ASHIM KUMAR BANERJEE. J - (1.) THIS APPEAL:- Vide judgement and order dated January 22 , 1998 passed by the learned third Additional Session Judge, Howrah altogather seven appellants were convicted under Section 302 of the Indian Penal Code read with Section 34 thereof inter alia for committing murder of a local Councillor at Bally. Being aggrieved by and dissatisfied with the said judgement and order of the learned Additional Session Judge, the seven appellants filed the instant appeal and obtained release on bail by way of suspension of sentence. After the appeal was made ready and started appearing in the list all the appellants absconded and nobody represented them before the court. As a result, the court could not take up the hearing subsequently the appellants numbers three, four and seven could be apprehended as per the report of the Police. Appellant number five died during the pendency of the appeal. The appellants numbers one, two and six are still at large. We gave adjournments from time to time to enable the Superintendent of Police, Howrah to find out the absconded appellants and arrest them. Despite several opportunity being given the Police could not apprehend them. In such circumstance, we were compelled to proceed with the hearing of the appeal only in respect of appellants number three, four and seven who were represented before us through learned advocates mentioned above.
(2.) INCIDENT:- On May 23, 1996 the Police received a complaint from Shankarlal Agarwal (PW-1) at about 13.40 hrs. to the effect that at about 12.30 p.m. Md. Samim, the local councillor came to the Public Call Booth belonging to Shankrlal at 105/1, Jay Bibi Road under Police Station Bally. Samim asked for a glass of water. When Shankarlal was about to bring water for Samim, a young man aged about twenty five / twenty seven years came with a double edged sword in hand and assaulted Samim with the said sword. Samim caught hold of the sword with his two hands and forcibly pushed the assailants towards the road. Samim started running along with Joy Bibi Road towards the gate of Victoria Cotton Mill having bleeding injury in his hand. The assailants chased him with bombs, bhojalis and other weapons in hand. Chintu aged about four years, nephew of Shankarlal suddenly came in front of the shop. Assailants hurled bombs when Chintu sustained injury in his leg by a bomb splinter. Samim fell down on Joy Bibi Road when Shankarlal getting scared, closed the shutter. After some time he came out and found Samim lying dead in front of premises number 106, Joy Bibi Road having severe bleeding injuries. The entire incident took place within five / six minutes when the assailants fled away. The Police carried on investigation and arrested eight accused including seven appellants. All of them pleaded not guilty and opted to be tried. The learned Sessions Judge acquitted Md. Kurban of the charges brought against him and convicted rest seven accused holding guilty of the offence committed under Section 302 read with Section 34 of the Indian Penal Code. They were sentenced for life coupled with a fine of rupees five thousand and in default to suffer rigorous imprisonment for a period of two years each. Evidence :- PW- 1 (Sankarlal Agarwal) :- Sankarlal Agarwal had a Telephone booth at premises no. 105, Joy Bibi Road. The victim Dr. Shamim Khan was the councillor of Bally Municipality. He was a popular political leader. At about 12.30 p.m. Shamim came to the shop and asked for a glass of water. When Shankarlal came out of the shop to collect water he heard abusive language being addressed to Shamim. Once he turned around he found a person came running and assaulted Shamim on the head by a sword. The person was known as Gama ( Appellant No. 1 ). Witness misidentified Gama on dock. He did not know Gama. Local people identified Gama to him. Dr. Shamim could hold the person who assaulted him with the sword and pushed him out. His four and half years old nephew got severe injury. He saw three / four others with sword and bombs in hand. He put down his shutter when he saw one person assaulting Shamim with a dagger. After some time when he opened his shop he found the dead body of Shamim lying in a pool of blood. The witness could not identify the accused. PW- 2 (Mukesh Kr. Kausal) :- Mukesh witnessed the inquest. PW- 3 ( Md. Safi Alam Khan) :- In the said area resistance group was formed by the local people