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2002 DIGILAW 187 (CAL)

Naimuddin & Muslim Mian v. State of West Bengal

2002-03-15

Amit Talukdar, Joytosh Banerjee

body2002
JUDGMENT Joytosh Banerjee, J.: The present appeal is directed against the judgement dated 17th May, 1985, in Sessions Trial No. 6/85 (Sessions Case No. 24/84) wherein the learned Sessions Judge, Malda convicted both the accused/ appellants under section 302 read with 34 I.P.C. and sentenced them to imprisonment for life each and to pay fine of Rs. 5,000/- each in default to suffer R. I. for 2 years more. 2. The informant, Abdur Razzak came to Gajole P.S. on 27.2.83 and lodged the information alleging that he along with his cousin Toffazal Hossain had their bastu under Dag No. 510 measuring 14 decimals. His cousin Toffazal, without the prior consent of the informant entered into an agreement with one Muslim Mian and Ali Asgar for sale of 7 decimals of land out of the aforesaid property and when the informant came to know all about it he asked his cousin to sale the said portion of land to him. At first the said cousin agreed to sale the portion of land to him but later on at the instance of Muslim Mian, he refused to sale such portion of land. Thereafter, the informant raised fencing on the portion of land in his possession. His cousin raised his claim over such portion of land and for this the informant protested to such claim. Then on 27.2.83 at about 11 a.m., the accused/appellants along with others stated to demolish the fencing of the land in possession. Thereafter the informant along with some others protested. When the informant along with some others protested. When the informant and Munsi Basiruddin, the victim with his two sons protested, on the aforesaid occasion, the accused/appellants and others launched assault with lathi and bricks. The victim, Munsi Basiruddin died at the spot being hit by the bricks thrown by accused/appellants Naimuddin and Muslim. It was further alleged in such F.I.R. that two sons of the victim also sustained injuries by the bricks thrown by the other accused persons. Finding Munsi Basiruddin dead the accused persons fled away from the spot and the informant went to the P.S. and lodged the F.I.R. 3. On the basis of the aforesaid F.I.R., P.W.13, S.I. Animesh Mazumdar, the then O.C. Gajole P.s. started the case and endorsed the same to P.W.13 K.S. Das who at the relevant point of time was attached to Gajole P.S., for the purpose of investigation. On the basis of the aforesaid F.I.R., P.W.13, S.I. Animesh Mazumdar, the then O.C. Gajole P.s. started the case and endorsed the same to P.W.13 K.S. Das who at the relevant point of time was attached to Gajole P.S., for the purpose of investigation. P.W.13 examined the witnesses and recorded their statements, visited the P.O., prepared the sketch map of the same and also seized some articles in connection with the investigation on a seizure list. He tried to apprehend the accused persons, named in the F.I.R., but could not detain those persons as they were not available. He obtained the P.M. report and on completion of the investigation submitted the charge-sheet. The learned Sessions Judge on consideration of the papers referred to in section 173 Cr. P.C. raised charge' under sections 148, 323 read with sections 149, 148 I.P.C. and also under section 302 read with section 149 I.P.C. against all the 8 accused persons, who faced the trial. In the judgement impugned, the learned Sessions Judge acquitted all the accused persons except the two appellants' from all the charges levelled against them. He also acquitted the present appellants from the charge under section 149 and under sections 149/323 I.P.C., but recorded the conviction and sentence as noted above. In doing so, the learned Sessions Judge observed that the medical evidence furnished by P.W.11 along with the oral testimonies of the eye-witnesses, namely P.W.1, P.Ws. 4 to 6 and P.Ws. 8 to 10, which got support from the F.I.R., Ext. 1, proved beyond all reasonable doubt that the Munsi Basiruddin had been attacked by the accused/appellants who threw bricks at him which hit him on the vital portions of his body causing his instantaneous death on the spot. He further held that the evidence on record proved beyond all reasonable doubt that the death of the victim was caused at the P.O. on the date and at the time of the incident by the appellants, who threw the bricks aiming the victim, which hit on the vital parts of the body of the victim, who was an old man of 70 years of age and since the injuries showed that the assailants aimed at the vital organs of the body of the victim, he came to a firm conclusion that both the appellants inflicted those injuries with the intention to cause death of the victim. The learned Sessions Judge further held having regard to the entire facts and circumstances of the case that