Saker Molla @ Shaker Molla & Ors vs The State Of West Bengal
2023 Latest Caselaw 1776 Cal

                   IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL APPELLATE JURISDICTION
                           APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
           And
The Hon'ble Justice Md. Shabbar Rashidi

                               CRA 176 of 2021
                      Saker Molla @ Shaker Molla & Ors.
                                      VS.
                           The State of West Bengal
                                     with
                               CRA 230 of 2021
                      Mijai Molla @ Mijanur Molla & Ors.
                                      Vs
                           The State of West Bengal

For the Appellants
In CRA 176 of 2021 :      Mr. Sekhar Kr. Basu, ld. Sr. Adv.
                          Ms. Minoti Gomes,
                          Mr. Amanul Islam,
                          Mr. Sourav Mukherjee, Advocates
For the Appellants
In CRA 230 of 2021 :      Mr. Prabir Majumder,
                          Mr. Snehansu Majumder,
                          Ms. Sangeeta Chakratorty, Advocates

For the State     :       Mr. Swapan Banerjee
                          Ms. Purnima Ghosh, Advocates

Heard on          : March15, 2023 & March 17, 2023

Judgement on      : March 17, 2023

DEBANGSU BASAK, J.:-

1.

Two appeals are taken up for analogous hearing as they

emanate out of the same police case resulting in the same

judgment of conviction and order of sentence.

CRA 176 of 2021 with CRA 230 of 2021

2. The appeals are directed against a judgment of conviction

dated February 18, 2021 and order of sentence dated February

19, 2021 passed by the learned Additional Sessions Judge, Fast

Track Court-II, Krishnagar, Nadia in Sessions Trial No.-IX of

December 2008 arising out of Sessions Case no. 101 (8) of 2008.

3. By the impugned judgment of conviction and the order of

sentence, the learned Trial Judge found all the appellants in the

two appeals guilty under Section 302/34 of the Indian Penal

Code, 1860 and imposed a sentence of rigorous imprisonment for

life and to pay a fine of Rs.5000/- each, in default to suffer

further simple imprisonment for a further period of three months

for such offences.

4. Ten persons were convicted and sentenced by the impugned

judgment of conviction and the order of sentence. CRA 176 of

2021 was filed by six of such ten convicts while CRA 230 of 2021

was filed by four other convicts.

5. Mr. Sekhar Kumar Basu, learned senior advocate appearing

for the appellants in CRA 176 of 2021 (for the sake of

CRA 176 of 2021 with CRA 230 of 2021

convenience, the appellants in such appeal are referred as the

appellants in the first appeal) submits that, the prosecution was

unable to prove the charge as against any of the appellants

beyond reasonable doubt. He refers to the various facets of the

case. He submits that, allegedly the appellants received

information over mobile phone. Such factum was not established

at the trial. He refers to the various general diary entries made.

He submits that, there are discrepancies with regard to

movement of the appellants, as appearing from the oral

testimonies of the prosecution witnesses.

6. Learned senior advocate appearing for the appellants in the

first appeal submits that, there was delay in recording the

statements of vital witnesses. The prosecution did not explain

the delay in recording of such statements. He relies upon AIR

1980 SC 1750 [Bhagwan & Anr. Vs. State of Madhya

Pradesh], 1976 SCC (Cri) 596 [State of Orissa vs.

Brahmananda Nanda], [AIR 1971 SC 804 [Balakrushna

Swain vs. State of Orissa] and (2015) 2 Calcutta Criminal

CRA 176 of 2021 with CRA 230 of 2021

Law Reporter (Cal) 882 [Hamid Mondal & Ors. Vs. The State

of West Bengal] in support of his contention that, delay in

recording of statements of such crucial witnesses renders their

statements unworthy of credence and should not be relied upon

to convict the accused persons.

7. Learned senior advocate appearing for the appellants in the

first appeal submits that, Section 34 of the Indian Penal Code,

1860 creates a deeming fiction by infusing a criminal act

constituting an offence committed by one into other, in

pursuance of a common intention. The onus is on the

prosecution to prove the common intention of the prosecution to

the satisfaction of the Court. He submits that there may be an

offence without the common intention and in each case Section

34 of the Indian Penal Code, 1860 cannot be attracted. In

support of such contention, he relies upon AIR 2022 SC 805

(Jasdeep Singh @ Jassu vs. State of Punjab) and (2022) 3

Supreme 724 (Gadadhar Chandra vs. The State of West

Bengal).

