Calcutta High Court (Appellete Side)
Azad & Ors vs State Of West Bengal on 31 March, 2022
Item No. 22
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Bivas Pattanayak
C.R.A. 432 of 2009
Azad & Ors.
-Vs-
State of West Bengal
For the Appellants : Mr. Tapan Dutta Gupta, Adv.
Mr. Pavej Anam, Adv.
For the State : Mr. Ranabir Roy Chowdhury, Adv.
Mr. Mainak Gupta, Adv.
Heard on : 22.03.2022 & 31.03.2022
Judgment on : 31st March, 2022
Joymalya Bagchi, J. :-
At the outset it is submitted that the appellant No. 5, Adil Sarkar
has expired. Hence, appeal abates so far as appellant No. 5 is concerned.
Appellants have assailed judgment and order dated 28 th May,
2009 and 29th May, 2009 passed by learned Additional District &
Sessions Judge, 5th Fast Track Court, Malda, in Sessions Trial No.
12(03)/2007 arising out of Sessions Case No. 92/06 convicting the
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appellants for commission of offence punishable under Section
448/148/302/307/323 of the Indian Penal Code read with Section 149
of the Indian Penal Code and sentencing them to suffer rigorous
imprisonment for life and to pay a fine of Rs. 1,000/- each, in default, to
suffer simple imprisonment for two months for their offence punishable
under Section 302 read with Section 149 of the Indian Penal Code and to
suffer rigorous imprisonment for ten years and to pay fine of Rs. 1,000/
each, in default, to suffer simple imprisonment for two months more for
the offence punishable under Section 307 read with Section 149 of the
Indian Penal Code, both the sentences to run concurrently. No separate
sentence was awarded on other counts.
Prosecution case as alleged against the appellants is to the effect
that on 14.07.2002 around 6:00 p.m. in the evening nephew and niece of
Mokitul Islam (P.W. 1) were studying in their house. At that time,
appellant No. 2 namely, Anarul was loudly playing a radio in the open
courtyard in front of the house. When P.W. 1 protested, a quarrel
started. At the intervention of villagers, the matter was temporarily
settled. Thereafter, at 9.15 p.m. in the night under the leadership of
appellant Nos. 5 and 6 i.e. Adil Sarkar and Abdul Malek respectively,
other appellants came to the house of P.W. 1 and started abusing them
in filthy languages. Elder brother of P.W. 1, Saukatul Islam (since
deceased) and his wife, Marjina Bibi came out and protested. Appellant
Nos. 6 and 7 namely, Abdul Malek and Shahe Alam (Meghua) pulled
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Marjina to the road and beat her on the instruction of appellant No. 5
Adil Sarkar. When Saukatul tried to save his wife, appellant No. 1 (Azad)
stabbed him with a 'bhojali' in the abdomen. Another brother of P.W. 1,
Jahedul Islam rushed to the spot and was stabbed by Azad on the
instigation of by appellant Nos. 5 and 6 i.e, Adil Sarkar and Abdul Malek.
Saukatul and Jahedul were taken to hospital where Saukatul was
declared dead. Jahedul was shifted to Malda hospital. P.W. 1 lodged
complaint against the appellants at police station resulting in
registration of Harishchandrapur P.S. case No. 95 of 2002 dated
15.07.2002 under Sections 143/447/323/326/324/506/304 I.P.C.
Investigation was taken up by P.W. 12. In conclusion of investigation,
charge-sheet was filed against the appellants. Charges were framed
under Sections 148/448/323/307/302/149 of the Indian Penal Code.
Appellants pleaded not guilty and claimed to be tried.
In course of trial, prosecution examined 12 witnesses and
exhibited a number of documents. Defence of the appellants was one of
innocence and false implication. Appellants examined two witnesses
namely D.W. 1 and D.W. 2 who sought to probabilise the defence case
that the victim had died at a different place.
In conclusion of trial, the trial Judge by the impugned judgment
and order dated 28th May, 2009 and 29th May, 2009 convicted and
sentenced the appellants, as aforesaid.
