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2014 DIGILAW 943 (CAL)

Nuru Sk. alias Nurul Sk. v. State of West Bengal

2014-09-26

NISHITA MHATRE, TAPASH MOOKHERJEE

body2014
Judgment Tapash Mookherjee, J. 1. The judgment and order dated 28.10.2009 and 30.10.2009 passed by the learned Additional Sessions Judge, 1st Fast Track Court, Lalbagh at Murshidabad in Sessions Case No. 18/2003 (Sessions Trial No. 1/August/2003) are under challenged in the present appeal. By the aforesaid judgment and order learned Trial Court convicted all the Appellants of the offence punishable under Section 302/34 I.P.C. and sentenced the Appellants to suffer Rigorous Imprisonment for life each and to pay fine of Rs. 2,000.00 (Rupees two thousand only) each I.D. to suffer R.I. for one month more. 2. The facts leading to the Appeal, briefly stated, are as follows:- 3. One Jalaluddin Sk. used to run a Video Hall in his house along with his two partners namely, Sadagar Sk and Alauddin Sk. who are two of the Appellants in the case. In the night of 24.05.1996 the said Jalaluddin Sk. along with his partners named above went to attend an invitation of Anarul Sk. who was also an owner of a Video Hall. Thereafter while the said Jalaluddin had been returning to his village in the mid-night he was attacked by the Appellants on the way near to the Ferry Ghat of the river Bhairab. During such attack the Appellants assaulted Jalaluddin by sharp weapons and thus caused severe injuries and Jalaluddin succumbed to his injuries on the spot. Now, Miran Sk. a brother of the victim Jalaluddin with some of his co-villagers had been gossiping together near to the place of occurrence and hearing hue and cries they rushed to the spot and witnessed the incidents of assaults and they could manage to apprehend the Appellants Sadagar Sk. and Bablu Sk. but ultimately those Appellants managed to escape. A year before the incident another brother of the deceased Jalaluddin was murdered by some of the the Appellants and Jalaluddin tried to get those Appellants arrested by the police in connection with that murder case and such acts against the Appellants was the cause of the murder of Jalaluddin. Within a short period after the incident of murder the deceased’s brother Miran Sk. Within a short period after the incident of murder the deceased’s brother Miran Sk. submitted a written complaint on the spot to the Officer-in-Charge of Murshidabad P.S. and alleged therein all the aforesaid incidents and on the basis of such complaint Murshidabad P.S. Case No. 53/1996 dated 25.05.1996 under Section 302/34 I.P.C. had been started against sixteen accused persons including the present Appellants. 4. After completion of investigation charge sheet under Section 302/34 I.P.C. had been submitted against seventeen accused persons including the Appellants. 5. After commitment, the case had been transferred to the Court of Additional Sessions Judge, 1st Fast Track Court, Lalbug at Murshidabad, for trial. Considering the evidence collected during the investigation charge under Section 302/34 I.P.C. had been framed against seventeen accused persons including the Appellants. The Appellants denied the charge, pleaded their innocence and claimed trial. During trial one of the accused persons namely, Kuddus Kha died and another accused namely, Hafijus Kha absconded. Three accused persons namely, Nirmal Mondal, Nathuram Mondal and Anarul Mondal had been acquitted. So, twelve convicted persons filed this appeal and during the pendency of the appeal the Appellant Latif Kha died. 6. To prove their case, prosecution examined as many as fourteen witnesses and proved some documents as well. Defence tendered no evidence whatsoever. 7. Having considered the evidence produced by the prosecution, learned Trial Court found all the Appellants guilty of the charge under Section 302/34 I.P.C. and sentenced the Appellants to suffer Rigorous Imprisonment for life each and to pay fine of Rs. 2,000.00 (Rupees two thousand only) each I.D. to suffer S.I. for one month more. Being aggrieved by and dissatisfied with such judgment and order of sentence the convicts filed the present appeal. 8. Learned Senior Counsel, Mr. Basu appearing for the Appellants submitted that the names of the assailants have not been mentioned in the Inquest Report, although names of the assailants were known to some of the witnesses to the Inquest Report as stated in the F.I.R. and the delay in transmission of the F.I.R. to the local Magistrate was not explained and the dead body on which Post Mortem Examination had been done in the case had not been properly identified, the bloodstained earth allegedly collected from the P.O. had not been examined by F.S.L. and as such place of occurrence had not been firmly proved. The witnesses claiming to be the eye-witnesses have not been proved to be the real eye-witness and there are serious contradictions in their statements, the charge has not been properly framed and the examinations of the Appellants under Section 313 Cr.P.C. is not also in accordance with the law and for such reasons in particular, as well as, for some other reasons as well, the prosecution case has not been proved beyond all reasonable doubts. 