Bablu Mondal v. State of West Bengal — 1998 DIGILAW 59 (CAL)

JUDGMENT DIBYENDU BHUSAN DUTTA, J. 1. This appeal is directed against the judgment of conviction and sentence passed on 6.3.90 by the ld. Additional Sessions Judge, First Court, Jalpaiguri in Sessions Trial No. 19 of 1988. 2. The prosecution story may be stated as follows:- On 5.9.84 corresponding to 19th of Bhadra 1391 B.S., one Nani Mondal of Bamantari village along with three of his co-villagers namely Premchand Sarkar (PW 1), Dilip Sarkar and Gouranga Mondal went to Daukimari hut for the purpose of selling his jute. After the sale of the jute, Nani Mondal paid Rs. 80/- to one Tufani Sarkar (appellant no.2) in satisfaction of the previous loan. On receipt of the money, Tufani Sarkar left the hut at about 3 P.M. Nani Mondal and his three companions left the hut at about 5:30 P.M. for home. Daukimari hut is about one and a half mile from Bamantari that leads to the houses of Nani Mondal and his three companions passes by the side of the village well lying about 10 cubits to the East of that road. The primary school of the village lies to the north of that well at a distance of about a bigha and the pan-biri shop of Mantu Mondal (PW 16) lies opposite to the village well five cubits to the West of that Kachha Road. After reaching the primary school, while Nani Mondal and his companions were approaching the well, Dilip Sarkar and Gouranga Mondal were ahead of Nani Mondal at a distance of about 19-20 cubits and PW 1 was behind Nani Mondal at a distance of about 5 cubits. As soon as Nani Mondal reached near the well, Bablu Mondal (appellant no.1) who was standing near the well attacked Nani with a dao. About 20-25 persons including the appellant Tufani were accompanying Bablu Mondal at that time. The appellant Bablu inflicted multiple blows upon Nani. PW 1 cried for help out of fear when Nani was attacked and attracted by his cries, about 150 persons of the village Bamantari assembled there and found Nani dead. PW 1 and 15 co-villagers remained as guard near the dead body of Nani. After some time Bablu Mondal again came to the place of occurrence along with 24-25 persons to take away the dead body of Nani. PW 1 and 15 co-villagers remained as guard near the dead body of Nani. After some time Bablu Mondal again came to the place of occurrence along with 24-25 persons to take away the dead body of Nani. PW 1 and other persons remaining at the spot to guard the dead body shouted for help whereupon Bablu and his associates fled away. Attracted by their cries, about 50 villagers again came to that place. In the meantime, it started drizzling and the dead body of Nani Mondal was removed to his house. The widow of Nani's elder brother was sent to Daukimari colony to give information about the occurrence to Meghlal Sarkar (PW 7). Meghlal's brother, Bhasan Sarkar (PW 2) came to Dhupguri P.S. along with one Paresh Biswas and gave the information about the murder of Nani Mondal. The information was diariesed by the then O.C. Ankesh Chatterjee under G.D. Entry No.97 dated 6.4.84 (Ext. 6) at about 05 hrs and on being directed by the O.C., S.I. Rabindranath Seal (PW 18) rushed to Bamantari village with force on that very night at about 1 A.M. He visited the place of occurrence and did not find the dead body of Nani Mondal which was already removed to his house. He came to the house of Nani Mondal, asked PW 1 to go to Dhupguri P.S. and give his version of the occurrence. Accordingly, PW 1 along with Dilip Sarkar, Gouranga Mondal and Premchand Mondal (PW 9) came to P.S. and gave his statement which was recorded by the then O.C. Ankesh Chatterjee and was treated as FIR (Ext.5). Its corresponding G.D. Entry No. is 103 dated 6.9.84 (Ext.9). On the basis of this FIR, Dhupguri P.S. Case No.3 dated 6.9.84 was registered. The O.C. entrusted the investigation of the case to PW 18 and sent a copy of the FIR (Ext.5) along with the necessary endorsement to PW 18 when he was at the place of occurrence. PW 18 held the inquest over the dead body of Nani Mondal in the house of Nani and sent the dead body through constable, Balun Ch. Roy (PW 12) for post mortem examination, by Dr. Biswapati Satpathi (PW 11). During investigation, PW 18 prepared a sketch map of the place of occurrence (Ext.7) and recovered and seized certain articles under three separate seizure lists (Exts. Roy (PW 12) for post mortem examination, by Dr. Biswapati Satpathi (PW 11). During investigation, PW 18 prepared a sketch map of the place of occurrence (Ext.7) and recovered and seized certain articles under three separate seizure lists (Exts. 1, 2 and 3) from three different places namely the p.o., the shop of PW 16 and the bushes of the house of the appellant Bablu Mondal. The articles seized from the p.o. consisted of a jute string (Mat Ext I), bamboo pole (Mat Ext II), hawai chappal (Mat Ext III), wrist watch (Mat Ext IV), blood stained earth (Mat Ext V) and a tooth (Mat Ext VI). Those seized from the shop of PW 16 consisted of a shirt (Mat Ext VII) and hawai chappal (Mat Ext VIII). The articles seized from the house of the appellant Bablu, on the other hand, consisted of a spade (Mat Ext IX), two ballams (Mat Ext X), and a hasua (Mat Ext XI). PW 18 produced PW 16 on 10.9.84 before the Judicial Magistrate (PW 14) for recording his statement under section 164 Cr. P.C. (Ext 4). PW 18 also seized under the seizure list (Ext 8) the victim Nani's garments (Mat Ext XII) on 