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2005 DIGILAW 391 (CAL)

SHAKA ALIAS MAQSOOD NAWAZ v. STATE OF WEST BENGAL

2005-06-22

ARUN KUMAR BHATTACHARYA, DEBIPRASAD SENGUPTA

body2005
SENGUPTA, J. ( 1 ) THE aforesaid three appeals have been preferred by the five appellants challenging a common judgement and order of conviction and sentence passed by the learned Sessions Judge, 4th Bench of City Sessions court, Calcutta in Sessions Trial No. 1 of October, 1996 (Sessions Case No. 26 of 1996) thereby convicting the appellants under Section 148 and Section 302/149 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for life and each of the appellants to suffer rigorous imprisonment for 3 years for the offence under Section 148 of the Indian Penal Code. By the said judgement and order, the learned Trial Judge, however, acquitted all the appellants'of the charge under Section 332/149 of the Indian Penal Code. ( 2 ) MR. Dutt, learned Advocate appears in Criminal Appeal No. 324 of 1998 on behalf of appellant Nos. 1 and 2 namely Shaka @ Maqsood Nawaz and Md. Shakil @ Dilsad. Since the third appellant goes unrepresented, we requested Mr. Biplab Mitra, learned Advocate, who also appears on behalf of the appellant in Criminal Appeal No. 178 of 1999, to defend the appellant No. 3 md. Parvez @ Bura Parvez in Criminal Appeal No. 324 of 1998. ( 3 ) THE prosecution case in short is that on 22. 7. 95 at about 6 P. M. , when the de facto complainant Md. Salim was talking with his cousin Kallu, mumtaz All @ Bhullu and Azimuddin @ Rajesh in front of the cycle repairing shop of Bhullu, the present accused appellants along with others (absconders)appeared there being armed with pistol, bomb, sword and chopper. Accused bura Parvez and Sajeed caught hold of the neck of Md. Kallu and dragged him for killing and thereafter, all the accused persons started assaulting Md. Kallu with chopper and sword. When the de facto complainant came forward for the rescue of Md. Kallu, the accused Shaka @ Maqsood Nawaz by showing a pistol asked him to remain silent. After receiving number of injuries on different parts of the body, the condition of Kallu became serious and he was lying on the road in a pool of blood. At that time when the police man from the police station arrived there, Rahamat and Chhoto Parvez hurled bombs as a result of which one police constable namely Giasuddin Khan received injuries. At that time when the police man from the police station arrived there, Rahamat and Chhoto Parvez hurled bombs as a result of which one police constable namely Giasuddin Khan received injuries. Being attracted by the shouting of the de facto complainant other residents of the locality arrived at the spot. The accused persons fled away through the lane of marcus Square on hurling bombs. Md. Jafar along with some residents of the locality took the injured Kallu to Visuddhananda Hospital where he succumbed to his injuries. Police constable Md. Giasuddin, another injured was treated by dr. S. Goenka of the same hospital. The statement of Md. Salim was recorded by the police and on the basis of such statement, FIR was registered. During investigation a chopper was recovered by the police pursuant to the statement of one of the co-accused Md. Sakil from a place behind the abandoned room of darwan on the south east corner of Marcus Square Maidan on 6. 9. 95. ( 4 ) CHARGES under Sections 148, 302/149 and 332/149 of the Indian penal Code and Sections 3 and 5 of the Explosive Substances Act were framed against the present five appellants. ( 5 ) TO bring home the charge prosecution examined as many as twentyeight witnesses and none was examined on behalf of the defence. The defence case, as it appears from the trend of cross examination and their examination under Section 313, Cr. P. C. was that they were falsely implicated in the present case because of group rivalry. ( 6 ) P. W. 3 Md. Salim is the maker of the FIR. He deposed that on 22. 7. 