Gazi Molla & Ors vs State Of West Bengal
2023 Latest Caselaw 5649 Cal

Item No. 46




              IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Gaurang Kanth

                               C.R.A. 359 of 2006

                                Gazi Molla & Ors.
                                        Vs.
                               State of West Bengal


For the Appellant(s)             : Mr. Sekhar Basu, Sr. Adv.
                                   Mr. Partha Pratim Das, Adv.
                                   Mr. Robiul Islam, Adv.
                                   Mr. Raju Mondal, Adv.
                                   Sk. J Hossain, Adv.
                                   Mr. Navanil Dey, Adv.


For the State                    : Mr. Saibal Bapli, Adv.
                                   Mr. Soumik Ganguli, Adv.

For the de facto                 : Md. Sabir Ahmed, Adv.
complainant                        Mr. Rajiv Lochan Chakraborty, Adv.
                                   Mr. Sumanta Ganguluy, Adv.

Heard on                         : 29.8.2023
Judgment on                      : 29.8.2023.


Joymalya Bagchi, J. :-

1.

Appellants have assailed the judgment and order dated

19.05.2006 and 20.05.2006 passed by the learned Additional Sessions

Judge Berhampore at Murshidabad in Sessions Trial No. 4(9)/2004

arising out of Sessions Serial No. 433 of 2004 convicting them for

commission of offence punishable under Sections 302/34 of the Indian

Penal Code and sentencing them to suffer imprisonment for life and to

pay fine of Rs. 10,000/-each in default to suffer simple imprisonment

for one year more.

Prosecution case:-

2. Prosecution case as alleged against the appellants is to the effect

that on 27.7.1996 around 10 a.m. one Kajem Molla, the deceased was

proceeding towards Nazipur High School along with his younger son

Safikul Molla (PW 6) on a bicycle. Basir Molla (PW 1), his elder son

along with his friend Tajemuddin Sk (PW 8) was proceeding behind

them on another bicycle. When Kajem reached near the house of

Manjur Molla (appellant No. 2 herein), his son Firajul Molla rushed

inside the house. Thereafter Manjur Molla and his brother Gazi Molla

came out of the house and caught hold the bicycle of his father. Manjur

had pasli in his hands. At that time the other appellants, namely,

Golam Molla, Uklam Molla, Rustam Molla, Soleman Molla, Sariful

Molla, Sahidul Molla, Islam Molla, Asan Sk and Seher Sk came out and

attacked Kajem in order to kill him. Golam threw a bomb. Kajem fell

down. Then Gazi and Kalam threw bombs at him. As a result, Kajem

died. Golam also suffered injury due to throwing of bombs.

3. On the written complaint of PW 1 criminal case being Domkal PS

case no. 88/96 dated 27.7.96 was registered under sections 302/34 of

the IPC and sections 3/4 of the Explosive Substances Act against the

appellants and one Firajul Molla, son of Manjur. Upon conclusion of

investigation, charge sheet was filed against the said accused and one

Rejaul Islam. Charges were framed against them under sections

302/120B/34 of the IPC and sections 3/4 of the Explosive Substances

Act. Accused pleaded not guilty and claimed to be tried.

4. In course of trial, prosecution examined 11 witnesses and

exhibited a number of documents to prove its case.

5. Defence of the accused was one of innocence and false

implication.

6. In conclusion of trial, learned trial Judge by the impugned

judgment and order convicted and sentenced the appellants, as

aforesaid. Accused Firajul Molla and Rejaul Islam were acquitted.

Prosecution evidence:-

7. PW 1 Basir Molla is the elder son of the deceased and the de facto

complainant. He deposed on 27.7.1996 at 10 am his father was going

to the school to drop his brother Safikul (PW 6) on his bicycle. When

his father reached in front of the house of Manjur, Firajul rushed inside

the house. Thereafter Manjur and Gazi Molla came out and caught hold

of the bicycle of his father. Then Golam Molla, Uklam Molla, Rustam

Molla, Soleman Molla, Sariful Molla, Sahidul Molla, Islam Molla, Asan

Sk and Seher Sk came out and tried to kill his father. Golam threw

bombs which hit his father and his father fell down. Gazi and Kalam

threw two bombs on his body and his father died at the spot. Golam

received bomb injury. He was on a bicycle along with his friend

Tajemuddin Sk (PW 8). He was 15 cubits away from the place of

occurrence and had seen the incident. His father suffered bomb

injuries. His fingers had been chopped. He went to the police station

and lodged FIR, Ext 1. Police came to the place of occurrence and

prepared inquest report. Police also seized articles from the place of

occurrence. During cross examination, he admitted he was in jail for 45

days in connection with a case under the Arms Act. Distance of his

house from the place of occurrence is 125 meters. He also stated that

his uncle had been murdered. He did not know whether criminal case

was pending against his father.

