by the police. Such statement of this hostile witness therefore lends support to the prosecution case that Hadis was arrested from his house on 19th March, at noon after he returned from Kazlpara on that day in the morning, and this fact does not get obliterated by any statement of Hadis which he might have made In a confused state of memory in course of his further cross-examination eight years after the Incident.

16. P.W.22 Brlon Merces is a resident of C-85, Battlkal. Their balcony faces Battlkal Second Lane. From him we get that the appellant Naso Is his sister's husband. He was however treated as a hostile witness by the prosecution. He says in his examinatlon-in-chief that on 18th March. 1984, which was a Sunday, at about 10-00 a.m. he heard from the people that a not between Hindus and Muslims had started and at about 12 noon they heard great row and then he and his parents came to their balcony. He says that the Hindus and the Muslims were fighting and quarrelling and the Muslims started running shouting, that the Hindus had come to their locality, and that being frightened they (witness and his parents) all came Inside their room and closed the door. His evidence shows that some children and women had taken shelter Inside their house and they were saying that policemen had died. He saw nothing else. As we have alreadynoted, in his cross-examination he says that he was arrested by police on 19.3.84 and Hadis, Mustafa and Alamgir were also arrested by police. P.W.23 Narman Merces is the father of P.W.22 Brion Merces. He was also treated as a hostile witness by the prosecution. In his examination-in-chtef he says that on 18th March, 1984-which was a holiday, at about 10-00 a.m. they heard from the people of their locality that a trouble had broken out at Fathepur and they also heard some sounds of bombs and learnt that a riot had started between Hindus and Muslims. He says that then at about 12 noon he, his wife and his son came out of the room and stood on the balcony and noticed a huge mob on Battlkal Second Lane which was at a distance of 60 to 80 ft. from the balcony. He also speaks about throwing of breakbats. He says that he then came Inside the room and locked the door from Inside and after half an hour the area became very quiet. The accused Naso, he says is his son-in-law. P.W.25 Sakll Ahmed is the brother of P.W.20 Akil Ahmed and a resident of G-223 Batllkal Second Lane. He was however treated as a hostile witness by the prosecution. In his cross-examination on behalf of the defence he says that G-222 Battlkal Is to the north of his house where Latif constable (P.W.21) resides and he knows Hadls, the son of Latif constable. He says that he occasionally goes to G-222 Battlkal to Hadls for bringing cow milk. In his further cross-examination at the time of retrial he says that Aki-ka-Kurbani can be performed on any day of the year and after performance of this Kurbani a marking by palm with the blood of the sacrifice is given on the outer wall of the residence or on the outer door and some times this marking is also given in interior wall or door. This has been possibly taken in cross-examination to explain away blood marks. P.W.S 27, 28, 29, 34, 35, 36, 37 & 48 were all treated as hostile witnesses by the prosecution.

17. P.W.14 Mansoor Ali is a resident of C-247 Ramnagar Lane and he is the owner of the ration shop situated on the ground floor of the same premises. His evidence is that on 18.3.84 at about 10-00/10-30 a.m. while he was in his house he heard sounds of bombs and he opened the windows and noticed that people were running hither and thither. These people, he says, were 200 yards away from his building, and he gives the number of the people as 150 or so. He says that he came down the stairs and closed the ration shop and again went up along with his brother. He says that he noticed that 3/4 police constable came out of the mosque and that many people went to the western side of the mosque and some people went to the eastern side and those people were running probably out of fear as police had come. He also speaks about throwing of brickbats upon the police party. He says that the police were in the middle part and on both sides there were mobs. He also heard sounds of firing and he closed the window and went inside the room. His evidence shows that after some time he heard row near his house and also sounds coming from the northern side of the mosque. They went to the roof of their house and noticed that a constable in white uniform was lying with his face and chest on the ground and many people were standing surrounding the constable and amongst those persons he could recognise Rahamat, Gorachand, Idris, Haltm, Nanney Kosal, Wahab, Saglr and Matil. He says that It appeared to him that the constable who was lying on the ground was dead. He further says that thereafter the mob burnt the deadbody of the constable with split bamboos. He also namesRahamat, Gorachand, Idris, Wahab, Halim and Nanney Kosai as some of the persons who were burning the deadbody of the constable. He says that after burning the deadbody of the constable all the miscreants fled away from the place and police came at about 3-00 p.m. He also says that the police had seized one button with ring, piece of burnt cloth, etc under a seizure list which was signed by him (Ext. 5/1). He says that the mob was armed with brickbats when they were throwing brickbats at the police party. He further says that he was in his house when police came at 3-00 p.m. and called him. He also says that the body of the constable which was lying on the open space was at a distance of forty yards from his residence. He further says that he noticed that Rahamat. Matil and 2/3 others whom he could not recognise were cutting the hands and legs of that constable with choppers. In his cross-examination he says that as the incident occurred long ago, he does not remember everything vividly but he remembers that Idris and Nanney Kosai were hurling bombs at the police.

18. P.W.49 Haridas Mollra is the Senior Scientific Officer-curn-Asslt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He says that on 22.3.84 as per the direction of D.C.. D.D., Calcutta, he visited Ramnagar area with his colleague P.K. Sengupta. Sr. Scientific Officer. He says that he visited the place which is an open field near a school building and he collected from the debris some partly burnt pieces of cloths, some metallic buttons with rings and one ring. He says that he asked the Investigating officer who was with them to collect those articles, and those articles were seized by the I.O. and a seizure list was prepared In his presence and he signed the seizure list. He Identifies his signature, Ext. 12/1. It has been criticised on behalf of the appellants that those articles were seized only on 22.3.84 when the Scientific Officer of the Forensic Science Laboratory went there with the I.O., but the police could not seize those articles earlier although the police had been to all those places in the meantime after the date of occurrence. In our opinion, this Is inconsequential in view of the totality of the facts, circumstances and evidence on record. P.W.78, Prasanta Kr. Sengupta is the other Senior Scientific Offlcer-cum-Asstt. Chemical Examiner of State Forensic Science Laboratory. Calcutta. He examined in his laboratory certain articles which were sent to him for examination and he submitted his report which is Ext. 29. In his cross-examination at the retrial he says that he accompanied the expert. P.W.49 Haridas Moitra to Garden Reach, that Is, the place of occurrence In connection with this case and from that area they came back together. P.W.69 Pradip Shankar Chakraborly was an S.I. of police in March, 1984. attached to Homicides Squad. Detective Department. Lalbazar. He says that on 22.3.84 as per the direction of S.I. S.K. Bhattacharjee. the I.O., he accompanied him to Forensic Science Laboratory to bring the experts and they reached the laboratory at about 10-30 a.m. He says that after giving some directions the I.O. left and he (the witness) brought Sri H. Moitra (P.W.49). Expert to Garden Reach area and showed him the place where constable Moktar All was burnt and the murders of V.K. Mehta and his body guard were committed. He says that the expert examined the premises No. G-222 Battikal including the Gusalkhana and from there they went to the open place known as Dhanketl Maldan. The learned Advocate for theappellants submits that the expert (P.W.49) does not say that he went to the premises No. G. 222 Battikal and Gusalkhana there which this witness (P.W.69) wants to say. In our opinion, this is inconsequential because it is not necessary that every witness must state everything in details. P.W.69 says that the expert could trace out one metalic ring, some burnt clothes with two metallic buttons with rings attached to burnt clothes from Dhankheti Maidan. He (witness) seized those articles. He says that on 22.3.84 at 14-10 hours as per order of O.C., Homicide squad, he accompanied S.I., S. Bhattacharjee along with O.C., Homicide squad and other officers and men and accused Sk. Nanney in custody with two Doms, Narayan (P.W.41) and Bindeswari (P.W.40) and arrived at Garden Reach and on being led by the accused Nanney they went near a Kancha drain which was flowing in between premises No. G-13 Batttkal and F-55 Atabag Basti and also near premises No. G-222 Battikal. He says that the accused Nanney showed the spot inside the kancha drain having muddy water and stated that he and others dropped Incriminating articles there, about which he had made statement to the S.I. S. Bhattacharjee at that spot. He further says that being instructed by S.I. S. Bhattacharjee and O.C. Homicide Squad the accused got down inside the waist deep kancha nala and those two Doms also entered in the drain to assit the accused, If necessary, his evidence is that the accused (Nanney) then himself brought out from the said nala the following articles namely (1) one Dhal (shield) used by police, (2) one helmet, the front portion of which was partially dented and broken, with some hairs sticking inside the helmet. (3) one brown coloured leather belt having a nickel metal plate fitted with Inscription I.P.S. on it. (4) one black leather belt fitted with metallic emblam 'Calcutta Police', (5) one big sword about 30' in length, (6) piece of cloth partly torn and fitted with button, (7) one small sword about 20' length and (8) one brown coloured chappal of the right foot. P.W.69 further says that he seized those articles in presence of witnesses. He identifies Exl. 8 as that selzer list. He further says that thereafter he along with S.I. D.K. Dasgupta, as per instruction of I.O. and O.C. Homicide Squad, went to G-77 Batlikal which was a club room of Battikal Young Boys Committee and on search In presence of the witnesses certain articles were recovered and seized from that club room, namely, one pointed Iron red measuring about 29' In length including wooden handle, one bhojall, one book ofletter head pad and seized all those articles under the seizure list Ext. 17. He also says that he made certain other seizures from the road between premises Nos. G-227 & G-222, such as, Khaki coloured buttons and partly burnt pieces of cloths. Ext. 18 is the relevant seizure list. He also says that on that day between 5-30 and 5-40 p.m. he seized one wooden piri measuring about 15' X 8' having stains of blood from Inside the premises No. G-222 Battikal. The pirl, he says, was lying near the entrance door of the room situated at the north-east corner of that premises. Ext. 19 is the concerned seizure list. In his further cross-examination at the retrial he says that they arrived at premises No. G-222 Battikal at 15 hours on 22.3.84 and they stayed there for about 15 minutes and it was his first visit. He further says that F.S. Expert was with them up to 4-35 p.m. on that day. He says that the expert was with him while he was Inside premises No. G-222. It will thus appear lhat the expert was not with this police officer when he seized the wooden piri at G-222 Battikabetween 5-30--5-40 p.m. It may be noted here that the evidence of the P.W.s 40 & 41, the Doms, also corborate the evidence of P.W.69. P.S. Chakraborty, S.I. of police regarding the recovery of Incriminating articles from the drain by the concerned accused.

