| SooperKanoon Citation | sooperkanoon.com/917962 |
| Subject | Criminal |
| Court | Kolkata High Court |
| Decided On | May-20-2011 |
| Case Number | CRA NO 65 OF 1988 |
| Judge | Girish Chandra Gupta; Raghunath Ray, JJ. |
| Acts | Indian Penal Code (IPC) - Sections 120B, 302, 34; Code of Civil Procedure (CPC) (C.P.C) - Section 161; Code of Criminal Procedure (CrPC) - Section 313 |
| Appellant | Anil Mondal and ors |
| Respondent | State of West Bengal |
1. Both the Criminal Appeal No.65 of 1988 and the Government Appeal No.14 of 1988 are directed against a judgment dated 21st January,1988 passed by the learned Additional Session Judge, Nadia, 1st Court Krishnagar, in Sessions Trial No.2 of January,1987 corresponding to Sessions Case No.23 of November, 1983(State versus Anil Haldar and five others) by which the learned Trial Court acquitted the accused persons of the charge under Section 120B of Indian Penal Code; the accused Souren Biswas was found not guilty of the offence under Section 302 read with Section 34 of the Indian Penal Code but the rest of the five accused persons were convicted of the said offence.
2. After hearing the convicts he sentenced the convicts to imprisonment for life as also to pay fine of Rs.1000/- each in default to suffer further rigorous imprisonment for three months. The State preferred the GA No.65 of 1988 against the order of acquittal of the accused Souren Biswas as also acquittal of the accused persons under Section 120 B of the Indian Penal Code. The convicts have preferred Criminal Appeal No.65 of 1988 challenging the conviction and the sentence by the order dated 21st January 1988. There are thus two several appeals against the same judgment and order.
3. Briefly stated the facts and circumstances of the case are as follows: - On 30th September, 1981 the victim Kartik, a teacher by profession, at about 10 A.M. was going to the school accompanied by Shri Paban Haldar. They were riding their respective bicycle. The victim was also a Pradhan of the local Panchayat. The victim, it appears, had previously perceived threat to his life and, therefore, he was for some time taking assistance of Paban for his security. Paban, it further appears, used to accompany the victim wherever he went. The victim, in his bicycle, was in the front and Paban was following him.
4. Both of them were the residents of Nischantapur Village. The School was situated at Jitpur which could be at a distance of less than a mile. From the Village Nischantapur they traversed the kachha road and reached the metallic road between Shymnagar and Tehatta. While they were passing along the metallic road heading towards Tehatta the victim was waylaid by the appellants near a banyan Tree by the side of the metallic road. Two of the convicts assaulted the victim by sharp weapons while the other three assisted them in doing so by holding or surrounding the victim. Paban cried for help.
5. The victim also cried for help. PW5 Sujoy, who was working in his nearby field, hearing the cry for help, rushed to the place of occurrence. He witnessed the incident. Thereafter others also arrived at the place of occurrence. The victim by that time was dead. They disclosed to Paban and Sujoy that the accused Souren had been noticed hatching a conspiracy against the victim. Paban knew for himself that Souren was inimical to the victim. Litigation between them was also pending. He immediately rushed to the Police Station and lodged a written complaint indicating identity of assailants and also referring to the conspiracy hatched by Souren Biswas.
6. After investigation, all the six accused persons were charge-sheeted under Section 120B of the Indian Penal Code as also under Section 302 read with Section 34 thereof. The charge under Section 120B failed against all the six accused persons. Souren had not participated in the actual assault. He, therefore, was acquitted. The rest of the accused persons were found guilty under Section 302 read with Section 34 of Indian Penal Code.
7. The prosecution examined 12 witnesses. The de facto complainant Paban is PW2 and Sujoy is PW5 they are the eyewitnesses. PWs 3, 4, 6, 7 and 8 reached the place of occurrence after the assailants had escaped. The PW3 Nityananda, PW.4 Ratan, PW6 Vakta, PW7 Sribas and the PW8 a daughter of the deceased have all confirmed in their deposition that PW2 and PW5 were present whey they reached the place of occurrence and found the victim dead.
