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2011 DIGILAW 1362 (CAL)

Mansur Ali Mondal v. STATE OF WEST BENGAL

2011-09-28

G.C.GUPTA, RAGHUNATH RAY

body2011
JUDGMENT RAGHUNATH RAY 1. INTRODUCTION: This appeal is directed against the judgment dated 3.12.07 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Berhampore, Murshidabad in Sessions Trial No. 1 of 2005 arising out of Sessions Sl. No. 561 of 2004. By the judgment impugned the afore-named appellants were found guilty of the offences punishable u/s. 120B, 302/34 and 207/34 IPC. All these convicts had been sentenced to undergo R.I. for life with a fine of Rs. 5000/- each for the offence u/s. 302/34 IPC and in default of payment of fine each of them was directed to suffer R.I. for a further period of two years vide order dated 21.12.2007. They were further sentenced to suffer rigorous imprisonment for 10 years each with a fine of Rs. 2000/- each for the offence under Sections 120B IPC and in default whereof each of them shall suffer R.I. for a further period of six months. They were also sentenced to suffer R.I. for 10 years each with a fine of Rs. 2000/- each for the offence u/s. 307/34 IPC and in default whereof each of them was directed to suffer R.I. for further period of six months. All these sentences were, directed to run concurrently. However, the co-accused Bilal Hossain was found not guilty of the charge of the offences punishable under Sections 120B, 302/345 and 307/34 IPC and was accordingly acquitted of the charge in terms of Section 235(1) Cr.P.C. by the learned Trial Court. First Information Report: 2. The case of the prosecution as unfolded in the FIR, in resume, is as follows:- On 19.1.2004 at about 9.00 A.M. while Samsuddin Mondal, the husband of the informants sister, accompanied by Saiful Islam was returning in a motorcycle from a brick field at Katakopaya, the appellants and others intercepted them near B.S.S.M. Madrasah. The appellants came out of the house of the co-appellant Mansur Ali and as ordered by Jamal Molla, Hasan Molla hit Saiful Islam with a lathi causing both Saiful and Samsuddin to fall on the ground from their motorcycle. At that point of time, appellant Dedar Sk. assaulted Samsuddin on his shoulder with a dao. The victim was also assaulted by Kheder Ali with a bhojali. Azhar, however, assaulted the victim with a pasali at random. Sariful Islam and other accused also assaulted Saiful haphazardly with weapons. At that point of time, appellant Dedar Sk. assaulted Samsuddin on his shoulder with a dao. The victim was also assaulted by Kheder Ali with a bhojali. Azhar, however, assaulted the victim with a pasali at random. Sariful Islam and other accused also assaulted Saiful haphazardly with weapons. The informant and Abdul Hamid followed both the victims in another motorcycle. They found Samsuddin and Saiful Islam being assaulted by the appellants. In response to the alarm raised by them the local people rushed to the P.O. but the appellants and their associates managed to escape. The victims were removed to Hospital in a van. However, Samsuddin succumbed to fatal injuries on transit. Saiful was taken to Berhampur hospital in a very precarious condition. Such gruesome murder was committed pursuant to a meeting organized in the house of Bilal Hossain at his Domkol residence. Police Investigation: 3. ON the basis of the said FIR lodged by Hazrat Ali Mondal, PW 1 Domkol P.S. case No. 18/2004 u/s. 147/148/149/326/307/302/120B IPC was registered for investigation against Jamal Molla and nineteen others. The case was endorsed to Amit Kr. Ghosh, S.I. by the then O.C. of Domkol P.S. for investigation. In course of investigation, the I.O. visited the P.O. and recorded the statements of a good number of witnesses including eye-witnesses in terms of Section 161 Cr.P.C. He also seized the blood stained wearing apparels of the victims under a proper seizure list (Ext. 2), and also collected the postmortem report of Samsuddin, since deceased. ON completion of investigation, he submitted chargesheet u/s. 147/148/149/326/302/120B IPC against the aforenamed appellants as also Bilal Hossain since acquitted and the rest four who were shown as absconders. Trial: 4. UPON consideration of ocular evidence of as many as seventeen witnesses examined by the prosecution as also documents relied upon (Ext. 1- series, 2-series, 3-series, 4, 5-series, 6, 7-series, Ext. 11, 12 and 13-series) coupled with evidence of three DWs adduced on behalf of the defence, the learned trial Judge passed an order of conviction against the appellants and also inflicted sentence upon them as indicated earlier. Appeal: Felling aggrieved by the Judgment impugned the present appeal has been preferred by the appellants. 5. IN support of its case, during trial the prosecution examined a good number of witnesses which included six eye-witnesses. Appeal: Felling aggrieved by the Judgment impugned the present appeal has been preferred by the appellants. 5. IN support of its case, during trial the prosecution examined a good number of witnesses which included six eye-witnesses. The case of the defence, as is gathered from the trend of cross-examination, and accused persons examination under Section 313 Cr.P.C. as also examination of DWs is that of innocence, denial and false implication. For a better appreciation of the ocular evidence on record, all the prosecution witnesses can conveniently be categorized under the following broad heads: i) Eye-witnesses - Hazrat, the defacto-complainant examined as PW 1 is an eye-witness. INtaz Ali, PW 6 and Abdul Hamid, PW 7 are also eye-witnesses. PW1 also made a statement under Section 164 Cr.P.C. which was marked as Exhibit.3. Milan, PW 10 and Bablu Rahaman @ Babu, PW 12 and Babar Ali, PW 13 are also eyewitnesses. Their statement was also recorded under Section 164 Cr.P.C. by the learned Magistrate and marked as Exts. 5, 7 and 8 respectively. The surviving victim, Saiful Islam also made statement under Section 164 Cr.P.C. before the learned Magistrate and the said statement was marked as Ext. 9. This injured eyewitness was examined as a court witness and also cross-examined by the defence. ii) Other witnesses Shamim, PW 3 heard that his uncle Samsuddin was murdered by Hasan and associates. Sadek, PW 4 was also not present when the incident took place. He merely signed a piece of paper in the hospital. Hamida Bibi, the sister of the deceased has been examined as PW 5. She is not an eyewitness. She deposed about the place and time of occurrence. iii) Medical evidence Dr. Mondal held the post mortem examination of the victim since deceased. He was examined as PW 9 while Dr. Sunil Basu PW11 examined Saiful, the injured. Dr. Ranjit Saha the then Medical Officer, Rasulpur, BPHC at Taraf, PW 14 examined both Saiful, the surviving victim as also Samsuddin since deceased and prepared injury reports (Exts. 8 and 9). iv) Formal witness Sadiq Ali, PW 4 is a seizure witness. Liakat Ali, PW 8 is a witness to the inquest. v) Police witnesses Sankar Roy Chowdhury the then O.C., Domkol P.S., PW 15 started the relevant P.S. Case on receipt of the FIR. The S.I., Amrita Kumar Ghosh, PW 16 is the I.O. of the case. Eye-witnesses: 6. iv) Formal witness Sadiq Ali, PW 4 is a seizure