19. P.W.64 Haripada Dutta is S.I. of police who was attached to Garden Reach P.S. in March, 1984. His evidence is that on 19.3.84 as per direction of the O.C.. Garden Reach P.S. he had been to premises No. G-229A Batllkal and took scrapplngs of dried up blood with few hairs from the door leaf of that premises, etc between 3-35 p.m. and 3-55 p.m. In presence of witnesses and prepared the seizure list, Ext. 10. in his cross-examination he says that FIR of Garden Reach Case No. 45. dated 18.3.84 Ext. A was written and signed by him. That FIR relates to the Incident that occurred in Fatepur Village Road and Mathorpara and Balsnabpara. He says that he took up the investigation initially of that case. That was a different case. The present appeal relates to the P.S. Case No. 46 dated 18.3.84. P.W.68 Sibaprasanna Dutta was posted as S.I. of police in Port Division in March, 1984. He had arrested Sanda Akatar @ Aktar Alam who was an accused in the Garden Reach P.S. Case No. 46 dated 18.3.84. He says that he arrested him on 20.7.84 at about 7-30 p.m. at the fly-over of Sealdah. P.W.70 Sudhlsh Ranjan Nag is S.I. of police who was attached to docolly and robbery squad D.D., Lalbazar. He says that on 19.3.84 the D.C., D.D. told him and S.I. U.S. Lahiri that the murder case of Mehta had been taken up by the Homicide Squad and S.I. S.K. Bhattacharjee was the I.O. of that case. and directed them to asslt him in apprehending the accused of that case and that the D.C. further told that he had Information that some of the accused persons namely, Sk. Nanney, Gorachand, Md. Halim, Sk. Nuru and Wahabuddln might be available at Surinam Jetty and asked them to keep watch over that place and to arrest the said accused persons. If possible. His evidence is that at about 6-20 p.m. they arrested those accused persons and took them to Garden Reach P.S. where D.C./D.D. and other officers were present and they placed the accused persons before them and I.O. took charge of those accused persons. He says that on being directed by D.C. D.D. to search for the other accused persons at Batllkal, Chlrlamore, Ramnagar and Mathorpara Complex, he. U.S. Lahiri and force had been to those places in search of the miscreants but none could be arrested and they returned to Lalbazar at about 10-10 p.m. and made over the supplementary caase diary to the i.O. S.K. Bhattacharjee, He further says that they had also arrested Md. Idris and Sakil Ahmed. In his cross-examination, he says that Idris was arrested from Gaya on 27.3.84. P.W.71 Samir Kr. Moltra was attached to Garden Reach P.S. as S.I. of police In March. 1984. He accompanied the Commissioner of Police in Ramnagar area on 18.3.84 In connection with the murder of D.C. Mehta and his body guard. Between 4-00 p.m. and 5-00 p.m. on that day he seized certain articles such as pieces of partly burnt bamboos, pieces of charred bone-like substance, pieces of charred cloth, burnt metallic button fitted with ring, belt, two swords etc from an open field in front of premises No. G.-100/1, Ramnagar Lane, also know as Dhanketl. The seizure list prepared by him is Ext. 5. He had also held the inquest of the deadbodles of V.K. Mehta and the body guard Moktar Ali and prepared inquest reports. In the inquest report relating to the dead-body of B.K. Mehta it is noted that the deadbody of Mehta was lying in front of premises No. G-221, Dhanketl. The witness however saysthat it was premises No G-221, Battikal and it was wrongly mentioned as G-221, Dhanketi in the inquest report. In his cross-examination he says that he had detected this mistake in court at the time of giving evidence. It seems to be a case of bona fide accidental mistake.

20. P.W.80 Santi Ranjan Ganguli was attached to Garden Reach P.S. on 18.3.84 as S.I. of police. The FIR of this case was drawn up by him. His evidence Is that the fromal FIR was drawn up at 8-05 p.m. at Garden Reach P.S. on the basis of Statement of K.K. Sharma, Asstt. Commissioner of Police, Port Division. He says that the statement of Sri Sharma was also recorded by him as per the order of the O.C. of Garden Reach P.S. He also took up the investigation of the case under the order of the O.C., Garden Reach P.S. on that date at 8-05 p.m. He says that he then recorded the statements of the two witnesses namely Abdul Latif Khan (P.W.21) & Md. Khali Khan (P.W.19) under section 161 Cr.PC at Garden Reach P.S. and then at 11-00 p.m. he had been to Mathorpara, Rnmnagar Lane etc of the affected areas of Garden Reach with force and after contacting sources there he returned to the P.S. at 11-50 p.m. He says that on 19.3.84 at 6-40 p.m. he had shown formal arrest of four accused persons, namely Nanney Kosal, Gorachand, Halim and Nuru who were arrested by the police officers of the Detective Department. He further says that on 18.3.84 after returning to the P.S. from the affected area he prepared respective requisitions for postmortem examination of V.K. Mehta and his security guard. Moktar Ali and on 19.3.84 at 10-00 a.m. he sent those requisitions to the Prof. of Forensic and State Medicine and on that day at 7-40 p.m. he handed over the case diary to S.I. S.K. Bhattacharjee of Homicide Squad who had taken up the investigation and he also handed all other connected documents under the orders of his O.C. and the D.C.D.D. at Garden Reach P.S. In his cross-examination he says that on 18.3.84 he was in Garden Reach P.S. after mid-day and that he had also seen the G.D. Entry regarding the disturbances at Fatepur Village Road. He says that on that night i.e. on 18.3.84 another case being Garden Reach P.S. Case No. 45 dated 18.3.84 was also recorded and that FIR was recorded by S.I. H.P. Dutta(P.W.64). In his cross-examination he says that going to the locale he questioned some persons, but did not record their statements under section 161 Cr.PC and that he had tried to collect the names of the assailants but could not succeed to obtain the same from those persons. Much has been criticised by the learned Advocate for the appellants that if really the first I.O. (P.W.80) had recorded the statements of the constables P.W.19 Khalll Khan and P.W.21 Abdul Latif Khan on 18.3.84, he must have obtained from them the names of the assailants before he went to the locale in that night and therefore there was not question of trying to collect the names of the assailants at the locale in that night and this shows that the evidence of the said P.W. 19 and P.W.21 or for that matter the entire prosecution case implicating the appellants is a product of concoction. We however find ourselves unable to accept this critism. It is true that the I.O. got some names from P.W. 19 and P.W. 21 on 18.3.84, but obviously there was no reason to suppose that those were the only culprits involved in the occurrence. It Is therefore only natural that the I.O. while visiting the locale will try to obtain from persons the new names of other culprits as well as confirmation of the names of culprits already obtained by him from P.W.19 and P.W.21 before going to the locale.