As regards the act of murderous assault evidence of the PW2 is as follows: -
“Kartikda was on his bicycle in front of me. I was behind him on my bicycle. After travelling the kuchcha road we took the metallic road towards Jitpur. There was an Aswatha tree in the middle of village Arsignaj, but by the side of the metalled road. When we reached near those three Kartikda was, thrown down from the bicycle by, Anil, son of Haran Haldar, Lathu, Latu, Sunil, Sukdev. Kartikda tried to run away, but he could not run away. He was caught by them. Lathu and Sunil started striking Kartikda with hesuas. Others were either holding him or surrounding him. Kartick shouted for help saying “ ”. I too shouted “ ”. Sujoy of Arsignaj was then weeding “Til” land ( ) close by the spot. He came running but stopped at a distance of ten cubits or so from the spot and watched the occurrence. The culprits then fled away towards the house of Sauren Biswas of Arsinganj. There were cultivable lands on both sides of the metalled road.”
PW5 Sujoy in that regard deposed as follows:-
“It was in the middle of Aswin about five years ago at about 10 or 10-15are. I was then weeding my own til land. My land and the pucca road are intervened by a Nayanjuli 15 cubits wide. At that time I heard, shouting Babago Mago Bachao Bachao, hearing there shouts I ran from my land and went on to the pucca road, I saw Lathu and Sunil Haldar hacking Kartick Haldar with hansda. Anil, Sukdev and Lalu were also there some holding the victim, some standing close to him. Killing Kartik they went away towards Arsiganj village. Paban Haldar and I were shouting. Many persons from the surrounding places came”.
PW3 Nityananda saw the five assailants escaping from the place of occurrence. Two of them had weapons in their hands. He inquired of them as to what had happened but they did not respond according to his evidence. He identified the assailants in the dock. PW 3 also deposed that the assailants met Souren Biswas on the road, which according to him inquired of the assailants as to whether the work had been done to which they replied in the affirmative. All of them thereafter went towards the residence of the accused Souren. PW4 Ratan reached the place of occurrence hearing the hue and cry. He deposed that he had heard from PW3 as regards the conspiracy hatched by the appellants with the accused Souren. He also deposed that he had been informed by Subhas(PW7) about a conspiracy hatched between the appellants and the said Souren Biswas on a day previous to the date of incident. Subhas (PW7) deposed that he had overheard the conversation between Souren and the assailants during which the accused Souren had told that Kartik must be finished.
8. Further opportunity might not come. The evidence of the PW3, 4 and 7 was, however, contradicted by the PW11 Shri Biswanath Palit who had investigated the matter. During his cross-examination he admitted that the prosecution Witnesses No.3, 4 and 7 during their examination under Section161 of the Code of Civil Procedure did not disclose to him as regards the conspiracy which was deposed to by them in Court. The consequential effect is that the evidence of the PWs 3, 4 and 7 given in Court at the trial became weak. Mr. Subir Ganguly appearing in support of the Government appeal tried to impress upon us that the evidence of the witnesses was believable whereas Mr. Joymallya Bagchi learned Advocate appearing for the accused Souren submitted to the contrary that these witnesses due to political rivalry sought to rope in the accused and their evidence in any event is a tutored one. We are of the opinion that in the facts and circumstances of the case it is not possible to hold that the learned Trial Court took an unreasonable view of the matter in acquitting the accused Souren and disbelieving the evidence as regards conspiracy.
9. Therefore, the Government appeal directed against acquittal of the accused Souren to that extent fails and is dismissed. Mr. Bose learned Advocate appearing for the appellants in the Criminal Appeal No.65 of 1988 advanced the following submissions:-
A) He drew our attention to the written complaint in order to show that the incident took place at Arsiganj; he then drew our attention to the charge framed under Section 302 read with Section 34 of the Indian Penal Code which is in respect of an incident which allegedly took place at Nischantapur. He also took us through the evidence of the witnesses and submitted that the place of occurrence is uncertain because the incident allegedly took place at Arsiganj whereas the charge is in respect of an incident which took place at Nischantapur. He contended that there is no evidence to show that the alleged incident happened at the time, place and under the precise circumstances narrated on behalf of the prosecution. He added that the whole exercise was altogether without any basis and the appellants are entitled to an outright acquittal.
10. In support of his submissions he relied on a Division Bench judgment in the case of Mr. Mamfru Chowdhury versus King-Emperor reported in AIR 1924 Calcutta 323 wherein the following view was taken:
“The evidence must show that the incident alleged happened at the time, in the place and under the precise circumstances narrated on behalf of the prosecution”.
11. We are unable to accept this submission of Mr.Basu. We have a sketch map before us which has been marked exhibit 5. The sketch map goes to show that there is a metallic road between Shyamnagar and Tehatta which has been marked B in the sketchmap.