9. On the other hand, learned Counsel Mr. Bapuli appearing for the State/Respondent has argued that mentioning the names of the offenders in the Inquest Report is not mandatory and there is no inordinate delay either behind the submission of the F.I.R. or behind the transmission of the F.I.R. to the nearest Magistrates. He has further submitted that P.W.-1, P.W.-2, P.W.-4, P.W.-6 and P.W.-9 are all the eye-witnesses having seen the incidents of assaults and the discrepancy and contradictions in their statements pointed out by Mr. Basu are on minor points which are very natural in any case and the evidence produced by the prosecution considered together, does lend strong support to the prosecution case and hence learned Trial Court has rightly found the Appellants guilty of the offence of murder. 10. One Miran Sk. (P.W.-1) is the defacto complainant in the case. He happens to be the brother of Jalaluddin Sk. Alias Panchu Sk. who is the victim of murder in the case. Miran Sk. in his evidence stated that on the night of the occurrence his brother Jalaluddin along with Jalaluddin’s two partners of the Video Hall business namely, Sadagar Sk. and Alauddin Sk. alias Bablu Sk. went to attend an invitation by one Anarul who was also in the business of Video Hall. P.W-1 stated further that on that very night when he himself along with Pintu Sk., Ujir Sk., Kajol Sk., Bellal Sk. Ashiruddin and Taju were gossiping at a place near to the local river Bhairab then they suddenly heard the voice of Jalaluddin crying ‘mere fello mere fello’ after which they rushed towards the river where they found some of the Appellants catching hold of Jalaluddin and the other Appellants assaulting Jalaluddin. Miran Sk. named the Appellants to be those persons holding and assaulting Jalaluddin. Miran Sk. named the Appellants to be those persons holding and assaulting Jalaluddin. He further stated that during such incidents of assaults they could manage to apprehend the Appellants Sadagar and Bablu but ultimately they failed to keep hold on them. P.W.-1 further stated that he could recognise the Appellants in the glow of the moon and also from the light of a torch, he had with him. He further stated that his another brother Saidul had been murdered previously by some of the Appellants after which his brother Jalaluddin, the victim of the murder in this case, tried for the arrest of those Appellants in this case who were involved in that murder also and that was the reason of the murder of Jalaluddin. P.W.-1 stated further that he had submitted the F.I.R. in the case before the Police on the spot and he proved the F.I.R. which had been marked Exhibit-1 in the case. He (P.W.-1) was also present during Inquest and he signed on the Inquest Report as claimed by him and his signature on the Inquest Report has been marked Exhibit-2/1 on prove by him. The contents of the F.I.R. do corroborate the oral testimony of P.W.-1, in substance. 11. From an endorsement in the F.I.R. (Exhibit-1/2) as well as from the formal F.I.R. (Exhibit-3) it is found that the incident of murder took place at about 11.00 O-clock in the night of 24.05.1996 and the F.I.R. had been received on the spot at about 4.45 a.m. on 25.05.1996 by S.I. Manabendra Nath Bose (P.W.-14) who had subsequently investigated the case. The incident of murder took place in the mid-night in a deserted place, i.e., in the bank of a river. The information reached the Murshidabad P.S. via bordering Islampur P.S. as found from the statement of P.W.-1 and thereafter Police from Murshidabad P.S. having jurisdiction over the place of occurrence came to the spot, and thereafter the F.I.R. was prepared and handedover. So, there was no unusual delay behind the submission of the F.I.R. 12. Mr. Basu, argued that delay in transmission of the F.I.R. to the Court of the local Judicial Magistrate speaks a lot against the prosecution case. He cited the following decisions on the point Mubarak Sk. So, there was no unusual delay behind the submission of the F.I.R. 12. Mr. Basu, argued that delay in transmission of the F.I.R. to the Court of the local Judicial Magistrate speaks a lot against the prosecution case. He cited the following decisions on the point Mubarak Sk. alias Mobarak Hossain – versus- The State of West Bengal reported in (2011) 1 C Cr LR (Cal) 687, Meharaj Singh (L/Nk.) – versus – State of Utter Pradesh reported in 1994 Supreme Court Cases (Cri) 1390 and Thanedar Singh – versus – State of Madhya Pradesh reported in (2002) 1 Supreme Court Cases 487. 