21. P.W.1 S.K. Bhattacharjee was attached to Homicide Squad, Detective Department as S.I. of police in 1984. He is the Second investigating Officer of this case. He says that under the order of the D.C.D.D. he took up the investigation of the Garden Reach P.S. Case No. 46 dated 18.3.84 and submitted charge-sheet against 43 accused persons after completion of investigation showing as many as 18 accused persons are absconders. He says that six of those 18 absconders were subsequently apprehended and 12 were still at large while he was deposing on 12.9.88. He was however examined further next on behalf of the prosecution on 11.4.89, He says that on 19.3.84 the D.C.. D.D. verbally ordered him at 5-00 p.m. to take up the investigation of the case and then at about 5-30 p.m. he, D.C., D.D., A.C. D.D.-1. O.C. Homicide Squad, S.I. P.S. Chakraborty of Homicide Squad and two constables of Homicide Squad started for Garden Reach P.S. He further says that prior to that D.C., D.D. told him that he had already sent two S.I.s of Detective Department, namely U.S. Lahiri and S.R. Nag (P.W.70) to work out an Information received by him in respect of some accused persons. He says that at 6-05 p.m. they all reached Garden Reach P.S. and met the O.C. of that P.S. there, he also says that at about 6-40 p.m. S.I. S.R. Nag (P.W.70) and S.I. U.S. Lahiri brought under arrest five accused persons namely Sk. Nanney, Md. Halim, Wahabuddln, Gorachand and Sk. Nuru to the Garden Reach P.S. and those five arrested persons were produced before the D.C., D.D. and the then I.O. of the case S.I. S.R. Ganguly (P.W.80) showed those accused persons as arrested in this case. He further says that at 7-45 p.m. he took charge of those arrested accused persons, case diary and other connected papers along with alamat from S.R. Ganguli, and under order of the D.C., D.D. he came to Lalbazar with those five accused persons, S.I. P.S. Chakraborty and two constables. His evidence shows that they left the Garden Reach P.S. at 8-10 p.m. and reached Lalbazar at 8-40 p.m. and then he started interrogation of those five arrested persons and thereafter he perused the case diary and other connected papers. He says that at 10-30 p.m. he received the supplementary case diary from S.I. S.R. Nag who arrested the five accused persons. His evidence is that on 20.3.84 he met D.C., D-D. in his office and received his instruction regarding the next follow up action. He says that he came to know (hat a team had been raised to assist him in the Investigation of the case. He also names the officers who were Included In the team. He also names Sanat Kr. Gupta, A.C. D.D. (I) as the persons who was placed as overall in-charge of the team. On 20.3.84 he produced all the five accused persons in the court of the S.D.J.M., Allpore and also prayed for their police remand, and then on that day at 2-30 p.m. he along with D.C., D.D., A.C. D.D. (1), O.C. Homicide Squad, S.I. Samir Ganguli left for the spot with force for investigation. According to his evidence they reached Garden Reach P.S. at 3-00 p.m. and then on being led by the O.C. Garden Reach P.S. under the order of D.C., D.D. they all went to Ramnagar Lane in front of the mosque where D.C., D.D. and others had allegedly taken shelter and stayed there upto 3-35 p.m. His further evidence is that then on being led by O.C. Garden Reach P.S. they went to a vacant plot of land at 4-00 p.m. wherefrom the charred body of the security guard had been allegedly recovered and he found some burnt substances there and from that place they went to the premises No. G-222, Battikal Second Lane and reached there at 4-25 P.M.and there he met Hadis Khan (P.W.24) and his mother, Kaflabibi and herecorded their statements there. According to his evidence then they wentto premises No. 228/3 Battikal Second Lane which is the house of Md.Naimullah (since deceased). He also then describes his further activities inthat locality. It appears from his evidence that on 21.3.84 he, O.C.,Homicide Squad, S.I. Samir Ganguli went to 222 Battikal Second Lane andfrom there he went to G-247 Ramnagar Lane. Then on being Informed byS.I. Samlr Gangull that the Commissioner of Police had already arrived atpremises No. 222 Battikal Second Lane with A.C. D.D. (1). he went to thatplace and as per direction of the Commissioner of Police, he seizedscrapplngs of blood looking stains with control from the outer wall of a roomof premises No. G-222 Batllkal Second Lane and prepared the seizure listext. 31. On 22.3.84. according to his evidence, he met the Director of F.S.L.and then the Director deputed H. Moltra (P.W.49) and P.K. Sengupta(P.W.78) both senior officers of F.S.L. to visit the P.O. He says that at thattime Mr. Moltra reported that he would visit the P.O. In the afternoon, andMr. P.K. Sengupta was out at that point of time and he (the witness)instructed S.I. P.S. Chakraborry to take Mr. Moltra and Mr. Sengupta tothe P.O. and he left for Lalbazar. His evidence shows that on that day heexamined Norman Merces (P.W.23) and Brion Merces (P.W.22) and recordedtheir statements and then they along with those two persons went to theresident of the absconding accused Naso and there they found the wife ofNaso Karolin and ascertained the particulars of Naso from her and fromthat place they again came to premises No. G-85 Battlkal First Lane andquestioned some Inmates and at that time S.I. P.S. Chakraborry came andreported that the F.S.L. experts had arrived and they were at G-222 BattlkalSecond Lane and then he (the witness) went there and met them. He saysthat the experts made Inspection at different places of that premises andthen requested to take them to the place wherefrom the charred body ofMoktar was recovered and they were taken there and the experts madethorough search in the burnt substances and ultimately discovered metallcring, a piece of burnt cloth fitted with metallic buttons with ring, and thosearticles were seized. His evidence is that on 23.3.84 he examined Sk. NanneyKosal who made a statement leading to the recovery of some Incriminatingarticles. He also speaks about recovery of Incriminating articles pursuantto the statement made by the accused Sk. Nanney Kosal. His evidence showsthat the accused Nanney made statement to him to the effect that he hadthrown one helmet, one dhal, two swords in the water of kancha drain andhe would be able to lead the police party to the spot where he and othersthrew away those weapons and other things and If those things were stillthere he would be able to bring them out. The evidence of the I.O. (P.W.I)shows that the accused Nanney was taken (on 23.3.84) to the concernedarea pursuant to the statements made by him and the accused Sk. Nancyled them in front of a kancha drain on the northern side of the premisesNo. G-221 Battlkal and G-213 Battlkal and the accused then pointed outa place inside the kancha drain to be the place where the articles as statedby him were thrown and then being asked the accused got down In the waistdeep water of the kancha drain and brought out one by one, one shieldmade of wire net, one helmet, two swords, two belts of which one hadmetallic plate having 'IPS' inscription, one black belt used by constable. Healso speaks about the recovery of a chappal of a right foot. The recovered articles were then seized. His evidence shows that on 26.3.84 also at night they conducted a raid in the concerned area and searched for certain accused persons Including Naso but could not trace them out. His evidence also shows that on 4.4.84 they went to G-85 Battikal Second Lane which is the residence of the father-in-law of the accused Naso but there also Naso was not found. His evidence is that on 30.5.84 the accused Lokman Shah and Osman Shah, two brothers, were arrested from their residence in a night raid between 1-40 a.m. and 2-00 a.m. He says that on 7.6.84 the accused Lokman Shah during Interrogation, stated that he wanted to make a confessional statement and so on 8.6.84 he (I.O.) forwarded Lokman to the learned S.D.J.M. with prayer for recording his confessional statement and his confessional statement was recorded by the learned S.D.J.M., 3rd Court Allpore on 9.6.84. It appears that the I.O. obtained an order of police remand for the accused Lokman after he was produced before the S.D.J.M. after arrest and the accused Lokman expressed his desire to make confessional statement to the I.O. on 7.6.84 while he was under police remand. The I.O. (P.W.I) says that on 16.6.84 he submitted charge-sheet against 43 accused persons of whom 24 were In custody and the rest were absconding. He further says that after the submission of the charge-sheet seven absconding accused persons had been arrested. He says that on 28.2.85 at 3-00 p.m. acting on a secret Information he with the help of S.I. Rajkumar Chatterjee of the Detective Department and others arrested Nasim Khan Naso from the station road near Kallghat Railway Station. He further says that the accused Naso was arrested with the revolver which was given to constable Moktar All for his duty, with three rounds of ammunition for which a specific case has been started on his complaint under section 25 and section 27 of the Arms Act. While confronted with this in examination under section 313 Cr.P.C. the accused Naso only says that the witness (P.W. 1) told lie that he (Naso) was absconding and he was arrested on 28.2.85 at 3-00 p.m. from the Station Road near Kallghat Railway Station or that he had any revolver in his possession at the time of his arrest. Besides such bare denial he however does not say anything as to on what date and wherefrom he was arrested.

22. In his cross-examination P.W.I (the second I.O.) says that he did not go to Garden Reach area between 18.3.84 and 5-00 p.m. of 19.3.84. He says that on 20.3.84 the first witness he examined was Hadls Khan of G-222 Battikal Second Lane in that premises. His evidence shows that on 19.3.84 he first interrogated the five arrested accused persons (Including Sk. Nanney) but he did not record their statements. His evidence Is that on 20.3.84 he forwarded the five arrested accused to court with prayer for police remand upto 2.4.84 and the learned S.D.J.M. allowed the prayer for police remand. He says that he could not interrogate any of the accused persons on 20.3.84 as he had no time for such interrogation. He also says that on 20.3.84 he went to Garden Reach area along with his superiors, namely. D.C. D.D., A.C. D.D. (1) and O.C.. Homicide Squad and reached there at 3-25 p.m. His evidence Is that they first went to the Garden Reach P.S. and then the O.C. of the Garden Reach P.S. led them to the area where the Incident occured and there he examined Hadls Khan first and also Kaflabibi. the mother of Hadls Khan. He has however not shown Kaflabibias a witness in the charge-sheet. He says that on 20.3.84 he reached G-222 Battlkal Second Lane at 4-25 p.m. are remained there till 5-30 p.m. He also says that they were in Battlkal Second Lane area on 20.3.84 from 3-25 p.m. till 10-15 p.m. and that dusk to dawn curfew was imposed in that area and order under section 144 Cr.PC was also promulgated there and police picket was posted in different parts of that area. His evidence in cross-examination is that the blood looking stains were found on the outside wall of the western room of the premises No. G-222 Battlkal Second Lane, and he says so with reference to the seizure list, ext. 31. He says that the experts had arrived at premises No.G-222 Battlkal sometime before 3-00 p.m. and he went there at 3-05 p.m. and the experts H. Motlra and P.K. Sengupta of F.S.L. Inspected the premises and courtyard of G-222 Battlkal Second Lane and from that house, being accompanied by them, the experts went to open plot of land known as Dhankhell Maldan. He denies the defence suggestion that he had advised constable Latif Khan to procure persons of his choice who would support the prosecution case. He also denies the defence suggestion that Hadis Khan and Md. Mustafa gave statements at his tutoring. He says that the statement of Nanney Kosai was recorded by him on 23.3.84 between 8-50 a.m. and 10-10 a.m. and with the accused and other police of lines he left for the P.O. to verify the statement of the Nanney Kasal and reached in front of the kancha drain at 2-55 p.m. He says that the accused Lokman was forwarded to court on 8.6.84 with a prayer for recording his confessional statement. He has acknowledged that both the two accused Sk. Nanney and Lokman retracted their confessional statements by filing petitions but he cannot say the date on which such petition was filed after the submission of the charge-sheet. He cannot say whether those petition were filed on 14.8.84. In his cross-examination he denies the defence suggestion that Naso was arrested from the factory gate of Sultan Hossain.