CRA 176 of 2021 with CRA 230 of 2021

8. Learned senior advocate appearing for the appellant in the

first appeal submits that, prosecution did not adduce any

evidence to even remotely indicate that the appellants caused the

death of the victim in furtherance of a common intention. In

absence of such evidence, Section 34 of the Indian Penal Code,

1860 is not attracted. He contends that, Harej Molla @ Herech

Molla and Ajad Molla were not named in the First Information

Report and that their names transpires subsequently with the

adding of Section 34 of the Indian Penal Code, 1860.

9. Learned senior advocate appearing for the appellants in the

first appeal submits that, P.W.-8 who allegedly suffered a bullet

injury on his leg claims himself to be an eye-witness. However,

the prosecution did not adduce any evidence to indicate or

establish the injury in the gunfire suffered by P.W-8 or that P.W.-

8 underwent any medical treatment with regard to such injury.

He refers to the evidence of P.W.-3 in cross-examination and

submits that, P.W.-3 stated that, P.W-8 was not treated by any

Doctor for his injury. Moreover, P.W.-8 himself admitted in his

CRA 176 of 2021 with CRA 230 of 2021

cross-examination that on receiving gun shot injury, he did not

leave the place of occurrence and remained at the place of

occurrence for about 10 minutes. Thereafter he returned home.

He admitted that he did not undergo any medical treatment at

the local hospital and that he did not show any injury to

anybody.

10. Learned senior advocate for the appellants in the first

appeal submits that, the conduct of P.W.-8 subsequent to the

receipt of the so-called bullet injury is unnatural and abnormal.

He contends that, regarding the evidences of P.W.-3, P.W-4,

P.W.-5, P.W.-6, P.W.-8 and P.W.-19 conjointly, they express a

shadow of doubt of every incident of gunfire in which the victim

allegedly was killed. He submits that, if the claim of gunshot

injury is to be believed then, that it remains unexplained as to

why P.W.-8 did not undergo any medical treatment or as to why

he did not mention his injury to anybody.

11. Learned senior advocate appearing for the appellants in the

first appeal submits that, the evidence led by the prosecution

CRA 176 of 2021 with CRA 230 of 2021

casts a shadow of doubt with regard to the place of occurrence.

He submits that it is doubtful as to whether the incident of

murder did indeed take place in front of house of Mahat Sheikh.

He refers to the deposition of various prosecution witnesses in

this regard.

12. Learned senior advocate appearing for the appellants in the

first appeal submits that, the plausible motive that the

prosecution sought to offer at the trial that there was a long

standing disputes over land between the accused persons and

the deceased and his associates was without any basis. He

refers to the discrepancies of the oral testimonies of various

prosecution witnesses in this regard.

13. Learned senior advocate appearing for the appellants in the

first appeal submits that, the investigation was conducted in a

perfunctory manner. The Investigating Officer, P.W.-19, stated

in his cross-examination that he proceeded to the place of

occurrence on the basis of source information. The source

information was communicated to the Officer-in-Charge of Police

CRA 176 of 2021 with CRA 230 of 2021

Station which was diarized as G.D.E. no. 1523 dated June 25,

2007. P.W. -19 admitted that he did not seize the General Diary.

No explanation was furnished by him as to why he failed to seize

such an important piece of evidence when such General Diary

Entry led the foundation of the instant case. However, G.D.E

no.1523 dated June 25, 2007 was adduced as exhibit-12. The

evidence of second Investigating Officer, P.W. 16, also did not

seize the General Diary.

14. Learned senior advocate appearing for the appellants in the

first appeal submits that, it is claimed by the prosecution that,

P.W.-13 informed the police over mobile phone regarding the

incident. Such mobile phone was not seized. Non-seizure of the

mobile phone of P.W.-13 casts a shadow of doubt on the evidence

of P.W.-13 and P.W.-19.

15. Learned senior advocate appearing for the appellants in the

first appeal submits that, during the course of investigation,

appellants seized an empty cartridge and iron pipe which was

claimed to be used in causing the death of the victim. He refers

CRA 176 of 2021 with CRA 230 of 2021

to the evidence of P. W.-19 and submits that, P.W.-19 admitted

in his cross-examination that he did not send the empty

cartridge and the iron pipe to any expert for examination. He

refers to the other portion of the evidence of P.W.-19. He relies

upon 1976 SCC (Cri.) 671 [Lakshmi Singh vs. State of Bihar]

and submits that, despite materials being present and

technology being available, failure of the prosecution to bring on

record important evidence belies the very edifice of the

prosecution and rendered the case unworthy of acceptance.

