Shib Shankar Das & Ors vs State Of West Bengal
2022 Latest Caselaw 525 Cal

Form J(2)         IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                             Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                           C.R.A. 219 of 1987

                        Shib Shankar Das & Ors.
                                  Vs.
                         State of West Bengal


For Appellant Nos.1 & 2:       Mr. Milon Mukherjee, Sr. Adv.
                               Mr. Dattatreya Dutta

For Appellant No.12 :          Mr.   Sabir Ahmed
                               Mr.   Mujibar Ali Naskar
                               Mr.   Apan Saha
                               Mr.   S. Naskar
                               Mr.   Taslim Ahmed

For the Appellant Nos. 3, 4,
7, 8, 11, 13, 14, 16, 17, 18,
19, 21 and 23:                Mr. Arnab Saha
                              Mr. Abhimanyu Banerjee

For the State :                Mr. Saswata Gopal Mukherjee, Ld. P.P.
                               Mr. Pravash Bhattacharjee
                               Mr. Sandip Chakraborty


Heard on                 : 08.12.2021 & 14.02.2022


Judgment On              : 14.02.2022


Bibek Chaudhuri, J.

The judgment and order of conviction and sentence dated 18 th

May, 1987 passed by the learned Additional Sessions Judge, Birbhum

at Rampurhat in Sessions Trial No.2 of March, 1987 arising out of

Sessions Case No.65 of 1985 convicting the appellant No.1 for the

offence under Section 147/148/324 of the Indian Penal Code and

sentencing him to suffer rigorous imprisonment for three years for the

offence punishable under Section 148 of the Indian Penal Code and to

suffer rigorous imprisonment for three years for the offence under

Section 324 of the Indian Penal Code and the accused/appellant No.2

Jiten Das under Section 147/323 of the Indian Penal Code and

sentencing him to suffer rigorous imprisonment for two years

respectively and also convicting the appellant No.4 Dhanapati Bagdi

under Section 147/148/324 of the Indian Penal Code and sentencing

him to suffer rigorous imprisonment for three years for the offence

under Section 148 of the Indian Penal Code and also rigorous

imprisonment for three years for conviction 324 of the Indian Penal

Code and the remaining accused persons/appellants for the offence

under Section 147 of the Indian Penal Code and sentencing them to

suffer rigorous imprisonment for two years, is under challenge in the

instant appeal.

It is pertinent to record at the outset that out of 23 (twenty

three) appellants, four appellants namely Kishori Bagdi, Jharu Bhalla,

Chandra Gopal Bhalla and Kesto Bhalla passed away during pendency

of the instant appeal. Therefore, this Court recorded an order of

abatement of appeal as against the above named deceased appellants

vide order dated 28th January, 2022.

The allegations as disclosed from the written complaint

submitted by one Jitendra Nath Ghosh on 7 th September, 1983 before

the Officer-in-Charge of Mayureswar P.S. reveals that on 7 th

September, 1983 at about 5 P.M. some people led by one Shib

Shankar Das and Jiten Das surrounded the house of one Bhubaneswar

Pal, the then Upa-Prodhan of the Gram Panchayat at Marjatpur. The

miscreants were supporters of a particular political party and they

previously raised agitation against distribution of rations etc. the said

persons being armed with ''lathi's', ''tangi's', 'bows' and 'arrows'

surrounded the house of Bhubaneswar Pal and on the instigation of

Shib Shankar attacked him to come out of the house. The elder

brother of Bhubaneswar Pal namely Sarbeswar Pal and one Akshoy

Kumar Ghosh and Hari Narayan Ghosh came out of the house and

wanted to know as to why they altogether surrounded the house of

Bhubaneswar Pal being armed with deadly weapons. But the accused

persons attacked them with the weapons in their hands without giving

any answer to them and assaulted them with the help of 'lathi' and

'tangi' on vital parts of their body like head, hand and other parts. As

a result, the said three persons received bleeding injuries on their

head and hands. Middle finger of the left hand of Sarbeswar Pal was

fractured. Akshoy Kumar Ghosh received bleeding injury on his head.