95 at about 6 P. M. when he was gossiping with Md. Kallu, Mumtaz Ali alias Bhullu, azimuddin alias Rajesh, in front of the cycle shop of Bhullu, suddenly Bura parvez, Sajid, Sakha, Chhota Parvez, Yusuf Nausad, Shakil and Rahamat appeared there. Bura Parvez and Md. Sajid caught hold of Md. Kallu by neck and dragged him. Those persons were armed with pistol, bomb, sword and chopper. All of them started hitting Kallu with chopper and sword. When P. W. 3 tried to rescue Kallu, Sakha asked him to remain silent by showing a pistol to him and as such RW. 3 remained silent, Md. Kallu was assaulted with chopper and sword on different parts of the body. All of them started hitting Kallu with chopper and sword. When P. W. 3 tried to rescue Kallu, Sakha asked him to remain silent by showing a pistol to him and as such RW. 3 remained silent, Md. Kallu was assaulted with chopper and sword on different parts of the body. Rahamat and Chotta Parvez threw bombs towards the police. party. As a result of such assault, Kallu fell down on the ground and the miscreants left the place of occurrence, RW. 3 further deposed that he along with Md. Jafar, Nasir, Babua and others took Md. Kallu to Visuddhananda Hospital. Police recorded the statement of P. W. 3. The evidence of P. W. 28, I. O. , also reveals that P. W. 3 narrated the whole incident to him and his statement was recorded by P. W. 28 at the spot and the same was treated as FIR. ( 7 ) P. W. 4 Mumtaz AN alias Bhullu, also deposited that while he was gossiping with the persons as aforesaid, Bura Parvez and Sajid came there and caught hold of Md. Kallu by neck and dragged him. Then Nausad, Dilsad, chotta Parvez, Kanna Parvez, Rahamat, Yusuf and Sakha came there and started hitting Kallu with chopper and sword. Kallu tried to escape but he was again assaulted by those persons and Kallu fell down. The police party came running and bomb was hurled at them. The miscreants thereafter fled away from the place of occurrence. The P. W. 4 further deposed that they tried to resist those miscreants but Sakha showed them a pistol and threatened them. ( 8 ) P. W. 5, Aurangjeb stated in his evidence that on 22. 7. 95 at about 6 p. M. , when he was having his bath in a tubewell situated at the crossing of marcus Square and Madan Mohan Burman Street, at that time, he found Bura parvez, Chotta Parvez, Rahamat, Shakil, Sakha, Nausad, Yusuf, Kanna Parvez and Sajid appeared there being armed with chopper, sword and pistol and they proceeded towards 88a, Madan Mohan Burman Street. In front of the cycle shop of Bhullu, the said accused persons dragged Md. Kallu and started assaulting him with chopper and sword. When Kallu tried to escape, he was again assaulted by them. Kallu fell down on the ground with bleeding injuries on his person. In front of the cycle shop of Bhullu, the said accused persons dragged Md. Kallu and started assaulting him with chopper and sword. When Kallu tried to escape, he was again assaulted by them. Kallu fell down on the ground with bleeding injuries on his person. He further deposed that they tried to save Md. Kallu but Sakha threatened them by showing a revolver. P. W. 5 along with Jafar and Nasir took md. Kallu to hospital and from there, they went to Jorasanko P. S. and produced the blood stained T-shirt and a pair of shoes to the Police Officer, who seized the same. P. W. 5 also identified the five accused appellants in Court. ( 9 ) RW. 6, Md. Nasir, stated in his evidence that on the date of the incident, when he was taking 'khaini' from a shop, he found Salim, Kallu and bhullu were gossiping in front of the cycle repairing shop of Bhullu. He found bura Parvez, Chotta Parvez, Sajid, Rahamat, Yusuf assaulting Kallu with chopper and sword. When Kallu tried to escape, he was again assaulted by them. P. W. 6 along with Jafar, Babua and others took Kallu to the hospital by a rickshaw and on being asked he narrated the incident to the doctor in the hospital. The doctor (P. W. 23) also asked Kallu whether such occurrence happened and Kallu answered by nodding his head. P. W. 6 identified accused bura Parvez, Chhota Parvez and Rahamat, but he failed to identify the other two accused appellants namely Shakil and Sakha. ( 10 ) P. W. 7, Md. Sajid deposed that on the date and time of incident, when he was sitting by the side of the cycle repairing shop of Bhullu and was gossiping with Bhullu, Selim, Rajesh and Kallu, the accused persons, Sajid and Bura Parvez came there and dragged Kallu on the road. Then all the accused persons named above started assaulting Kallu with chopper and sword. When Kallu tried to escape, those persons again assaulted him. Sakha showed pistol and threatened others saying that if anyone proceeds, he would shoot him. He further deposed that Rahamat hurled bombs and Kallu was lying with bleeding injuries on the road. People of the locality took Kallu to the hospital. When Kallu tried to escape, those persons again assaulted him. Sakha showed pistol and threatened others saying that if anyone proceeds, he would shoot him. He further deposed that Rahamat hurled bombs and Kallu was lying with bleeding injuries on the road. People of