8. PW 6 Safikul Molla is the younger son of the deceased. He

deposed his father was taking him to school on a bicycle. When they

arrived in front of the house of Manjur, Firajul rushed inside the house.

Gazi, Manjur, Kalam, Golam, Rustam, Islam Molla, Saiful Molla,

Sahidul Molla, Seher Sk and Asan Sk came out of the house. They were

armed with weapons. Manjur and Gazi stopped his father's bicycle.

Manjur pushed down his father from his cycle. His father fell down.

Gazi slapped him. Manjur assaulted his father with a 'pasli'. His father

tried to flee away. Golam charged a bomb. His father fell down. Gazi

and Kalam charged two bombs which caused head injury on his father.

As a result, his father died. Fingers of his father had been chopped.

9. PW 4 Jamela Bewa is the wife of the deceased. She claimed she

had seen the incident from the veranda of her house. She stated

Manjur gave pasli blow on the body of her husband. Gazi and Kalam

charged bombs at him. Golam suffered injury due to bombs. Other

accused persons assaulted his husband using lathi.

10. PW 8 Tajimuddin Sk is a friend of Basir Molla PW 1. He

accompanied PW 1 on a bicycle. He did not support the prosecution

case and was declared hostile. He was cross examined with regard to

his previous statement to police.

11. PW 7 Dr. S K Bhuia is the post mortem doctor. He found burst

cranium causing laceration of skull, fracture of cranial bone of the

skull, expelling almost whole of brain matter. Lacerated wound over left

hand with loss of fingers except thumb.

In his opinion death was due to loss of vital organs caused by

bomb blast injury, ante mortem in nature. During cross examination,

he stated that injury nos. 1 and 2 were caused by bomb blast.

12. PW 11 Abdur Rahim is the investigating officer. He deposed he

received written complaint from one Basir Molla. He filled up the formal

FIR, Ext 8. He proceeded to the place of occurrence. He prepared rough

sketch map with index Ext 9. He held inquest over the dead body Ext,

2/1. He sent the body for post mortem examination. He seized one

bicycle, two plastic slippers, remnants of two socket bombs and a

hensua with handle, plain earth and blood stained earth under seizure

list Ext 3/2. He also seized one buffalo cart with two buffalos. He seized

wearing apparels of the deceased. He examined witnesses and

submitted charge sheet. During cross examination, he admitted

witnesses did not disclose the names of the miscreants and they did

not state as to who did what. He ascertained that the deceased was

accused in a case under section 364 IPC which had ended in a final

report as true. Deceased had criminal antecedents.

Arguments at the Bar:-

13. Mr. Basu, learned Senior Advocate for the appellants argues that

the genesis of the prosecution case has not been proved. Deceased had

criminal antecedents and may have been murdered by others. Due to

prior enmity appellants were falsely implicated. Apart from bomb blast

injuries, no injury by lathi or pasli was noted by post mortem doctor.

Hence assault by pasli or lathi has not been proved. Participation of

Manjur Molla, Golam Molla, Uklam Molla, Rustam Molla, Soleman

Molla, Sariful Molla, Sahidul Molla, Islam Molla, Asan Sk and Seher Sk

in the assault has not been proved beyond doubt. Mere presence at the

place of occurrence is not sufficient to attract constructive liability

under section 34 IPC. Appellants are entitled to an order of acquittal.

14. Mr. Ganguly for the State argues PWs 1, 4 and 6 are natural

witnesses. Presence of PWs 1 and 6 at the place of occurrence is noted

in the FIR. They categorically disclosed the involvement of all the

appellants in the murder. Appellants had come to the spot armed and

had assaulted the victim resulting in his death. They shared common

intention to murder the victim. Appeal is liable to be dismissed.

15. Mr. Ahmed for the de facto complainant PW 1 submits all the

appellants were named in the FIR. They had come in a body and had

assaulted the victim. Initially Manjur and Gazi caught hold of the

bicycle and pushed the victim from the cycle. Then Manjur assaulted

him with a pasli. When he tried to flee away Golam threw a bomb at

him. When the victim fell down, Gazi and Kalam threw two bombs at

him. Others assaulted him with a lathi. These facts have been clearly

proved and corroborated by medical evidence on record. Hence,

prosecution case is proved beyond reasonable doubt.