He was assaulted by ''lathi'' all over his body. Hari Narayan Ghosh

also received injury on his right hand. One Amulya Ratan Das was

assaulted by the accused persons by ''lathi'' when he came to save

the said three injured persons. His right hand was fractured on

receiving assault. Seeing such incident Dilip Konai rushed to the spot

crossing agricultural field. The accused persons caused injury on his

left hand by throwing arrow. One Lakshman Chandra Bhalla was

assaulted by the accused persons. They continued such incident of

rioting with deadly weapons and assaulted for about one hour. When

local people proceeded to the spot, they fled away. However, the

accused persons were guarding the locality from a distance so that

the injured persons might not go to the police station or the hospital

for medical treatment. Subsequently, however, at dead hours of

night the de facto complainant managed to reach the police station

carrying the injured persons and lodged a complaint before the

Officer-in-charge of Mayureswar Police Station. On the basis of the

said complaint police registered a specific case under Sections

147/148/149/323/324/307 of the Indian Penal Code and took up the

case for investigation. Investigation ended in filing the charge sheet

against the accused persons.

It appears from the record that charge under Section 147 was

framed against 18 (eighteen) accused persons. Against Jiten Das

charge was framed under Sections 147/323 of the Indian Penal Code.

Separate charge was framed against Shib Shankar Das under

Sections 147/148/307 of the Indian Penal Code and charge under

Sections 147/148/324 of the Indian Penal Code was framed against

the accused Kanai Bhalla. Separate charge under Sections

147/148/324 of the Indian Penal Code was framed against the

accused Banshi Mudi. Separate charge under Sections 147/148/307 of

the Indian Penal Code was framed against Dhanapati Bagdi. Separate

charge was also framed against the accused Ganapati Bagdi under

Sections 147/148/324 of the Indian Penal Code.

All the accused persons pleaded not guilty when the charge so

framed was read over and explained to the accused persons.

Therefore, trial of the case commenced.

During trial, prosecution examined as many as 17 (seventeen)

witnesses. The accused persons were examined under Section 313 of

the Code of Criminal Procedure. The defence case as disclosed from

the trend of cross-examination of the witnesses on behalf of the

prosecution and examination of the accused persons under Section

313 of the Code of Criminal Procedure appears to be complete denial

of the prosecution case.

The learned trial Judge on due consideration of evidence on

record held the accused persons guilty for committing offence as

narrated above and convicted and sentenced them accordingly.

The said order of conviction and sentence is under challenge in

the instant appeal.

During trial, the de facto complainant of this case deposed as P.W.

1. It is found from his evidence that one Bhubaneswar Pal, a resident of

Village - Morjetpur was the Upa Prodhan of the local Gram Panchayat.

Bhubaneswar was elected as a Member nominated by the Indian

National Congress. Prior to Bhubaneswar, one Shib Shankar Das was

the Anchal Prodhan. Said Shib Shankar is a Member of CPIM. It was

stated by the de facto complainant on oath that on 7 th September, 1983

at about 5.00 p.m. he was present at Village - Morjetpur. At that time

about 50 persons being armed with 'lathi', 'tangi', 'bows' and 'arrows'

came to the house of Bhubaneswar. They surrounded his house. They

were shouting asking Bhubaneswar to come out of his house. Hearing

such shouting the elder brother of Bhubaneswar, namely, Sarbeswar and

his two relatives, Akshoy Kumar Ghosh and Hari Narayan Ghosh came

outside the house. Sarbeswar asked the angry mob as to why they

attacked their house being armed with deadly weapons. At this he was

assaulted by 'tangi' on his head and by a 'lathi' on other parts of her

body. Akshoy Ghosh was also assaulted by the said mob by a 'tangi' and

'lathi'. The accused persons also assaulted Hari Narayan on his hand by

a 'tangi' causing bleeding injury. One Amulya Das came running to save

them but he was assaulted by a 'lathi' causing dislocation of bone on his

hand. Thereafter, one Dilip Konai rushed towards the spot to save the

injured persons but he was struck by an arrow on his left hand. Hearing

the he and cry local people came to the spot and seeing them the

miscreants went away. It is also stated by P.W. 1 that after a lapse of

about five hours he and the injured persons went to the house of

Kamakshya Pal and they were taken to Mayureswar Police Station by a

vehicle. In the Police Station the de facto complainant lodged a written

complaint.