there was a common intention to commit the offence on the part of the accused/appellants and they participated in doing the act in furtherance of that common intention and therefore section 34 of the I.P.C. would be applicable in the case. 4. The only question for our consideration here is whether the order of conviction and the sentence passed by the learned Sessions Judge on the appellants can be sustained, on the evidence on record and also whether the same was passed in accordance with law or not. 5. At the trial, the prosecution examined in all 14 witnesses including a number of eye-witnesses as observed by the learned Sessions Judge. The eyewitnesses are P.W.1 Abdur Rajjak who was the informant and who in his evidence disclosed the entire background of the incident complained of. According to him his family owned 14 decimals of land in plot No. 510 of Mouza Ali Nagar, out of which 7 decimals were possessed by his father Abdur Rajjak and the remaining 7 decimals by Toffazzal Haque @ Taisu and Namiruddin Mian @ Labdi who were his cousins. The said Taisu executed a bainanama in respect of 3½ decimals of land out of the said plot in favour of Muslim. He also got it registered. On coming to know about the registered agreement, the witness asked Taisu to give the land to him instead of Muslim. At first he agreed but on the next day he disclosed that as he had already executed bainanama in favour of Muslim he could not transfer the said land in favour of the witness. Coming to know about this, the informant got his portion of land under his possession fenced by bamboo and started possessing the same. It is the further evidence of the witness that on 27.2.83 at about 11 a.m., the appellants and other persons came there to break his fencing. Coming to the spot they started breaking the fencing. Then the witness himself along with his father and his elder brother Idrish Mian resisted the demolition. In course of the trouble, the appellants threw bricks aiming at victim Basir Munsi who at that time came to the spot asking the accused persons not to break the fencing. Coming to the spot they started breaking the fencing. Then the witness himself along with his father and his elder brother Idrish Mian resisted the demolition. In course of the trouble, the appellants threw bricks aiming at victim Basir Munsi who at that time came to the spot asking the accused persons not to break the fencing. It is the further evidence of the witness that the victim Basir Munsi was hit by the bricks. On being hit, he fell down and he succumbed to his injuries at the very spot. The witness further disclosed when the other village people come to the spot, the appellant and others fled away. The evidence of the witness regarding the incident of assault launched on the victim Basiruddin was substantially corroborated by the oral testimonies of other eye-witnesses, namely, P.W.4 Lazibullah, the father of P.W.1 (who according to the evidence of P.W.1) was also known as Lazubullah. This witness like P.W.1 also threw light about the background of the whole incident, and fully corroborated the oral testimony of his son, on the point of incident. P.W.5 Tafijuddin a co-villager of P.Ws. 1 and 4 who saw the incident while returning after purchasing biri. P.W.6 Mahiuddin Mian another co-villager who at the relevant point of time was going to post office for dropping a letter and in this way witnessed the incident. P.W.8 Tafazzal Haque, the son of Basiruddin, the victim who deposed that hearing shouts raised in connection with the trouble started between the two sides he and his brother followed his father, the victim to the spot and found that the appellants with others were breaking a fencing there and at this his father asked the appellants and others who were doing the same not to break the fencing. At this, the appellants started throwing bricks aiming at his father, the victim who fell down on being hit by bricks and succumbed to his injuries at the very spot. P.W.8, Md. Badiruddin is the another son of the victim who also like P.W.8 fully corroborated the oral testimonies of the informant, P.W.1 and his father P.W.4. P.W.10 Harunal Rashid, a resident of village Balarampur who claimed to witness the incident while returning to his village. P.W.8, Md. Badiruddin is the another son of the victim who also like P.W.8 fully corroborated the oral testimonies of the informant, P.W.1 and his father P.W.4. P.W.10 Harunal Rashid, a resident of village Balarampur who claimed to witness the incident while returning to his village. We have already seen that the learned Sessions Judge came to the conclusion about guilt of the appellants relying on the evidence of the eye-witness as he found that such evidence was fully worthy of credence and such evidence was not shaken through the cross-examination. The evidence of the eye-witnesses was more acceptable to him on the