23. Of the medical witnesses, P.W. 44 Dr. Sunil Dey of the Calcutta Medical Research Institute examined Sr. K. Sharma (P.W.7). Asstt. Commissioner of Police on 18.3.84 at 12-30 p.m- In the Emergency. He also describes the Injury found and treated by him. P.W.66 Dr. Bhlbutlbhusan Blswas who was attached to Calcutta Police Hospital at the relevant time speaks about the Injuries of constable Ramshankar Singh (P.W.16) which were found by him. He says that the said constable was admitted on 18.3.84. He also describes the Injuries found by him. P.W.67 Dr. Gopi Ranjan Samanta was also attached to Calcutta Police Hospital at the relevant time. He proves the discharge certificate in respect of said Ramashankar Slngh. The patient, he says, was admitted on 18.3.84 with bomb injury on the lower thing of the right leg and was discharged from the hospital on 12.4.84. P.W. 46 Dr. Bhopal Mazumdar in the autopsy surgeon. On 19.3.84 he was posted as Demonstrator in the Department of Forensic and Slate Medicines, Medical College and Hospital. His medical qualifications are M.B.B.S. and M.D. In Forensic Medicine. He Joined the West Bengal Health Service on 25.2.75. On the date on which he deposed in court, that is, on the 1st February, 1989 he was posted as Assistant Professor and Head of the Department of the Forensic Science and Medicines, North Bengal Medical College. He held post-mortem examination on the dead-body of V.K. Mehta, D.C. Port Division on 19.3.84. He describesas many as 23 injuries found by him externally on the various parts of the deadbody including the face, head, etc. Injury No.9, as found by him. Is a lacerated would 3' x 1' X muscle X bone X meninges X brain on the right fronto-parletal region of the head, being placed half inch right to the mid line and 69 1/2 above the right heel. This is a head injury. He has also describes what he found on dissection. He says that all the Injuries were showing evidence of vital reaction. He openes that death was due to the effect of the injuries as mentioned by him which were ante-mortem and homicidal in nature. He also specifically says that he found 23 external and 4 internal injuries on the deadbody. According to his evidence the cumulative effects of the injuries were sufficient to cause death in the ordinary course of nature. He further says that Injury No.9 might be caused by any hard blunt weapon like iron rod or any other metallic rod and that the victim was in standing position when injury No.9 was Inflicted. He says that the said Injury No.9 was caused by the assailant from the front side of the victim. He further says that the Injury No.9 and the injury No.2 found on dissection were the vital Injuries. He also says that injury No.9 alone was sufficient to cause the death of the victim In the ordinary course of nature. However, the Injury No.9, he says, could not cause instantaneous death. He says that the injury No.23 was caused by pulling the body from leg side and that the injuries sustained by the victim were caused by more than one person. He also describes specifically as to which particular injury could be caused by what type of weapon. The possible weapons named by him include metallic rod, chopper, sword, napala, bhojall, brickbats etc. It may be noted here that the Injury No.9, according to the prosecution case, is connected with the assault made by the appellant-accused Naso on the head of V.K. Mehta with iron rod. The Autopsy Surgeon, P.W. 46 says that he held the post-mortem examination on the deadbody of V.K. Mehta on 19.3.84 at 12-00 noon at Calcutta Police Morgue and Prof. J.B. Mukherjee who was the professor and head of the Department of Forensic and State Medicines, Medical College, Calcutta was present when he held the postmortem examination and that Prof. J.B. Mukherjee supervised the examination. He says that Prof. J.B. Mukherjee concurred with his opinion and made the following remark: The post-mortem examination was conducted under my direct supervision and guidance. I fully concur with the findings and opinion of the Autopsy Surgeon, Dr. B. Mazumdar'. The post-mortem report was however prepared and signed by P.W. 46, Dr. B. Mazumdar and the same has been marked ext.tO. From his evidence the get that by that time he (P.W. 46) had gathered the experience of holding post-mortem examination on nearly four thousand deadbodies. He also held the postmortem examination 19.3.84 at 3-00 p.m. on the deadbody of the constable Moktar All who was the body guard of V.K. Mehta. He also describes the injuries found by him on the deadbody of Moktar All and gives the opinion regarding the effect of the injuries and the cause of death. In his cross-examination, he says that the Injury numbers 1,2,3,4,5,6.12,13,14,15,16 & 22 as found on the deadbody of V.K. Mehta were Incised injuries. The learned Advocate for the appellants contends that the opinion given by the Autopsy Surgeon, P.W.46 Dr. B. Mazumdar to the effect that the injury No.9 alone was sufficient to cause the death of the victim in the ordinary course of nature is not there specifically in the post-mortem report and this hasbeen stated by the Autopsy Surgeon Dr. Mazumdar as his own opinion while giving evidence in the court and this opinion of the Autopsy Surglon, P.W.46 is therefore not supported by the opinion of Prof. J.B. Mukherjee who supervised the post-mortem examination and therefore this opinion of P.W.46 should not be taken into consideration at all In judging the effect of the assault stated to have been made by the accused Naso on the head of the victim Mehta with iron rod. In our opinion this contention is however not acceptable. It is true that Prof. J.B. Mukherjee, obviously as a senior person, supervised the post-mortem examination held by P.W.46 Dr. Mazumdar but that does not mean that the opinion of Dr. Mazumdar on any point is of no merit or consequence unless the same is specifically endorsed by Prof. Mukherjee. P.W. 46, Dr. Mazumdar is also an expert in the matter and as we have seen he has a very rich experience in the matter of holding post-mortem examination. That being so, his opinion also given on the basis of the examination made by him, deserves due consideration and acceptance on merit unless the same otherwise stands discredited or condemned for any good and sufficient reason. Here there is absolutely no reason why we should not accept the opinion of the aulopsy surgeon P.W.46 regarding the effect of the injury No.9 which is a head injury allegedly caused by the accused Naso by inflicting assault on the head of the victim with rod. The learned Advocate for the appellants also submits that according to the evidence of the Autopsy Surgeon P.W. 46 all the Injuries had shown the evidence of vital reaction and therefore no disproportionate importance should be given to the effect of injury No.9. In this connection we are however to mention that even if all the injuries had shown evidence of vital reaction, that does not for that reason alone minimise the gravity of the effect of any particular Injury which according to the autopsy surgeon P.W.46 is alone sufficient to cause the death of the victim in the ordinary course of nature, even though such Injury could not have caused instanteneous death. It is needless to mention that causing of death is an ingradlent of the offence punishable under section 302 IPC and it is not necessary that death In all cases must be caused Instantaneously for bringing the case under section 302 IPC. That apart, when death is the result of a cumulative effect of all the injuries caused to the assailant in prosecution of the common object to commit the offence, each and every assailant is responsible for the offence in view of the section 149 IPC. The learned Advocate for the appellants also contends that the grounds of opinion of the expert are also relevant. Indeed there is no doubt that the autopsy surgeon in the present case has elaborately described all the injuries found by him and obviously his opinion is based on the findings recorded by him. No worthy ground has been brought out in the cross-examination of the autopsy surgeon nor successfully contended before us for which we could hold that the opinion of the autopsy surgeon is not acceptable. We reiterate that we have no reason or ground to discard or disregard the opinion given by the autopsy surgeon P.W.46.

24. P.W.47 Kanchan Chatterjee is the Judicial Magistrate who held T.I. parade in respect of the accused Nanney Kosal at Allpore Central Jail on 30.5.84. He says that the witness K.K. Sharma (P.W.7) identified the suspect Nanney Kosal stating that he along with others were hurling bombs at Ramnagar Lane near mosque and further stated that while he along withD.C, V.K. Mehta reached the crossing of Ramnagar Lane and Mathorpara entrance while chasing a mob, he saw the suspect hurling bombs along with others.

25. P.W.51, P.K. Deb is the Judicial Magistrate who recorded the confessional statements of the accused Nanney Kosal and the accused Lokman Shah on 3.4.84 and 9.6.84 respectively. He says that on 2.4.84 the accused Sk. Nanney was produced before him by constable Niranjan Das and the record was also laid before him. He was directed by the S.D.J.M. Allpore to record the confessional statements of Sk. Nanney. His evidence shows that on 2.4.84 the accused Sk. Nanney on being produced from judicial custody, was given cautions by him in open court and he was then sent to jail custody with the direction to the Jail authority, Alipore Central Jail that he should be kept in segregation so that he could get sufficient time for reflection. He says that on 3.4.84 the accused was again produced before him at about 3-00 p.m. In his court room and the accused was again given caution by him regarding the Implication of giving a confessional statement and the accused was kept in his chamber and was given time for an hour to reflect and ponder over the matter, and nobody was present In his chamber except the accused. He specifically says that no policeman was present in his chamber. He says that at 4-00 p.m. he asked the accused whether he was to make a confessional statement in his chamber and the accused Insisted on making a voluntary confessional statement and he recorded the same in his court room. He says that he was satisfied about the volunteriness of the accused in making the statement. The confessional statement of the accused Nanney Kosal as recorded by the Judicial Magistrate, P.K. Deb on 3.4.84 has been marked ext.13. He further says that the accused admitted that the statement had been correctly recorded and he also explained to the accused before he recorded his statement that he was free not make any statement and if he made any statement It might be used against him. He further says that nobody was present Inside the court room when the statement of the accused was recorded. The recording. according to his evidence, was complete by 4-40 p.m. It may be noted here that the accused Nanney Kosai was convicted and sentenced by the trial court in the original trial and reportedly he did not prefer any appeal against such conviction and sentence.

26. The further evidence of the Judicial Magistrate, P.W. 51, P.K. Deb Is that on 8.6.84, the learned S.D.J.M. Alipore directed him to record the confessional statement of the accused (appellant) Lokman Shah. He says that on that date at about 1-15 p.m. the accused (Lokman) was produced before him and was identified by the constable P. Pramanlk In court room. He says that the accused was cautioned by him and the Implication of making the confessional statement was explained to him. He further says that the accused was produced from Judicial custody and he sent the accused to Jail custody and directed the superintendent of Allpore Central Jail to keep the accused In segregation so that he could get sufficient time for reflection, and directed his production before him on 9.6.84. The accused was produced before him on 9.6.84 at 2-00 p.m. by the constable Ramnarayan Goala in the court room and the accused was given warning and caution and was given one hour's time to think over the matter and was kept In the chamber of the Magistrate where none else was present. According to his evidence at 3-00 p.m. the accused insisted upon making a voluntary confessional statement and he (Magistrate) started recording his confessional statement in the court room at 3-00 p.m. where none else was present. He specifically says that no policeman was present at that time. He also deposes that before he started recording the statement he gave the accused all statutory cautions and started recording his statement after he was satisfied that the accused was making the statement voluntarily. The accused made the statement In Hindi and he recorded the statement in Bengali script. He further saya that after the statement was recorded It was explained to the accused in Hindi and the accused signed the statement in his presence. Ext. 14 is the confessional statement of the accused Lokman Shah as recorded by the Judicial Magistrate P.W.51 P.K. Deb. He further says that the accused admitted that the statement was correctly recorded after it was read over to him. In his cross-examination he says that he cannot say whether on 8.6.84 the accused was directly taken to the jail from his court room or he was taken to some other place before he was finally taken to Jail. It is needless to mention that the accused got sufficient time and opportunity for reflection in jail custody. In his cross-examination the Judicial Magistrate, P.W.51 specifically syas that he was fully satisfied after putting questions to the accused persons that they were voluntarily making statements and that he applied both his subjective and objective satisfactions. He specifically says that he put certain questions and he was satisfied that they were mentally prepared to make such statements. In his cross-examination he further says that he had cautioned Lokman that he would not be sent to police custody If he did not make any statement. It is suggested to him in his cross-examination that the statements were recorded In presence of the I.O. of the case. This is a preposterous suggestion, we must say, that a Judicial Magistrate while recording a confessional statement will allow the I.O. to be present there.