13. In the Mubarak Sk. alias Mobarak Hossain’s case there was delay of about eleven days in transmission of the F.I.R. to the Court of the local Magistrate. There is no such unusual delay in the present case. In the Meharaj Singh’s case there was no evidence for the prosecution to show when the F.I.R. was received by the local Magistrate and for some other reasons as well, it was found that there was manipulation in the F.I.R. In Thanedar Singh’s case in spite of directions by the Trial Court no proof was produced to show as to when the F.I.R. was transmitted to the local Magistrate. 14. In the case of Guiram Mondal – versus – State of West Bengal reported in JT 2013 (8) SC 510 cited by Mr. Bapuli there was three days delay behind the submission of the F.I.R. before the local Magistrate and it was held that such a delay itself does not suggest that the F.I.R. is antedated or fabricated. 15. In the present case, as mentioned earlier, the incident of murder took place in the mid-night of 24.05.1996 and the F.I.R. had been submitted on the spot at about 4.45 a.m. on 25.05.1996. From the formal F.I.R., i. e., Exhibit-3 it is found that the case had been registered at Murshidabad P.S. on 25.05.1996. From the same document it is further found that the F.I.R. and the formal F.I.R. had been despatched to the Court of the local Magistrate in the morning of 26.05.1996. But the F.I.R. and the formal F.I.R. had been placed before the local Magistrate on 27.05.1996. The Court of the learned sub-divisional Judicial Magistrate at Lalbug is very near to the Murshidabad P.S. So, the F.I.R. should have been placed before the Magistrate on 26.05.1996. But the F.I.R. and the formal F.I.R. had been placed before the local Magistrate on 27.05.1996. The Court of the learned sub-divisional Judicial Magistrate at Lalbug is very near to the Murshidabad P.S. So, the F.I.R. should have been placed before the Magistrate on 26.05.1996. But it had not been done so. The prosecution, therefore, required to offer an explanation for the delay. But no such explanation has been offered. Mr. Bapuli submitted that it may be the negligence on the part of the Police Officer whose duty it was to place the F.I.R. before the Magistrate promptly. Be that as it may, the delay itself does not suggest that the F.I.R. had been manipulated or changed, nor the delay itself is fatal if the prosecution case is otherwise proved. 16. S.I. Manabendra Nath Bose (P.W.-14) claimed to have performed Inquest over the dead body of the victim and prepared the Inquest Report. The Inquest Report has been marked Exhibit-2. From the report it is found that the Inquest was performed on 25.05.1996 at about 5.00 a.m., i.e., after the P.W.-14 had received the F.I.R. In the F.I.R. the Appellants were named as the offenders but in the Inquest Report it is stated that the victim was killed by some enemies of the victim. Mr. Basu raised a question as to why the names of offenders was not mentioned in the Inquest Report when the identity of the offenders was known to the witnesses in the Inquest Report including the defacto complainant as claimed. Mr. Basu further argued that omission of the names of the offenders in the Inquest Report is a serious lacuna in the prosecution’s case. Mr. Basu relied on the following decisions on the point Mubarak Sk. alias Mobarak Hossain – versus- The State of West Bengal reported in (2011) 1 C Cr LR (Cal) 687 and Meharaj Singh (L/Nk.) – versus – State of Utter Pradesh reported in 1994 Supreme Court Cases (Cri) 1390. In reply, Mr. Bapuli submitted that the purpose of the Inquest Report is to discharge a statutory function to obtain a preliminary idea about the cause of the murder in question and as such the Inquest Report is not required to contain all details regarding the murder including the names of the murderer if ascertained during the Inquest. Mr. In reply, Mr. Bapuli submitted that the purpose of the Inquest Report is to discharge a statutory function to obtain a preliminary idea about the cause of the murder in question and as such the Inquest Report is not required to contain all details regarding the murder including the names of the murderer if ascertained during the Inquest. Mr. Bapuli cited the following decision Guiram Mondal – versus – State of West Bengal reported in JT 2013 (8) SC 510 on this point also. In the present case it is recorded in the Inquest Report that the enemies of the victim had killed the victim and who are