Was the victim murdered in the manner and circumstances as proposed by the prosecution?

16. From the evidence on record it appears that PWs 1, 4 and 6 are

the eye-witnesses. PW 1 was following the victim and his younger

brother Safikul (PW 6). He was 15 cubits away and saw the incident.

Both in the FIR and during trial PW 1 has graphically described the

assault on his father. He deposed initially Manjur and Gazi came out of

the house and stopped his father. They pushed him from the bicycle.

Thereafter, Golam Molla, Uklam Molla, Rustam Molla, Soleman Molla,

Sariful Molla, Sahidul Molla, Islam Molla, Asan Sk and Seher Sk came

to the spot. They tried to attack his father. Golam threw a bomb at the

victim and he fell down. Then Kalam and Gazi threw bombs at the

victim. As a result, victim died. Golam also suffered bomb injuries.

17. PW 6 has substantially corroborated his brother, PW 1. In

addition he claimed all the appellants were armed.

18. PW 4, wife of the deceased is another eyewitness. She claimed

she saw the incident from the verandah of her house. Evidence has

come on record place of occurrence is 125 meters away from the

residence of the deceased. Hence, possibility of PW 4 seeing the

incident from the verandah of her house is not improbable. She has

substantially corroborated her sons PWs. 1 and 6. Like PW 6 she stated

all the appellants were armed.

19. Post mortem doctor (PW 7) noted two injuries on the deceased.

He stated both the injuries were due to bomb blast. PW 11 seized

various articles including socket bombs from the place of occurrence.

Evidence of the post mortem doctor and recovery of socket bombs from

the place of occurrence corroborate the ocular version of the

eyewitnesses that the bombs had been thrown at Kajem resulting in

severe injuries and his ultimate death. Death of Kajem due to bomb

blast injuries at the place of occurrence is proved beyond doubt.

Who are the authors of the injury on Kajem:-

20. PWs. 1, 4 and 6 have categorically described the roles of Manjur

Molla, Gazi Molla, Golam Molla and Kalam Molla in the assault upon

the deceased. Gazi and Manjur had stopped his bicycle and forced him

down on the ground. Thereafter, Manjur assaulted him with a pasli.

Then Golam threw a bomb at him. When he fell down Gazi and Kalam

threw two more bombs resulting in severe injuries.

21. Mr. Basu contends post mortem report does not disclose incised

wounds which would have been caused by a pasli. No doubt post

mortem doctor found two injuries on the deceased which according to

him were caused by bomb blast. However, it is relevant to note fingers

of the victim except the thumb were absent from his left hand.

Severance of the fingers may have been caused due to pasli attack. FIR

was lodged by PW 1 promptly. In the FIR he had categorically stated

Manjur Molla was armed with a pasli and had attacked his father.

Other witnesses i.e. PWs 4 and 6 have corroborated the prosecution

case with regard to Manjur Molla attacking the victim with a pasli.

22. Presence of Gazi Molla, Golam Molla and Kalam Molla at the

place of occurrence is proved. Their overt act in throwing bombs at the

victim finds corroboration from the medical evidence of PW 11. Injuries

on Golam Molla were caused due to throwing of bombs by Gazi and

Kalam and have been duly explained away. Thus, roles of the aforesaid

appellants viz., Gazi Molla, Manjur Molla, Golam Molla and Kalam

Molla in the murder has been proved beyond doubt.

Did other appellants, namely, Sahidul Molla, Islam Molla, Rustam Molla, Sariful Molla, Seher Sk. and Asan Sk. share common intention to murder?

23. The remaining issue is, did Sahidul Molla, Islam Molla, Rustam

Molla, Sariful Molla, Seher Sk. and Asan Sk. share common intention

with others to commit the crime.

24. Learned Advocates for the State and the first informant would

argue all the appellants had come to the spot with arms. They attacked

the victim with lathi.

25. Let me examine whether this part of the prosecution case has

been proved or not.

26. In the FIR PW 1 did not state the said appellants were armed

with lathi. Though he made a generic and omnibus statement that the

said appellants had attacked his father, in Court he changed his stance

and stated they had tried to attack the victim. PW 4 claimed that these

appellants were armed with lathi and had assaulted the victim. PW 6

stated they were armed but is silent with regard to their participation. If

6/7 accused had assaulted the victim with lathi, post mortem doctor

would have noted lacerated injuries on various parts of the body of the

deceased apart from bomb blast injuries. He did not notice any injury

other than the bomb blast injuries. This improbabilises the evidence of

prosecution witnesses that the appellants viz., Sahidul Molla, Islam

Molla, Rustam Molla, Sariful Molla, Seher Sk. and Asan Sk. had

assaulted the victim. Even the prosecution evidence that the appellants

were armed is inconsistent. PW 1 does not say so. Versions of PWs 4

and 6 in this regard appear to be an embellishment. Investigating

officer (PW 11) during cross-examination states witnesses during

investigation did not disclose the names of the miscreants or what had

been done by each of them. He specifically stated PW 4 did not state

appellants had used lathi. This shows version of PWs 4 and 6 that

these appellants were armed with lathi and had assaulted the victim

has been stated for the first time in Court.