7.9.84 which were handed over by the doctor (PW 11) after post mortem examination. PW 18 made over charge of investigation on 17.2.85. The case was next investigated by S.I., R.K. Dutta and it was handed over to the O.C. Sukumar Sarkar on 28.4.86 who endorsed the case to S.I.D. Ghosh (PW 15) who finally submitted the charge sheet on 25.6.86 against the two appellants as well as 14 others under sections 302, 149 and 120B IPC. 3. All the 16 persons including the two appellants sent up by the police faced the trial on three counts of charges under section 302 read with section 149 IPC for their allegedly having committed the murder in prosecution of the common object of causing murderous assault on Nani Mondal, under section 148 IPC for their allegedly having formed an unlawful assembly armed with deadly weapons and also under section 120B IPC for their allegedly having entered into a criminal conspiracy for murdering Nani Mondal. 4. The Trial Court, upon consideration of the evidence and other materials on record, came to the following findings. 4. The Trial Court, upon consideration of the evidence and other materials on record, came to the following findings. The appellant Bablu Mondal formed an unlawful assembly along with his associates numbering about 20-25 including the appellant Tufani Sarkar and, in prosecution of the common object, caused the murder of Nani Mondal by inflicting multiple injuries on his person with a dao. The appellant Bablu Mondal was armed with a dao which is a deadly weapon within the meaning of section 148. Both the appellants and their associates hatched a conspiracy for committing murder of Nani Mondal. The materials on record are not sufficient to connect the remaining 14 accused persons with any of the offences mentioned above beyond any reasonable doubt. In view of the aforesaid findings, the Trial Court found the appellant Bablu Mondal guilty of the offences punishable under section 302 read with section 149 and under sections 148 and 120B IPC, the appellant Tufani Sarkar guilty of the offences punishable under section 302 read with section 149, and also under sections 147 and 120B of IPC and convicted and sentenced each of them to suffer imprisonment for life for the offence under sections 302/149 and also to pay fine of Rs. 10,000/- I.D. to suffer R.I. for two years and also to suffer imprisonment for life for the offence under section 120B and the appellant Bablu Mondal to suffer R.I. for two years for the offence under section 148 and the appellant Tufani Sarkar to suffer R.I. for one year for the offence under section 147 IPC with the directions that all the sentences would run concurrently. The remaining 14 accused persons were found not guilty of the offences with which they stood charged and were acquitted thereof. Hence, this appeal at the instance of two convicts namely Bablu Mondal and Tufani Sarkar. 5. Mr. Balai Ch. Roy, the Id. The remaining 14 accused persons were found not guilty of the offences with which they stood charged and were acquitted thereof. Hence, this appeal at the instance of two convicts namely Bablu Mondal and Tufani Sarkar. 5. Mr. Balai Ch. Roy, the Id. counsel appearing for the appellants, assailed the conviction at the very outset on the ground that since the charge was confined only to the 16 persons in all including the two appellants regarding the formation of unlawful assembly and since 14 out of those 16 have been acquitted by the Trial Court of all the offences meaning thereby that their involvement in any of the offences has not been proved, the appellants who are the remaining two cannot be held to have formed an unlawful assembly within the meaning of section 141 IPC and since an unlawful assembly constitutes the essential ingredient of each of the sections 147, 148 and 149 IPC, section 149 cannot be invoked for convicting the appellants for the offence under section 302 nor can there be any conviction of any of the appellants under section 147 or 148 with the result that the conviction of each of the appellants under section 302 read with section 149, conviction of the appellant Bablu Mondal under section 148 IPC and the conviction of the appellant Tufani Sarkar under section 147 IPC cannot be legally sustainable. Reliance has been placed on this point on three decisions reported in Bhudeo Mondal vs. State of Bihar, AIR 1981 SC 1219 ; Amar Singh vs. State of Punjab, AIR 1987 SC 826 ; K. Nagamalleswara Rao vs. State of Andhra Pradesh, AIR 1991 SC 1075 . 6. Mr. Arun Kumar Mukherjee, ld. counsel appearing for the State, sought to repel the above contention by submitting that it would not be illegal to convict an accused under section 302 read with section 34 of IPC even if it is not legal to invoke the aid of section 149 IPC and that failure to charge the accused under section 34 would not result in any prejudice. Mr. Mukherjee has referred to two decisions reported in Ram Tahal vs. State of Uttar Pradesh, AIR 1972 SC 254 and Amar Singh vs. State of Haryana, AIR 1973 SC 2221 . 7. Mr. Mukherjee has referred to two decisions reported in Ram Tahal vs. State of Uttar Pradesh, AIR 1972 SC 254 and Amar Singh vs. State of Haryana, AIR 1973 SC 2221 . 