27. Ext. 34 which is the ordersheet of the court of the S.D.J.M. Alipore shows that the accused Nanney Kosal along with others were produced in court in custody on 20.3.84 and they were all remanded to police custody till 2.4.84 after considering the prayer of the I.O. It also appears that while producing the accused persons before the learned S.D.J.M. from police custody on 2.4.84 the I.O. inter alia made a prayer for recording the confessional statement of Sk. Nanney Kosal under section 164 Cr.PC and the learned S.D.J.M. directed Sri P.K. Deb J.M., 3rd Court for recording the statement under section 164 Cr.PC. The order-sheet dated 30.5.84 shows that the accused Lokman Shah and accused Osman Shah were produced before the S.D.J.M. In custody on 30.5.84. According to the prosecution case the said two accused persons are brothers. On the prayer of the I.O. the S.D.J.M. remanded both the accused Lokman and Osman to police custody till 11.6.84. It also appears that the accused Lokman was produced in court from police custody in advance on 8.6.84 and on considering the prayer of the I.O. to record his confessional statement, the learned S.D.J.M. directed the Judicial Magistrate Sri P.K. Deb to record his confessional statement. On that very day Lokman who produced before P.K. Deb, J.M. and he was given necessary warnings and was remanded to Jail custody and was then produced before the J.M. concerned on 9.6.84 again and his confessional statement was recorded after giving him necessarycautions. It may be mentioned here that the accused Sk. Osman Shah was produced on 9.6.84 and he was remanded to jail custody for reflection but ultimately he declined to make any confessional statement when he was produced before the Magistrate on 11.6.84. It may be noted here that both the accused Nanney Kosal and Lokman Shah who made confessional statements before the Judicial Magistrate, however ultimately retracted such confessional statements by filing petitions before the court on 14.8.84. It has been submitted on behalf of the State that there is no bar in taking into consideration the confessional statements of those two accused persons although they ultimately retracted the same. It is also pointed out that they retracted their confessional statements as late as on 14th August, 1984 although their statements were recorded In the months of April, and June respectively and although they were produced in court a number of limes before 14th August, 1984.

28. Ext. 3 is the statement of the accused Sk. Nanney recorded by the Judicial Magistrate under section 16A Cr.PC. In his statement under section 164 Cr.PC the accused Nanney Kosal has described some part of the Incident Implicating himself and certain other persons. We have already noted that Nanney Kosal has been convicted and sentenced in the original trial and he did not prefer any appeal against the same. It has been contended on behalf of the appellants that since Nanney Kosal was therefore not being tried Jointly alongwith present appellants in the retrial, his confessional statement recorded under section 164 Cr.PC cannot be taken into consideration against the present appellants under section 30 of the Evidence Act. The learned Advocate for the appellants has in this connection also relied upon certain decisions cited by him which we will refer to at a later stage. Ext. 14 is the statement of the appellant Lokman Shah recorded by the Judicial Magistrate under section 164 Cr.PC. The statement was made by the accused-appellant Lokman before the Judicial Magistrate In Hindi and the Magistrate recorded the same in Bengali script. The English translation of the relevant portion of the statement of the accused Lokman recorded under section 164 Cr.PC as appearing In the paper book is reproduced below :

'Q. Tell what statement you will make?

Ans. On 18th date, Sunday (Holiday), the Incident took place. At 10 or 10-30 Naso, Puttan, Akhtar, Chowdhury came to me for price. I asked what you will do by money. They answered quarrel is going on in village road for that weapons are to be purchased by the money. Those persons have set fire to the mosque. If those persons make any trouble here we shall fight out. I said I shall also fight out. After that they fled away. At 11-45 a cry or quarrel came to my heralng. I came out and found that two police officers coming speedily. Many people threw brickbats towards those police officers. The police officer in white dress went towards the house of Mulla. The police officer In Khaki dress came straight. When he was crossing near me I also threw a brickbat. I cannot say whether it hit or not. The police officer In khaki dress entered In the house of Latif Sepot. Many persons entered following him. Amongst them Idris was there. From outside many people threw brickbats. I also threw 2/1 brickbats. I cannot say whether it hit him or not. Aftersometime I found that Naso, Puttan, Akhtar and Chowdhury were coming from the side of Battikal mosque. They took me Inside the house. I found the police officer In khaki dress was standing near the kitchen. (wrong translation). The correct translation is 'standing by the side of Gosalkhana'--'Gosalkhanaka pas khara hayal. That person said he was D.C. Some people said they do not know D.C. etc. After this all people in a batch caught that person. I also caught him. Naso hit by a rod on the head. For this the hard cap fell down. Again rod was used. It hit the head. Saheb fell down. Puttan, Akhtar and some other many people assaulted him on the face with deadly weapons, (wrong translation. The correct translation is 'Puttan, Akhtar & many other persons started assaulting on his face with sharp-cutting weapons--'dharwala hattar se chehar par marne laga'). I could not tolerate the blood-shed. For that I came out. I was then searching for my younger brother. After some time I found those 8/10 persons took D.C. Saheb and entered Inside the house, (wrong translation. The correct translation is 'after a while I saw that those 8/10 persons were going out from Inside the premises taking away D.C. Saheb--Thora der ke bad dekhta o at das admi D.C. Saheb ko le ke bari ke ondar se chala ja raha'). They proceeded towards the Mehar Manzil crossing the house of Israil. ('They took him away towards Mehar Manzil after crossing the house of Israil'--'Israilko par karke Meher Manzil ke taraf le giyal. After that I cannot understand what happened, ('what happened thereafter, I cannot say')--'Usko bad hamko nehi malum haya keya hua'). I worked under port. And I was present at home on that day.

'Q. Do you want to say anything more?

Ans. No. I have forgotten to say one thing. Samsad and Abbas were also present in the Incident.'

29. It may also be rioted here that from ext. 14 it will appear that the Judicial Magistrate before recording the statement of the accused Lokman Shah put various questions to the accused Lokman for ascertaining whether the accused was making the statement voluntarily and free from any outside influence. As we have seen, the statement was recorded by the Judicial Magistrate on 9.6.84 and on the preceding date i.e. 8.6.84 the accused was sent to jail custody for giving him proper opportunity for reflection. In answering the question put to the accused Lokman on 9.6.84 by the Judicial Magistrate as to whether he was kept in the jail in separate room or not, he said that he was kept In a separate room for thinking and realising. The Magistrate also tells him inter alia that he was not bound to confess and asked him to tell after thinking whether he will make the statement from his mind or not, to which the accused replies that he will make the statement. He also says that he was not terrorised by anyone nor was requested or assured for giving the statement. In answer to the specific question whether he was beaten by any police officer, he replied in the negative. The Judicial Magistrate also told him that he would not be kept under the custody of the police whether he told or not. Even then the accused staled before the Magistrate that he would make the statement willfully and he had come from jail and nobody had given any hope or assurance to him. The Magistrate also cautioned the accused that If any statement was made by him, he might be hanged for the same and thatwhat he would say could go against him. Inspite of that the accused stated to the Magistrate that he would confess according to his sweet will. The Magistrate also appended a certificate under the statement recorded by him to the effect that he believed that the confession was made voluntarily.