further ground that the doctor (P.W.11, Dr. J. Mondal) who held P.M. examination over the deadbody of the victim opined that the injuries seen in the person on the victim might be caused by hard and blunt substance like bricks. The learned Sessions Judge at that time noted that in the cross-examination, the doctor agreed with the suggestion that the injury No.1 could be caused by fall but rejected the possibility of infliction of injury No.3 by fall and did not give any indication in such cross-examination that the 4th injury noted by him could be caused by fall. On the other hand it was his clear evidence that the injury was fatal and could be effected by hard and blunt substance. Having regard to this, the learned Judge observed that the defence suggestions did not rule out the probability or credibility of the prosecution case that all those injuries was caused by blunt substance like bricks. 6. The learned Advocate for the appellants through his argument wanted to point out some infirmities in the evidence which according to him would go to the very root of the case to shake the basic structure of that case. It has been pointed out that none of the prosecution witnesses stated before the I. O. that the incident took place over the removal of the fencing. But on going through the evidence of the I.O. we do not find that it was taken from such witness that all the prosecution witnesses failed to give the background of the whole incident regarding the removal of fencing etc. The specific background was described by the informant in his evidence. But on going through the evidence of the I.O. we do not find that it was taken from such witness that all the prosecution witnesses failed to give the background of the whole incident regarding the removal of fencing etc. The specific background was described by the informant in his evidence. The informant disclosed such background, also in the F.I.R. His evidence on this point gets full corroboration from the evidence of his father P.W.4. True it is that the I.O. in his evidence disclosed that some of the witnesses examined by him who also deposed here as P.W.5, P.W.6, P.Ws. 8 to 10 did not disclose about the background. In our considered opinion, the failure on the part of these witnesses to disclose the background before the I.O. cannot be a reason to reject the prosecution evidence on the point of background specially when the same emanated from the two competent witnesses, namely, P.W.1, informant and P.W.4, the father of the informant who claimed themselves to be the owners of the plot in question. In course of the argument, the learned Advocate also tried to submit that the evidence of P.W.1, the informant would go to show that plot No. 510 was in possession of accused Tofazzal and therefore there could not be any question of the informant and his father to raise fencing and subse'1uent removal of those fencing by the accused persons, which gave rise to the further allegation of an incident in which the victim, who had been to the spot to resist the accused persons from launching any assault, lost his life. But on carefully going through the evidence of P.W.1 specially the cross-examination of such witness we find that what the witness admitted was that 3½ decimals of land in plot No. 510 was in possession of accused Tofazzal. We have seen from the discussion above that the specific allegation made by the informant in the F.I.R. as well as in the evidence was that he raised the fencing on some portion of plot No. 510 which was in his possession or it speak it very correctly in the possession of his father that is to say P.W.4. It is nobody's case that the fencing was raised over the entire plot No. 510 and the incident complained of took place when such fencing was removed. 7. It is nobody's case that the fencing was raised over the entire plot No. 510 and the incident complained of took place when such fencing was removed. 7. Indeed P.W.4, the father of the informant in his cross-examination made certain statements which might create confusion about the possession of plot No. 510, the plot where the incident complained of took place. He stated in the cross-examination that plot No. 511 of Ali Nagar Mouza was owned by him and his brother Rahim in equal share. That land was entirely in possession of him and his sons. Rahim did not stay there. At first Rahim was possessing the entire plot No. 510 wherefrom Rahim sold 3½ decimals of land out of his land to his son Tofazzal. Now, through such statements we cannot come. to a conclusion that at the relevant point of time Rahim was possessing the entire plot No. 510. The witness only stated that at the initial stage Rahim used to possess the entire plot No. 510. At the same time, the witness who was an old man of 75 years disclosed his ignorance about whether 3½ decimals of land from plot No. 510 was sold by Rahim to his son