16. Learned senior advocate for the appellants in the first

appeal submits that, the First Information Report was registered

on June 25, 2007 and the same was produced before the Court

of the Learned Magistrate on June 28, 2007. There was delay of

about three months in dispatching the First Information Report.

No explanation was adduced by the prosecution in respect of

such delay.

17. Mr. Prabir Majumder, learned advocate appearing for the

four appellants in CRM 230 of 2021 (for the sake of convenience

CRA 176 of 2021 with CRA 230 of 2021

such appellants are referred to as the appellants in the second

appeal) adopts the submissions and contentions advanced on

behalf of the appellants of the first appeal. He submits that,

Jamshed Seikh, appellant no. 3 in CRA 230 of 2021 was not

named in the First Information Report. The maker of the written

complaint being P.W.-1, did not name the appellant no. 3 in the

second appeal, while P.W-1 was deposing before the Trial Court.

18. Learned senior advocate appearing for the appellants in the

first appeal as also the learned advocate appearing for the

appellants in the second appeal submits jointly that, since the

prosecution failed to establish the charges as against the

appellants beyond reasonable doubt, the appellants in the two

appeal should be acquitted.

19. Learned advocate for the State submits that, there are eye-

witnesses who established all of the appellants to be involved in

the assault and murder of the victim. She refers to the

testimonies of the eye-witnesses. She submits that the

testimonies of the eye-witnesses are sufficient to implicate each

CRA 176 of 2021 with CRA 230 of 2021

of the appellants in the incident of assault and murder of the

victim. She refers to the postmortem report of the victim as well

as the testimony of the Doctor conducting the postmortem on the

dead body of the victim. She submits that, the victim was

brutally murdered. The postmortem Doctor opined that the death

was homicidal in nature and was the result of the injuries

suffered by the victim. Therefore, according to her, the

prosecution was able to prove the charges of murder as against

each of the appellants, beyond reasonable doubt. Therefore, she

submits that, the impugned judgment of conviction and order of

sentence should be upheld.

20. A written complaint dated June 25, 2007, was lodged by

P.W.1 with the police. In such written complaint he stated that,

there was an altercation and conflict between the victim, his

other brother and himself with appellants and some other

supportive villagers. In respect of such conflict, such accused

persons often threatened the victim, his other brother and

himself with murder. He stated that on June 25, 2007 at about

CRA 176 of 2021 with CRA 230 of 2021

9:30 a.m. in the morning, when the victim, a brother of him was

going to the field at Shalbari to give tiffin to the labourers at field,

the victim came on the road in front of the house of Mahat

Sheikh and at that time, seven persons that he named,

congregated to attack the victim with fire arms, sharp cutting

weapons and explosives. He stated that, first the victim was shot

at several portions of his body then was assaulted with sharp

cutting weapons at different portions of the body, and thereafter,

the accused persons started hurling bomb. During such incident

one bullet struck the leg of his nephew being P.W.8.

21. The written complaint of P.W.1 was registered as a First

Information Report by the police on June 25, 2007, under

Sections 302/326/34 of the Indian Penal Code, 1860 and under

Section 25/27 of the Arms Act and Section 9(b) of the Indian

Explosives Act.

22. Police submitted charge-sheet on conclusion of the

investigations. Court framed charges as against all the

appellants, on December 15, 2008, under Sections 302 and 34 of

CRA 176 of 2021 with CRA 230 of 2021

the Indian Penal Code, 1860. The appellants claimed to be

innocent and were tried.

23. At the trial, prosecution examined 20 witnesses.

Prosecution relied upon various documentary and material

evidences to bring home the charges. On conclusion of the

evidence of the prosecution, the appellants were examined under

Section 313 of the Criminal Procedure Code where they claimed

to be innocent and falsely implicated.

24. The maker of the written complaint and the brother of the

victim deposed as P.W.1. He stated that the victim was murdered

on June 25, 2007, at 9:30 a.m. in the morning on the village

kancha road in front of the house of Mahat Sheikh. At that time,

the victim was going to the field with tiffin for the labourers who

were working in the agricultural filed at Shalbari. He named

seven persons along with others who killed his brother the

victim. He stated that, the accused persons assaulted the victim

with bombs, fire arms and sharp cutting weapons

indiscriminately. The victim died instantaneously at that place.