witness. Liakat Ali, PW 8 is a witness to the inquest. v) Police witnesses Sankar Roy Chowdhury the then O.C., Domkol P.S., PW 15 started the relevant P.S. Case on receipt of the FIR. The S.I., Amrita Kumar Ghosh, PW 16 is the I.O. of the case. Eye-witnesses: 6. ADVERTING to ocular evidence, we find that the defacto - complainant himself as P.W.1 had an occasion to witness the entire incident of assault upon the victims from a very short distance. It is his evidence that while he was returning as a pillion rider in the motorcycle of Abdul Hamid, they found that the motorcycle of Samsuddin which was ahead was slowed down since some pebbles were scattered on the road. They saw appellants namely, Ajmal, Hasan, Deedar, Khedar, Ajhar, Moinuddin, Asraful Islam, Alim, Rabi, Bisu, Mahammed Saidul, Kalu, Billal, Lala, Jasim, Ganiur to come out of the house of Monsur, the co - appellant. He further deposed that as per order of Jamal, Hasan assaulted Saiful with a lathi on his hand. Consequently, Samsuddin and Saiful fell down along with the motorcycle. Deedar armed with a Dao assaulted Samsuddin on his shoulder. Khedar hit him with a vojali on his neck, Azhar also assaulted him with a Pasali, Monsur, Sariful, Alim, Rahidul, Bisu, Mohidul, Saidul, Kalu, Billal, Lalan, Ganiur started to assault both Samsuddin and Saiful at random. At that point of time, the deponent and his companion Hamid, PW 7 raised a hue and cry. In response to such a hue and cry the people started to assemble and at their sight the appellants fled away. His evidence further reveals that both Samsuddin and Saiful were taken to hospital in a van by the persons assembled and Samsuddin succumbed to injuries on transit while Saiful was referred to Behrampur Sadar Hospital from Domkal BPHC for better medical treatment. He has thus corroborated the contents of FIR in minute details. A written complaint (Ext.1) was lodged by him at Domkol P.S. The said FIR was scribed by one Saidul Islam. The wearing apparels of the deceased were seized in his presence and he signed the seizure list (Ext. 2) as one of the seizure witnesses. He also identified the said wearing apparels (Mat. Ext. 1 collectively) produced in the Court. The appellants were also identified on dock by him. The wearing apparels of the deceased were seized in his presence and he signed the seizure list (Ext. 2) as one of the seizure witnesses. He also identified the said wearing apparels (Mat. Ext. 1 collectively) produced in the Court. The appellants were also identified on dock by him. 7. THIS important eye-witness-cum-informant has been subjected to a rigorous cross-examination. It is elicited therefrom that at the relevant point of time, he was proceeding towards Gobindar in a Motorcycle through Goraimari Domkol road at 9 A.M. along with Abdul Hamid. It, further, transpires from his cross-examination that due to bad road condition and pebbles scattered on the road, their motorcycle was slowed down and at that point of time, the miscreants came out of the house of Munsur and stood in front of the Motor Cycle. Samsuddin was assaulted by a lathi. He further asserts during cross-examination that Samsuddin was assaulted by Dao, Vojali and pasali indiscriminately. Saiful was also assaulted in the incident. It has simply been suggested to him that due to political rivalry, the case containing false allegations was filed against the accused persons. 8. SUCH testimony of P.W.1 stands corroborated by other five eyewitnesses namely Intaz Ali, P.W.6, Abdul Hamid, P.W.7, Milan, P.W. 10, Bablu Rahaman @ Babu, P.W. 12 and Babar, P.W.13. P.W.6 had been to the tea stall of Yasin to take tea as usual on 19.1.04 and after taking tea while he was going back to his house, he found Samsuddin in a motorcycle which was being driven by Saiful. He also spotted another motorcycle driven by Hamid. Hazrat was seen as a pillion rider. Saifuls motorcycle was followed by Hamids motorcycle. His further evidence is that while the motorcycle of Samsuddin was just slowed down being dashed against a stack of pebbles. Jamal, one of the appellants signaled Samsuddins arrival and immediately, 15-20 other persons coming out from the backside of the house of Monsur rushed to the spot and Hasan Molla hit blows of lathi on the hand of Saiful. Then Khedar gave a blow of vojali and Deedar also assaulted him with a dao. Ajhar being armed with a pasali came there and inflicted a blow of pasali on Samsuddin, since deceased. He further deposes that, thereafter, Kalu Molla, Abdul Mollah, Mohidul, Ajhar, Bisu, Monsur, Hayat and Jasim assaulted Saiful and Samsuddin indiscriminately. Then Khedar gave a blow of vojali and Deedar also assaulted him with a dao. Ajhar being armed with a pasali came there and inflicted a blow of pasali on Samsuddin, since deceased. He further deposes that, thereafter, Kalu Molla, Abdul Mollah, Mohidul, Ajhar, Bisu, Monsur, Hayat and Jasim assaulted Saiful and Samsuddin indiscriminately. Then a huge public rushed to the spot. Some of them removed the victims to the hospital. Samsuddin, however, succumbed to injuries on transit. Saiful was shifted from Domkal hospital to Behrampur hospital for a better medical treatment. He identified all the accused on dock. The entire incident occurred in front of BSMM High Madrassa. It is elicited from his cross-examination that at the time of incident, he came forward towards Madrasah from the tea stall of Yasin and was standing in front of the house of Sovan Mondal. It is forcefully asserted by him that he saw the entire incident from its beginning to end. When the incident was over, he came back to his house which was to the eastern direction of the Madrasah intervened by other 8/10 houses. However, it reveals from his cross-examination that he was an accused in the case of Asima Bibi at the material point of time. 9. SIMILARLY, Abdul Hamid, PW 7 who was driving the motorcycle taking the defacto complainant on the pillion testifies that when both Samsuddin and Saiful fell down on the road from the motor cycle being intercepted by Hasan with a lathi, Deedar came there and gave dao blows on Samsuddin while Khedar assaulted the victim with a vojali. Ajhar hit him with a pasali. Thereafter, Jasim, Alim, Rahidul, Ganiur and Hayat assaulted Saiful indiscriminately. Billal Molla, Kalu Molla and Saiful Molla encircled Samsuddin and Saiful at the time of incident. Bisu and Mahabul were also present there. When they started to shout on seeing such incident, the local people gathered there. The appellants fled away at their sight. He identified the assailants on dock. The deponent also made statements before the learned Magistrate under Section 164 Cr.P.C. Such statement has been proved and marked as Ext. 3. 10. DURING cross-examination, the exact location of the P.O. has been pinpointed by PW 7 as under:- I know the house of Monsur. House of Monsur is situated to the north of the road and the Madrasah is situated on the south of the road. 3. 