7. Let us, first of all, consider the above five decisions cited on behalf of the appellants and the State and find out how far their ratio is applicable to the facts and circumstance of the present case. 8. In AIR 1981 SC 1219 , the accused was convicted under section 326 read with section 149 IPC. There was no evidence to show that the common object of the assembly was unlawful nor was there any finding that any of the ingredients of section 149 have been established by the prosecution. Accordingly, the Supreme Court set aside the conviction of the accused. What was held in this decision is that a clear finding as to the common object of assembly is a pre-condition for a conviction with the aid of section 149. 9. In AIR 1987 SC 826 , seven accused persons were charged under section 302 read with section 149. The Trial Court acquitted two of them and the High Court acquitted one and it was submitted before the Supreme Court that in view of the acquittal of three out of seven accused persons, the remaining four appellant persons could not form an unlawful assembly within the meaning of section 141 of IPC and as such, they could not be convicted under section 148 or under section 149 IPC for any other offence because the first condition to be fulfilled in designating an assembly as an unlawful assembly is that such assembly is for five or more persons as required under section 141 IPC. The most striking feature of that case is that it was not the prosecution case that apart from the said seven accused persons, there are other persons who are involved in the crime and in view of this particular fact, the Supreme Court held that the conviction of the appellants under section 148 and 149 could not be sustained. 10. In AIR 1991 SC 1075 , the argument on behalf of the appellants was that in absence of specific finding to the effect that apart from the four appellants the prosecution has proved the involvement of other persons, section 149 IPC cannot be used for convicting the four appellants under section 302. 10. In AIR 1991 SC 1075 , the argument on behalf of the appellants was that in absence of specific finding to the effect that apart from the four appellants the prosecution has proved the involvement of other persons, section 149 IPC cannot be used for convicting the four appellants under section 302. In support of this argument, Amar Singh's case (supra) and Maina Singh vs. State of Rajasthan, AIR 1976 SC 1084 , were relied upon before the Supreme Court. The Supreme Court took note of the three features of that case namely – (i) that the charge framed in that case was confined only to the four appellants and the other eleven accused who were acquitted and did not use the expressions and others or and other unidentified, (ii) that it was not the prosecution case that apart from the 15 persons, there were other persons who were involved in the crime and (iii) that the prosecution has not proved the involvement of any person other than the four convicted appellants. In Maina Singh's case, the Trial Court went on the basis of a charge relating to an offence of unlawful assembly by the appellant with four co-accused and with four other persons and what was more is that there was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed persons. As such, in Maina Singh's case, it was held that the appellant would be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others. The Supreme Court quoted the ratio of the judgment in Maina Singh's case, AIR 1976 SC 1084 as under:- "In a given case even if the charge disclosed only the named persons as co-accused and the prosecution witness confined their testimony to them, it would be permissible to conclude that others, named or unnamed, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise." (Emphasis supplied) 11. In AIR 1972 SC 254 , six persons were charged under sections 148 and 302/149 and 307/149 out of whom two accused were acquitted and it was held by the Supreme Court that the conviction of the remaining four could be sustained under sections 304 (Part I)/34 and 307/34 and not under section 148 and under sections 304 and 307 read with section 149. It was also held that a common intention should be anterior in time to the commission of the crime showing a pre-arranged plan and prior concert and that the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted. It was also held that before a Court can convict a person under section 302 read with section 34 of the IPC it should come to a definite conclusion that the said person had prior concert with one or more persons named or unnamed for committing the offence. The Supreme Court upon consideration of the materials on record held that the evidence justified a conviction under sections 304 and 307 read with section 34 even though the conviction under those two sections read with section 149 could not be sustained on the charge framed against them. 12. In AIR 1973 SC 2221 , the Supreme Court, while dealing with the contention as to whether the conviction of the appellant under section 302 read with section 34 would be illegal because of the fact that the charge against him was under section 302 read with section 149, quoted the observations in Karnail Singh vs. State of Punjab, AIR 1984 SC 204, at paragraph 12 as under:- "It is true that there is substantial difference between the two sections but they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under section 149 overlaps the ground covered by section 34. If the common object which is the subject matter of the charge under section 149 does not necessarily involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not therefore be permitted. If the common object