CRA 176 of 2021 with CRA 230 of 2021

The accused persons fled away.

25. P.W.1 stated that, the police officer asked him to hand over

the complaint to him. He was not able to write at that point of

time and as such, he got the written complaint written by Rejaul

Mondal. He tendered the written complaint in evidence which

was marked as Exhibit-1. He stated that the police prepared the

inquest report over the deadbody of the victim. He tendered the

inquest report which was marked as Exhibit-2. He identified all

the accused persons in Court.

26. The doctor who performed the Post Mortem on the

deadbody of the victim deposed as P.W.2. He stated about the

injuries that he found on the deadbody of the victim. He

identified 17 injuries that he found on the deadbody of the

victim. He stated that, in his opinion, the death was due to shock

of haemorrhage resulting from the injuries suffered by the victim

which was ante-mortem and homicidal in nature. He went on to

further opine that, if a person was assaulted indiscriminately

with sharp cutting weapon then the injuries as noted on the

CRA 176 of 2021 with CRA 230 of 2021

body of the victim may occur and that such person may die

instantaneously. The Post Mortem Report of the victim was

tendered in evidence and marked as Exhibit-3. Cross-

examination of the Post Mortem doctor was declined.

27. P.W.3 is the son of the victim. He saw the incident. He

stated that, the victim was killed in front of the house of Mahat

Sheikh on the kutcha road of the village at about 9 to 9:30 a.m.

in the morning. He named the appellants in the two appeals as

the persons involved in the assault on the victim leading to his

murder. He identified all the appellants in Court. He stated that

at the time of the incident P.W.8 sustained bullet injury on his

leg. He stated that the victim died on the spot instantaneously

and that the accused persons fled away. He identified his

signature on the inquest report which was marked as Exhibit-

2/1.

28. P.W.4 is another eye-witnesses to the incident. He

corroborated the statements made by P.W.3. He named all the

appellants in the two appeals as the persons sitting in front of

CRA 176 of 2021 with CRA 230 of 2021

the house of Mahat Sheikh and on seeing the victim, commenced

assault on the victim with sharp cutting weapons and fire arms.

He saw the victim die. He also saw the appellants to flee away.

He stated that P.W.8 was standing beside them and that P.W.8

sustained bullet injury. He stated that there was a land dispute

between Jamal and his brother Goni and victim. He identified all

the appellants in Court. He identified his signature on the

inquest report which was marked as Exhibit-2/2. In cross-

examination, P.W.4 stated that, he did not state anything to the

police officer though they met him.

29. P.W.5 is a relative of the victim and a resident of the village.

He stated that, the victim was murdered at 9/9:30 a.m. He

corroborated the version of the incident given by the previous

prosecution witnesses. He identified his signature on the inquest

report which was marked As Exhibit-2/3. He identified all the

appellants present in the Court.

30. In cross-examination, P.W.5 stated that, he met the police

officer one hour after the incident that he was interrogated by

CRA 176 of 2021 with CRA 230 of 2021

the police in the afternoon on the date of the incident. He stated

that, he told the police that the victim was attacked with fire

arms and bombs.

31. P.W.6 is a co-villager and a relative of the victim. He

corroborated the incident of assault on the victim as narrated by

the previous prosecution witnesses. He identified the appellants

in Court.

32. P.W.7 is a seizure list witness. P.W.8 is another eye-witness

and resident of the village. He corroborated the prosecution

witnesses with regard to the assault of the appellants on the

victim. In cross-examination he stated that, there was an

Warrant pending as against his name.

33. P.W.9 is the seizure list witness. P.W.10 is the son of the

victim and also a seizure list witness. P.W.1 is a police Constable

and a seizure list witness of the seizure made on July 5, 2007.

P.W.12 is a Sub Inspector of police and a seizure list witness of

July 5, 2007.

34. P.W.13 is an eye-witness and a relative of the victim. He

CRA 176 of 2021 with CRA 230 of 2021

corroborated the narration of the incident by the other eye-

witnesses leading to the murder. He stated that, P.W.8 was

injured due to a gun shot. He is also a witness to the seizures

made by the police.