10. DURING cross-examination, the exact location of the P.O. has been pinpointed by PW 7 as under:- I know the house of Monsur. House of Monsur is situated to the north of the road and the Madrasah is situated on the south of the road. House of Monsur is situated on the opposite direction of the Madrasha intervened by the road. At the time of the incident the said road was 5'/6'ft wide. Samsuddin was proceeding towards his own house. There is a pathway from the right direction of Moktarpur to go to the house of Samsuddin. The road on which the P.O. is situated runs from east to west. If one goes straight from Moktarpur mour towards Teliapara mour the said person must cross the said Madrasah. There are 15/20 houses in between Moktarpur and the said Madrasah. There are 15/20 other houses situated in between Tetulia mour and the Madrasah. If one goes to Tetulia mour he must go through the said road crossing the said Madrasah. A person can go to the house of Samsuddin through the road which leads from Tetulia mour towards the house of Samsuddin. There is a shortcut road which originates from Moktarpur and another road from Moktarpur towards Tetula to reach the house of Samsuddin. Nothing has been elicited from his cross-examination to show that he has deposed falsely. It is merely suggested to him that due to political rivalry he has deposed falsely being tutored by any person. Suggestion, if plausible, is acceptable but such wild suggestion is not backed by any iota of evidence. He has also set at rest the so called controversy over the exact location of the P.O. by giving a graphic picture of the P.O. in unequivocal language. Such description of the P.O. also stands corroborated from the testimony of the rest of the eyewitnesses. We, therefore, do not find sufficiently strong and cogent ground to reject the corroborative testimony of this eye-witness. 11. MILON Mondal, PW10, another eyewitness testifies that Samsuddin was murdered on 19.1.2004 in the morning at about 9.30 A.M. in front of BSLS High Madrassa near the house of Monsur. We, therefore, do not find sufficiently strong and cogent ground to reject the corroborative testimony of this eye-witness. 11. MILON Mondal, PW10, another eyewitness testifies that Samsuddin was murdered on 19.1.2004 in the morning at about 9.30 A.M. in front of BSLS High Madrassa near the house of Monsur. It reveals from his testimony that at the material point of time, he was coming from a brick field through the pathway near the P.O. His specific evidence is that at that point of time he found Saiful and Samsuddin to cross him on their motorcycle. Since the condition of the road was very bad, the speed of the motorcycle was slowed down. Then Jamal Molla coming out of the house of Monsur rushed to the P.O. and shouted by saying Mar Salader. And then Hasan Mollah hit blows of lathi on the handle of the said motorcycle causing fall of both Saiful and Samsuddin on the road. Immediately, thereafter, Deedar, Kheder, Ajhar, Alim, Rahidul and ors. started to assault Saiful indiscriminately with the help of pasali, vojali etc. His further evidence is that Bisu and Mahidul also assaulted Saiful. He, in fact, gave a detailed account of the part played by each of the appellants in causing assault to both the victims. It is, therefore, available from his testimony that Bisu, Mohibul and Saidul also assaulted Saiful. Ajhar dealt a blow of pasali on Samsuddin. Deedar gave a blow with a dao on Samsuddin and Deedar stabbed Samsuddin with a vojali. Hasan also hit lathi blows on Samsuddin. Due to such assault by lathi and sharp cutting weapons, Samsuddin succumbed to fatal injuries at the spot. His testimony on the point of assault upon the victims with deadly weapons is corroborated by the contens of his statements recorded u/s. 164 Cr.P.C. 12. He had to face a grueling cross examination. It is reiterated therein that he had seen the injuries on the head and back of Samsuddin caused by sharp cutting weapons and lathis indiscriminately and he saw the incident standing about 25/30 ft. away. He also asserts in cross examination that he had seen assault on the head and back of Saiful. He asserts that both the victims were assaulted indiscriminately by the accused when both of them were lying on the road. away. He also asserts in cross examination that he had seen assault on the head and back of Saiful. He asserts that both the victims were assaulted indiscriminately by the accused when both of them were lying on the road. Nothing has been elicited in his cross examination to show that he deposes before the court falsely. It is, however, admitted by him that he is an accused in the attempt to murder case of Jharu and Mannan. It also reveals that Samsuddin since deceased was the husband of his cousin. Bablu Rahaman @ (Babu) PW12 is a distant relative of the deceased. His evidence is that on 19.1.2004 in the morning at about 9 A.M. on his way back from the brick field to his house, he found Saiful and Samsuddin in a motorcycle near the GSMS Madrassa and the motorcycle crossed him. The road condition was very bad there and the speed of the motorcycle was slowed. At that point of time, Hasan Mollah rushed to the motorcycle and hit a blow of lathi on the handle of the said motorcycle and immediately Saiful and Samsuddin fell down from the motorcycle. Deedar assaulted Samsuddin with a dao while Deedar stabbed Samsuddin with a vojali and Ajhar dealt a blow by a pasali on Samsuddin. Others in the mob encircled Samsuddin and Saiful. Alam Maidul, Bishu, Mahabul, Saidul Mollah, Lalon Mollah, Kalu Mollah and Billal Mollah gave blows of vojali, pasali and other sharp cutting weapons on Samsuddin and Saiful indiscriminately. Monsur, Hayat, Jasim and Guniar also assaulted Samsuddin and Saiful with sharp cutting weapons like Heso and Vojali, etc. They raised a hue and cry on seeing such incident. In response to such a hue and cry the people assembled there and the miscreants left the P.O. at their sight after commission of murder of Samsuddin and causing injuries to Saiful. The deponent also gave statement which was recorded under Section 164 Cr.P.C. by the learned Magistrate. His statement was marked as Ext.7. It reveals that the father of the deponent is the step brother of Samsuddin since deceased. It is clarified by him that at the material point of time he was returning from the brick field of Samsuddin by a bicycle. According to this deponent there was no fog at that time. His statement was marked as Ext.7. It reveals that the father of the deponent is the step brother of Samsuddin since deceased. It is clarified by him that at the material point of time he was returning from the brick field of Samsuddin by a bicycle. According to this deponent there was no fog at that time. It transpires from cross examination that earth of the P.O was stained with huge quantity of blood. He identified to the police officer the place where he was standing and wherefrom the said mob rushed to the P.O and the place where Samsuddin and Saiful were assaulted. There is a grocery shop to the south of the P.O and to the west of the said Madrassa. He has also denied the defence suggestion that he himself did not witness the incident of assault on Saiful and Samsuddin or that he deposes falsely in this regard. His testimony, however, remains unshaken during cross examination. He corroborates PW1 by deposing that both Hajrat, PW 5 and Hamid, PW 7 also shouted from the P.O like them. He has denied the defence suggestion that since Samsuddin was his uncle he was deposing falsely. 