the locality took Kallu to the hospital. ( 11 ) P. W. 8, Kabir Ahmed stated in his evidence that he runs a tea stall and on the date of the incident at about 6 P. M. when he was in his tea stall, he found Salim, Rajesh, Bhullu and Kallu in front of the cycle repairing shop of bhullu. At that time, Chhota Parvez, Bura Parvez, Shakil, Sakha, Rahamat and some others came from the western side. He further stated that Chhota Parvez had sword in his hand, Shakil had chopper in his hand, Sakha had pistol in his hand and Rahamat had bomb with him. He further deposed that Bura Parvez, chhota Parvez and Shakil assaulted Kallu with sword and chopper and Kallu fell down on the ground. This witness also stated that when Kallu tried to stand up, those accused persons again assaulted Kallu with their weapons. ( 12 ) CONVICTION is mainly based on six eyewitnesses, namely P. Ws. 3, 4, 5, 6, 7 and 8 and the medical evidence of P. Ws. 21, 23 and 24. The evidence of P. W. 9, although he was an eyewitness, was excluded as the prosecution could not produce him for cross examination. ( 13 ) MR. Dutta, learned Advocate appearing for the appellant Nos. 1 and 2 namely Shaka and Md. Shakil submits that immediately after the incident the injured was taken to hospital by P. Ws. 3, 5, 6, 7 and 10. In the hospital before the doctor the patient as well as P. W. 6 disclosed the names of five assailants and others who caused injuries to the victim. But the names of the appellant nos. 1 and 2 were not mentioned before the doctor (P. W. 23 ). It is further submitted that P. W. 3, the informant who was present at the hospital, stated that he did not mention the names of the assailants before the doctor. But when he lodged the FIR after coming back from the hospital, he named eleven persons and others including the appellants Nos. 1 and 2. It is further argued by Mr. But when he lodged the FIR after coming back from the hospital, he named eleven persons and others including the appellants Nos. 1 and 2. It is further argued by Mr. Dutta that P. Ws. 4 and 5 who are the eyewitnesses are also not reliable witnesses. P. W. 4 although he saw the incident, did not go to the hospital nor did he go to the police station to inform about the incident. P. W. 5 also, although he was an eyewitness to the occurrence, made no statement about the assailants either to the doctor or to the police officer. P. W. 7 also accompanied the victim to the hospital, but he did not disclose the names of assailants before the doctor, Mr. Dutt further submits that P. W. 8 who also claimed himself to be an eyewitness, tried to implicate both the appellant Nos. 1 and 2 namely Md. Shaka and Md. Shakil, he did not attribute the part played by the appellant shaka before the police. ( 14 ) THE arguments advanced by Mr. Dutt, learned Advocate of the appellant Nos. 1 and 2 in Cr. Appeal No. 324 of 1998, in our view is not at all tenable. The incident took place in presence of six eyewitnesses namely P. Ws. 3, 4, 5, 6, 7 and 8 and immediately after the incident the injured victim was taken to hospital by P. Ws. 3, 5, 6, 7 and 10. The injured Kallu was attended by the doctor (P. W. 23), before whom P. W. 6 as well as the injured Kallu disclosed the names of five assailants namely Parvez, Sajid, Rahamat, Chhota Parvez and Md. Yusuf. The argument advanced by Mr. Dutt, learned Advocate that names of his clients (appellant Nos. 1 and 2) were not mentioned by victim kallu and P. W. 6 before the doctor is not at all tenable. When an injured person, who received as many as 26 sharp cutting incised wounds is taken to hospital, it can never be expected that the injured person or the person accompanying him would mention the names of all the assailants before the doctor. It is also not at all necessary that all the accompanying persons should mention the names of all the assailants, when such names of five assailants were mentioned by the injured victim himself as well as P. W. 6 before the doctor. It is also not at all necessary that all the accompanying persons should mention the names of all the assailants, when such names of five assailants were mentioned by the injured victim himself as well as P. W. 6 before the doctor. ( 15 ) THE aforesaid six eyewitnesses in their evidence gave a vivid description of brutal murder of Md. Kallu by present five appellants and others (who are absconding ). P. Ws. 3, 4, 5 and 7 identified all the five appellants as the murderers of Md. Kallu. P. W. 6 identified accused Bura Parvez, Chhota parvez, and Rahamat and P. W. 8 identified accused