which stopped violence in the said area. The witness identified Gama, Mukhtar, Chhoto, Rajua. The witness also identified the other three whose names were not known to him. The witness was a post occurrence witness. He found dead body lying at the place of occurrence in a pool of blood. He also signed the Inquest Report. In cross-examination he stated that the local MLA and other important persons including political leaders came to the spot. PW- 4 (Jaswan Gupta) :- The witness was the seizure witness when Bhojali was seized from a garden by the side of a local market. The Bhojali was sharp on one edge. PW- 5 (Jagadish Ghosh) :- Jagadish was also a seizure witness. He had a grocery shop. The Police came to his shop and got his assistance for the purpose of witnessing the seizure. PW- 6 (Md. Barshati) :- The witness saw Shamim sitting in the telephone booth of Shankarlal when the appellants came from the narrow lane by the side of a hotel. He found Gama having a sword in his hand, Nania having a dagger and Rajua having a bag in hand. Others were also equipped. He found Gama hitting Samim with the sword on his head. Shamim tried to resist by his hand and tried to escape when Saradia, Nania and Sultan caught hold of him. Shamim fell down. Rajua, Teri and Mukhtar were also standing there. Rajua then threw a bomb from his bag. The members of the public started disbursing. The witness also fled away from the place out of fear. He later on heard that Shamim had been killed and a young boy being the nephew of Shankarlal had sustained injury. The witness did not go to the police station on the date of the incident or on the following day. He made a statement to the Police Officer after about a month and half. He was a rickshaw puller by profession. PW-7 (Md. Salim) :- The witness also corroborated PW- 1 and 6. He found Rajua, Nania and Saradia scuffling with Shamim. He also saw Shamim falling down on the ground. He found Gama hitting Shamim with a sword on his head and various other places of the body. Rajua was having a bag in his hand. Mukhtar was standing by their side. He could hear the sound of hurling of bomb. People started disbursing. He also fled away from the place. The witness rightly identified Gama, Mukhtar and Rajua. However, he misidentified Saradia. PW-8 (Haider Ali) :- The witness was a Clerk in a school. He found Shamim lying in a pool of blood. He found Gama with a sword having blood stain, Nania with a knife, Rajua with a bag and Saradia, Sultan, Teria and Mukhtar fleeing away. Those persons were also having weapons in their hands. The witness identified all correctly. He also witnessed the seizure list. He identified the belongings of the victim being material exhibit. He also stated that the local MLA and other important persons visited the spot. PW-9 (Saira Khatoon) :- The witness only stated that she had seen Gama moving with a sword in his hand. She identified Gama in Court. PW-10 (Md. Mustakin) :- The witness was also a post occurrence witness. He saw the dead body lying in a pool of blood having injury on the head and hand. He telephoned Bally and Malipanchghora Police Station giving information of the unfortunate incident. He told the Police that 'some anti-social elements' committed murder. PW-11 (Md. Ismail) :- The witness was going to the market. He found Sultan, Rajua and Nania having a scuffle with Shamim and Gama assaulting him with a sword. Shamim fell down on the ground. He died on the spot. Rajua and Kurban picked up bombs from their respective bags and hurled those. The witness mis-identified Gama and Sultan. He stated that he did not exactly know the identity of the persons as named by him. PW-12 (Satyapriya Chattapadhyaya) :- Satyapriya was the finger print expert. He examined the finger print mark appearing on the sword. PW-13 (Dr. K.B. Gupta) :- The witness was the medical officer who treated the injured child. PW-14 (Ashok Dom) :- He identified wearing apparels belonging to the deceased. PW- 15 (Utpal Banerjee) :- The witness was the Sub-inspector of Police who seized a chopper from the road side in presence of PW- 4 and 5 PW- 16 (Smt. B. Bhattacharjee) :- The witness was the Judicial Magistrate who took the finger print of Teri and Mukhtar. PW- 17 (Shri Partha Pratim Roy):- The witness was the Judicial Magistrate who took the finger print and thumb impression of Sultan and Gama. PW- 18 (Shiwjee Roy) :- The witness being a constable