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Mr. Dutta Gupta, with Mr. Anam, learned advocates appearing for
the appellants argued the prosecution case as narrated by the witnesses
in Court is at variance to the First Information Report. While in First
Information Report, appellant No. 1, Azad is attributed with the
murderous assault both on Saukatul and his brother Jahedul Islam
(P.W. 2), in Court, the witnesses stated appellant No. 2, Anarul had
assaulted Saukatul while appellant No. 1 (Azad) attacked P.W. 2. Even in
the charge framed by the trial Judge it is alleged Azad had murdered
Saukatul. Evidence with regard to exhortation to kill is not supported by
all the prosecution witnesses. Thus, the prosecution case has undergone
substantial change during trial and ought not to be believed. Appellants
are entitled to an order of an acquittal.
Mr. Roy Chowdhury, with Mr. Gupta learned advocates appearing
for the State rebutted the arguments of Mr. Dutta Gupta. They submit
the substratum of the prosecution case is consistent and has been
proved by the eyewitnesses P.Ws. 1, 2, 4, 5, 6 & 7. Their ocular evidence
is corroborated by the medical evidence. All the appellants came in a
body and abused P.W. 1 and his family members. They dragged Marjina
(P.W. 7) wife of the deceased and assaulted her. When the deceased tried
to save her, appellant No. 2 hit him with a knife resulting in his death.
Appellant No. 1 assaulted P.W. 2 in similar fashion in the abdomen
resulting in life threatening injury and hospitalization. Other appellants
incited them to commit murder. Prosecution has been able to prove that
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the appellants were the members of unlawful assembly and the murder
was committed in furtherance of common object. Hence, prosecution
case is proved beyond doubt.
In a case where accused persons are made vicariously liable
under section 149 of I.P.C. for murder committed by one of the members
of an unlawful assembly in persuasion of the common object, duty is
cast on the prosecution to prove the following facts:
(a) Formation of an assembly whose common object is unlawful
and punishable under Section 141 of the Indian Penal Code.
(b) Accused persons were members of such unlawful assembly
and shared the common object at the time of commission of
the offence.
(c) Murder had been committed in persuasion of such common
object.
In the backdrop of the evidence led by the prosecution witnesses,
let me examine whether the prosecution has been able to prove the
aforesaid facts or not.
P.Ws. 1, 2, 4, 5, 6 and 7 are the eyewitnesses.
P.W. 1 (Mokitul Islam) is the informant in the instant case. He
deposed on 14.07.2002 in the evening a dispute had broken between
him and appellant No. 2 (Anarul) over playing of radio in high volume in
the courtyard. He protested and quarrel ensued. Local villagers
intervened. They asked Anarul to switch off the radio and the matter was
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temporarily settled. At 21.15 hrs. at night appellant Nos. 1 (Azad) 2
(Anarul) and 4 (Rafik) came to the courtyard and abused P.W. 1 and his
family members. P.W. 7, Marjina (sister-in-law of P.W. 1) came out and
asked them not to abuse. Thereupon the aforesaid appellants caught her
hair and took her towards the road. Her husband Saukatul came to save
his wife. At that juncture, appellant Nos. 5 (Adil Sarkar), 6 (Abdul Malek),
7 (Shahe Alam @ Meghua), and 8 (Sagre Alam) came to the courtyard.
They incited others to finish Saukatul. Appellant No. 2, Anarul assaulted
Saukatul with a 'bhojali' on the belly. He fell down. Another brother
namely, Jahedul (P.W. 2) came to the spot and Azad hit him on the
chest. All the accused persons shouted they would kill P.W.1 and others.
P.W. 2 (Jahedul Islam), the injured eye-witness, while narrating
the incident stated appellant Nos. 2 (Anarul) and 6 (Abdul Malek) came
to the spot and abused. When Marjina asked them not to abuse,
appellant Nos. 1 (Azad), 2 (Anarul), 4 (Rafiq), 6 (Abdul Malek) and 7
(Shahe Slam @ Meghua) dragged her and assaulted her. When Saukatul
intervened, appellant No. 5 (Adil Sarkar) insisted Anarul to kill Saukatul.
Appellant No.7 (Shahe Alam @ Meghua) ordered appellant No.1 (Azad) to
kill P.W.2. Azad assaulted with a knife on his chest.
P.W. 4 (Sajjad Hossain) deposed appellant Nos. 1 (Azad), 2
(Anarul), 4 (Rafiq), 5 (Adil Sarkar), 6 (Abdul Malek) and 7 (Shahe Slam @
Meghua) came to the courtyard and abused. When Marjina intervened,
Azad and Rafiq dragged her. When Saukatul tried to save his wife,
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Anarul stabbed him in his belly. Jahedul was also stabbed but the
witness is unable to state who had stabbed him.