the enemies of the victim had been clearly stated in the F.I.R. submitted prior to the Inquest Report. In the aforesaid judgment cited by Mr. Bapuli it has been clearly laid down that the purpose of the Inquest Report is very limited, i.e., to find out the apparent cause of death and as such the Inquest Report need not contain all details and giving too much reliance on the Inquest Report is bad in law. 17. In the present case the identity of the offenders has been hinted in this Inquest Report as mentioned earlier and in view of the decision of the Hon’ble Apex Court in Guiram Mondal’s (supra) case we are unable to accept the view of Mr. Basu that the absence of the names of the Appellants in the Inquest Report destroys the prosecution’s case as a whole. Mr. Basu pointed out that the P.S. Case number has been mentioned in the Inquest Report and according to him the mentioning of the case number in the Inquest Report itself suggests that the Inquest had been done after the registration of the case which is not permissible in law. Mr. Bapuli disputed the view. P.W.-14 performed the Inquest and he stated that after receiving the F.I.R. at about 4.45 a.m. on 25.05.1996 he had sent it to the Police Station through a Home Guard and he himself had taken up the investigation of the case as being the Officer-in-Charge of the Police Station and thereafter he performed the Inquest over the dead body. P.W.-14 performed the Inquest and he stated that after receiving the F.I.R. at about 4.45 a.m. on 25.05.1996 he had sent it to the Police Station through a Home Guard and he himself had taken up the investigation of the case as being the Officer-in-Charge of the Police Station and thereafter he performed the Inquest over the dead body. P.W.-3 who had registered the case in the Police Station also stated the same thing and he added further that after recording the case he had sent back the F.I.R. to the P.W.-14 who was on the spot at that time. However, P.W.-14 did not mention as to how and when he came to know the case number. He was the best person to clarify the matter but no specific question on the point had been put to him during his evidence either by the prosecution or by the defence. Be that as it may, such act on the part of P.W.-14 is not illegal. 18. As discussed earlier, the defacto complainant, i. e., P.W.-1 in his evidence stated that in the night of the incident having heard an alarm raised by his brother Jalaluddin Sk., i. e., the deceased, he along with Kajol, Pintu, Ujir, Bellal, Ashiruddin and Taju rushed to the place from where the alarm was raised and which was the bank of the river Bhairab and after arrival on the spot they found the Appellants named by him assaulting the deceased. He further stated that they could catch hold of the Appellants Sadagar and Bablu although they could not keep hold on the said Appellants. P.W.- 1 stated further that they could recognise the Appellants on the spot by the torch light with him as well as in the glow of the moon. He further stated that his brother Jalaluddin was murdered as Jalaluddin previously tried to cause the arrest of some of the Appellants in connection with the murder of his another brother taking place previously. P.W.-1 stated further that Jalaluddin was assaulted on the stomach, neck, chest, back and teeth. P.W.-1 also stated that some other persons had also assembled on the spot after their arrival. 19. Ujir Sk. (P.W.-2) is a cousin of the deceased Jalaluddin. He stated that Jalaluddin was murdered at ‘Dangapara Ferry Ghat’ in the bank of the river Bhairab. P.W.-1 stated further that Jalaluddin was assaulted on the stomach, neck, chest, back and teeth. P.W.-1 also stated that some other persons had also assembled on the spot after their arrival. 19. Ujir Sk. (P.W.-2) is a cousin of the deceased Jalaluddin. He stated that Jalaluddin was murdered at ‘Dangapara Ferry Ghat’ in the bank of the river Bhairab. He further stated that just before the incident of murder he along with Miran Sk. (P.W.-1), Bellal, Ashiruddin, Pintu and others were sitting near a Video Hall from where they heard the screaming of Jalaluddin ‘Mere Felle, Bachao Bachao’ and after hearing such cries they rushed to the spot and found some of the Appellants catching hold of Jalaluddin and the other Appellants assaulting Jalaluddin. He stated further that they could recognise the Appellants in the light of the moon as well as in the light of a torch with P.W.-1. He added further that they could apprehend the Appellants Sadagar and Alauddin on the spot but ultimately they failed to keep their hold on them and that Jalaluddin died on the spot because of such assaults. 20. Pintu Sk. (P.W.