There is a sub-road jutting out from the aforesaid metallic road which is known as Arsiganj More which has been marked ‘L’ in the sketchmap. There is similarly another parallel sub-road at some distance which is known as Nischintapur More which has been marked ‘P’ in the sketchmap. In between these two sub-roads, there is a banyan tree which has been marked E in this sketchmap. There is a water body, confirmed by the P.W.5, near the banyan tree which has been marked G. Near the water body the land of PW5 was situated which has been shown by the letter ‘H’ in the sketchmap. There were sugarcane fields near the banyan tree along the metallic road. The incident took place near the banyan tree which is on the side of the metallic road running from Shyamnagar to Tehatta. The dead body was recovered from near the banyan tree which has been marked ‘F’ in this sketchmap.
12. The evidence of the constable (PW9) is that he removed the dead body of Kartik Haldar from road near Arsiganj. All the witnesses have deposed that the incident took place near the banyan tree. We have already indicated where the banyan tree actually located was. Whether the same was within the territory of Nischintapur or in the territory of Arsiganj may be a debatable issue but the fact that the incident took place near the banyan tree by the side of the metallic road running from Shyamnagar to Tehatta has been unmistakably understood by everybody including the accused. Mr. Basu tried to submit that the sketch map was not properly proved. We are unable to accept this submission either. The PW11, who investigated the case, prepared the sketch map. It was proved by him and was marked exhibited 5.
13. On behalf of the defence no suggestion was even given to the PW11 that the sketch map, prepared by him, was incorrect or that the same did not correctly delineate the place of occurrence. Mr. Basu relied upon the judgment in the case of Jagadish versus State of UP reported in 1996 Supreme Court Cases (Criminal) 565 , he drew our attention to Paragraph 10 of the judgment which is in respect of a case wherein the sketch map had been prepared by a draftsman and not by the investigating officer. Therefore in the facts of that case the investigating officer may not have been competent to vouch for the correctness thereof. This judgment has no application to the case in hand.
14. In the present case the investigating officer himself drew the map and he was before the Court. He proved the map and the same was marked exhibit 5 without any objection. The investigating officer was also cross-examined unconditionally with respect to the contents of the sketch map. We are as such unable to accept the submission that the sketch map was not duly proved. PW3 reached the place of occurrence after the accused had escaped.
He came to know from the PW2 as follows:
“Paban told me then Kartik and he were coming on bicycles, near the tree Kartik was thrown off his bicycle by those accused persons, who then started striking him, Kartik and he shouted “Bachao Bachao” .
PW4 in that regard deposed as follows:-
“I then stopped catching fish and went to the place of occurrence which was 10-15 cubits south of the Aswatha tree. This tree was to the West of the pucca road. Going there I saw kartik lying dead with his throat cut. Paban Haldar was standing there.”
Existence of the sugarcane fields near the place of occurrence was confirmed by the PW5. He further deposed that the assailants after killing the victim escaped “towards Arsiganj village”. There is no cross-examination with respect thereto. The PW6 deposed that the dead body was lying on the flank of the road.
The fact that the incident took place near the banyan tree was also corroborated by the PW7 who deposed as follows:-
“I went to the spot which is near the Aswatha tree by the road side. There I saw Kartik was lying dead. I also saw Paban, Sujoy and many others”.
15. The daughter of the deceased PW8 in her cross-examination deposed that she saw the dead body of her father on the kachaa portion of the road 10-15 cubits away from the Pakur tree. Mr Bose contended that Pakur is not the tree described by the other witnesses. We do not find any substance in the submission. Aswtha and Pakur do not relate to two different types of trees. As a matter of fact they are colloquoqially known as Bat/Pakur. From the evidence discussed above, we have no doubt in our mind that no injustice was occasioned by any alleged error in the charges framed against the accused persons. We are also of the opinion that the parties understood quite well the place of occurrence and did not labour under any mis-apprehension in that regard.
16. Therefore, this submission of Mr. Bose is rejected. The second submission advanced by Mr. Bose was that the allegation in the written complaint is that all the appellants participated in the assault whereas evidence of both the eyewitnesses in Court is that Lathu and Sunil had assaulted the victim and the others either held him or surrounded him. Mr. Bose contended that there is no evidence that all the five appellants shared a common intention of killing the victim.
He in this regard drew our attention to a judgment in the case of Mahabub Shah versus Emperor reported in AIR 1945 Privy Council 118 wherein the following view was taken:
“Common intention within the meaning of Section 34 implies a pre-arranged plan. To convict the accused of an offence applying Section34 it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention; the partition which divides “their bounds” is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case.”
