- (1.) These two appeals have been preferred against the order of conviction and sentence passed by the learned Judge, City Sessions Court, Calcutta, in Sessions Trial No. 1 of November 1972, convicting and sentencing the two Appellants Asoke Kumar Chakra-borty and Kanchan Choudhury to, suffer imprisonment for life for an offence under Sections 302/ 34 of the Indian Penal Code.
(2.) Some misguided young men who imagined themselves to be saviours of this country started a movement popularly known as naxalite movement. Several murders were committed and the condition of thing in 1970 in West Bengal was intolerable. On June 3, 1970, one murderous outrage was added to the black record of the extremists. The deceased Amitava Sinha Roy alias Dipu was an S.I. of Police attached to the Special Branch of Police in Calcutta. Formerly, he was a resident of the locality known as Akhil Mistry Lane in Calcutta. Subsequently, he shifted his residence to Uttarpara. It has transpired in evidence that the deceased along with some other officers and constables' of the Special Branch of Police carrying arms and ammunitions and in plain dress went to Sraddhananda Park near Akhil Mistry Lane in the afternoon of June 3, 1970. Two officers of the rank of the Assistant Sub-Inspector with two constables took up their position in the Sraddhananda Park to keep watch. The deceased took a pan from the pan shop of P.W. 14 Hari at the junction of Amherst Street and Akhil Mistry Lane adjacent to the Park and soon thereafter he along with some other Police officers went to Akhil Mistry Lane and Rajani Gupta Row. Amitava visited the small goldsmith shop belonging to P.W. 23 Panchanan at about 6-15 p.m. and had a talk with him. Thereafter, he returned to the junction of Akhil Mistry Lane and Amherst Street at about 6-40 p.m. While other Police officers and the deceased were talking, Pankaj (absconding), a friend of the deceased, called him and they proceeded along Akhil Mistry Lane. That Amitabha was brutally assaulted in front of the premises No. 50 Akhil Mistry Lane admits of no doubt. P.W. 26, Dr. Mukherjee, held the post-mortem examination on the deadbody of Amitava on June 4, 1970 and found the following injuries in his person: (1) One incised punctured wound .8" .3" .2" muscle deep obliquely placed over the back of the neck 3/4" right of midline being covered under the hairy scalp. The wound is directed downwards, forwards and medialwards. (2) One incised punctured wound .7" .2" .9" (muscle deep) obliquely placed over the upper part of right shoulder 2 - medial to the acromeal end of scapula. The wound track is directed downwards, forwards and medialwards. (3) One incised punctured wound .5" .2" 1.5" (muscle deep) placed obliquely over the back of lower part of right side of neck at the level of spinous process of 6th cervical vertebra - away from the mid-vertebral line. The track of wound is directed downwards, forwards and medialwards. (4) One incised punctured wound .3" .1" .4" (muscle deep) placed - below injury No. 3 over the back of the lower part of right side of neck, wound track is directed downwards and forwards. (5) One incised punctured wound .7" .1" .4" placed obliquely over left scapula region of the back, 1/4" above inferior angle of scapula along its medial border--the wound is directed from above downwards and lateralwards. (6) One incised punctured wound .6" .5" .1" (muscle deep) associated with confused abraded area for 3/4" 3/4" at its lower aspect obliquely placed over posterolateral aspect of left side of chest along the posterior axillary line, 4" below inferior angle of scapula and 6 - away from mid-vertebral line--the wound is directed medialwards with slight downwards inclination. (7) One incised punctured wound .4" .2" .6" (muscle deep) obliquely placed over upper part of left side of neck, 1 - away from the midline and 2" below the tip of left mastoid--wound is directed downwards, forwards and medialwards. (8) One incised punctured wound 1.1" .5" 1.5" deep--obliquely placed over the upper part of anterolateral aspect of left side of neck just outside the left angle of mandible--on tracing the track of the wound it is seen to have cut across the skin and soft tissues underneath has cut through and through the left facial artery and has terminated above the upper border of left hyoid bone correspondingly the track is directed downwards, forwards and medialwards. (9) One incised punctured wound .4" x .3" .8" obliquely placed over anterolateral aspect of midpart of left side of neck 3 - away from midline and 1 - below injury No. 8. It has cut across the skin and soft tissues underneath including the external jugular vein, thyroidarteries and is directed downwards and medial-wards. (10) One incised punctured wound .7" .2" .9" obliquely placed over anterolateral aspect of lower part of left side of neck 1" above mid-clavicular point directed downwards and forwards and medialwards. (11) One incised punctured wound .5" .3" .1" (muscle deep) placed - outside injury No. 10 directed downwards, forwards and medialwards and it has nicked the superficial vessels of the area. (12) One incised penetrating stab injury on the chest measuring .8" .4" chest cavity deep placed obliquely over the left third intercostal space 2.5" left from midsternal line and little internal to mid-cal vecular line. On tracing the track it is seen to have passed through the skin and soft tissues underneath including intercostal muscles and pleuras correspondingly then has passed through and through the upper lobe of left lung - 1/6" lung Substance correspondingly then has passed through and through the upper lobe of left lung for - 1/6" lung Substance and then has terminated over the outer aspect of corresponding part of pericardinam. The wound track is directed from above downwards, backwards and medialwards. (13) One incised punctured wound .9" .3" 10" (muscle deep) obliquely placed over first left intercostal space 1 - away from midline directed downwards and medialwards. (14) 4 (four) small abrasions each measuring approximately 1/6" 1/8" being placed - apart over dorsuon of right hand and wrist. (15) One linear incised wound 1" long over palm of right hand at its distal aspect. (16) 2 small abrasions each measuring 1/6" 1/8" over the dorsum of left hand near the root of left index and middle finger. (17) One abrasion - 1/6" obliquely placed over the front of mid 1/3 of left thigh. (18) One abrasion 1/4" 1/6" over outer aspect of left lateral malleous region. Death, according to Dr. Mukherjee, was due to the effect of the stab injuries mainly injuries Nos. 8 and 12. He has, further, opined that all the injuries were ante-mortem in nature. It appears from the evidence of Dr. Mukherjee that injury No. 15 was sustained while the deceased was trying to save himself. The other injuries were homicidal except the abrasion which might have been sustained due to fall. The doctor has also said that the incised injuries found in the person of the deceased were caused by pointed sharp cutting weapon such as knife, dagger etc. It is evident that injury No. 8 alone found in the person of the deceased was sufficient in the ordinary course of nature to cause death because it injured the vital facial artery. Similarly, injury No. 12 alone was also sufficient to cause death as it affected a vital organ of the body, that is, the lung. Having regard to the number and nature of the injuries and their position one may reasonably say that more persons than one were the assailants. Nothing has been elucidated in cross-examination of Dr. Mukherjee that the opinion given by him about the cause of the death and the nature of the injuries was not correct.
(3.) The next point that arises for consideration is whether the death of Amitava was caused in furtherance of the common intention of the two Appellants and others. Prosecution relied on the evidence of P.W. 6, P.W. 8 and P.W. 12 and on the retracted judicial confession to bring home the charge against Asoke. As regard the other Appellant Kanchan, prosecution had led evidence through P.Ws. 6, 7 and 12 and pressed into service the retracted judicial confession. It also relied on the alleged recovery on June 12, 1970, a hawai shirt with stains of human blood from the residence of this Appellant's aunt at Dum Dum area from where the Appellant was arrested. It may be stated that the Appellant Kanchan was not ordinarily residing there and while examined by the learned Committing Magistrate and the learned Session Judge, he gave his address as 4/1A Dr. Amal Roy Choudhury Lane, Calcutta-9.;