30. The learned Advocate for the appellants has contended that the only evidence on which the prosecution has relied upon for bringing home the charge framed against the accused Lokman ts his alleged confessional statement, ext. 14. It is however contended by him that the law regarding use of confessional statement against maker of such statement is that the court must be satisfied that the confessional statement is truthful and is made voluntarily. He has also cited a number of decisions on this point such as Anathbandhu v. State of West Bengal, 1986(1) CHN. 229, State of West Bengal V. Prosenjit Tafadar 1991(1) CHN 331. Saran Singh v. State of Punjab, : 1957CriLJ1014 , etc. Indeed we are convinced that the same is true and voluntary. While examined under section 313 Cr.PC the accused Lokman even inter alia denies to have made such statement as recorded by the Magistrate and he even went to the absurd extent of telling that the I.O. was standing near him when he made the statement before the Magistrate. It may be noted here that at the retrial one defence witness being D.W.1 Sk. Mumtaz was examined on behalf of the defence. He claims to be an employee of Calcutta Port Trust. He says that he knows the accused Lokman, who was a class-IV staff in the department in which he was working. He says that there was continuous strike in all the ports of India including the Calcutta Port w.e.f. 16.3.84 and during the strike period he used to attend the gate No.8 of the workshop regularly and this gate is one of the entrance gales to the K.P. dock. He further says that like him other people also used to go in front of the gate during the strike. His evidence ts that on 18.3.84 he along with others went in front of that gate at about 8-30/9-00 a.m. and returned to his residence at about 12-45/1-00 p.m. He wants to say that on 18.3.84 when he went In front of that gate he found that the accused Lokman was sitting there. This defence witness has been examined to establish the plea of alibi taken by the accused Lokman. The evidence of this defence witness who was examined at the retrial in June, 1992 long after the occurrence however, does not inspire any confidence. No plausible explanation is coming as to why he was not examined at the time of the original trial if really Lokman was with him in front of the gate of the Calcutta Port Trust at the relevant time on 18.3.84. Also it is significant to note that the date of the Incident namely, 18.3.84 was not only a Sunday, but It was also the day on which the 'holi' festival was being celebrated. That being so, it is difficult to believe that he and other workers Including the accused Lokman would have gone there In front of the gate of their workshop on that day obviously without any purposeful object. Moreover it Is also quite unnatural that when riots and disturbances were going on in the concerned locality, the accused Lokman would have chosen to go and station himself in front of his closed factory gate without any meaningful purpose leaving aside the shelter of his own house, if realty he were a peace-loving person. Having regard to the facts and circumstances, we are not Inclined to place any reliance on the evidence of the defence witness D.W. 1 Sk. Mumtaz. The learned Advocate for the appellants submits that even if the defence plea of alibi falls and the court does not accept thesame, yet that by itself does not prove the prosecution case. In this connection he also refers to the decisions in Shared Blrdhtchand Sarda v. State of Maharashtra, 1984 SCC(Cr.l) 487 and Sk. Firoz v. State of West Bengal 1997. C.Cr.L.R. [Call 251. In connection with the question relating to the nature of use of a confessional statement he refers to the decisions in Pakal Narayan Swami v. Emperor AIR 1931 PC 47, PalblnderKatirv. State of Punjab : 1953CriLJ154 , Ompmkashv. State of Uttar Pradcsh : AIR1960SC409 . There is no doubt that a self exculpatory statement does not amount to confession. It is also true that the statement of the accused will have to be taken as a whole without making any 'pick and choose' of isolated sentences or words divorced or separated from the context in which they have been used. But in the present case on an Indeplh consideration of the statement of Lokman made before the Judicial Magistrate, we find no reason to hold that the same does not amount to a confessional statement. The learned Advocate for the appellants contends that the statement of Lokman as recorded under section 164 Cr.PC would show that he had only thrown some brickbats when the police officer in khaki dress entered in the house of LatlfSepol and he even did not care to notice whether the same hit the police office or not. He also contends that although the statement shows that Lokman caught the D.C. along with others when Naso hit him by a rod on his head as a result of which the cap fell down and Naso again hit the D.C. on his head and the D.C. fell down and other assailants assaulted him wllh sharp culling weapons, yet the statement shows that on seeing blood-shed as a result of assaults made by the assailants on the D.C. Lokman could not tolerate the situation and he withdrew himself and came out. It is submitted on behalf of the appellant Lokman that the conduct of Lokman shows his mental state at the relevant time and would suggest that he had no culpable object or Intention in respect of the commission of the offence. We are, however, unable to accept this defence contention. May be that the accused Lokman was comparatively a timid person and was unable to reconcile himself wllh blood-shed when the same occurred as a result of combined and concerted assault with various weapons upon the D.C. May be that the role played by the accused Lokman was not as aggressive as exhibited by many other more ferocious co-participants, yet the fact remains that when the D.C. was being chased by a mob and the D.C. was running away for safety, he, I.e.. the accused Lokman also threw brickbats at him and later even participated in catching hold of him along with others obviously for facilitating the assault by other persons with various weapons and in fact, the D.C. was assaulted with various lethal weapons Including rod used by the accused Naso on the head of the D.C. The admitted partlcipalion of Lokman in the operation and in the manner described by Lokman in his stalemenl clearly makes out that the statement of Lokman is nothing else but a confession of the commission of the offence and participation by himself in a culpable way in the commission of the same. We fall to understand why the statement of Lokman should be treated as something falling short of confession. We are rather of the opinion that the statement even when taken as a whole and without excluding anything therefrom amounts to a clear confession of the accused Lokman that he participated in the commission of the offence of severely assaulting the D.C. with various dangerous weapons in which the different assailants took part in a conjoint operation obviously with a common object to commit the offence which was being committed and tn that operation Lokman took part by catching hold of the victim along with others while some other assailants were assaulting the victim with various weapons. His withdrawal from the scene at a later stage on seeing blood-head does not exonerate him from the culpability of his act or state of mind which he displayed upto that stage and this is enough for the purpose of finding him guilty of the charge framed against him under section 302/149 IPC, Inasmuch as the D.C. was put to death as a result of a brutal assault perpetrated on him conjointly by the assailants. May be that the D.C. was further assaulted in continuation of the earlier assault even after Lokman withdrew himself from the scene after seeing the blood-shed but that does not, we reiterate, exonerate Lokman from his participative culpability in the commission of the offence till the stage of his withdrawal. We have seen from the evidence of the Autopsy Surgeon that the head injury sustained by the D.C. obviously as a result of assault made by Naso with rod on the head of the D.C. was alone sufficient to cause death and that was done while Lokman was catching the victim along with others obviously for facilitating conjoint assaults not only by the rod but also by other weapons used by the assailants. The statement of Lokman fully satisfies the requirements of a confessional statement and we are also of the opinion that the same is not only voluntary but is also true as the same receives substantial corroboratlon and also coroboratlon in material respects from the other evidence on record, namely, that the D.C. In khankl uniform and his body guard in while uniform were chased by a riotous mob there on that day and at that time, and the D.C. took shelter in that premises where he was attacked and assaulted by the assailants as stated by the eye witness P.W. 24, Md. Hadls. It is true that Lokman has not been specifically named by Md. Hadls but the other descriptions of the Incident as given by Md. Hadls, in our opinion, lends corroboratlon to the material aspects as to how and in what manner the occurrence took place at the concerned premises regarding assault on D.C. Mehta. Such corroboratlon tn respect of material aspects by the evidence of Md. Hadls Inspires sufficient confidence to accept the confessional statement of the accused Lokman as true. That being so, we have no hesitation in accepting the confessional statement of Lokman as voluntary and true. We will discuss more about the confessional statements at a later stage. Here we would like to note that the evidence of P.W.26 Md. Mustafa and P.W. 38 Md. Narln also supported the prosecution case regarding the Involvement of the accused Naso in the commission of the offence, but these two witnesses could not be produced for further cross-examination at the retrial and that is why their evidence was not pressed into service at the retrial. It has been submitted on behalf of the appellants that although the Division Bench while directing retrial directed the evidence already on record to be taken into consideration in writing out a fresh Judgment in the retrial, yet their evidence cannot be taken Into consideration because they could not be produced for further cross-examination at the time of retrial. It may be noted here that the Division Bench while remanding the case for retrial directed that the judgment is to be written on the basis of the evidence already on record, the evidence to be brought on record pursuant to the order of retrial, and the further statements of the appellants, if any, made under section 313 Cr.PC and also directed the trial Judge to give the appellants opportunity of further cross examining the prosecution witnesses. As we have seen, P.W.26 and P.W. 38 who support the prosecution case in respect of the Involvement of the appellant Naso however could not be produced for further cross-examination at the retrial Insplte of best efforts made by the prosecution as their whereabouts could not be traced out. In the circumstances it appears to us that section 33 of the Evidence Act would be attracted. Under section 33 of Evidence Act the evidence given by a witness in a Judicial proceeding is relevant for the purpose of proving in a subsequent Judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or his presence cannot be obtained without an amount of delay or expense which the court considers undesirable, etc., provided the proceeding was between the same parties or their representstive-In-Interest and the adverse party in the first proceeding had the right and opportunity to cross-examine, and the questions in Issue were substantially the same in the first and in the second proceeding. In the present case, at the original trial Involving the same Issue the appellants not only had the right and opportunity to cross-examine both P.W.26 and P.W.38, but in fact they were also cross-examined in extenso. That being so, when Insplte of efforts those two witnesses could not be traced out at the time of retrial plainly their earlier evidence was admissible in evidence at the retrial in view of section 33 of the Evidence Act. It is needless to say that the directions of the Division Bench concerning retrial do not have any connotation that a piece of evidence which is already on record will be excluded from consideration at the retrial even if the same is otherwise admissible in evidence in accordance with the provisions of law. Therefore we are of the opinion that the earlier evidence of P.W.26 and P.W.38 can be taken into consideration at the retrial under section 33 of the Evidence Act although they could not be produced for further cross-examination at the retrial as they could not be traced out after so many years inspile of efforts. In this back-ground it is Interesting to note the submission made by the learned Advocate for the appellants in respect of the question of admlsslbllly of the confessional statement of the accused Nanney Kosal for consideration at the retrial against the appellant Naso. it has been contended in this connection by the learned Advocate for the appellants that though the Division Bench while directing retrial permitted the trial court to take into consideration the evidence already on record, yet that direction is not Intended to nor does tt supersede any provision of law. It has been submitted by the learned Advocate for the appellants that under section 30 of the Evidence Act the confession of a co-accused can be taken into consideration against an accused only if both of them are Jointly tried for the same offence. It is submitted that since the accused Nanney Kosal who was convicted and sentenced in the original trial did not prefer any appeal and since he was not being Jointly tried with the present appellants at the retrial his confession cannot be taken Into consideration under section 30 of the Evidence Act at the retrial relating to the present appellants. In this connection the learned Advocate for the appellants has referred to certain decisions namely Emperor v. Keramot Sardar, 16 CHN 49, Assistant Collector of Customs. New Delhi v. Harbans Lal Sharaf 1980 Cr.LJ 681 (Delhi) and Suresh Budharmal Katati v. State of Mahamstra 1998 SCC(Cr.l.) 1625. The learned Advocate for the appellants thus contends that Inspite of the direction of the Division Bench for taking into consideration at the retrial the evidence already on record the confessional statement of Nanney Kosal cannot be taken Into consideration at the retrial as that Is, in effect, prohibited by section 30 of the Evidence Act and the direction of the Division Bench cannot be construed to supersede any provision of law. We accept this contention and we are also of the opinion that the confessional statement of Nanney Kosal cannot be taken Into consideration now in the retrial against the appellant Naso because Naso and Nanney Kosal were not facing Joint trial at the retrial. But we fall to understand why this same logic should not apply in respect of the earlier evidence of P.W.26 and P.W.38, both of whom were cross-examined at length at the earlier trial but who could not be traced out and produced at the retrial Insplte of efforts. The direction of the Division Bench to produce the witnesses for further cross-examination at the retrial obviously cannot be construed to exclude the operation of a statutory provision, namely, section 33 of the Evidence Act. No doubt that under the direction of the Division Bench both those witnesses were also required to be produced for further cros's-examlnallon at the retrial. But then, in our opinion, the law should take Its own course if in spite of efforts those two witnesses could not be traced out and produced after so many years for further cross-examination at the retrial. In our opinion, section 33 is attracted in the circumstances and there is nothing in the direction of the Division Bench which can be construed as excluding the operation of a statutory provision of law that may be attracted under the law Itself in a particular situation. In our opinion. In the circumstances the earlier evidence of P.W.26 and P.W.38 can be taken Into consideration at the retrial as a matter of law. However, as a matter of fact we keep their evidence out of consideration, and we examine whether even without taking into consideration the earlier evidence of those two witnesses, namely, P.W.26 and P.W.38 the prosecution have been able to establish the concerned charges against the present appellants.