P.W. 5, Firoj Alam stated appellant Nos.1 (Azad), 2 (Anarul), 4
(Rafiq), 5 (Adil Sarkar), 6 (Abdul Malek), 7 (Shahe Alam @ Meghua) and 8
(Sagre Alam) had come to the spot and abused. Upon intervention by
Marjina (P.W.7), appellant Nos.1 (Azad) and 4 (Rafiq) assaulted her. Then
Anarul stabbed Saukatul and others stabbed Jahedul.
P.W. 6, Maheleza Bewa is the mother of the deceased. She stated
appellant Nos.1 (Azad), 2 (Anarul), 4 (Rafiq), 5 (Adil Sarkar), 6 (Abdul
Malek), 7 (Shahe Alam @ Meghua) and 8 (Sagre Alam) had come to the
courtyard and abused. Her daughter-in-law Marjina intervened and they
dragged her to the road. When her husband Saukatul had come to save
her, Anarul attacked him with a knife in the belly and others stabbed
Jahedul.
P.W. 7, Marjina is the wife of the deceased. She had intervened
when the appellants had come to the open courtyard and abused her
family members. She deposed appellant Nos.1 (Azad), 3 (Manoar Hossain
[Bakkar]), 4 (Rafiq), 5 (Adil Sarkar), 6 (Abdul Malek), 7 (Shahe Alam @
Meghua) and 8 (Sagre Alam) had come and abused. When she intervened
she was assaulted by appellant Nos. 1 (Azad), 4 (Rafiq), 7 (Shahe Alam @
Meghua) and 8 (Sagre Alam). Then her husband, Saukatul came to save
her and was assaulted by Anarul with a knife on the belly. Jahedul Islam
(P.W. 2) was assaulted by Azad with a knife.
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It is contended though all the aforesaid prosecution witnesses
have stated in unison that appellant No. 2, Anarul had stabbed Saukatul
in the belly with a knife, in the F.I.R. it is alleged appellant No. 1, Azad
had stabbed the deceased. Evidence with regard to the manner in which
the incident occurred and the participation of the other appellants
therein is not consistent. While other witnesses stated that most of the
appellants came in a body and abused, P.W.1 stated appellant Nos.1
(Azad), 2 (Anarul) and 4 (Rafiq) came to the spot first and thereafter was
joined by others. With regard to the assault on Jahedul, P.Ws.1, 2 and 7
have implicated Azad but P.Ws.4, 5 and 6 stated all the appellants
assaulted him. Even with regard to exhortation, witnesses differ from
one another as to whether there was any exhortation at all or which of
the appellants had incited others.
When a large number of persons are involved in acts of violence,
it is possible that eye witnesses may not be able to specifically identify
the roles of each one of them in the incident. Hence, there may be some
variation in their depositions with regard to the specific acts attributed
by them to each of the accused persons. However, such variation should
not be a ground to disbelieve such witnesses with regard to the incident
as a whole. Their evidence requires to be analysed from the premise
whether all the accused persons were members of the unlawful
assembly, what was its object and whether the murder was committed in
persuasion of such object. Mere presence of an accused at the spot is not
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sufficient to establish his membership in an unlawful assembly. Manner
in which the assembly developed, its object and the behaviour of the
accused persons before, during and after the incident are relevant to
determine whether they shared the common object of an unlawful
assembly, one of whose member had committed murder. Assessing
evidence of the witnesses from such angle it appears that the dispute
had initially cropped up between P.W. 1, Mokitul Islam and appellant No.
2, Anarul over playing radio in an open courtyard in a loud volume. On
the intervention of local people, matter was settled. Thereafter, some of
the appellants came to the courtyard and abused P.W. 1 and other family
members. P.W. 7, Marjina (sister-in-law of P.W. 1) came to the spot and
protested. Other appellants also came to the spot and some of them
dragged Marjina and assaulted her.
From the aforesaid evidence it appears in retaliation to the
dispute which had occurred earlier in the evening over playing of radio,
appellants had come to the spot and absued the family members of P.W.
1.