which is the subject matter of the charge under section 149 does not necessarily involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not therefore be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under section 149 would be the same if the charge were under section 34, then the failure to charge the accused under section 34 could not result in any prejudice and in such cases, the substitution of section 34 for section 149 must be held to be a formal matter. There is no such broad proposition of law that there can be no recourse to section 34 when the charge is only under section 149. Whether such recourse can be had or not must depend on the facts of each case." The Supreme Court found that the facts proved and evidence adduced in that case would have been the same if the appellant had been charged under section 302 read with section 34 and accordingly held that the conviction of the appellant under section 302 read with section 34 though charged under section 302 read with section 149 was not illegal and that in such a case failure to charge the appellant under section 34 could not result in any prejudice. 13. On a careful analysis of the above decisions, it is clear that the mere fact that only 16 persons including the two appellants were charged for the offence with the aid of section 149 IPC and the fact that out of those 16, 14 have already been acquitted of that offence would not ipso facto warrant a conclusion that the conviction of the appellants for that offence is not sustainable in law. Such conviction would be illegal only if the prosecution has not proved the involvement of other persons. It would even be permissible to conclude that others named or unnamed, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise. Such conviction would be illegal only if the prosecution has not proved the involvement of other persons. It would even be permissible to conclude that others named or unnamed, acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise. If a conviction for an offence with the aid of section 149 fails by reason of the fact that involvement of five persons is not established by the prosecution, the conviction for that offence with the aid of section 34 would still be sustainable if the prosecution has been able to establish that the appellants had a prior concert with one or more persons named or unnamed for committing that offence. The common object which is the subject matter of the charge here under section 149 does necessarily involve a common intention. As such, if the evidence is sufficient to justify the conclusion that these two appellants shared the common intention of committing the murder of Nani Mondal, then the appellants could be convicted under section 302 read with section 34 no matter that they were charged under section 149 because the facts to be proved and the evidence to be adduced with reference to the charge under section 149 would be the same if the charge were under section 34 and, therefore, the failure to charge the appellants under section 34 cannot be said to have resulted in any prejudice. In the instant case, the evidence led during the trial by the prosecution goes, however, to suggest as if the entire murderous assault upon the victim was committed by the appellant Bablu Mondal alone. As such, if the evidence is sufficient to warrant a conclusion beyond any reasonable doubt that it was Bablu Mondal alone who was responsible for the acts that constituted the murder, both the appellants would be liable to be convicted under section 302 read with section 34 even though they were not charged under section 34 provided the evidence is sufficient to establish beyond reasonable doubt that the said murder was committed in pursuance of a pre-concerted plan shared by both the appellants. If, however, the evidence is not sufficient to establish beyond doubt that the murderous assault by the appellant Bablu Mondal was committed in furtherance of the common intention of both the appellants, the appellant Tufani Sarkar cannot be convicted under section 302 read with section 34 and the appellant Bablu Mondal would be liable under section 302 simpliciter only if his individual liability is established. The decision reported in Sawal Das vs. State of Bihar, AIR 1974 SC 778 , may be cited here. In that case, the appellant was tried along with his father and mother on a charge under section 302 read with section 34 for the murder of his wife and the father and mother were acquitted. It was held by the Supreme Court that the appellant could be convicted under section 302 simpliciter if his liability is established individually. In the instant case, the only evidence that has been led by the prosecution would go to show that it was the appellant Bablu Mondal who alone committed all the acts which were responsible for causing the death of Nani Mondal and the opportunity had also been given by the trial court to the accused Bablu Mondal to explain the evidence that was led against him on this point. Even if the conviction of the appellant Tufani Sarkar for all the offences including the offence under section 120B IPC fails for want of evidence, it would be still permissible to convict the appellant Bablu Mondal of the offence punishable under section 302 simpliciter IPC which may have been proved to have been committed by him in his individual capacity. 