35. P.W.14 is a seizure list witness. P.W.15 is an eye-witness

and a co-villager. He stated that he heard the sound of bomb

bursting and firing and of shooting of fire arms. He arrived at the

locale and found the appellants armed with fire arms and sharp

cutting weapons assaulting the victim. He named the appellants

as the persons assaulting the victim. He stated that P.W.8 also

received injury on his person. He identified the appellants in

Court. P.W.15 is a relative of the victim.

36. P.W.16 is a police personnel who started the investigation of

the police case. He stated that during investigation, he arrested

four accused persons. He spoke of recovery of sharp cutting

weapon used in the assault and murder. He submitted

chargesheet against 10 accused persons.

CRA 176 of 2021 with CRA 230 of 2021

37. P.W.17 is an Assistant Sub Inspector of police who wrote

the formal First Information Report. The formal First Information

Report was tendered in evidence and marked as Exhibit-9.

38. P.W.18 is the Constable who brought the G.D. Entry Book.

G.D. Entry No.1524 dated June 25, 2007, a copy of the same in

certified manner was tendered in evidence and marked as

Exhibit-10.

39. P.W.19 is a police personnel who was one of the persons

responding to the incident first in point of time. He narrated

about the conduct of the police subsequent to the receipt of the

information with regard to the incident.

40. P.W.20 is the scribe of the written complaint. He stated

that, he wrote the written complaint on the basis of the

instruction of P.W.1.

41. On the conclusion of the evidence of the prosecution, the

accused persons were examined under Section 313 of the Code

of Criminal Procedure, where they claimed themselves to be

innocent and falsely implicated.

CRA 176 of 2021 with CRA 230 of 2021

42. The victim died on June 25, 2007. The post mortem on the

dead body was conducted by P.W. 2, who was the post mortem

doctor. Such post mortem was conducted on June 25, 2007

itself. P.W. 2 stated that, he found various injuries on the dead

body of the victim. The injuries that P.W. 2 found on the dead

body of the victim are as follows:

"1. Sharp-cut injury on vault of head sagitally measuring 3"

X ½" X scalp deep.

2. Sharp-cut injury on right side of vault of head obliquely 1" away from Injury No. 1 above measuring 3" X ½ " X scalp deep.

3. Lacerated injury on pinna of right ear with fracture of ear cartilage measuring 1 ½ " X ½ " X cartilage deep.

4. Multiple bruise marks like rail track on right side of back of chest on upper part-average size being 6" X 1" (5 such).

5. Lacerated injury on left cheek transversely measuring 1" X ½ " X bone deep.

6. Multiple abrasion on front of neck.

7. Fracture right radius on lower part (internal fracture) with bruise marks over the fracture measuring 3" x 2".

8. Rail track like bruise marks on left side of front of chest obliquely measuring 5" X 1" (two such).

CRA 176 of 2021 with CRA 230 of 2021

9. Lacerated injury on front of middle 1/3rd. of left leg measuring 1" X ½ " X bone deep.

10. Muscle haematomas seen after dissection around the neck.

11. Multiple bruise marks on front of chest of varying shapes and sizes.

12. Fracture sternum on middle part.

13. Multiple muscle haematomas on front of chest. (seen after dissection).

14. Fracture ribs on right side - 2nd, to 8th. ribs.

15. Fracture ribs on left side - 2nd. To 6th. ribs.

16. Both lungs - ruptured.

17. Brain - haemorrhage."

43. P.W. 2 stated that, in his opinion, the death was due to

shock and haemorrhage resulting from the injuries noted in the

post mortem report. The injuries were ante mortem and

homicidal in nature. The post mortem report was tendered in

evidence and marked as exhibit 13. Cross-examination of the

post mortem doctor was declined on behalf of the defence.

CRA 176 of 2021 with CRA 230 of 2021

44. Therefore, on the basis of the deposition of P.W. 2 and of

the post mortem report being exhibit 3 it can be said that the

victim was murdered.

45. P.Ws. 1, 4, 5, 8 and 15 stated that, the appellants in the

two appeals were involved in the assault on the victim leading to

his death.

46. The contention was raised on behalf of the appellants as to

the place of occurrence.

47. In the facts and circumstances of the present case, we find

that, the prosecution witnesses, in unison stated that, the victim

was assaulted on the village road in front of the house of Mahaut

Sk. According to us, the place of occurrence was described

variously by the different prosecution witnesses with the place of

occurrence remaining the same. Various words were used by the

prosecution witnesses to describe the same place of occurrence.