When Marjina protested, some of the appellants assaulted her. The
aforesaid conduct of the appellants show they had prior concert to come
in the courtyard and abuse P.W.1 and his family members. Their
conduct also shows their intention to assault the family members.
However, it is relevant to note the appellants, apart from appellant Nos. 1
(Azad) and 2 (Anarul) were unarmed. There is nothing to show that the
other appellants were even aware that appellant Nos. 1 and 2 had come
to the spot with arms. In the course of altercation it appears from the
evidence on record that appellant No. 2, Anarul struck Saukatul with a
knife blow resulting in his death, while appellant No. 1 (Azad) wounded
Jahidul (P.W. 2) in the chest.
Mr. Dutta Gupta asserts in the first information report assault on
the deceased is attributed to appellant no.1 Azad. Charge had also been
framed in similar lines. Hence, prosecution case has undergone
substantial alteration in the course of trial and ought not to be believed.
As discussed earlier, assault on the deceased had occurred in the
course of a melee where all the appellants were present. In this
backdrop, it is possible P.W. 1 erroneously attributed the knife blow
upon appellant No. 1 (Azad) and not to appellant No. 2 (Anarul). In fact,
consistent evidence of other eye witnesses P.Ws. 2, 4, 5, 6 and 7 without
a shadow of doubt establish appellant no.2, Anarul had dealt the knife
blow on the deceased. Attributing such blow to Azad in the first
information report, therefore, appears to be an inadvertent error and
cannot be treated to be an inherent wedge in the prosecution case which
goes to its very root and affects its veracity. Similar defect in the charge
has not adversely affected the appellants particularly appellant No. 2,
Anarul. All the prosecution witnesses stated that he had dealt the knife
blow on the deceased. Such fact was put to him in course of examination
under Section 313 of the Code of Criminal Procedure. Hence, appellant
No. 2, Anarul was fully conscious of the prosecution case levelled against
him and had fullest opportunity to controvert the same. Hence, I am of
the view appellant No. 2 (Anarul) had dealt the fatal blow on the
deceased and had not been prejudiced in any manner on this score
during trial.
Evidence on record also show in course of the incident, appellant
No. 1, Azad dealt a knife blow on P.W. 2. As a result of such attack, he
was hospitalised.
It is argued on behalf of the State P.Ws. 5 and 6 have implicated
other appellants in the assault of Jahedul (P.W. 2). P.W. 11, Dr. Manoj
Kr. Jha treated Jahedul (P.W. 2) at Malda District Hospital. He found one
stab injury measuring 1½" x 1" on the left side of liver. He opined that
injury was due to a sharp cutting weapon.
The aforesaid medical evidence lends credence to the fact that
P.W. 2 had been assaulted by Azad alone as contended by P.Ws. 1, 2 and
7 and not collectively by all the appellants. Thus, knife blows dealt by
appellant No.1 (Azad) on Jahedul (P.W. 2) resulting in a life threatening
injury on a vital part of the body viz., belly is proved beyond doubt.
Similarly, knife blow by appellant No. 2, Anarul upon the
deceased Saukatul has also been proved.
However, evidence on record does not establish the other
appellants had shared the common object to murder Saukatul or
attempt to murder Jahedul. At its best, it appears other appellants had
come to the spot with a pre-concert to abuse and assault P.W. 1 and his
family members owing to previous dispute regarding playing of radio. In
the course of the melee, appellant Nos. 1 and 2 (who were armed with
knives) had caused murderous assault on Saukatul and his brother
Jahedul. Nothing has come on record to show that the other appellants
were aware appellant Nos. 1 and 2 had come to the spot armed with
knives. Hence, it cannot be said that they had reasons to believe that
murder could be caused in furtherance of their common object to assault
P.W. 1 and his family members.
Mr. Roy Chowdhury, learned Advocate appearing for the State
argued other appellants had exhorted Anarul and Azad to commit the
murderous assault on Saukatul and Jahedul. Hence, they share the
common object to murder.