or not. It was the specific evidence of P.W.1., the informant, that 7 decimals of land in plot No. 510 was possessed by his father and the remaining 7 decimals was in possession of Tofazzal @ Taisu and Namiruddin @ Labdi who were his cousins being the sons of the elder brother of his father. The informant was cross-examined at length but no where it was suggested that plot No. 510 was in exclusive possession of his cousins or of the elder brother of his father. On the other hand, we find that when the witness claimed in the cross-examination that plot No. 511 was in possession of his father there was a suggestion that the entire plot No. 511 was in possession of Rahim Sekh, his father's elder brother and his sons. From all these, it is evident that at no stage it was the case of the defence that the plot No. 510 where the alleged incident took place, was in possession of Rahim Sekh and his sons. From all these, it is evident that at no stage it was the case of the defence that the plot No. 510 where the alleged incident took place, was in possession of Rahim Sekh and his sons. Therefore, we could not attach much importance to the loose statement made by P.W.4 an old man whose statement in our considered opinion failed to support, even the case of the defence as noted above regarding the possession of the 2 plots, namely, 510 and 511. 8. It is also argued that the police in course of the investigation of the case, did not seize any fencing. It has been further submitted by the learned Advocate for the appellant that when the I.O. (P.W.14) visited the P.O. on the date of the alleged incident, he did not find the fencing as such he did not seize the fencing which was demolished, as per the allegation. It is the contention of the learned Advocate that the I.O. only seized some bricks on a seizure list, but did not seize anything else. Had there been the existence of fencing either up-rooted or demolished at the spot, the I.O. would have seized those articles. But in his evidence the I.O. did not give any indication that going to the spot he saw the fencing. On the basis of the aforesaid circumstances, it is the argument of the learned Advocate for the appellant that on going to the spot on the very day of the incident complained of, the I.O. could not find the fencing, the demolition of which was at the root of the whole incident. But we find little substance behind the aforesaid argument. The F.I.R. indicated that the incident took place on 27.2.83 at about 11 a.m. It was reported to the police station on that very day at about 15.05 hrs. in the afternoon. The formal F.I.R. further indicated that the distance between the police station and P.O. was 20 K.M. The prosecution led the evidence to show that the informant came to Gajole P.S. at 15.05 hrs. and as per his statement P.W.13, S.L Animesh Mazumdar, the then O.C., Gajole P.S. recorded the F.I.R. and thereafter he endorsed the case to P.W.14, Karunasindhu Das, who was attached to the same P.S. at the relevant point of time as S.I. of Police. and as per his statement P.W.13, S.L Animesh Mazumdar, the then O.C., Gajole P.S. recorded the F.I.R. and thereafter he endorsed the case to P.W.14, Karunasindhu Das, who was attached to the same P.S. at the relevant point of time as S.I. of Police. From the evidence of P.W.14, it further transpired that on taking up the investigation he as the I.O. of the case went to the spot for the purpose of investigation. Therefore, it is explicit from the evidence adduced from the side of the prosecution that the I.O. had the occasion to visit the P.O. in the late afternoon of the date of incident that is to say on 27.2.83 and the incident complained of took place sometime at about 11 a.m. on that day. There is no indication in the evidence of the eye-witness or any other witness that the fencing which had been removed by the accused and others remained at the spot after the incident. There is no suggestion given from the defence to the I.O. that on going to the spot he did not seize the fencing which lay on the spot. Therefore, it is very difficult for us to come to a conclusion that there is a metrial defect in the investigation of the case due to non-seizure of the fencing which had been up-rooted or demolished by the appellants and others just prior to the incident complained of. 9. It is further argued by the learned Advocate for the appellant that the accused persons also sustained injury in the incident complained of but the prosecution witnesses remained completely silent about the circumstances under which the accused could sustain any injury on their persons. In this respect, our attention has been drawn to the evidence of D.W.1, doctor Kali Mohan Foujdar. His evidence indicated that he was a private medical practitioner, who used to run a Nurseing Home with a medical dispensary in Malda Town by the name of Foujdar Clinic and on 