Therefore, we find no ambiguity as to the place of occurrence of

the incident.

CRA 176 of 2021 with CRA 230 of 2021

48. Creditability of the oral testimonies of the prosecution

witnesses were sought to be doubted on behalf of the appellants.

It was, inter-alia, contended that, most of the prosecution

witnesses examined were relatives of the victim.

49. The police complaint as also the deposition of the

prosecution witnesses in unison stated that, there was a dispute

regarding an immovable property between two family members.

Victim and his family members were on one side and the

appellant's family was on the other side of the divide regarding

the dispute relating to an immovable property.

50. The factum of existence of disputes relating to an

immovable property between the two family members was not

demolished by the defence. On the contrary, it was established

by the prosecution that there were disputes between two family

members relating to an immovable property.

51. It is the claim of the prosecution that the motive for the

murder was the dispute relating to an immovable property.

CRA 176 of 2021 with CRA 230 of 2021

Motive takes a back-seat when there are eye witnesses

implicating the accused in the incident.

52. In the facts and circumstances of the present case, eye

witnesses deposed at the trial that, they saw the appellants to

assault the victim leading to his murder. The incident occurred

near the house of the victim while the victim was proceeding

from his house to the agricultural field carrying tiffin for the

labourers. It is, therefore, natural that the relatives of the victim

were present at the place of occurrence. It is not being suggested

on behalf of the defence that the presence of the relatives of the

victim at the place of occurrence was unnatural.

53. The oral testimonies of all the eye witnesses to the incident

are the same. They implicate all the appellants in the incident of

assault leading to the murder. It is true that, some of the

prosecution witnesses named most of the appellants as the

assailants when such individual prosecution witness was at the

box. However, they did not name one or two appellants in their

oral testimony but they stated that, others were also involved.

CRA 176 of 2021 with CRA 230 of 2021

Each of the prosecution witnesses, in fact, identified all the

accused persons in Court at the trial as the assailants.

54. In the facts and circumstances of the present case,

therefore, we cannot subscribe to the view that, since, P.W. 1 did

not take the name of appellant no. 3 in the second appeal as an

assailant, such appellant should be acquitted. Similarly, we also

do not subscribe to the view that, one of the prosecution eye

witness did not name the appellant nos. 5 and 6 in the first

appeal as the assailant, they should be acquitted. All the

appellants were implicated by the prosecution eye witnesses in

the manner as discussed above.

55. Authorities on the aspect of delay in examination of the eye

witnesses were cited at the bar on behalf of the appellants. In

Bhagwan & Anr. (supra), the Hon'ble Supreme Court found that,

a crucial aspect of the incident did not find place in the First

Information Report and that the prosecution witness was unable

to explain its absence. In such facts, the Hon'ble Supreme Court

found the case of the prosecution to be not tenable.

CRA 176 of 2021 with CRA 230 of 2021

56. In Brahmananda Nanda (supra), the case of the

prosecution rested upon the oral evidence of one prosecution

witness, who was claimed to be an eye witness. The Hon'ble

Supreme Court found it difficult that such eye witness did not

disclose the name of the respondent to the police and waited for

a long period of time to give out the name.

57. In the facts of the present case, some of the prosecution

witnesses were examined by the police immediately on the police

reached the place of occurrence. Such prosecution witnesses did

give out the names of all the appellants as assailant to the police.

58. Balakrushna (supra) found the facts and circumstances of

the case in which reliance was placed and evidence of a witness

when no justifiable reason by the Investigating Authority for a

number of days. Such witness was also found to be not truthful

on material aspects of the case and trying to conform to the

evidence of other witnesses.

59. As noted above, in the facts of present case, there are a

number of eye-witnesses, who were present at the place of

CRA 176 of 2021 with CRA 230 of 2021

occurrence and who were examined by the police at the relevant

point of time. Such prosecution witnesses implicated all the

appellants before us in the incident of assault and told the police

about the same at the relevant point of time.

60. In Hamid Mondal & Ors. (supra) it was found in the facts

of that case that, there was a delay in recording the statement of

the eye-witnesses and such delay was not sufficiently explained.

The facts and circumstances of the present case as discussed

above are different.