14. This being the approach, it now remains to be seen whether the evidence in this case, would justify the conviction of the appellants under section 120B IPC also under section 302 read with 34 of IPC or/and if not, whether it is sufficient to justify the conviction of the appellant Bablu Mondal under section 302 simpliciter. 15. That Nani Mondal on 5.9.84 is not disputed and is borne out by the overwhelming evidence on record. That his death was homicidal is also amply borne out by the materials on record. 15. That Nani Mondal on 5.9.84 is not disputed and is borne out by the overwhelming evidence on record. That his death was homicidal is also amply borne out by the materials on record. The doctor PW 11 who held the post mortem examination on the dead body found multiple injuries on different parts of the body and opined that the death was due to shock and haemorrhage as a result of those injuries which were ante-mortem and homicidal in nature. The nature and situs of the injuries that he found would at once go to suggest that they were sufficient in the ordinary course of nature to cause death. Thus, as the materials on record stand, there is no scope for any doubt that Nani Mondal was murdered. The question is as to whether the two appellants were responsible for this murder. 16. The only evidence on record on this point comprises the testimonies of four witnesses namely PWs. 1, 9, 10 and 13. 17. Of them, PW 1 claims to be the only eye witness to the murderous assault on the victim. His version is that he along with the victim and two other co-villagers namely Gouranga Mondal and Dilip Sarkar had been to Daukimari hut on the fateful day for sale of the jute of the victim, Nani Mondal. According to him after the entire jute was sold out, Nani gave Rs. 80/- to the appellant Tufani in satisfaction of a previous loan and the appellant Tufani after receiving the money left the hut at about 3 P.M. before their departure. PW 1's further evidence is that he along with Nani Mondal, Dilip Sarkar and Gouranga Mondal left the hut for their village at about 5-30 P.M. and while they were approaching, the village well, Gouranga and Dilip were ahead of Nani by 19-20 cubits and he himself was behind Nani by about 5 cubits. His positive evidence is that as soon as Nani reached near the well, the appellant Bablu who was standing near the well launched the attack with a dao. He does not speak about any overt act on the part of the 20-25 persons who, according to him, were then accompanying the appellant Bablu Mondal. According to him, the appellant Tufani was one of those 20-25 men who were accompanying the appellant Bablu Mondal at that point of time. He does not speak about any overt act on the part of the 20-25 persons who, according to him, were then accompanying the appellant Bablu Mondal. According to him, the appellant Tufani was one of those 20-25 men who were accompanying the appellant Bablu Mondal at that point of time. He does not speak of any participation by the appellant Tufani in the assault. According to PW 1, the appellant Bablu inflicted multiple blows with a dao upon the person of Nani Mondal. Incidentally it may be noted that the post mortem doctor PW 11 opined that the incise injuries which he found were likely to be caused by a heavy straight sharp cutting weapon. This opinion of PW 11 fits in with the description of the weapon of offence by PW 1. The weapon with which the appellant Bablu is said to have caused the injuries to Nani has not, however, been recovered, but this non-recovery cannot adversely affect the prosecution story of assault with a dao. 18. PWs. 9, 10 and 13 are co-villagers of the victim. The evidence on record would go to reveal that Nani Mondal was assaulted near the village well which is only 10 cubits away from the pan-biri shop of PW 16 Mantu Mondal. 19. PW 9's house is only 3-4 bighas from the shop the Mantu Mondal. He had been to Daukimari hut on that day and left the hut at about 5-30 P.M. His evidence is while he was coming back from the hut, he saw 17-18 persons near Mantu's shop. He named both the appellant as two of those 17-18 persons. He claimed to have overheard the conversation between two of the accused persons who have acquitted by the trial court. They are Dulal and Nemai and according to this witness, Dulal was telling Nemai "Samay Hoye Gache" (time is up). This witness went to his house and heard some noise some time after he had arrived at his house. He at once came out of his house and proceeded towards the well and found the dead body of Nani Mondal lying there with injuries. Both Dulal and Nemai were amongst 17-18 persons whom he found near PW 16's shop. 20. PW 10's evidence is that at about 5-30 P.M. he went to the shop of Mantu for purchasing biri. He at once came out of his house and proceeded towards the well and found the dead body of Nani Mondal lying there with injuries. Both Dulal and Nemai were amongst 17-18 persons whom he found near PW 16's shop. 20. PW 10's evidence is that at about 5-30 P.M. he went to the shop of Mantu for purchasing biri. At that time, he claims, the appellant Tufani arrived on a cycle and reported to the accused Netai (since acquitted) that four heads were coming. His further evidence is that at that time, some persons were also present near the shop. According to him, the appellant Bablu was one of those persons. After purchasing biri, he came back to his house and as soon as he reached his house, he heard a loud noise and went running towards the shop wherefrom the noise was coming. On his arrival there, he saw Nani Mondal lying dead by the side of the well with injuries. 