Shaka, Shakil and Bura parvez during trial. Nothing was elicited in cross examination of those eyewitnesses to disbelieve their testimony. Learned Advocate of the appellants pointed out certain discrepancies in their evidence, but in our considered view, such discrepancies are trifling in nature and those do not affect the vital aspects of the evidence of those eyewitnesses. ( 16 ) THE evidence of all the eyewitnesses shows that all the five appellants along with others being members of unlawful assembly and being armed with deadly weapons like chopper, sword etc. , committed murder of md. Kallu. The number of injuries (26 incised wounds) inflicted on the body of md. Kallu indicates the brutality of the murder. Although the learned Advocate has given much stress in his argument on the individual participation of the accused appellants in the commission of the offence, we are of the view that in such a case where a murder is committed by number of persons being members of unlawful assembly, it is not at all necessary to determine as to which of the accused persons forming part of the unlawful assembly inflicted what particular or specific injury in course of the occurrence. ( 17 ) PURSUANT to the statement made by accused appellant Md. Shakil, who was in police custody, a chopper was recovered by the police party being led by Md. Shakil from a place beside the abandoned room of darwan on the south east corner of Marqus Square Maidan on 6. 9. 95. Mr. Dutt, learned advocate referring to the provision of Section 27 of the Evidence Act submits that Section 27 of the Evidence Act will come into play only if the statement leading to the recovery is proved. Shakil from a place beside the abandoned room of darwan on the south east corner of Marqus Square Maidan on 6. 9. 95. Mr. Dutt, learned advocate referring to the provision of Section 27 of the Evidence Act submits that Section 27 of the Evidence Act will come into play only if the statement leading to the recovery is proved. Otherwise mere recovery is of no value. In absence of any disclosure statement the recovery of the weaponof assault (chopper) itself becomes meaningless. In support of his contention, Mr. Dun relies upon a judgement reported in AIR (1947) 34 Privy Council-67 (Kottaya v. Emperor ). In paragraph 10 of the said judgement, it was observed as follows :"section 27, which is not artistically worded provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence, but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. " ( 18 ) MR. Saf iullah, learned Public Prosecutor submits that the statement of Md. Shakil was recorded by the investigating officer (P. W. 28) and pursuant to such statement of Md. Shakil, who was then in police custody and being led by him P. W. 28 along with force and accused Md. Shakil went to Marcus Square maidan and recovered the weapon of assault (chopper) from the place beside the abandoned room of Darwan. The said chopper was seized under proper seizurelist in presence of witnesses Md. Istaque and Sayed Aktar. The accused md. Shakil Dilsad also put his L. T. I, in the seizure list. The seizure list also contained the signature of P. W. 28 (marked ext. The said chopper was seized under proper seizurelist in presence of witnesses Md. Istaque and Sayed Aktar. The accused md. Shakil Dilsad also put his L. T. I, in the seizure list. The seizure list also contained the signature of P. W. 28 (marked ext. 33) and seized chopper was identified by him and was marked as Material Ext. IV. ( 19 ) MR. Safiullah submits that when an accused makes any confessional disclosure statement to the police during investigation and on the basis of such statement incriminating articles are recovered and seized, such disclosure statement can be said to be true and also worthy of credence. Non-recording of disclosure statement and non-examination of public witness as regards the said recovery, would be of no consequence. In support of his contention, the learned Public Prosecutor relies upon a judgement of the Hon'ble Apex Court reported in 1994 Cr LJ 3271 (S. C. Bahri v. State of Bihar ). In the said case, it was argued on behalf of the appellants that the alleged recovery of articles made by the Investigating Agency at the instance of the appellant Gurbachan, in the absence of any disclosure statement and without any pointing out memo of the place of recovery and without the public witness to the alleged recovery, could not be treated as valid recovery in the eye of law within the meaning of section 27 of the Evidence Act. In the case referred