61. It is the contention of the appellants that, merely because of

the appellants being found congregated at one particular place

and an incident of crime occurring at such place, by the help of

Section 34 of the Indian Penal Code, 1860, they should not be

convicted unless, the Court finds that the appellants acted in

furtherance of the common intention.

CRA 176 of 2021 with CRA 230 of 2021

62. Section 34 of the Indian Penal Code, 1860 and its

ramifications was discussed by the Hon'ble Supreme Court in

Jasdeep Singh alias Jassu (supra) which observed as follows:

"21. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence.

22. What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted.

23. It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack.

The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared

CRA 176 of 2021 with CRA 230 of 2021

liability on those who shared the common intention to commit the crime.

24. The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act "in furtherance of the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense.

25. Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis.

26. The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.

27. There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist,

CRA 176 of 2021 with CRA 230 of 2021

encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.

28. The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court."

63. Gadadhar Chandra (supra) is of the view that, common

intention contemplated by Section 34 of the Indian Penal Code,

1860 presupposes prior consent. "It requires meeting of minds.

It requires a pre-arranged plan before a man can be vicariously

convicted for the criminal act of anther. The criminal act must

be done in furtherance of the common intention of all the

accused. In a given case, the plan can be formed suddenly."

CRA 176 of 2021 with CRA 230 of 2021

64. Lakshmi Singh & Ors. (Supra) deals with a situation

where, there was a failure on the part of the prosecution to

explain the injuries caused to the accused. There was a failure

on the part of the prosecution to send the bloodstained earth for

chemical examination and truth and falsehood became

inextricably mixed so as to render the entire case of the

prosecution untrustworthy.

65. In the facts of the present case, it cannot be said that, any

of the accused suffered any injuries. The defence was unable to

raise any justifiable or reasonable doubt in order to succeed.

66. As noted above, the prosecution witnesses saw all the

appellants assault the victim. The victim ultimately succumbed

to the injuries. The post-mortem doctor noted seventeen injuries

on the body of the victim. The appellants are ten in number.

Given the nature of injuries and the materials established at the

trial and also the history of property disputes, it cannot be said

that the appellants did not act in furtherance of the common

intention of murder.

CRA 176 of 2021 with CRA 230 of 2021

67. All the appellants were established to be participating in the

assault on the victim. There was animosity between the

appellants and the victim and his family members. There is

nothing on record to suggest even remotely that any of the

appellants withdrew himself from the congregation assaulting

the victim.

68. It is the contention of the appellants that, P.W.8, who

claimed himself to be injured in the incident, did not produce

any medial document to substantiate the injury and, therefore,

his testimony as an injured eye-witness, should be disbelieved.

69. Apart from P.W.8, there are other eye-witnesses produced

by the prosecution to establish the charges as against the

appellants. At least two of the prosecution eye-witnesses stated

that, P.W.8 did receive bullet injury. True, no medical document

corroborating the fact that, P.W.8 received the bullet injury was

produced at the trial. Even if we are to discard the testimony of

P.W.8 as an injured eye-witness, then, his presence in the place

of occurrence is established by other prosecution eye-witnesses.

CRA 176 of 2021 with CRA 230 of 2021

Even, if we are to discard the entirety of the testimony of P.W.8,

then also, other prosecution eye-witnesses squarely implicate

each of the appellants in the offence of murder of the victim.

70. The GD Register for the relevant period was produced

before the Court by P.W.18. Certified portion of the relevant

entry of the GD entry was tendered in evidence and marked as

"Exhibit-10".

71. We find no substance in the contention of the appellants

that, there was unexplained delay in producing the First

Information Report before the learned Magistrate. The First

Information Report was registered immediately on receipt of the

information of the crime. We find no delay with regard thereto.

72. In such circumstances, we find no merit in the two appeals.

73. CRA 176 of 2021 and CRA 230 of 2021 are dismissed.

74. The period of detentions suffered by the appellants pre-

trial, during trial and post-conviction be set off against the

sentences imposed by the learned Trial Judge.

CRA 176 of 2021 with CRA 230 of 2021

75. A copy of this judgment and order along with the trial court

records be transmitted to the appropriate Court forthwith.

76. Pending applications, if any, stands rejected.

77. Urgent photostat certified copy of this order, if applied for,

be given to the parties on priority basis on compliance of all

formalities.

(Debangsu Basak, J.)

78. I Agree.

(Md. Shabbar Rashidi, J.)

DD/CHC/KC/AD