This submission appears to have some substance arising out of the fact
(a) That these three persons are not deposed to have been armed which may suggest that they may not have shared the intention of the accused Lathu and Sunil of killing the victim and
(b) The persons engaged in the conspiracy, even according to the P.W.7, did not include these three persons. They can therefore be said to have facilitated the crime, may be with the knowledge that death was likely to be caused and, therefore, their case may justifiably be separated from the case of Lathu and Sunil.
In such a case Section 38 of the Indian Penal Code may be pressed into service which provides as follows:-
“Persons concerned in criminal act may be guilty of different offences.-Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.”
17. In separating the case of these three accused we are supported by the judgment of the Apex Court in the case of Brhamananda versus State of Assam reported in AIR 1977 Supreme Court 225. The third point raised by Mr. Bose was that the inquest report was not exhibited. True, it is that the inquest report was not exhibited. But the fact remains that inquest report was prepared by the PW11. During his cross-examination the PW11 admitted that the inquest report did not contain names of the assailants. The fact that this question was put to the PW11 suggests that copy of the inquest report was with them or at any rate they had knowledge of the contents of the inquest report. Why was the inquest report not tendered in evidence is not clear. Our attention was not drawn to anything which might suggest that absence of the inquest report is a material lacunae in the case of the prosecution.
18. Lastly Mr. Bose submitted that examination of the accused persons under Section 313 of the Code was perfunctorily conducted. He contended that the evidence of the witnesses individually was not put to the accused persons and thereby there has been gross violation of the principles of natural justice. He in support of his submission relied on a judgment in the case of Asraf Ali versus State of Assam reported in 2008(5) Supreme 270 for the proposition that a circumstance which the accused was not required to explain cannot be used against him. For the same proposition he also relied on the judgment in the case of Keya Mukherjee versus Magma Leasing reported in 2008(3) Supreme 81. We have not been impressed by this submission of Mr. Bose for the simple reason that the authorities cited by him do not support his contention. In any event the accused persons do not appear to have been minded to offer any explanation.
19. The substance of the circumstances appearing against them was no doubt put to them and their uniform reply was that “it was false”. We do not think that any further or other explanation would have come if the evidence of the witnesses had individually been put to them. Even in the case of Keya Mukherjee versus Magma Leasing (supra) the Apex Court was of the view that the defence was obliged to establish that by defective questioning a real prejudice had been caused. Mr. Bose was unable to show any prejudice caused to any of the appellants by reason of the so-called defective examination under section 313 CrPC. We, therefore, are unable to accept this submission.
We are in this regard supported by a judgment in the case of R S Singh versus State of West Bengal reported in AIR 1962 Supreme Court 1239 wherein their relationships held as follows:
“The whole object of the Section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and the questions must be fair and must be couched in a form which an ignorant or illiterate person may be able to appreciate and understand. The examination by the Sessions Judge of the appellants was perfunctory, but as observed in Ajmer Singh’s case, 1953 SCR 418: (AIR 1953 SC 76) every error or omission in complying with Section 342 does not vitiate the trial. “Errors of this type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused”. To the questions asked by the Judge, the answers given by the appellants were either “I am innocent” or “the story is false”. Failure on the part of the Sessions Judge to split up the questions so as to deal with each distinct feature or material piece of evidence separately, however, does not, in the circumstances of the present case, justify an inference that prejudice was thereby caused to the appellants.”
20. All the points advanced by Mr. Bose have thus been disposed of. In the result the Government appeal fails and is dismissed. The appeal preferred by the convicts is partly allowed. The conviction and the sentence of the Appellants No.2 and 5 are upheld. The conviction of Appellant No.1 Anil Haldar, Appellant No.3 Lalu Mohan Haldar and the Appellant No.4 Sukdeb Biswas is set aside and they are instead convicted under Section 304 part 2 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment of seven years each and also to pay fine of Rs.10 thousand each.
21. The amount if realized shall be paid to the heirs of the victim. In default of payment of the fine, the aforesaid appellants No.1, 3 and 4 shall suffer further rigorous imprisonment of one year each. The appellants are directed to surrender and serve out the sentence as indicated herein. A revised jail warrant in respect of the appellant’s no.1, 3 and 4 is issued.
22. The learned Trial Court shall take coercive measures if the appellants do not surrender voluntarily. The concerned department of this Court is directed to send down the lower court records with a copy of this judgment to the concerned learned Trial Court forthwith.
23. Urgent Xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.