to above, confessional statement of the accused was confirmed by the recovery of incriminating articles and it was held by the Hon'ble Apex Court that there was reason to believe that the disclosure statement was true and evidence led in that behalf was also worthy of credence. ( 20 ) IT is only proper for the prosecution, if it wants to adduce evidence under Section 27 of the Evidence Act, to prove by production of written record only so much of the statement as led to the discovery of the article. But even if such statement of the accused is left out of consideration, there are evidence on the point of recovery of the weapon of assault (chopper ). There are evidence that after his arrest accused Shakil led the police to a particular place and on his showing the chopper was recovered. But even if such statement of the accused is left out of consideration, there are evidence on the point of recovery of the weapon of assault (chopper ). There are evidence that after his arrest accused Shakil led the police to a particular place and on his showing the chopper was recovered. The witnesses on this point are P. W. 28, the investigating officer who gave oral testimony of that event and he has been substantially corroborated by the seizure witnesses, i. e. P. Ws. 12 and 13. The seized chopper was made material exhibit - IV and was identified by P. W. 28. From this evidence, without taking into consideration evidence about any statement made by the accused which could be admissible under Section 27 of the Evidence Act, it is quite safe and reasonable to hold that after the incident of assault, accused Shakil concealed the weapon of assault in a particular place, wherefrom it was recovered by P. W. 28 having been pointed out by accused Shakil after his arrest and when he was in police custody. ( 21 ) IT may also be mentioned here that apart from the evidence relating to the discovery of weapon of assault, there are evidence of the eyewitness to the occurrence, which sufficiently prove the presence of accused Shakil amongst the group of assailants. ( 22 ) MR. BOSE, learned Advocate appearing for the appellant Sk. Rahamat in Cr. Appeal No. 318 of 1998 submits that all the persons who took the injured kallu to the hospital, did not disclose the names of all the assailants before the doctor. Such names of five assailants were mentioned by only P. W. 6 before the doctor, to which the injured Kallu nodded his head. Same point was argued by Mr. Dutt, learned Advocate of the appellants in Criminal Appeal No. 324 of 1998 and we have already dealt with such point. When an injured is brought to hospital by a number of persons, it is not at all necessary that all the accompanying persons should mention the names of all the assailants before the doctor when such names were mentioned by P. W. 6 as well as the injured. himself. ( 23 ) MR. When an injured is brought to hospital by a number of persons, it is not at all necessary that all the accompanying persons should mention the names of all the assailants before the doctor when such names were mentioned by P. W. 6 as well as the injured. himself. ( 23 ) MR. Bose, learned Advocate has given much stress in his argument on individual participation in commission of the offence and submits that the only charge against the appellant, Rahamat was that he threw bombs aiming at police personnel. But the learned Judge after considering the evidence on record acquitted the appellants of the charge under Sections 332/149, I. P. C. and Sections 3 and 5 of Explosive Substances Act. As the appellant did not take any active part in inflicting injuries on the body of the victim, he cannot be convicted under Section 302 with the aid of Section 149, I. P. C. But such argument, in our considered view, is not tenable. As we have discussed earlier, in such a case of murder where a number of persons being members of unlawful assembly proceeds to commit an offence of murder in pursuance of common object of the unlawful assembly, it is not at all necessary to determine as to which of the accused persons inflicted what particular injury in course of the occurrence. Moreover, it is in the evidence of the eyewitness namely P. Ws. 3, 4, 5, 6 and 7 that all the accused appellants, including accused Rahamat, came in a body being armed with sword, chopper etc. and started hitting Kallu and when Kallu tried to escape he was again assaulted by those persons. Appellant Rahamat then hurled bombs and the accused persons fled away. It is very much in the evidence on record that appellant Rahamat was with