Mr. Milan Mukherjee, Learned Senior Advocate on behalf of the

appellants submits that P.W. 1 being the de facto complainant claimed

himself to be the eyewitness of the occurrence. But surprisingly enough

neither in the written complaint nor in course of his evidence he stated

the names of the assailants who assaulted Sarbeswar, Akshoy, Hari

Narayan, Amulya and Dilip Konai. The witness failed to state the specific

role of each of the accused persons. Therefore, as a result of omnibus

allegation no conviction can be sustained.

It is further submitted by Mr. Mukherjee that during cross-

examination the de facto complainant stated the topography of the

alleged place of occurrence. From his cross-examination it is ascertained

that the house of one Bhupati Babu is situated on the west of the house

of Bhubaneswar Pal. On the north of the house of Bhubaneswar there is

a cow shade of Profullya Pal and thereafter the house of one

Bhubaneswar Ghosh. To the east of the house of Bhubaneswar Pal there

is a road and on the other side of the road one Kumarish Pal resides.

Kumorepara of the village is situated on the northern side of the house

of Kumarish Pal. The said persons were not examined by the

prosecution during trial of the case.

P.W. 2, Sarbeswar Pal is one of the injured. According to him, he

was assaulted by Shib Shankar Das with the help of a 'tangi' on the

right side of his head causing bleeding injury when others assaulted him

by 'lathi' on other parts of his body. As a result of assault, his left hand

was fractured. Mr. Mukherjee draws my attention side by side to the

evidence of the Medical Officer (P.W.17) with the deposition of P.W. 2,

Sarbeswar Pal. It is found from the evidence of P.W. 17 that Sarbeswar

was assaulted on his forehead above the right eyebrow and also

sustained lacerated injury on his left forearm. He suspected fracture of

left ulna on the medial part of the left hand. His clinical finding was

found to be correct through x-ray report confirming fracture of left ulna.

According to Mr. Mukherjee if Shib Shankar was assaulted with the help

of 'tangi' on his head, there cannot be any lacerated injury on the

forehead of sarbeswar Pal as found by the Medical Officer. P.W. 2 did

not tell the name of his assailant who assaulted him on his left hand with

the help of 'lathi' causing fracture of left ulna medially.

It is also pointed out by Mr. Mukherjee that P.W. 3, Akshoy Kumar

Ghosh who is one of the injured, did not support the prosecution case

and was turned hostile. P.W. 4, Dilip Konai, another injured was also

declared hostile by the prosecution and he did not support the

prosecution case. P.W. 5, Biswambhar Ghosh and P.W. 7, Lakshman

Chandra Bhalla were also declared hostile by the prosecution.

The evidence of P.W. 6, Profulla Kumar Pal who claimed himself to

be an eyewitness of the occurrence is at variance with the evidence of

P.W. 2, Sarbeswar Pal. In the evidence it is stated that accused Shib

Shankar Das and his associates attacked Sarbeswar and his relatives.

They also assaulted Akshoy, which Akshoy himself did not support.

From his evidence it is also not clear as to who assaulted whom.

P.W. 8, Amulya Ratan Das claimed himself as an eyewitness of the

occurrence. It is found from his evidence that on the date of occurrence

at about 4.00 p.m. he saw a procession coming towards Village -

Morjatpur and the people in the said procession were armed with

different weapons. At that time, he was working in the cow shed of one

Bhupati Mondal. Suddenly, Kanai Bhalla came with a 'lathi' and

assaulted him over his elbow on his right hand causing fracture injury.