-4) is the son of the victim Jalaluddin Sk. He stated that in the night of the occurrence hearing an alarm raised by his father he rushed to Dangapara Ghat where he found the Appellants assaulting his father. He stated further that P.W.-1, P.W.-2, P.W.-6, P.W.-7 and P.W.-9 were also on the spot 21. Joynal Abadin (P.W.-5) also stated that Jalaluddin had been murdered at Dangapara Ghat and having reached the spot he found the dead body of Jalaluddin lying with multiple injuries. He stated further that Miran Sk. (P.W.-1), Pintu Sk. (P.W.-4), Bellal Sk. (P.W.-7), Ujit Sk. (P.W.-2) and Samser Sk. and others had assembled on the spot prior to his arrival there and he heard from them that Jalaluddin had been murdered by the Appellants. 22. Ashruddin Sk. (P.W.-6) stated that in the night of the incident he along with Pintu (P.W.-4), Bellal (P.W.-7), Kajol (P.W.-9), Taj (P.W.-8) and others suddenly heard a hue and cry and reaching the ‘Ghat’ they found the Appellants running away from there with arms in their hands. He stated further that the Appellants had murdered Jalaluddin. 23. Bellal Sk. 22. Ashruddin Sk. (P.W.-6) stated that in the night of the incident he along with Pintu (P.W.-4), Bellal (P.W.-7), Kajol (P.W.-9), Taj (P.W.-8) and others suddenly heard a hue and cry and reaching the ‘Ghat’ they found the Appellants running away from there with arms in their hands. He stated further that the Appellants had murdered Jalaluddin. 23. Bellal Sk. (P.W.-7) stated that in the night of the incident he and others had gone to the place of occurrence and there he heard from P.W.-1 that Jalaluddin had been murdered by the Appellants Kuddus Kha, Hafejul Kha, Bakkar and others and he had seen the dead body of Jalaluddin on the spot. However, P.W.-7 was declared ‘Hostile’ by the prosecution. 24. Tajuddin Sk. (P.W.-8) stated that he found the dead body of Jalaluddin and he expressed his ignorance in respect of the identity of the offenders. 25. Kajol Sk. (P.W.-9) in his evidence stated that in the night of the occurrence hearing a hue and cry he along with P.W.-1, Pintu and others rushed to Dangapara Ghat and they found there the Appellants assaulting Jalaluddin by sharp weapons. He stated further that they had identified the Appellants in the light of the torch with P.W.-1 and they had caught hold of the Appellants Sadagar and Alauddin on the spot but out of fear they had to release ultimately the said Sadagar and Alauddin. During his cross examination he further added that they were at a distance of 2/3 cubits only at the time of the assaults. 26. Naba Kumar Mandal (P.W.-10) stated that he found the dead body of Jalaluddin at Dangapara Ghat and there he heard that Jalaluddin had been killed by the Appellants. He was a witness in the Inquest Report. 27. Mantu Khan (P.W.-11) stated that on 25.05.1996 Police had seized some blood-stained earth and other articles as well, in his presence and he signed on the seizure lists. 28. Bishwajit Mandal (P.W.-12) stated that he had put his signatures in two documents at Dangapara Ghat in the morning. 29. Dr. Indranath Chatterjee (P.W.-13) performed Post Mortem Examination over the dead body and Dr. 28. Bishwajit Mandal (P.W.-12) stated that he had put his signatures in two documents at Dangapara Ghat in the morning. 29. Dr. Indranath Chatterjee (P.W.-13) performed Post Mortem Examination over the dead body and Dr. Chatterjee in his evidence described several injuries he found in different parts of the dead body, and according to him death of Jalaluddin was due to shock and haemorrhage resulting from the injuries which were all antemortem and homicidal in nature and caused by sharp weapons. 30. S.I. Manabendra Nath Bose (Retd.) (P.W.-14) was posted at Murshidabad P.S. as the Officer-in-Charge of the P.S. at the relevant time. He had received the F.I.R. on the spot and he had performed Inquest over the dead body as claimed by him. He narrated in detail as to what he had done during to his investigation of the case. 31. From the foregoing discussion it is found that P.W.-1, P.W.-2, P.W.-4, and P.W.-9 claimed themselves to be the eyewitnesses of the murder and according to them the Appellants were the murderers. P.W.-6 stated that in the night of the incident he himself and Bellal (P.W.-7), Kajol (P.W.-9), Taj (P.W.-8) and others heard a hue and cry after which they went to the Ghat and noticed the Appellants running away from there with arms in their hands. Mr. Basu argued that P.W.-6 had not mentioned the presence of P.W.-1 and hence P.W.-1 was not an eye-witness. Mr. Basu missed the point that P.W.-6 mentioned that Pintu, Bellal, Kajol, Taj and ‘others’ were with him. During cross examination he further stated that he found Miran also at the place of occurrence. Mr. Basu further argued that P.W.