13. BABAR Ali also witnessed the incident of assault upon the victims. As PW13 he deposes that on 19.1.2004 Monday in the morning at about 9 A.M. while he was coming back from private tuition towards his house he found Saiful to drive a motorcycle taking Samsuddin as a pillion rider near the BSMM Madrassa and the house of Monsur. Since the condition of the road was very bad at their place Saiful slowed down the movement of the motorcycle and immediately a group of mob came out of the Monsurs house and uttered MAR SALAKE and after such utterance there was a blow on the hand of Saiful and also the handle of the said motorcycle. As a result, Saiful and Samsuddin fell down on the ground from the motorcycle. Thereafter Dedar hit a blow of dao on the back of Samsuddin and Deedar stabbed on the back of Samsuddin. Ajhar hit blows of pasali on different parts of the back of Samsuddin. Then Rabiul and other miscreants came there and started to assault both Samsuddin and Saiful indiscriminately. Rahidul, Alim, Kalu, Mahidul, Guniar, lalon Mollah, Billal and Saidul Mollah from the mob also assaulted Saiful and Samsuddin indiscriminately. Ajhar hit blows of pasali on different parts of the back of Samsuddin. Then Rabiul and other miscreants came there and started to assault both Samsuddin and Saiful indiscriminately. Rahidul, Alim, Kalu, Mahidul, Guniar, lalon Mollah, Billal and Saidul Mollah from the mob also assaulted Saiful and Samsuddin indiscriminately. He also made statement before the learned Magistrate under Section 164 Cr.P.C. and such statement was marked as Ext.8. He identified the assailants of the victims. It transpires from his cross- examination that at the relevant point of time he was a student of class ix in BSMS High Madrassa and on that date he had been to Afzal Master for his private tuition. He has also indicated the exact location of Mansurs house wherefrom the assailants rushed to the P.O. to target the victims in the manner as indicated below:- The house of Monsur is situated opposite to Madrassa intervened by the said road in 50 cubits away from the madrassa slightly south from the said madrassa. His statement was also recorded by the learned Magistrate in terms of 164 Cr.P.C.. 14. The corroborative testimony of all these eye-witnesses analysed above gives a clear idea about the modus operandi of the assailants in causing death of Samsuddin and inflicting fatal injuries on the person of Saiful. It is highly significant to note that even the surviving victim, namely, Saiful Islam, who also made a statement under Section 164 Cr.P.C. (Ext. 9) before the learned Judicial Magistrate did not wholeheartedly support the case of the prosecution. Apprehending such a situation, the prosecution did not produce him as its witness. He was, however, examined as a court witness. During his examination as a court witness, he gave evasive reply to most of the questions put to him by the learned trial court. Even when he was confronted with the statement made by him before the learned Magistrate recorded under Section 164 Cr.P.C., he replied that he could not recollect whether he made any such statement before the learned Magistrate or not. Even he could not recollect what actually happened on the date of incident when he was assaulted by the appellants with a lathi and other sharp cutting weapons. He had, however, admitted that he was in the hospital as an indoor patient for 32 days and it took two months for his complete recovery. Even he could not recollect what actually happened on the date of incident when he was assaulted by the appellants with a lathi and other sharp cutting weapons. He had, however, admitted that he was in the hospital as an indoor patient for 32 days and it took two months for his complete recovery. During his cross-examination on behalf of the defence, he has, however, denied the defence suggestion that he himself and Samsuddin were not assaulted in the morning at about 8 AM on the relevant day. There is no doubt that this surviving victim was gained over by the defence but the fact remains that he too has not specifically denied the happening of the incident on the fateful day when one of his companions, namely, Samsuddin was murdered in his presence and he himself was also assaulted by the miscreants with sharp cutting weapons. In such view of the matter even though the surviving victim has not supported the case of the prosecution in a straight forward manner, the genuineness of the prosecution story cannot, in any event, be doubted. More so, whenever there are ample materials and circumstances on record including the corroborative testimony of as many as five eye-witnesses to establish the prosecution case of murderous assault upon Samsuddin since deceased as also Saiful, the surviving victim. Defence case: 15. COMING to the case of defence, it appears that Majibur Rahaman, Saidul Sk. and Abdul Kasem Sk. have been examined as DWs 1, 2 and 3 respectively to substantiate the defence plea of alibi. DW 1 states that he alongwith Sariful was present in the Gadighar of the godown owned by the appellant, Sariful. According to him, he alongwith Sariful stayed there till 9 A.M. Similarly, PW 2, a hawker by profession deposes that the accused Deedar Sk. had been to Elambazar cattle market on the date of incident alongwith him, Khedar and Mofizul for purchasing cattle but they could not purchase cattle from the said market. Abul Kasem Sk., a Gram Panchayat Pradhan deposes that accused Sariful had a trade licence for maintaining his godown. The testimony of these DWs suffers from serious infirmities and it cannot be said on the basis of such feeble evidence that Sariful, Kheder and Mofizul were not present at the P.O. at the material point of time. Abul Kasem Sk., a Gram Panchayat Pradhan deposes that accused Sariful had a trade licence for maintaining his godown. The testimony of these DWs suffers from serious infirmities and it cannot be said on the basis of such feeble evidence that Sariful, Kheder and Mofizul were not present at the P.O. at the material point of time. The grant of trade licence to Sariful to run a godown is not sufficient to substantiate the witnesses claim that Sariful was in his godown on the fateful day at the relevant point of time. More so, whenever none of the accused persons has claimed during their examination under Section 313 Cr.P.C. that accused Kheder, Mofizul and Sariful were away from the place of incident at the material point of time on the fateful day. In their examination under Section 313 Cr.P.C. all the accused have merely reiterated that the case of prosecution is false. 