21. PW 13 also had been to Daukimari hut on that day at about 3 P.M. and saw Nani Mondal there. Soon after he returned to his house, he heard some loud noise and came out of his house and while he was proceeding towards the place from where the noise was coming, he saw 5-6 persons passing by him and fleeing away through the paddy field. According to him, the appellant Tufani was one of those 5-6 persons. On arrival at the p.o., he found the dead body of Nani lying there. 22. PWs. 9 and 10 thus appear to be pre-occurrence witnesses, while PW 13 appears to a post-occurrence witness. PW 9's evidence could at best implicate the appellants as two of 17-18 persons whom PW 9 saw near Mantu's shop on his way back home from the Daukimari hut. PW 10's evidence would at best go to suggest that shortly before the occurrence the appellant Tufani was seen by the witness arriving at the place of occurrence and saying to Netai, one of the accused who has been acquitted, four heads are coming and his evidence also implicates the appellant Bablu as one of the persons found present near the shop of Mantu. PW 13's evidence, can, at best, reveal the circumstance that immediately after the occurrence, the appellant Tufani was passing by him along with 5/ 6 others fleeing away through the paddy field. 23. The circumstances brought out by the evidence of PWs 9, 10 and 13 are hardly sufficient to warrant an inference that there was a prearranged plan made by the two appellants in furtherance of which the murderous assault on Nani Mondal was launched. The evidence given by PWs. 9, 10 and 13 about the conduct of the appellant Tufani is also hardly sufficient to lead to an inference that he was a party to the conspiracy for the murder of Nani Mondal. So, the appellant Tufani is entitled to benefit of doubt and his conviction is not liable to be sustained. 24. The evidence of PW 1 and PW 9 regarding the involvement of persons other than the 16 persons who were charged falls short of what was required to prove their membership of an unlawful assembly. PW 1 wanted to say that at the time when the appellant Bablu assaulted Nani Mondal, 20/15 persons including the appellant Tufani were accompanying him. No overt act was at all attributed to any of those 20/15 persons. Similarly, PW 9 claims to have seen 17/18 persons near the shop of Mantu where he overheard the conversation of two of them namely Dulal and Nemai while he was coming back home from Daukimari hut. Mere presence of 17/18 persons near the pan-biri shop of Mantu does not lead to the conclusion that they were members of an unlawful assembly or for that matter, they were parties to a pre-arranged plan or conspiracy hatched for murdering Nani Mondal. 25. Thus, on a scrutiny of the evidence on record, we find that the evidence is such from which it is difficult to conclude that some other than the 16 persons, who stood specifically charged in this case, acted conjointly with one or other of the charged accused in committing the offence involved in this case. 25. Thus, on a scrutiny of the evidence on record, we find that the evidence is such from which it is difficult to conclude that some other than the 16 persons, who stood specifically charged in this case, acted conjointly with one or other of the charged accused in committing the offence involved in this case. Since the charge disclosed only the named accused as the co-accused and since there is no direct or circumstantial evidence sufficient to show the involvement of any person other than the appellant Bablu, when the 14 co-accused had already been given benefit of doubt by the trial court and when the evidence is not even sufficient to show the involvement of the appellant Tufani, it would not be permissible to take the view that there must have been some other persons along with the appellant Bablu in causing the injuries to the deceased. The appellant Bablu would only be responsible for the offence, if any, which can be shown to have been committed by him without regard to the participation of others. In other words, the question of convicting the appellant Bablu for an offence under section 302 can arise only if the prosecution evidence is sufficient to warrant a conclusion beyond reasonable doubt that he has committed the offence in his individual capacity. 26. Let us, therefore, examine the evidence on record once again so as to find out if it is sufficient to sustain a conviction of the appellant Bablu Mondal under section 302 IPC simpliciter. The evidence in support of his individual liability consists of the sworn testimony of PW 1, the only eye witness in this case. If we go by the substantive evidence give by this witness, it would show that it was the appellant Bablu who inflicted all the wounds upon the victim resulting in his death without participation of anybody else. 27. The only question that awaits our consideration is whether the evidence of PW 1 can be relied upon for establishing the individual liability of the appellant Bablu Mondal beyond any reasonable doubt. 