27. I am conscious even presence of an accused at the place of

occurrence and his passive participation like giving guard while the

others committed the offence may disclose sharing of common intention

with others to commit the crime.

28. Even if one examines the roles of these appellants from this

perspective, their presence may not by itself be sufficient to attract

constructive liability.

29. Evidence has come on record that the deceased had criminal

antecedents. Even PW 1 had been in jail in connection with a case

under the Arms Act. They were not simple villagers. Firajul Molla, son

of Manjur Molla noticed them proceeding near their house. He may

have been frightened and ran inside the room. This prompted his father

Manjur and Gazi to come out and confront the deceased Kajem. Other

appellants followed thereafter. It is possible apprehending there may be

a commotion the appellants had come out of their houses. Judged from

this angle, mere presence of these appellants may not be sufficient to

implicate them in the murder with the aid of section 34 of the Indian

Penal Code.

30. In Mithu Singh vs. State of Punjab1 the Apex Court held common

intention is to be inferred from the acts and conduct of accused and

other relevant considerations. It should not be readily inferred but

would arise only if there is a certain degree of assurance. The Court

elaborated as follows:-

"6. To substantiate a charge under Section 302 with the aid of Section 34 it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of both. Common intention has to be distinguished from same or similar intention. It is true that it is difficult, if not impossible, to collect and produce direct evidence in proof of the intention of the accused and mostly an inference as to intention shall have to be drawn from the acts or conduct of the accused or other relevant circumstances, as available. An inference as to common intention shall not be readily drawn; the culpable liability can arise only if such inference can be drawn with a certain degree of assurance."

31. In Krishnamurthy Alias Gunodu and ors. vs. State of Karnataka2,

the Court reiterated Mithu Singh (supra) and held as follows:-

"21. ... It also follows that in some cases merely accompanying the principal accused may not establish common intention. A co- perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualised the possibility or probability of the final act. If the final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable. This test obviously is fact and circumstance specific and no straitjacket universal formula can be applied."

32. In the present case, the allegation that the appellants viz.,

Sahidul Molla, Islam Molla, Rustam Molla, Sariful Molla, Seher Sk. and

Asan Sk. were armed and had assaulted the victim with lathis have not

been proved. Medical report does not show presence of injuries due to

(2001) 4 SCC 193

(2022) 7 SCC 521

lathi on the body of the deceased. These appellants may have come to

the spot to enquire when commotion commenced between Gazi Molla

and Manjur Molla on the one hand and the deceased on the other

hand.

33. In this backdrop, their presence without anything more cannot

attract the inference of sharing common intention with the principal

accused viz. Gazi Molla, Manjur Molla, Golam Molla and Kalam Molla

who actively participated in the murder. Hence, I am inclined to extend

the benefit of doubt to these appellants.

Conclusion:-

34. Conviction and sentence of the appellants viz. Gazi Molla, Manjur

Molla, Golam Molla and Kalam Molla are upheld. Conviction and

sentence of the appellants viz. Sahidul Molla, Islam Molla, Rustam

Molla, Sariful Molla, Seher Sk. and Asan Sk. are set aside.

35. Bail bonds of the appellants viz. Gazi Molla, Manjur Molla, Golam

Molla and Kalam Molla are cancelled. They are directed to surrender

forthwith and serve out the remainder of their sentence in accordance

with law. In the event, they fail to do so, the trial court shall issue

appropriate processes for their apprehension and execution of their

sentence.

36. The appellants viz. Sahidul Molla, Islam Molla, Rustam Molla,

Sariful Molla, Seher Sk. and Asan Sk. shall be discharged from their

bail bonds after expiry of six months in terms of section 437A of the

Code of Criminal Procedure.

37. The appeal is allowed in part.

38. Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

39. Photostat certified copy of this judgment, if applied for, shall be

made available to the appellants upon completion of all formalities.

I agree.

(Gaurang Kanth, J.)                               (Joymalya Bagchi, J.)




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