-6 stated that hearing a hue and cry he along with P.W.-4, P.W.-7, P.W.-8 and P.W.-9 had gone to the place of the occurrence and having reached the place of occurrence they found the Appellants running away and the fact being so, P.W.-4, P.W.-7, P.W.-8 and P.W.-9 had also seen the same incident and as such they cannot be treated as the eye-witnesses of the assaults. Mr. Basu argued further that P.W.-6 had not been declared ‘Hostile’ and as such, the prosecution could not disown his statement and Mr. Mr. Basu argued further that P.W.-6 had not been declared ‘Hostile’ and as such, the prosecution could not disown his statement and Mr. Basu cited the decisions in Mukhtiar Ahmed Ansari- versus – State (NCT Delhi) reported in (2005) 5 Supreme Court Cases 258 and Raja Ram – versus – State of Rajasthan reported in (2005) 5 Supreme Court Cases 272 on the point. Mr. Basu is correct in his view that if a witness is not declared ‘Hostile’ then the version of such witness has to be treated as the version of the prosecution. But in the present case P.W.- 6 had not stated anything in contrary to what the other witnesses had stated. P.W.-6 stated only that having reached the place of occurrence he and some other witnesses found the Appellants running away from the place of the occurrence. So, his statement also implicates the Appellants. 32. P.W.-6 in his cross examination stated that hearing his alarm P.W.-1, P.W.-7, P.W.-8 and P.W.-9 and others went to the place of occurrence. But P.W.-1 had not stated that hearing the alarm of P.W.-6 he had gone to the spot. P.W.-1 stated that he himself heard the cries of the deceased hearing which he along with others had rushed to the spot. Similarly, P.W.-4 and P.W.-7 also stated that they themselves heard the alarm raised by the deceased after which they along with others went to the spot. It should be noted here that P.W.-7 in his cross examination stated that P.W.-1 and some other witnesses had reached the spot prior to his arrival there. 33. The incident of murder took place in the mid-night. The assailants were seventeen in numbers and a good number of villagers had assembled on the spot. Some of them reached the spot during the incidents of assaults as claimed and some of them immediately thereafter. P.W.-4 clarified the point by saying that while moving towards the place of occurrence he found some of the Appellants holding his father and the others assaulting his father and after reaching the place of occurrence they found the offenders leaving his father there. We cannot ignore the fact that the witnesses deposed after about seven years. So, some contradictions on the point as to who reached the spot before whom is very natural. 34. We cannot ignore the fact that the witnesses deposed after about seven years. So, some contradictions on the point as to who reached the spot before whom is very natural. 34. P.W.-1 and P.W.-4 stated that they found some of the Appellants holding the deceased and some of the Appellants assaulting the deceased. Mr. Basu raised a point, if the deceased was caught hold of by some of the Appellants then how the deceased had received injuries in his chest and back. Holding the deceased by some of the Appellants did not mean that some of the Appellants embraced the deceased and covered the body of the deceased from different sides. In fact, the witnesses by saying that the deceased was being hold by some of the Appellants, wanted to mean that the deceased was physically confined by some of the assailants. So, we do not find any force in the aforesaid contention. 35. P.W.-1 stated that they could identify the assailants in the light of a torch he had with him, as well as in the glow of the moon light. A torch light was also seized and according to the I.O. the torch light was produced before him on the spot by the P.W.-1. However, during evidence the said torch light had been produced and it had no bulb. It is not known whether after seizure the torch light was properly preserved or not. So, the point makes no difference. P.W.-2, P.W.-4 and P.W.-9 also stated that they could identify the assailants in the light of the moon as well as in the torch light of P.W.-1. Mr. Basu raised a point as to how seventeen Appellants could be identified by one torch light only. To repeat, the aforesaid witnesses stated that they could identify the assailants not only in the light of the torch of P.W.