attached to Bally Police Station, identified trouser, shirt and a pair of chappal being material exhibit '8/2 . PW-19 (Dinabandhu Chakkraborty) :- The witness was the Sub-inspector then posted at Bally Police Station. He initiated Bally Police Station Case No. 126 of 1996 against Gama and two / three others. PW- 20 (A.N. Ganguly):- He was another Police officer who forwarded Gama and Sultan to Court. He identified Gama and Sultan. PW- 21 ( Dr. S.R. Biswas) :- The witness was the Superintendent of Howrah District Hospital on the relevant date. He conducted the post mortem examination. He opined that the injuries found on the victim could be had by the seized weapon being material exhibit No. 1. According to him, the death was due to shock and haemorrhage as a result of head injury which was anti-mortem and homicidal in nature. According to him, the material exhibit 1 was not double-edged. PW-22 (Mrimmay Sarkar) :- The witness being another Police Officer received the telephone call and diarised the information and proceeded to the spot. PW-23 (M.K.Majhi) :- The witness was another Police Officer who took up the investigation at the instruction of the Inspector in-charge. He visited the place of occurrence and held inquest over the dead body. The witness did not obtain the forensic examination report of the blood stained bhojali and blood stained earth. According to him, Salim did not tell him that the accused were having scuffle with Shamim. Examination OF THE ACCUSED:- The entire evidence was put to each of the accused. They however feigned ignorance of the incident and consistently contended that they were falsely implicated in the said case.
(3.) JUDGMENT OF THE COURT BELOW:- The Leaned Judge considered each and every piece of evidence and analysed the same, in our view, very correctly. The learned Judge observed that PW-1 categorically asserted even in cross examination that he knew the contents of the complaint that was read over and explained to him. The witness stood by the complaint at the time of trial. The learned Judge also observed that PW-3 although not a post occurrence witness categorically stated that he had been the accused coming from the narrow lane by the side of a hotel. The witness also asserted that they were all equipped with weapons. It was his direct evidence that he found Gama hitting Shamim with a sword on his head. He also referred to Rajua, Teri and Mokhtar standing over there. The witness got corroboration from PW- 7. PW-8 also found the appellants being armed with weapons. He found Gama with a blood stain sword fleeing away along with others. He discarded the submission of the defence that PW-6 and 7 were mere chance witnesses. On the issue of local witness the learned Judge was of the view that it was not always possible to get local witness. He also discarded the argument made on behalf of Mokhtar and Teri that Post Mortem Report was a suspicious document. Considering each and every piece of evidence the learned Judge held all of them guilty except Kurban for whom he was not convinced with the evidence. Hence this appeal by the appellants. Contention OF THE APPELLANENT MD.TERI :- Mr. Ashis Bhattacharya, learned counsel appearing for Md. Teri contended as follows:- i) The FIR was ante-dated and manufactured. ii) There were material contradictions of the so-called eyewitnesses. iii) The material eyewitnesses were not examined. iv) The contradiction regarding the nature of weapon used in the alleged crime, was not considered. v) Identification of the accused by the witnesses and the anomaly thereof was also not considered. vi) Seizure was not conducted properly. Elaborating his submissions, Mr. Bhattacharjee contended that Investigating Officer in his deposition did not state in detail about recording of the complaint. From a close look of the FIR it would appear that it was an antedated one. He also contended that even if it was held that Gama was responsible for the murder merely because Teri was a member of the crowd assembled there to watch the incident, could not permit the prosecution to implicate him as an accused in absence of any definite overt act. He also contended that no test identification parade was held. Mr. Bhattacharjee lastly contended that even if this Court would rely upon the evidence Teri was entitled to an order of acquittal being similarly placed with Kurban who was acquitted by the learned Additional Sessions Judge.;