28. The testimony of PW 1 appears to be unimpeachable and nothing could be brought out during his cross examination so as to impair his credibility. It was suggested to him during the cross examination that about a month before the date of occurrence, he took a loan of Rs. 28. The testimony of PW 1 appears to be unimpeachable and nothing could be brought out during his cross examination so as to impair his credibility. It was suggested to him during the cross examination that about a month before the date of occurrence, he took a loan of Rs. 800/- from the appellant Tufani Sarkar and that the appellant Bablu insisted on his repaying the said loan, and that instead of repaying the same he threatened to teach the appellant Bablu a good lesson and that out of that grudge he was deposing falsely against the appellant Bablu. In other words, the suggestion is that this witness bore the grudge against Bablu only because of his insistence on repayment of the alleged loan taken by the witness from Tufani. But the suggestion has been denied by PW 1 and beyond the suggestion, there is no proof that this witness did really bear a grudge against Bablu or was otherwise inimically disposed towards him. Even if there is any truth in the suggestion that PW 1 bore a grudge against the appellant Bablu for his insistence on repayment of the loan to the other appellant Tufani, that could hardly prompt PW 1 to indulge in perjury so as to implicate the appellant Bablu with a charge as heinous as that of murder. There is, indeed, no earthly reason for him to depose falsely against the appellant Bablu. 29. Dilip Sarkar and Gouranga Mondal, as it transpires from the evidence of PW 1, had been to Daukimari hut along with the victim Nani Mondal and PW 1 on the fateful day and accompanied them during their return journey from Daukimari hut to their village Bamontari. It. also transpires from the evidence of PW 1 that these two persons namely Dilip Sarkar and Gouranga Mondal were 19/20 cubits ahead of Nani Mondal shortly before Nani was attacked by the appellant Bablu. The question is how far the non-examination of Dilip and Gouranga would affect the prosecution. There is no positive substantive evidence to show that they were really eye witnesses to the occurrence. Law does not require a particular number of witnesses to be examined by the prosecution to sustain a conviction. Even the testimony of a single witness, if reliable, can be sufficient to sustain a conviction. There is no positive substantive evidence to show that they were really eye witnesses to the occurrence. Law does not require a particular number of witnesses to be examined by the prosecution to sustain a conviction. Even the testimony of a single witness, if reliable, can be sufficient to sustain a conviction. Gouranga was not at all cited as a charge sheet witness and so far as Dilip Sarkar is concerned, the order dated 16.5.95 passed in the trial court's record would reveal that the prosecution offered an explanation for his non-examination by filing a petition before the trial court pleading that he was gained over. The witness was present in court and the defence could have cross examined him if it so desired. Mere non-examination of Dilip and Gouranga cannot, in our view, entitle us to discard the testimony of PW 1. 30. An omission in the statement of PW 1 before the police was sought to be brought out by the defence during his cross examination. In the cross examination of PW 1, it was elicited. I also stated before Darogababu that as soon as Nani Mondal reached the aforesaid well, the accused Bablu Mondal attacked him with a dao, while in the cross examination of the first I.O. (PW 18) it was elicited. PW 1 did not state before me that as soon Nani Mondal reached the aforesaid well accused Bablu Mondal attacked Nani Mondal with a dao. The above two sentences recorded in the respective depositions of the two PWs (PWs. 1 and 18) are obviously composite sentences conveying statements relating to (i) the exact time when and the exact place where the attack on Nani Mondal was first launched (ii) the identity of the assailant and (iii) the nature of the weapon with which Nani was attacked. Upon consideration of the trend of the entire cross examination of PWs. 1 and 18, it cannot be construed that there was a total omission in PW l's statement allegedly made to PW 18 relating to all the points specified above. Upon consideration of the trend of the entire cross examination of PWs. 1 and 18, it cannot be construed that there was a total omission in PW l's statement allegedly made to PW 18 relating to all the points specified above. The omission, if there be any, in our view could at best be only with regard to the precise time when the attack was launched and not with regard to the other facts and particularly the factum of participation of the appellant Bablu Mondal in the attack and as such, cannot be considered to be so material as to constitute contradiction. This omission was sought to be proved with reference to the statement if any, of PW 1 recorded by PW 18 under section 161 Cr. P.C. But PW 18 categorically stated at the concluding stage of his cross examination that PW 1 was not examined under section 161 Cr. P.C. It transpires from the evidence of PW 1 that he narrated the incident to PW 18 on the very night of the occurrence before going to the P.S. on the following morning. PW 1 does not say that his statement was recorded by PW 18 and PW 18 also does not claim to have examined any witness on the night of 5.9.94. From the trend of examination-in-chief of PW 18, becomes clear that he learnt about the incident from the local men soon after he had arrived at the house of the victim and found his dead body on the night of the occurrence and that he asked PW 1 to go to the P.S. to lodge the FIR. Now, under section 162 of the Cr. P.C. a witness can be contradicted with his statement under section 161 Cr. P.C. only if that statement is reduced into writing. PW 1 might have given a statement to PW 18 but unless that statement is reduced into writing, no part of that statement can be used for contradiction and, as the materials on record stand, we are satisfied that PW 1 did not make any statement before PW 18 which was reduced into writing. As such, the omission on the part of PW 1 to state before PW 18 the fact that the accused Bablu attacked Nani at the time when he reached near the well cannot be made use of on behalf of the defence. 