27.3.83 this doctor had the occasion to treat Muslim Mian, Tofazzal Hossain and Nazmul Islam and he found certain injuries on their persons. But in our considered opinion, the evidence of such a witness clearly indicated that he was a private practitioner. So injuries, if any, on the person of the accused was not proved in accordance with law. But in our considered opinion, the evidence of such a witness clearly indicated that he was a private practitioner. So injuries, if any, on the person of the accused was not proved in accordance with law. If really they sustained any injury, on the date and at the time of the incident complained of, they could go to the hospital for treatment and also for getting the injuries on their persons, officially recorded. 10. It is to be mentioned here the I.O. of the case, S.I. Karunasindhu Das, P.W. 14 in the cross-examination admitted that he also investigated one case filed by the accused persons over the same incident and submitted charge-sheet in that case under various sections including section 304 I.P.C. On being recalled by the prosecution, the witness further disclosed that the counter case was Gajole P.S. Case No.3 dated 9.3.83 wherein he got the F.I.R. through court on 3.3.83. Here we must pause for a moment to record that the present case arose out of Gajole P.S. Case No.9 dated 27.2.83. But the further evidence and the cross-examination of the I.O. indicated that in connection with the 'counter case' a petition of complaint was filed before the court and the same was sent to the police station for investigation with a direction to treat the same as F.I.R. This was done on 3.3.83 that is to say a few days after the recording of the present case, namely, Gajole P.S. Case No.9 dated 27.3.83. No attempt has been made from the side of the defence to produce any evidence to show that on that very date and time of incident complained of, some of the accused persons sustained injuries in the hand of some prosecution witnesses. As we have noted earlier instead of furnishing any evidence how some of the accused persons and their associates sustained injuries on their persons, the defence only chose to examine one private practitioner of Malda Town in order to establish that some of the accused sustained injuries. If really the accused persons sustained serious injuries at the hands of the prosecution party, what prevented them from coming to the police station to lodge any information about the same and furthermore to be treated in the Government hospital on being sent from the police station. If really the accused persons sustained serious injuries at the hands of the prosecution party, what prevented them from coming to the police station to lodge any information about the same and furthermore to be treated in the Government hospital on being sent from the police station. It further transpires that the private doctor examined in connection with the case deposed before the Court of Sessions on 22.4.85. He apparently had no re-collection about the injuries treated by him. His evidence clearly indicated that he refreshed his memory from one khata. In cross-examination witness admitted that in that khata for the year 1983, no other injuries in respect of any other person was noted. He did not refer the injuries seen and noted by him to the police. For all these reasons, it would be hardly possible for us to come to a conclusion that on that very day and time, the accused persons or some of their associates susained injuries on their persons due to an attack launched by the prosecution party and since the prosecution had no explanation how the accused persons could sustain injuries on their persons on the date and at the time of incident, the allegations made by the prosecution, for establishing of which the prosecution led evidence of different witnesses including some eye-witnesses, would be of great suspect. 11. It has been argued next from the side of the defence that there was a defect in raising the charge under sections 148 and 149 I.P.C. It has also been argued that the appellants who were charged under section 302 read with section 149 I.P.C. could not be convicted under 'section 302 read with section 34 I.P.C. for want of specific charge to that effect. When advancing his argument on this point, learned Advocate for the appellants has drawn our attention to section 141 which defines the word 'unlawful assembly'. He has pointed out that an assembly of 5 or more persons would be called unlawful if the common object of the persons composing that assembly is one or more as described in such section. According to him, since no common object was mentioned the charge under section 148 should fail. He has pointed out that an assembly of 5 or more persons would be called unlawful if the common object of the persons composing that assembly is one or more as described in such section. According to him, since no common object was mentioned the charge under section 148 should fail. It is the further submission of the learned Advocate that there was no unlawful assembly within the meaning of section 141 I.P.C., there could not be any charge under section 302 read with section 149 I.P.C. as every member of such assembly could not be responsible for the actual offence committed. 