With regard to the evidence of exhortation, I find the prosecution
case is a divided house. While P.Ws. 1 and 2 spoke of exhortation by
some of the appellants, other eye-witnesses, i.e., P.Ws. 4 to 7 are
significantly silent with regard to such exhortation. Even P.Ws. 1 and 2
are not consistent with regard to the roles of the appellants vis-à-vis
exhortation. While in first information report, it is alleged exhortation
was given after the murder, P.W. 1 in Court claimed appellant Nos. 5
(Adil Sarkar), 6 (Abdul Malek), 7 (Shahe Alam @ Meghua) and 8 (Sagre
Alam) had exhorted others to kill Saukatul. P.W.2, however, gives a
different version with regard to exhortation and claims only appellant No.
5 (Adil Sarkar) exhorted Anarul and appellant No. 7 (Shahe Alam
[Meghna]) exhorted Azad to attack. When the prosecution witnesses are
not consistent with regard to the exhortation and the roles of the
appellants therein, it cannot be said that the exhortation by the
appellants has been proved and can form the basis to come to a
conclusion that they shared the common object to murder. In this regard
reference may be made to Shri Gopal And Another Vs. Subhash And
Others.1
It is trite law when a large number of persons participate in acts
of violence, common intention/common object of all the members of the
assembly may not be the same. While appellant Nos. 1 and 2 who were
armed with knives had shared common intention to murder, other
appellants who had assembled at the spot unarmed and were unaware
that appellant Nos. 1 and 2 were armed with knives, cannot be said, in
the facts of the present case, to have shared the common object to
murder or attempt to murder. They, however, shared the common
intention to cause assault and in pursuance to such common intention
had assaulted Marjina, P.W. 7.
With regard to the defence evidence led on behalf of the
appellants, I find that none of them are eye witnesses. In the face of the
convincing evidence of eye-witnesses, namely P.Ws. 1, 2, 4, 5, 6 and 7
with regard to the manner in which the incident occurred, little credence
can be given to the defence witnesses.
(2004) 13 SCC 174 (See para 19)
With regard to the offence of committing house trespass, evidence
on record shows that the incident occurred in the open courtyard in
front of the house of P.W. 1. There is also no evidence that the courtyard
was in the exclusive possession of P.W. 1 and his family members.
Hence, this offence punishable under section 448/149 of I.P.C. is not
proved.
In view of the aforesaid discussion, I am of the opinion it was
incorrect to convict all the appellants for commission of offence
punishable under section 302 read with section 149 of I.P.C. on the
score they shared common object to murder or attempt to murder.
Hence, I am inclined to alter the conviction of the appellants as follows:
a) Appellant No. 1 (Azad) and appellant No. 2 (Anarul) shared
common intention to murder Saukatul and attempt to murder
Jahedul (P.W. 2). Pursuant to such common intention, they
murdered Saukatul and stabbed Jahidul on the belly
endangering his life. They are accordingly convicted under
Section 302 read with Section 34 I.P.C. and Section 307 read
with Section 34 I.P.C.
b) Appellant No. 3 (Manoar Hossain [Bakkar]), appellant No. 4
(Rafiq), appellant No. 6 (Abdul Malek), appellant No. 7 (Shahe
Alam @ Meghua) and appellant No. 8 (Sagre Alam) cannot be
said to have shared common object or common intention with
appellant Nos.1 and 2 to commit murder or attempt to
murder, as aforesaid. They, however, shared the common
intention to assault and in pursuance to such common
intention had assaulted Marjina. Hence, they are convicted for
commission of offence punishable under Section 323 read with
Section 34 I.P.C.
Coming to the issue of sentence in view of the conviction of
appellant Nos. 1 and 2 under Section 302 and 307 read with Section 34
I.P.C sentences imposed upon them by the trial Court are upheld.
With regard to appellant Nos. 3, 4, 6, 7 and 8 they have suffered
incarceration for various terms in course of investigation and trial.
Hence, they are directed to suffer sentence for the periods already
undergone for the offence punishable under section 323/34 of the I.P.C.
Appellant Nos. 3, 4, 6, 7 and 8 shall be released from custody, if
not wanted in any other case, upon execution of a bond to the
satisfaction of the trial court which shall remain in force for a period of
six months in terms of section 437A of the Code of Criminal Procedure.
Period of detention suffered by the appellants during investigation,
enquiry and trial shall be set off against the substantive sentence
imposed upon them in terms of Section 428 of the Code of Criminal
Procedure.
Let a copy of this judgment along with the lower court records be
forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be
made available to the appellants upon completion of all formalities.
I agree.
(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)
cm/as/akd/PA (Sohel)