16. The evidence of eye-witnesses as already discussed earlier is fully corroborated by their respective statements recorded under Section 164 Cr.P.C. During cross-examination the eye-witnesses remained firm and the alibi sought to be put in respect of three of the accused persons through DWs 1, 2 and 3 do not appear to be credible. Although, the surviving victim Saiful was gained over, he has not denied the factum of assault which resulted in his hospitalization for more than a month. He has, however, sought to prevaricate all the pertinent questions put to him during his examination as a court witness on the plea of feeble memory. It strains our reason to believe that the surviving victim made statement before the learned Magistrate on the basis of what was told by the Police. Discrepancies: A close look to the oral evidence adduced by eye-witnesses as elaborated in preceding paragraphs reveals that there are some minor discrepancies and variance in their evidence. But the same do not appear to be fatal and as such it does not make the prosecution case doubtful. In fact, in almost every criminal trial whenever oral evidence is adduced, discrepancies are bound to surface therein. There is also a constant endeavour from the side of the defence to blow those discrepancies out of proportion to demolish the case of the prosecution. In fact, in almost every criminal trial whenever oral evidence is adduced, discrepancies are bound to surface therein. There is also a constant endeavour from the side of the defence to blow those discrepancies out of proportion to demolish the case of the prosecution. It is, however, settled law that some improvement and exaggerations here and there or some minor discrepancies in the evidence do not hit the prosecution case. In the present case, it is quite evident that the eyewitnesses have given a consistent account of the dreadful occurrence which stands corroborated by the contents of the promptly lodged FIR. In such circumstances, importance need not be attached to such minor discrepancies in the statement of witnesses. More so, whenever the testimony of the eye-witnesses gets corroborated from medical evidence and other evidence on record. 17. IN fact, the testimony of the eye-witnesses cannot be jettisoned merely because there are some discrepancies/contradictions in their depositions. IN our considered view, whenever the learned trial court has not doubted the reliability of the evidence of the eye-witnesses, this appellate court should not disturb such findings on the ground of alleged discrepancies especially when such discrepancies are not material or serious. Minor discrepancies in the statement of eye-witnesses not touching the core of the prosecution case should, therefore, be ignored. It is also to be borne in mind that one cannot have exact mathematical accuracy in the evidence of different eye-witnesses who have had occasion to witness such an indiscriminate assault upon the victim with deadly weapons from different places and different angles. IN our considered view, all the eye-witnesses have given a comprehensive account of the gruesome incident which took away one precious life of Samsuddin and also caused fatal injuries on the person of a surviving victim on that fateful day. IN such a situation, insignificant variations and minor discrepancies in the testimony of eyewitnesses have no significant effect (vide 2000 CriLJ 44 (SC) [State of Himachal Pradesh vs. Lekh Raj]; 1998 CriLJ 2537 [Md. Iqbal M. Shaikh vs. State of Maharashtra] and 1983 CriLJ 1096 [Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat]). Medical evidence: 18. AGAINST the backdrop of corroborative ocular testimony of as many as five witnesses already dissected herein before we are now to advert to the medical evidence of Dr. Iqbal M. Shaikh vs. State of Maharashtra] and 1983 CriLJ 1096 [Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat]). Medical evidence: 18. AGAINST the backdrop of corroborative ocular testimony of as many as five witnesses already dissected herein before we are now to advert to the medical evidence of Dr. Basu, the then medical Officer attached to N.R.S medical college, PW 11 as also the evidence of Dr. Mondal PW 9 who conducted the postmortem examination of Samsuddin since deceased in order to find out as to whether the ocular testimony of eye witnesses is in conformity with the medical evidence. On examination of Saiful Islam, the victim, Dr. Bose found multiple cut injuries on the scalp and forehead-four in number varying from one inch to two inches in length. He further found that the wounds were old and already stitched- one cut wound on the dorsum of right hand about one and half inches in length, two other cut injuries over the right side of the abdomen and left hand. The wounds were dressed at Behrampur hospital and he did not find any active bleeding from the said wounds of the patient. C.T. scan report of the patient indicates that there was non displaced linear fracture over the left parietal bone with underlying acute extra dural haematoma with internal bone chips. 19. IT is further opined by him that the injuries found by him were old, grievous in nature and may be caused by sharp cutting instrument, he has also proved the injury report (Ext. 5). Dr. Bose also stated specifically that the injuries which he found on the body of the victim might have been caused by dao, vojali, and pasli like sharp-cutting weapons. He, thereafter, opined that due to such injury the patient might have died. He is of opinion that the bone fracture found on the body of the said patient might have been caused by a lathi. 20. DR. Aftabuddin Mondal PW9 deposes that on 19-1-04 he was posted in Behrampur Sadar hospital as Medial officer. On examination of the deadbody of one Samsuddin Mondal since deceased he found as under:- 1. One 4x3x2 deep incised wound below the posterior right ear extending up to and adjacent to kneck, skin retracted and blood stains were found scattered, blood stains could not be removed on washing. 2. On examination of the deadbody of one Samsuddin Mondal since deceased he found as under:- 1. One 4x3x2 deep incised wound below the posterior right ear extending up to and adjacent to kneck, skin retracted and blood stains were found scattered, blood stains could not be removed on washing. 2. Fracture of left parital bone, 3 in length with overlying scalp haematoma. 3. Three stab injuries on the back on the chest wall on the right side below the ankle of scapula each perforation 2x1 in diameter deep up to chest cavity. The doctor has, therefore, opined that the cause of death was haematomic shock due to multiple extensive injuries, as stated above, and they were antemortem and homicidal in nature. He had proved the post mortem examination report which has been marked as Ext.4. He was of further opinion that the injuries which were found on the body of the deceased have been caused by vojali, pasali, and dao etc. It is elicited in his cross-examination that there is sharp edge on one side in case of a knife. In case of vojali there is sharpness on both sides and there will be tip. He further opines that if vojali is used to cause injury there must be penetrating wounds and both sides of the injury will be parallel. It is also clarified by him that if any sharp cutting weapon is used to cause injury there should not be laceration. He did not find any sharp with blunt injury on the body of the deceased. According to him, Lathi always causes laceration, abrasion or haematoma. 