31. The learned Advocate for appellants contends that the appellants should have been examined under section 313 Cr.PC afresh in respect of the earlier evidence on record but that was not done and that being so, the entire earlier evidence in the case should be kept out of consideration and it should be held that the earlier evidence cannot be used against the appellants for finding them guilty of the concerned charges in the retrial. It may be mentioned here that in the retrial, after the further cross-examination of the witnesses produced by the prosecution were completed, the appellants were further examined under section 313 Cr.PC thereby giving them opportunity to tell whatever they wanted to tell yet. It may also be noted here that the prosecution did not adduce any fresh evidence in the retrial and only the witnesses who were earlier examined and whom the defence wanted for further cross-examination barring P.W.2G and P.W.38, were produced for further cross-examination and even then further examination under section 313 Cr.PC was done in the retrial so that the appellants might get further opportunity to say whatever they yet desired to say. There was absolutely no question of examining the appellants afresh under section 313 Cr.PC in respect of the entire evidence in respect of which they were earlier given opportunity to express their say under section 313 Cr.PC it is a desparate contention raised on behalf of the appellants in despair that the earlier examination of the appellants under section 313 Cr.PC should be altogether excluded and they should have been examined afresh under section 313 Cr.PC in the retrial even in respect of the evidence in respect of which they were given adequate opportunity earlier under section 313 Cr.PC The direction of the Division Bench in this connection also contalnes the expression 'thereafter further examine the four appellants under section 313 of the Code of Criminal Procedure'. The Division Bench used the expression 'further examine' and not fresh examination and there is also absolutely no reason why the earlier examination under section 313 in respect of the evidence earlier adduced should be treated as a nullity in the retrial. The contention raised by the learned Advocate for the appellants in this respect is wholly unacceptable.

32. The learned Advocate for the appellants contends inter alia that the unexplained delay in examination of P.W. 24 Hadis Khan renders it unsafe to rely on his evidence, The incident took place on 18.8.84 andP.W.24 Hadls Khan, we get it from the evidence of P.W. 1 S.K. Bhattacharjee. the second I.O., was examined by him in the afternoon of 20.8.84 at G-222 Battikal Second Lane. Both the earlier I.O. (P.W.80) and the second I.O.(P.W.l) have as we have seen, described what they did respectively after taking charge of the Investigation. Hadis Khan, as we have seen, was rounded up at about noon on the 19th and placed in a police van that patrolled in the locality and then he and others were in the police lock up at the P.S. from 7-00 p.m. and were later released in the evening of the same date. The second I.O. P.W. 1 took charge of the Investigation in the evening of the 19th and thereafter, as we have see, he took charge of some of the arrested accused persons in the evening and took them to Lalbazar and Interrogated them and on the next day he took steps for producing them before the court and then went to the concerned locality and there he examined Hadls Khan as the first witness to be examined by him and also the mother of the Hadis Khan in the concerned premises. Having regard to the facts and circumstances we cannot say that there was any delay or leapse in the matter of examining P.W.24 Hadls Khan. The learned Advocate for the appellants in this connection has referred to certain decisions namely, Balakrishna v. State of Orissa 1971 Cr LJ 670. Babull v. State of Orissa, 1974 SCC(Crl.) 104 and State of Orissa v. Brambhananda : 1976CriLJ1985 . It is needless to mention that all those decisions are confined in their effect to the particular facts of the respective cases. In Batakrishna v. State of Ortssa (supra) the concerned witness was examined by the I.O. 10/11 days after the incident which definitely is not so in our present case. In the other two cases namely Babull v. State of Orissa and Slate of Ortssa v. Brambhananda (supra) the concerned witnesses did not disclose the names of the assailants to anyone at the earliest available opportunity and there was no satisfactory explanation for the same. In our present case, as we have seen, P.W.24 Hadls disclosed what he saw at the earliest available opportunity on the very same day to P.W.19 Khalll Khan and P.W.21 Abdul Latlf Khan. Having regard to the facts, circumstances and evidence on record we find no reason to disbelieve the evidence of P.W.24 Hadis Khan.

33. As regards the question whetehr the statement of appellant Lokman recorded under section 164 Cr PC amounts to confession we have earlier discussed and we reiterate our opinion that such statement amouns to confession. We have already discussed that the Magistrate gave all necessary cautions to the appelalnt Lokman before recording his confession and also gave adequate opporutnity for reflection in Jail custody as well as after the accused was produced before him and he recorded the confessional statement after he was fully satisfied that his confessional statement was made voluntarily and the same was true. We also find no reason to hold otherwise in this respect. H has been contended on behalf of the appellant Lokman that there is no other evidence against the said appeallant except his confessional statement and that, too the confessional statement was subsequently retracted by him and that being so no conviction can be based on the retracted confession alone. In this connection the learned Advocate for the appellants has referred to certain decisions of the Supreme Court, namely, Chandrafcant Chfnum Lal v. State of Gujarat 1992(1) Crime 233, Kashmlra Slngh v. State of M.P. : 1952CriLJ839 . It may be noted here that the decision in Chandrafcant Chfman Lal (supra) is virtually based on the earlier decision of the Supreme Court in Kashmlra S(ngh v. State of Madhya Pradesh (supra). In Kashmlra Sfngh (supra) the Supreme Court was concerned with the question how Tar the confession of an accused person can be used against a co-accused. It is evident from a reading of the said decision in Kashmir Stngh that the said decision was not laying down the law that an accused cannot be convicted on the basis of his own confession. Rather what was laid down in effect in that context in Koshmia Singh is that an accused cannot be convicted on the basis of the confessional statement of the co-accused. On the other hand, the learned Advocate for the Slate has referred to certain decisions which we mention below regarding the use of confession. In Sarwan Stngh v. State of Punjab. : 1957CriLJ1014 , it has been held that in law it is always open to the court to convict an accused on his confession Itself though he has retracted it at a later stage and that nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement and that what amount of corroboratton would be necessary in such a case would always be a question of fact to be determlend in the light of the circumstances of each case. In Madi Ganga v. State qj Orfssa 1981 SCC (Crl) 411 it has been held by the Supreme Court that the accused can be convicted on the basis of the confessional statement if the general trend of his confession is substantiated by other evidence. In Param Hans Yadav v. State of Bihar 1987 SCC(Crl) 322 it has been held that although the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial the same can only be used for lending assurance to any substantive evidence. The law on the point has been very succinctly laid down by the Supreme Court in Sfirfsfiad Waaeshl v. State of Maharastra 1985 Cr LJ 1173 where it has been held that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboratlon from other Independent sources and that it can not, however, be the basis for convicting the co-accused though it may be taken Into consideration against the co-accused also. That being the law, it is evident that the retracted confession of the appellant Lokman can form the basis of his conviction if it has received general corroboratlon from other Independent sources as it has in our present case. We have seen that the appellant Lokman made an elaborate statement as to how the offence was being committed upon V.K. Mehta, D.C. by a group of assailants, some of whom were armed with deadly weapons, and as to the place where it occurred and how he participated in that operation. The manner in which the offence was committed upon V.K. Mehla in the concerned premises and how he was chased in that premises and assaulted are in such details that the vivid description itself lends an assurance of credibility for the confessional version. These details, as we have seen, are again corroborated in material particulars by the evidence of P.W.24 Hadts Khan. We have also seen that there.was an Inordinate and unexplained delay in retracting the confession. Having regard to the facts and circumstances, we have therefore no hesitation in accepting that the confessional statement of Lokman as made voluntarily and the same is true and is corroborated generally as well as in material particulars by the other independent evidence, namely, the evidence of P.W.24 Hadis. He have also seen that the appellant Lokman participated in catching hold of the unfortunate victim D.C., Mehta while he was being assaulted by the accused Naso with rod on his head and by other assailants with various lethal weapons on the other vital parts of the body of the victim. There is therefore no escape from the conclusion that the appellant Lokman is guilty of the charge framed under section 302/149 IPC in spite of the fact that at certain stage of the operation he might have withdrawn himself from scene while the others were yet carrying on the operation.