12. On going through the record, we find that at the time of raising charge under section 148 I.P.C., it was specifically mentioned that the common object of the unlawful assembly was to launch assault on some persons. Therefore, it is clear that the instant case would come within the 3rd clause of the common object as described in section 141 as such allegation definitely would constitute an offence. So the clear question here is whether after the acquittal of the most of the accused persons by the learned Sessions Judge such court could convict the appellants under section 302 read with section 34 I.P.C. or not? Here the admitted position is that on specific charge under section 302 read with section 34 I.P.C. was raised by the court at any point of time. The learned Judge in the judgement impugned clearly observed on the basis of the evidence on record that it was proved beyond all reasonable doubt that both the appellants threw bricks towards the victim, Munsi Basir and in this way attacked him. He further found that the bricks hit the victim on the vital portions of his body causing his instantaneous death at the spot. In the case of Baital Singh & Anr. He further found that the bricks hit the victim on the vital portions of his body causing his instantaneous death at the spot. In the case of Baital Singh & Anr. vs. State of U.P., reported in A.LR 1990 SC 1982, the Apex Court clearly indicated in a similar case that where the facts of the case were such that the accused could have been charged alternatively either under section 302 read with section 149 or under section 302 read with section 34 I.P.C., the conviction could be altered from section 302 read with section 149 or from section 302 read with section 34 LP.C. In the instant case, we have already seen that originally there were more than 5 persons against whom charge was raised for launching assault on the victim and others. In the trial, the learned Sessions Judge recorded acquittal against most of the accused persons, but convicted the present appellants under section 302 read with section 34 LP.C., on a specific finding that both the accused/appellants participated in the commission of the offence, namely, in launching assault on the victim by bricks which caused the instantaneous death of the victim at the spot. So like the reported decision of the Apex Court here also the facts and circumstances were such that the charge could have been framed under section 302 read with section 149 or under section 302 read with section 34 I.P.C. That being so we do not find any force behind the specific submission of the learned Advocate for the appellants that the conviction ultimately recorded by the learned Sessions Judge is tainted with illegality, specially when there is little evidence to show that for the aforesaid reason the accused/appellants were prejudiced in any way. 13. Before we part with the record finally, we should also point out that the learned Advocate for the appellants also pointed out to some inconsistency in evidence, and failure to examine one seizure list witness. But in our considered opinion, the evidence of eye-witnesses being constant, we have no reason to disbelieve the prosecution case. In a recent case, Sukhdev Yadav & Ors. But in our considered opinion, the evidence of eye-witnesses being constant, we have no reason to disbelieve the prosecution case. In a recent case, Sukhdev Yadav & Ors. vs. State of Bihar, reported in 2001 (4) Crimes 6(SC), the Apex Court has made the following observation, which would be very relevant here (Para 15): "True, as noticed above there are lapses; but the question that arises for consideration is whether any prejudice has been caused by reason of such a lapse, if the answer thereto is in the affirmative obviously it will have a serious impact on to the trial but if in the event however, it is on the negative, no prejudice can be said to have been caused and correspondingly question of the trial being vitiated would not arise. The eye-witnesses account as available on record cannot but be termed to be trustworthy and by reason therefor, the lapses stand over-shadowed by the testimony of the eye-witnesses." 14. In the result, the present appeal must fail. Accordingly, the appeal stand dismissed. Let the appellants who are in jail be informed, accordingly. Let the L.C.R. along with a copy of the judgement be sent down to the court below for information and necessary action. Amit Talukdar, J.: I agree. Appeal dismissed.