31. Ext. As such, the omission on the part of PW 1 to state before PW 18 the fact that the accused Bablu attacked Nani at the time when he reached near the well cannot be made use of on behalf of the defence. 31. Ext. 5 is said to be the FIR of this case. It was lodged with the P.S. by PW 1 on the following morning at about 7-15 hrs. This FIR, of course, implicates not only Bablu Mondal but also two others as the assailants who had already been acquitted by the trial court. Now, the evidence on record would reveal that this FIR is not really the FIR in the strict sense of the term inasmuch as it transpires from the evidence of PW 18 that in pursuance of the G.D. entry no. 97 dated 6.9.84 (Ext. 6), the O.C. Dhupguri P.S. had directed PW 18 to proceed to the place of occurrence and that in pursuance of such direction, PW 18 had left the P.S. at 1 A.M. on that very night and reached the place of occurrence at 1-30. The said G.D. entry was made at 00-05 hrs on that very night. It also disclosed the commission of a cognizable offence. It purported to give the information by PW 2 that Nani Mondal was murdered. The details of the incident disclosed in this G.D. entry would at once show that it did constitute the FIR in the eye of law and the so-called FIR (Ext. 5) was lodged at a time when investigation appears to have already commenced and as such, Ext. 5 can be said to be hit by the mischief of section 162 Cr. P.C. so much so that it cannot be used for corroboration. It could, however, be used for contradiction of its maker in the manner provided for in section 145 of the Indian Evidence Act. But no contradiction appears to have been taken during the cross examination of PW 1 with reference to this particular FIR (Ext. 5). 32. The real FIR (i.e. G.D. Entry No. 97-Ext. 6) does disclose the name of Bablu Mondal as the assailant. But no contradiction appears to have been taken during the cross examination of PW 1 with reference to this particular FIR (Ext. 5). 32. The real FIR (i.e. G.D. Entry No. 97-Ext. 6) does disclose the name of Bablu Mondal as the assailant. It does not, however, contain the eye witness account and is the version of PW 2 who is said to have derived his knowledge about the occurrence from the deceased Nani Mondal's brother's widow, who, according to PW 1, was sent from the house of Nani Mondal on the night of the occurrence to give the information to PW 7 Meghlal Sarkar, who happens to be the brother of PW 2, soon after the dead body was removed from the p.o. to the deceased's house. Since the said widow is not a witness here, PW. 2's version in the real FIR implicating the accused Bablu Mondal as the assailant will not be of much avail to the prosecution. 33. What really was the motive that prompted the appellant to commit this murder has not, however, come to light. But that does not mean that there was no motive behind this murder. There is always a motive behind a crime and the prosecution may not be able to bring it to light in a particular case. The mere absence of proof of any motive on the part of the appellant Bablu cannot demolish the direct and convincing evidence given by PW 1 against the appellant Bablu. 34. Thus, on a scrutiny of the materials on record, we find no cogent reason to discard the evidence of PW 1 which, in our view, is sufficient to warrant a conviction of the appellant Bablu Mondal under section 302 IPC simpliciter. 35. We accordingly allow the appeal fully so far as it is directed against the conviction and sentence of the appellant Tufani Sarkar and against those of the appellant Bablu Mondal under sections 148 and 120B, which are hereby set aside. The appellant Tufani Sarkar is acquitted of all the offences and be set at liberty if he is not wanted in any other case. The appellant Bablu Mondal is acquitted of the offences punishable under sections 148 and 120B IPC. The conviction and sentence of the appellant Bablu Mondal under section 302 read with section 149 is hereby modified to one for life imprisonment under section 302 IPC simpliciter. The appellant Bablu Mondal is acquitted of the offences punishable under sections 148 and 120B IPC. The conviction and sentence of the appellant Bablu Mondal under section 302 read with section 149 is hereby modified to one for life imprisonment under section 302 IPC simpliciter. I agree. Appeal allowed fully so far as appellant Tufani Sarkar is concerned and his conviction & sentence under section 302/149, 147 and 120B IPC set aside. Appeal allowed partly regarding appellant Bablu Mondal whose conviction and sentence under 148 and 120B IPC set aside and conviction & sentence under section 302/149 altered to one under section 302 simpliciter.