34. As regards the involvement of the appellant Naso we find no reason to discard the evidence of P.W. 24 Hadis. We have also seen how. Hadls reported to P.W. 19 and P.W.21 what he saw, on that very day. He clearly implicates the appellant Naso and from his evidence it appears that Naso delivered two blows with rod on the head of the D.C. Mehta while he was in unarmed condition. We have also seen that P.W. 16 Ramashankar Slngh has also deposed that he saw Naso amongst others in the mob with bombs. P.W.21 Abdul Latif Khan also saw Naso with others near deadbody and all were armed. We are therefore convinced that Naso was Involved in the commission of the offence along with others and this receives, additional assurance of truth when the confessional statement of the co-accused Lokman is taken into consideration under section 30 of the Evidence Act. We are also convinced from the evidence on record Including the postmortem doctor that the blow which Naso delivered on the head of V.K. Mehta with rod Itself was fatal. It is true that others also assaulted V.K. Mehta with various weapons and V.K, Mehta met with a tragic and as a result of all the assualts on him. The learned Advocate for the appellants submits that even if the prosecution evidence is taken at Its face value yet it is not clear whether the entire assault was held at premises No,G-222and whether some part of the assaults were carried on after taking away V.K. Mehta from that premises. In our opinion this is immaterial in view of the evidence of assault which is on record and the nature of the Injuries described by the Autopsy Surgeon. It is neither expected nor required that the prosecution must prove the entire operation second by second by a cinematographic display of the actions from the start to finish. The direct evidence of chasing of V.K. Mehta by the assailants and the participation of the appellant Naso in the concerned operation of assault on the victim with deadly weapons at premises No.G-222 and the description of the Injuries found by the autopsy surgeon on the deadbody of V.K. Mehta and his opinion about the effect of the same, are sufficient to hold the appellant Naso guilty of the charge framed against him under section 302/149 IPC for the murder of V.K. Mehta. Accordingly we hold both the appellants Naso and Lokman guilty of the charge framed against them under section 302/149 IPC for the murder of V.K. Mehta.

35. As we have seen, it is in evidence that the deadbody of V.K. Mehta with Injuries was recovered on that very day by the police party from a drain in that locality. From the facts, circumstances and evidence on record there is no doubt that the assailants of V.K. Mehta had thrown the deadbody in the drain, obviously with a view to avoiding easy detection of the evidence of the crime. There is evidence, as we have seen, that Naso participated in assaulting V.K. Mehta. P.W.21 Abdul Latlf Khan, as we have seen, while coming back to his house and reached Battlkal Second Lane at about 12-30/12-45 p.m. noticed some persons armed with weapons present near a deadbody lying by the side of the kancha drain there and he also found the appellant Naso amongst those persons who were all armed. His evidence is that Naso was standing 2 cubits away from the deadbody. He also says that later at the police station he learnt that the deadbody of the Dy. Commissioner was recovered from the place where he had earlier seen the deadbody. Circumstantially the conclusion becomes irresistible that the deadbody was thrown Into the drain there and it must have been done by those persons who vere found present there beside the deadbody. And Naso was one of them, in the circumstances we are of the opinion that the conviction of the appellant Naso under section 201/149 1PC is justified. We are also of the opinion that his conviction under section 148 1PC is also warranted and Justified.

36. Now we consider the question of sentence so far as the offence under section 302/149 IPC is concerned. Both the appellants Naso and Lokman have been sentenced to death by the trial court for their conviction under section 302/149 1PC in respect of the murder of V.K. Mehta, the Dy. Commissioner of Police, Port Division. The learned Advocate for the appellants contended, without prejudice to his other contention that the appellants were entitled to an order of acquittal, that this was not at all a fit case for death sentence even if the conviction were upheld. In this connection he referred to the decisions in Bachhan Stngh v. State of Punjab, : 1980CriLJ636 , Rajendra Prosad v. State of U.P. : 1979CriLJ792 , Digambar Gope v. State of West Bengal 1997 C.Cr.L.R.(Cal) 139 and Rabindra Prida v. State of West Bengal 1995 C.Cr.L.R (Cal) 210 etc. On the other hand, the learned Advocate for the State has referred to the decisions in Shlo Mohan Stngh v. State 1977 SCC(Cri) 324, Gayasi v. State of Uttar Pradesh. 1981 SCC(Cri) 590, Jay Kr. v. State of Madhya Pradesh 1999 111 AD(Cr.) SC 33 and 1987 SCC(Cri) 322. etc. Indeed it is now a settled law that for an offence of murder life Imprisonment is the normal sentence while the death sentence should be Imposed only in the rarest of rare cases. The guidelines for determining the case where death sentence can be Imposed are to be found in the decisions of the Supreme Court in Bachhan Singh : 1980CriLJ636 , Mechhi Singh v. State of Punjab : 1983CriLJ1457 , Kama Tewari v. State of Madhya Pradesh, 1996 Cr.L.J. 4158. etc. In going to decide whether in a particular case death sentence should be imposed or not the aggravating and the mitigating circumstances in respect of the concerned accused are required to be taken Into consideration. In Jay Kr. v. S(ate p/M.P,(supra) it has been observed by the Supreme Court that the law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment and that while it is true that a sentence disproportionately severe, ought not passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly Inadequate having due regard to the nature of the offence since an Inadequate sentence would fall to produce a deterrent effect on the society at large. It has been further observed therein that punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, but rather for having its due Impact on the society and that while undue harshness is not required yet Inadequate punishment may lead to sufferance of the community at large. In Shtv Mohcin Sfngh v. The State (supra), it has been Inter alia observed by the Supreme Court that the heinousness of the crime is a relevant factor in the choice of the sentence. In Gayasi v. State qfU.P. (supra), the Supreme Court while confirming the death sentence in a case where the victim was a public servant and was murdered while performing his public duties observed that such crimes committed against Public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.

37. Now let us look to the circumstances in which the crime has been committed in the present case. On receiving information that a disturbance was going on in the concerned locality, V.K. Mehta, the Dy. Commissioner of the Port Division rushed to the spot and the other officers and force also joined him. He of course had no arms or weapon with him. He led the police party for restoring normalcy in the disturbed area. At that time the police party was attacked by the furious mob with brickbats, bombs and the policeparty headed by the Dy. Commissioner took shelter in a mosque. Underthe pressure of the violent and armed mob the Immam of the mosque askedthe police party to leave the mosque. In the circumstances the police partyhad to leave the mosque. As soon as they came out of the mosque theywere again attacked by the violent mob. The D.C. and his body guard MoktarAll proceeded in one direction while the Assistant Commisloner and theother members of the police party could retreat in a different direction. Whilethus retreating the members of the police party were attacked by themembers of the mob as a result of which the Assistant Commissioner andsome other members of the party sustained Injuries. Unfortunately, howeverthe Dy. Commissioner and his body Guard Moktar All proceeded in adifferent direction Isolated from the other members of the police party andthey were also chased by an armed mob. Both the D.C. and his body guardMoktar All were in police uniform. They were there to perform their officialduties to restore peace and maintain law and order. Insplte of that withoutany provocation from them they were hounded up by the ferocious mob asa result of which the D.C. and hts body guard also became separated fromeach other. The body guard was brutally killed by some of the assailants,and the D.C., while on the run for life and safely took shelter in G-222Battlkal Second Lane but there also the chasing mob followed him. In hishelpless bid the D.C. fervently disclosed to his assailants that he was D.C.of police hoping that the same would have a sobering effect on theassailants, but the assailants were in a devellsh mood and even proclaimedthat the they did not care for D.C. An isolated senior police officer of therank of a Deputy Commissioner who had been there for restoring peace andfor maintaining law and order in discharge of his official duty helplesslyfound himself pitiably doomed in a death trap under the devilish controlof the ferocious assailants while he himself was totally unarmed. There wasabsolutely no provocation from the side of the Deputy Commissioner. It wasthe bounden duly of everyone present there to assist the D.C, in discharge of his official duty to restore peace and maintain law and order but Instead, the assailants took devellsh pleasure in committing the diabolical murder of the D.C. In a dastardly manner. The brutality of the assailants on the helpless D.C. can be readily measured by the number and nature of Injuries found by the Autopsy Surgeon on the deadbody. The appellant Naso, as we found, took the lead role as the pioneer in the matter of actual assault on the D.C. after getting him in virtual capacity. Ignoring the appeal of the D.C. as reflected in the fervant disclosure of his Identity the appellant Naso delivered blow with rod on the head of the D.C. from the front side obviously with enormous force so much so that the helmet of the D.C. fell down from his head and the appellant Naso took that opportunity to deliver a second blow on the bare head of the D.C. with the rod and the beastly operation was followed by assaults by others with different other deadly weapons. The Impact of the assault made by the appellant Naso has been projected by the evidence of the Autopsy Surgeon. The head Injury sustained by the D.C. was sufficient to cause death in the normal course. The role played by the appellant Naso in making the dastardly and deadly assault on the helpless and unarmed D.C. who was on duty is studded with such mainfestatlon of depraved ferocity that the case unrringly comes within the arena of a rarest of rare cases. The tragic death of a brave and dutiful public servant in a circumstance like this is sure to have a macabre effect on the society at large and also a demoralising Impact on the public service in particular, unless the justice delivery system matchlngly responds to nuelralllse the same in the Interest of the peace-loving segment of the society. In our considered opinion, and having regard to the facts and circumstances we have no hesitation in holding that this is a fit case where the appellant Naso deserves death sentence in the Interest of the society at large. There is absolutely no mitigating circumstance for awarding the alternative sentence of life Imprisonment to the appellant Naso. In the result we confirm the death sentence Imposed by the trial court on the accused Naso for his conviction under section 302/149 1PC. However, having regard to the low-profile role played by the appellant Lokman Shah we are of the opinion that in his case death sentence need not be Imposed and the alternative sentence of Imprisonment for life for his conviction under section 302/149 1PC will meet the ends of justice. In the result the death referred in respect of the accused Naso is hereby accepted and the appeal filed by him is dismissed. The death sentence as well as the other sentences Imposed upon the appellant Naso by the trial court are all confirmed. The death reference relating to accused Lokman is however rejected and the death sentence Imposed on him by the trial court is set aside and Instead of death sentence, the sentence of imprisonment for life is imposed on the appellant Lokman for his conviction under section 302/149 IPC. Subject to above modification of sentence for conviction under section 302/149 IPC the appeal preferred by the appellant Lokman stands dismissed.

M.K. Basu, J.

38. I agree.

39. Older accordingly