21. IT is well settled that in a criminal trial the medical evidence adduced by the prosecution has to create corroborative value. Keeping that aspect of the matter in view, both the ocular testimony of the eye-witnesses and the medical evidence have been placed in juxtaposition. IT appears therefrom that the nature of injuries proved by medical evidence does fit in with the prosecution version. The evidence of eye-witnesses is consistent with the medical opinion. IT proves that the injuries have been caused in the manner as stated by at least five eye-witnesses and death of the victim has been caused by the weapons like vojali, pasali and dao used by assailants. The evidence of eye-witnesses is consistent with the medical opinion. IT proves that the injuries have been caused in the manner as stated by at least five eye-witnesses and death of the victim has been caused by the weapons like vojali, pasali and dao used by assailants. The medical opinion thus confirms use of such sharp-cutting weapons to cause injuries on the person of the deceased as also the surviving victim. Whenever testimony of the eyewitnesses finds corroboration from medical evidence, there is no scope to disbelieve the prosecution case. 22. IT is, however, argued by Mr. Mookherjee, learned counsel for the appellant that the charge under Section 149 IPC framed earlier against the appellants along with other Sections of IPC has subsequently been recast under Sections 120B/302/34/307/34 IPC by the learned trial court vide order No. 27 dated 15.7.2006 and alteration of charge in such a fashion has weakened the prosecution case considerably. In fact, no overt acts have been alleged against some of the appellants. IT is, further, argued by him that the prosecution is to prove the participatory role of all the accused and on its failure to do so, some of the appellants against whom no overt acts have been alleged are entitled to acquittal. On examination of Saiful Islam, the victim, Dr. Bose found multiple cut injuries on the scalp and forehead-four in number varying from one inch to two inches in length. He further found that the wounds were old and already stitched- one cut wound on the dorsum of right hand about one and half inches in length, two other cut injuries over the right side of the abdomen and left hand. The wounds were dressed at Behrampur hospital and he did not find any active bleeding from the said wounds of the patient. C.T. scan report of the patient indicates that there was non displaced linear fracture over the left parietal bone with underlying acute extra dural haematoma with internal bone chips. 19. IT is further opined by him that the injuries found by him were old, grievous in nature and may be caused by sharp cutting instrument, he has also proved the injury report (Ext. 5). Dr. Bose also stated specifically that the injuries which he found on the body of the victim might have been caused by dao, vojali, and pasli like sharp-cutting weapons. 5). Dr. Bose also stated specifically that the injuries which he found on the body of the victim might have been caused by dao, vojali, and pasli like sharp-cutting weapons. He, thereafter, opined that due to such injury the patient might have died. He is of opinion that the bone fracture found on the body of the said patient might have been caused by a lathi. 20. DR. Aftabuddin Mondal PW9 deposes that on 19-1-04 he was posted in Behrampur Sadar hospital as Medial officer. On examination of the deadbody of one Samsuddin Mondal since deceased he found as under:- 1. One 4x3x2 deep incised wound below the posterior right ear extending up to and adjacent to kneck, skin retracted and blood stains were found scattered, blood stains could not be removed on washing. 2. Fracture of left parital bone, 3 in length with overlying scalp haematoma. 3. Three stab injuries on the back on the chest wall on the right side below the ankle of scapula each perforation 2x1 in diameter deep up to chest cavity. The doctor has, therefore, opined that the cause of death was haematomic shock due to multiple extensive injuries, as stated above, and they were antemortem and homicidal in nature. He had proved the post mortem examination report which has been marked as Ext.4. He was of further opinion that the injuries which were found on the body of the deceased have been caused by vojali, pasali, and dao etc. It is elicited in his cross-examination that there is sharp edge on one side in case of a knife. In case of vojali there is sharpness on both sides and there will be tip. He further opines that if vojali is used to cause injury there must be penetrating wounds and both sides of the injury will be parallel. It is also clarified by him that if any sharp cutting weapon is used to cause injury there should not be laceration. He did not find any sharp with blunt injury on the body of the deceased. According to him, Lathi always causes laceration, abrasion or haematoma. 21. IT is well settled that in a criminal trial the medical evidence adduced by the prosecution has to create corroborative value. Keeping that aspect of the matter in view, both the ocular testimony of the eye-witnesses and the medical evidence have been placed in juxtaposition. According to him, Lathi always causes laceration, abrasion or haematoma. 21. IT is well settled that in a criminal trial the medical evidence adduced by the prosecution has to create corroborative value. Keeping that aspect of the matter in view, both the ocular testimony of the eye-witnesses and the medical evidence have been placed in juxtaposition. IT appears therefrom that the nature of injuries proved by medical evidence does fit in with the prosecution version. The evidence of eye-witnesses is consistent with the medical opinion. IT proves that the injuries have been caused in the manner as stated by at least five eye-witnesses and death of the victim has been caused by the weapons like vojali, pasali and dao used by assailants. The medical opinion thus confirms use of such sharp-cutting weapons to cause injuries on the person of the deceased as also the surviving victim. Whenever testimony of the eyewitnesses finds corroboration from medical evidence, there is no scope to disbelieve the prosecution case. 22. IT is, however, argued by Mr. Mookherjee, learned counsel for the appellant that the charge under Section 149 IPC framed earlier against the appellants along with other Sections of IPC has subsequently been recast under Sections 120B/302/34/307/34 IPC by the learned trial court vide order No. 27 dated 15.7.2006 and alteration of charge in such a fashion has weakened the prosecution case considerably. In fact, no overt acts have been alleged against some of the appellants. IT is, further, argued by him that the prosecution is to prove the participatory role of all the accused and on its failure to do so, some of the appellants against whom no overt acts have been alleged are entitled to acquittal. Such submission is, however, disputed by Mr. Siladitya Sanyal, learned Additional Public Prosecutor. It is submitted on behalf of the State that the prosecution had fairly succeeded in establishing the charge under Section 302/34 IPC as also 307/34 IPC by adducing cogent, consistent and corroborative evidence through as many as seventeen witnesses including the informant and four other eye-witnesses. It is argued by him that there is no legal impediment in substitution of Section 34 IPC for Section 149 IPC in appropriate cases and conviction can be secured by applying 34 IPC if the evidence discloses the commission of the offence in