the group of assailants who committed murder of Md. Kallu. ( 24 ) MR. Biplab Mitra, learned Advocate appears forthe appellant Chhota parvez in Criminal Appeal No. 178 of 1999 and also for the appellant No. 3 bura Parvez in Criminal appeal No. 324 of 1998. Mr Mitra, submits that RW. 3, although he is an eyewitness to the occurrence, did not report the incident to the police or to any other person and he also did not mention the names of the assailants before the doctor. Mr Mitra, submits that RW. 3, although he is an eyewitness to the occurrence, did not report the incident to the police or to any other person and he also did not mention the names of the assailants before the doctor. P. W. 4 who is also an eyewitness, did not inform the police about the incident. According to Mr. Mitra, these are against the normal conduct of a person. It is further argued that so far as Chhota Parvez is concerned, his participation is only in hurling bombs and so he can not be convicted under Section 302 with the aid of Section 149, I. P. C. ( 25 ) SAME argument has been advanced by Mr. Mitra, learned Advocate in Cr. Appeal No. 178 of 1999 as it was done by the learned Advocates of the other appellants. But in our considered view, such arguments are not at all tenable for the reasons which we have already discussed above. ( 26 ) THE argument that definite roles have not been ascribed to the accused persons and therefore, Section 149 is not applicable, is not tenable. It was observed by the Hon'ble Apex Court in the case of Masalti v. State of U. P. , air 1965 SC 202 as follows :"then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members. of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, It would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task, but criminal Courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not. " ( 27 ) SIMILAR observation was made by the Hon'ble Apex Court in the case of Lalji v. State of U. P. , (1989) 1 SCC 437 which is as follows :"common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case" ( 28 ) SO far as medical evidence is concerned, it is found that immediately after incident the victim Md. Kallu was taken to hospital by P. Ws. 3, 5, 6, 7 and 10 and he was attended by two doctors (PW 21 and PW 23 ). In the hospital p. W. 6, Md. Nasir as well as the victim himself disclosed the names of five assailants before P. W. 23. The evidence of the doctor P. W. 23 coupled with the medical report (Ext. 20) indicates that Md. Kallu and P. W. 6 disclosed the names of assailants namely Parvez, Sajid, Rahamat, Chhota Parvez and Md. Yusuf. P. W. 24 who held postmortem over the dead body of Kallu, found as many as 26 injuries on the body of Kallu. He opined that death was due to the effects of injuries which were ante mortem and homicidal in nature. He further opined that chop wounds and incised wounds could have been resulted by striking with heavy sharp-edged weapons. He opined that death was due to the effects of injuries which were ante mortem and homicidal in nature. He further opined that chop wounds and incised wounds could have been resulted by striking with heavy sharp-edged weapons. ( 29 ) FROM the evidence on record including the evidence of eyewitnesses to the occurrence, the disclosure of names of assailants before the doctor prior to his death, which can well be treated as dying declaration, and other facts proved in evidence it can be said that prosecution has bean able to prove beyond reasonable doubt the guilt of all the accused persons in the commission of rioting with deadly weapons in prosecution of the common object of unlawful assembly and ultimate commission of murder of Md. Kallu in prosecution of the common object of the said assembly. ( 30 ) THE learned Trial Judge has meticulously considered the evidence on record and we find no illegality in the Judgement and order of conviction and sentence passed by the learned Trial Judge. ( 31 ) IN our considered view, there is no merit in the aforesaid three appeals and accordingly, the appeals fail. The appeals are hereby dismissed. All the appellants, except Md. Shakil alias Dilsad, are in custody. Accused appellant No. 2. Md. Shakil @ Dilsad in Criminal Appeal No. 324 of 1998, who was granted bail by this Court, is directed to surrender before the Court below immediately for serving out the sentence. His bail bond is hereby cancelled. The Court below is also directed to take all coercive steps in accordance with law for the apprehension of the appellant Md. Shakil @ Dilsad for serving out the sentence.