-1 but also in the light of the moon. The assailants were all known to the witnesses. So, it was not difficult for the witnesses to identify the assailants on the spot. 36. Some of the witnesses stated that part of a finger of the deceased had been completely cut off. But the fact is not mentioned in the P.M. Report. The Constable who had identified the dead body during Post Mortem Examination had not been examined by the prosecution. According to Mr. 36. Some of the witnesses stated that part of a finger of the deceased had been completely cut off. But the fact is not mentioned in the P.M. Report. The Constable who had identified the dead body during Post Mortem Examination had not been examined by the prosecution. According to Mr. Basu because of such reasons the dead body over which Post Mortem Examination had been performed by P.W.- 13 is not properly established. In the P.M. Report the case number is mentioned and the number tallies with the case number of this case. The I.O. of the case, i.e., P.W.-14 stated that after Inquest he sent the dead body for P.M. Examination. Moreover, it was never the case of the defence that Jalaluddin had not been murdered. In fact, the defence in different ways admitted the murder of Jalaluddin. It cannot be, therefore, said that the P.M. Report considered in this case does not relate to the murder of Jalaluddin. 37. I.O. stated that during his investigation he had seized some blood-stained earth from the P.O. and some controlled earth as well. Exhibit-5 relates to such seizure. P.W.-11 and P.W.-12 supported the said seizure. But no F.S.L. report has been produced in the case in connection with that seized bloodstained earth. Mr. Basu argued that for such reason place of occurrence has not been properly established in the case and he cited the decision in Lakshmi Singh and Others – versus – State of Bihar reported in 1976 Supreme Court Cases (Cri) 671. It is true that F.S.L. report in connection with the earth seized from the P.O. should have been produced in the case and it is definitely a negligence on the part of the Investigating Agency. Mr. Bapuli submitted that for such a negligence on the part of the Investigating Agency the prosecution case as a whole should not suffer. P.W.-1, P.W.-2, P.W.-4, P.W.-5, P.W.-6 and P.W.-9 stated that they found the dead body of Jalaluddin at Dangapara Ghat. In the sketch map prepared by the I.O. (Exhibit-7) the place of occurrence is described as a place near to the Ferry Ghat over the river Bhairab. So, just because the blood-stained earth allegedly seized from the place of occurrence has not been examined by F.S.L. and no such F.S.L. report has been produced, it cannot be said that the place of occurrence has not been properly established. So, just because the blood-stained earth allegedly seized from the place of occurrence has not been examined by F.S.L. and no such F.S.L. report has been produced, it cannot be said that the place of occurrence has not been properly established. 38. As discussed earlier, the place of occurrence is ‘Dangapara Ghat’ in the bank of the river Bhairab. There is in one side of the river the village ‘Dangapara’ and on the other side of the river there is the village ‘Paharpur’. Most of the witnesses examined in the case hail from the village Paharpur and no witness from the village Dangapara has been examined in the case and according to Mr. Basu this is also a serious lacuna in the prosecution case. Mr. Bapuli replied that it is a choice of the prosecution whom they would examine. So, the absence of any villager from village Paharpur as a witness is not fatal for the prosecution when the case is otherwise proved by the witnesses examined. It is never the quantity or the number of the witnesses but the quality of the witnesses which has to be considered. So, the question is whether witnesses examined in the case are believable or not and from where the witnesses examined in the case, do hail, is immaterial. 39. P.W.-1, P.W.-2 and P.W.-9 stated that they could catch hold of the Appellants Sadagar and Alauddin on the spot during the assaults. But all of them also stated that they could not ultimately keep their hold on those two Appellants. So, the question as to why they were not arrested by Police from the place of occurrence does not arise at all. 40. It has been discussed earlier that P.W.-1, P.W.-2, P.W.-4 and P.W.-9. are the eye-witnesses of the assaults on the deceased. P.W.-1 is the brother, Ujir Sk. (P.W.-2) is a cousin, Pintu Sk. (P.W.-4) is the son, Bellal Sk. (P.W.-7) and Kajol Sk. (P.W.-9) are also the cousins of the deceased. It is absurd to think that such close relations including the son of the victim would falsely implicate the Appellants to shield the real culprits. So, in our view those witnesses are dependable witnesses, especially when sufficient corroboration is found to their statements and the Medical Evidence also supports their testimonies. 41. (P.W.