After receiving such assault he became senseless. Thus, he could not

state anything further about the incident. Evidence of P.W. 9,

Bhubaneswar Pal is also not free from doubt. It is the prosecution case

that when a mob of about 50 persons attacked the house of

Bhubaneswar he took shelter inside his house. His elder brother,

Sarbeswar and two other relatives came to confront with the Members of

the so-called unlawful Assembly. Therefore, it was not possible for

Bhubaneswar to see the incident but from the evidence of Bhubaneswar

it is ascertained that Sarbeswar was assaulted by accused Shib Shankar

on his head by 'tangi' causing bleeding injury. Akshoy Kumar Ghosh was

assaulted by Dhanapati Bagdi, Hari Narayan Ghosh was assaulted by

Ganapati Bagdi, Amulya Ratan was assaulted by one of the Members of

the said unlawful Assembly. Other persons, namely, Prabhat Kumar

Ghosh, Bhupati Bhusan Ghosh, Dilip Konai also received injury on his

person. I have already recorded that Akshoy Kumar Ghosh did not

support the prosecution story. Therefore, evidence of Bhubaneswar

cannot be taken into consideration to hold Dhanapati Bagdi guilty of

committing offence under Sections 147/324 of the Indian Penal Code.

The evidence of P.W. 10, Smt. Santoshi Pal, P.W. 11, Smt. Dharam

Pal, P.W. 12, Bhubaneswar Pal, P.W. 13, Nirapada Debangshu are not of

any importance because they did not support any part of the prosecution

case.

P.W. 14, Provat Kumar Ghosh is a resident of Morjatpur. It

appears from his evidence that when the accused persons allegedly

attacked the house of Bhubaneswar Pal he fled away from the spot.

After they left the place of occurrence he came to the spot and found

Sarbeswar, Akshoy and Hari Narayan Ghosh lying on the ground

sustaining injury.

The evidence of P.W. 15, Smt. Mungli Ghosh is also no

importance as she failed to throw any light about the incident.

P.W.16 is the Investigating Officer of the case. It is ascertained from

is evidence that on 7th September, 1983 he took up the case for

investigation on the basis of a written complaint submitted by P.W.1.

After registering the case he brought all the injured persons to

Rampurhat Hospital for their medical treatments.

He seized the arrow that was struck on the left hand of Dilip Konai.

He also examined the witnesses and recorded their statements. It is

also found from her evidence that he collected available injury reports of

the patient including their bed head tickets. However, the said injury

reports and bed head tickets were not exhibited during trial of the case.

Mr. Mukherjee has raised a pertinent question as to why the injury

report was suppressed. It is submitted by him that the information is

absolutely perfunctory because the Investigating Officer did not seize the

wearing apparels of the injured persons, even no offending weapons

were seized from the possession of the accused persons.

Moreover, admittedly there was political rivalry between the

parties so false implication of the accused persons cannot be ruled out.

Besides the factual infirmities as narrated above, it is submitted by

Mr. Mukherjee, learned Senior Counsel on behalf of the accused persons

that in the heading of the charge framed by the learned Trial Judge, the

time and place has not been mentioned while the charge is absolutely

silent about the time. The place was mentioned as Marjatpur. However,

the place of occurrence, according to Mr. Mukherjee ought to have been

in front of the house of Bhubeneswar Pal at Village Marjatpur. As the

time and place of occurrence has not been mentioned in the heading of

charge, the charge is bad under Section 212 of the Code of Criminal

Procedure.

However, I am not in a position to accept such submission

regarding defect or error in charge in view of the provision under Section

464 of the Code of Criminal Procedure. Section 464 of the Code

provides to be done in cases where a charge is not framed or there is

any error, omission or irregularity in framing of the charge. From the

terms of this section it can be stated that a finding, sentence or order

could be set aside only on those cases where the facts are such that no

valid charge could be preferred against the accused in respect of the

facts proved. Secondly, if the facts are such that a charge could be

framed and yet it is not framed but no failure of justice had, in fact been

occasioned thereby, the finding, sentence or order of the Code of

competent jurisdiction is not to be set aside on that ground. Thirdly, if

there is failure of justice occasioned by not framing of the charge or in

case of an error, omission or irregularity in the charge, retrial of the case

is to be directed in Sub-Section(2). Non framing charge would not

vitiate the conviction, if no prejudice is caused thereby to the accused.

In the instant case, the accused persons did not face any prejudice

for the omission to state the time of occurrence in the heading of charge.