furtherance of common intention. It is argued by him that there is no legal impediment in substitution of Section 34 IPC for Section 149 IPC in appropriate cases and conviction can be secured by applying 34 IPC if the evidence discloses the commission of the offence in furtherance of common intention. According to him, although there is substantial difference between Sections 34 and 149 IPC, they also to some extent overlap and if the common object which is the subject matter of the charge under Section 149 IPC involves a common intention, the substitution of Section 34 for Section 149 IPC would not cause any prejudice and alteration of charge is permitted. The impugned order of conviction and sentence is, therefore, sustainable on the basis of clinching evidence and circumstances on record. Applicability of Section 34 IPC: 23. WE have paid anxious consideration to submission advanced by Mr. Mukherjee. There is no doubt that charge under Section 149 IPC against the appellants has been dropped by the learned Trial Court at the instance of the prosecution after affording opportunity of hearing to the defence and on consideration of relevant police papers and other connected materials on record. The prosecution has led evidence to prove the charge under Section 302/34/307/34 IPC accordingly. Before delving deep into the evidence and circumstances on record, it would be convenient to bring out the distinction in respect of ingredients of Section 149 IPC and 34 IPC. In order to establish the charge under Section 149 IPC, it is to be proved that the offenders have constituted an unlawful assembly within the meaning of Section 141 IPC at the point of time when they came out of their hide out to attack the victims with deadly weapons like lathi, vojali, and pasali etc. It is also to be established by the prosecution that they attacked being actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141 IPC. Such being the requirement of law in proving the charge under Section 149 IPC, the learned Trial Court is absolutely justified in dropping the charge under Section 149 IPC against the appellants on proper consideration of relevant materials as were made available to him at that point of time. Such being the requirement of law in proving the charge under Section 149 IPC, the learned Trial Court is absolutely justified in dropping the charge under Section 149 IPC against the appellants on proper consideration of relevant materials as were made available to him at that point of time. However, turning to the essential ingredients of Section 34 IPC vis-vis-evidence on record, we find that the application of Section 34 IPC is apt and rational. 24. IN order to justify such finding, we would now proceed to examine the requirements of Section 34 IPC in the backdrop of materials on record in the present case. One of the requisites is to establish common intention of the offenders to commit an offence. Another requisite is prearranged plan and this presupposes prior concert. Therefore, the common intention implies acting in concert, instances of a prearranged plan which is to be proved either from the conduct or from the circumstances or from any incriminating act. Such being the position of law, it can safely be concluded that there must be a prior meeting of minds which may be determined from the conduct of the offenders unfolding itself during the course of action and declaration made by them just before mounting an attack. There is no doubt that it can also be developed at the spot but there must be prearrangement or pre meditated concert. It is well settled that the common intention is to be inferred from the surrounding circumstances and the conduct of the parties. In this context reliance can be placed upon a ruling of the Apex Court reported in AIR 1972 SC 254 (Ram Tahal and Ors., appellant vs. The State of U.P., respondent):CrLJ 1972 SC 227. In paragraph 6 of the said judgment it is observed as follows: 6. There is no doubt that a common intention should be anterior in time to the commission of the crime showing a pre-arranged plan and prior concert, and though, it is difficult in most cases to prove the intention of an individual, it has to be inferred from the act or conduct or other relevant circumstances of the case. There is no doubt that a common intention should be anterior in time to the commission of the crime showing a pre-arranged plan and prior concert, and though, it is difficult in most cases to prove the intention of an individual, it has to be inferred from the act or conduct or other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries the concerted conduct subsequent to the commission of the offence for instance that all of them had left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention. In other words, 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. This Court had in Krishna Govind Patils case, (1964) 1 SCR 678 = ( AIR 1963 SC 1413 ) already referred to earlier, held that the prearranged plan may develop on the spot during the course of the commission of the offence but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so before a Court can convict a person under Section 302 or S. 304 read with S. 34 of the IPC it should come to a definite conclusion that the said person had a prior concert with one or more persons named or unnamed for committing the offence. 25. IT is also to be borne in mind that in order to convict a person for an offence with the aid and provision of the Section 34, it is not necessary that a person should actually with his own hand commit the criminal act. Rather, it is to be established that in furtherance of common intention all of them join together and aid or abet each other in the commission of the act. Rather, it is to be established that in furtherance of common intention all of them join together and aid or abet each other in the commission of the act. In such a situation, one of these persons may not actually with his own hand do the act, but if he helps by his presence or by other acts in the commission of the act, he would be held to have done that act within the meaning of Section 34. IT means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it intentionally. IT is immaterial by which hand the eventual blow was dealt. IT is essentially the rule of vicarious liability which Section 34 IPC propounds. An accused sharing the common intention is as much guilty as the accused who inflicts the blow or actually participates in the crime. In this connection, we would like to refer to paragraph 12 of the ruling of the Apex Court reported in AIR 1976 SC 2027 [Ramaswamy Ayyangar and Ors., appellants vs. State of Tamil Nadu, respondent] wherein it is observed as under: 12. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design. Such a person also commits an act as much as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. Findings: 26. The requirement of law as discussed hereinabove for invoking Section 34 IPC is now to be considered in the light of evidence and circumstances on record. It is well-settled position of law that common intention contemplated in Section 34 IPC requires prior meeting of mind before the attack. Generally, no direct evidence is available regarding the existence of common intention. It has to be ascertained from the attending facts and circumstances of a case. When the concerted attack is made on the victims by a large number of persons it is often difficult to determine the actual part played by each offender. But there must be clear evidence of some action or conduct on his part to show that he shared the common intention of committing a criminal act, even though it is not necessary to find that the co-accused actually struck the fatal blow in case of murder. In the present case, it is proved that the appellants were on inimical terms with the informant party. It can, therefore, be safely concluded that on the basis of the facts and circumstances unfolded during trial that there was the existence of common intention of the appellants to assault the victims and accordingly they came to the site after necessary pre-meditation and deliberation among themselves in the house of Monsur and attacked the informant and his companion. Consequently, one precious life was lost and another victim ultimately survived after a long battle of 32days in the hospital. We have, therefore, no hesitation in holding that the appellants involved in the occurrence had shared the common intention. 27. AS already elaborated in the preceding paragraphs, the appellants came out of the house of Monsur as soon as both the victims reached in front of the Madrassas. Appellant Jamal signalled the arrival of victims alerting coappellants. In response to such signal they came out of the house of Monsur as per their prearranged plan. One of the appellants namely, Jamal uttered provocative words like Shalara ASche and Mar Shalake. Appellant Jamal signalled the arrival of victims alerting coappellants. In response to such signal they came out of the house of Monsur as per their prearranged plan. One of the appellants namely, Jamal uttered provocative words like Shalara ASche and Mar Shalake. There was, undoubtedly, a meeting of mind amongst these appellants who hatched a conspiracy to eliminate both Samsuddin and Saiful in the house of the co-appellant Mansur. There are overwhelmingly strong materials and circumstances on record to establish and firmly establish the factum of assault upon both the victims with deadly weapons like lathi, vojali, and pasali etc. Inference of common intention can also be drawn from the telling circumstances that (i) as soon as the motorcycle reached the place of occurrence where some pebbles were scattered causing some sort of obstructions to the motorcycle riders and (ii) necessitating slowing down of the speed and (iii) when one of the assailants assaulted Samsuddin on his hand causing fall down from the motorcycle. Such fall paved the way to launch a deadly attack upon the targets by the assailants in execution of their prearranged plan of annihilating both the victims. Even though, Saiful survived such violent assault he had to undergo medical treatment as an indoor patient for 32days in the hospital. 28. ON a close analysis of the afore-enumerated circumstances, it is crystal clear that appellants shared common intention as is evident from their conduct as also from some of the incriminating circumstances emerging from their concerted efforts to kill the victims by assaulting them at random with deadly weapons. We, therefore, do not find much substance in Mr. Mukherjees argument that by dropping the charge under Section 149 IPC the prosecution has paved the way for acquittal of the most of the offenders against whom the prosecution has failed to prove their participatory role. It, however, appears from the materials on record that even though the names of 20 persons along with unknown others figure in the FIR, sixteen accused have been charged with offences under Section 120B, 302/34 and 307/34 IPC. After a full fledged trial, the learned trial Judge, however, found accused Billal Hossain not guilty of offences punishable under Sections 120B, 302/34 and 307/34 IPC and he was accordingly acquitted of the said charges. After a full fledged trial, the learned trial Judge, however, found accused Billal Hossain not guilty of offences punishable under Sections 120B, 302/34 and 307/34 IPC and he was accordingly acquitted of the said charges. In the ultimate analysis of the testimony of five eye-witnesses, we find that there is corroboration in their evidence in respect of 11 appellants presence and participation at the P.O. But their evidence is not cogent, consistent and corroborative to confirm the presence of the rest four appellants at the P.O. or thier participation in the ghastly incident of murder or causing fatal injuries on the person of the surviving victim beyond any shadow of doubt. In such trajectory, we are to opine that the prosecution has failed to bring home the charges against the four appellants namely, i) Lalan Mulla, ii) Hayat Ali Mondal, iii) Guniur Rahaman and iv) Billal Molla and as such we are unable to uphold their conviction. In such view of the matter, we feel inclined to hold that all the four appellants should be acquitted of the charges so framed against them on the benefit of doubt for lack of corroborative evidence. 29. HOWEVER, on a wholesome appreciation of the entire evidence and circumstances on record, we are of the considered view that the learned trial court is absolutely justified in convicting the rest 11 appellants for offences punishable under Section 120B IPC, 302/34 IPC and 307/34 IPC. We, therefore, do not find any cogent and convincing ground to interfere with the order of conviction as also sentence inflicted upon them. Decision: 30. IN the result, the order of conviction against the 11 appellants namely, i) Mansur Ali Mondal, ii) Deedar Mia, iii) Kalu Molla, iv) Jasimuddin Mondal, v) Mohabul Sk., vi) Alim Sk., vii) Saidul Molla, viii) Kheder Mia, ix) Jamal, x) Sariful Islam and xi) Mir Mainuddin Mia is upheld and the sentence imposed upon them stands affirmed. However, the order of conviction under Sections 120B/302/34 and 307/34 IPC as also the sentence passed thereunder against the aforenamed four appellants are set aside. Those four appellants viz. i) Lalan Mulla, ii) Hayat Ali Mondal, iii) Guniur Rahaman and iv) Billal Molla be acquitted of the abovementioned charges accordingly. All of them also be discharged from their respective bail bonds. The appeal thus succeeds in part. Those four appellants viz. i) Lalan Mulla, ii) Hayat Ali Mondal, iii) Guniur Rahaman and iv) Billal Molla be acquitted of the abovementioned charges accordingly. All of them also be discharged from their respective bail bonds. The appeal thus succeeds in part. Direction: All the above-named eleven appellants are directed to surrender before the learned trial court to serve out their respective sentence within a fortnight in default whereof the learned trial court shall be at liberty to take coercive steps against such defaulting convicts. The learned trial court is also directed to issue a revised jail warrant accordingly. 31. LET a copy of this judgment and order together with LCR be sent down forthwith for necessary compliance by the learned trial court. 32. LET a Xerox copy of this judgment, if applied for, be supplied to the parties on priority basis, on compliance of usual formalities.