-9) are also the cousins of the deceased. It is absurd to think that such close relations including the son of the victim would falsely implicate the Appellants to shield the real culprits. So, in our view those witnesses are dependable witnesses, especially when sufficient corroboration is found to their statements and the Medical Evidence also supports their testimonies. 41. Defence had not disputed the fact of murder of Jalaluddin and the defence picked up different specific cases by different suggestions to the witnesses. It was a suggestion to the P.W.-1 that Jalaluddin was murdered out of political rivalry. It was also suggested to P.W.-1, P.W.-2, P.W.-4 and P.W.-9 that Jalaluddin had been murdered by some anti-socials. However, defence made no attempt to prove such a case that Jalaluddin had been murdered for political reasons or for antisocial activities. It is true that the defence has no liability to prove any fact to show their innocence. But whenever the defence prefer in their own choice to plead any specific fact in their support then onus obviously lies upon the defence to prove such fact or at least to show that such a fact is probable and failure to do so definitely strengthens the prosecution case. 42. Appellants have been found guilty of the charge under Section 302/34 I.P.C. Mr. Basu argued that ‘common intention’ and ‘similar intention’ is not the same. He further argued that to find several accused persons guilty of any offence with the aid of Section 34 I.P.C., it has to be proved that there was a pre-plan and the offence had been committed in pursuance to a common intention of all the offenders and those elements being absent in this case conviction of the Appellants is illegal. Mr. Basu cited the decision in Mahbub Shah – versus – Emperor reported in A.I.R. (32) 1945 Privy Council 118. In reply, Mr. Bapuli submitted that the way the victim had been murdered itself speaks of a preplan. 43. It has been discussed in detail earlier that all the Appellants together confined and assaulted the victim. The place was a lonely place and the time of murder was the mid-night. Presence of the Appellants at the scene of crime and the participation of the Appellants in the crime has also been stated by the eye-witnesses. 43. It has been discussed in detail earlier that all the Appellants together confined and assaulted the victim. The place was a lonely place and the time of murder was the mid-night. Presence of the Appellants at the scene of crime and the participation of the Appellants in the crime has also been stated by the eye-witnesses. Such an incident of murder cannot take place unless there is a pre-plan, because unless there is a preplan how the Appellants were found assembled at the same place at the same time. The victim received several injuries in different parts of his person including on some vital parts. So, there cannot be any intention other than to kill the victim on the spot. So, all the ingredients of ‘common intention’ are found present in the present case. The decision in Mahbub Shah’s case does not, therefore, come to any help to the defence. Since a common intention is proved and participation of all the Appellants are also established, it is immaterial as to who played what specific role in the murder. 44. Mr. Basu also pointed out that the examination of the Appellants under Section 313 Cr.P.C. was not strictly according to law. It is true that during examination of the Appellants under Section 313 Cr.P.C. several questions have been clubbed together and the Medical evidence or the evidence of I.O. have not been explained but it does not appear that the Appellants have been misled or prejudiced for it, because all the Appellants replied the questions asked, in their own choice and none of them ever alleged during their examinations under Section 313 Cr.P.C. that the questions asked were not understandable to them. 45. So, having considered all the facts and circumstances of the case and the evidence on record there upon we have no hesitation to hold that the charges brought against the Appellants have been firmly proved beyond all doubts and there is no illegality in any of the findings of the learned Trial Court. The appeal should, therefore, be dismissed. 46. In view of the decisions taken above the appeal is dismissed. The judgment of conviction and order of sentence passed against the Appellants by the learned Trial Court are hereby affirmed. 47. Department to take steps under Section 388, Cr.P.C. 48. The appeal should, therefore, be dismissed. 46. In view of the decisions taken above the appeal is dismissed. The judgment of conviction and order of sentence passed against the Appellants by the learned Trial Court are hereby affirmed. 47. Department to take steps under Section 388, Cr.P.C. 48. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.