The accused persons took part in the trial, cross-examined the witnesses

on behalf of the prosecution. Therefore, I am not in a position to hold

that the accused persons were prejudiced for failure on the part of the

learned Trial Judge to state the time of the occurrence in the heading of

the charge.

It is needless to say that genesis of an offence of rioting is

formation of unlawful assembly define in Section 141 of the Indian Penal

Code. Section 141 defines unlawful assembly as hereunder:-

"An assembly of five or more persons is designated an "unlawful

assembly", if the common object of the persons composing that

assembly is-

First.-To overawe by criminal force, or show of criminal force, [the

Central or any State Government or Parliament or the Legislature of any

State].or any public servant in the exercise of the lawful power of such

public servant; or

Second.- To resist the execution of any law, or of any legal

process; or

Third.-To commit any mischief or criminal trespass, or other

offence; or

Fourth.- By means of criminal force, or show of criminal force, to

any person, to take or obtain possession of any property, or to deprive

any person of the enjoyment of a right of way, or of the use of water or

other incorporeal right of which he is in possession or enjoyment, or to

enforce any right or supposed right; or

Fifth.- By means of criminal force, or show of criminal force, to

compel any person to do what he is not legally bound to do, or to omit

to do what he is legally entitled to do.

Explanation.- An assembly which was not unlawful when it

assembled, may subsequently become an unlawful assembly."

Section 146 states that whenever force or violence is used by an

unlawful assembly, or by any member thereof, in prosecution of the

common object of such assembly, every member of such assembly is

guilty of the offence of rioting.

Section 147 is the penal provision of rioting.

Section 148 is the penal provision of rioting with deadly weapon.

If the evidence on record is carefully scanned, it is of course found that

there was an unlawful assembly of about 50 persons on 7 th September,

1983 but the common object of such unlawful assembly was not proved.

What was the common object? Was it to attack the house of

Bhubeneswar Pal, commission of mischief in the house of Bhubeneswar

Pal or to manhandle the said Bhubeneswar Pal. On the other hand, was

it an assemble to get ration regularly distributed under the control of the

Panchayat. Was it the allegation of the accused persons that they being

the members of the rival political party did not get ration properly.

Thus, the common object of the assembly was not established during

trial of the case.

Last but not the least, the learned Trial Judge failed to examine

the accused persons under Section 313 of the Code of Criminal

Procedure in accordance with proper perspective as contained in Section

313(1) of the Code of Criminal Procedure. The purpose of examination

of the accused under Section 313 Cr.P.C. is to enable the accused

personally to explain any circumstances appearing in the evidence

against him. It is not only desirable but also a statutory requirement

that incriminating material appearing in the evidence of each and every

witnesses is required to be stated separately to the accused persons and

jumble of questions to the effect that "it appears from the evidence on

record..............." is not the way or manner of examination of an accused

under Section 313 of the Code of Criminal Procedure. In Narsingh Vs.

State of Haryana reported in 2015(1)SCC (Cri.) 699, the Hon'ble

Supreme Court observe - "undoubtedly the importance of a statement

under Section 313 Cr.P.C., in so far as the accused is concerned, can

hardly be minimized. The statutory provision is based on rules of natural

justice for an accused, who must be made aware of the circumstances

being put against him so that he can give proper explanation to meet

that case."

In the instant case, the examination of the accused persons under

Section 313 Cr.P.C. was not in accordance with the requirement of the

statute and therefore, the entire trial vitiated because of the fact that the

accused did not get the opportunity to explain the incriminating

circumstances properly appearing against him. In view of such

circumstances, it is submitted by Mr. Mukherjee that the instant appeal

should be allowed.

Argument on behalf of the rest of the appellants by Mr. Arnab

Saha is adopted.

For the reasons stated above, this Court is of the view that the

learned Trial Judge committed error in law and fact in convicting the

accused persons and the judgment and order of conviction and sentence

is liable to be set aside.

Accordingly, the appeal is allowed on contest.

Appellants are discharged from their respective bail bonds.

Office is directed to supply the urgent certified copy of this

order to the Learned Advocates for the parties on the usual

undertakings.

(Bibek Chaudhuri, J.)