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2017 DIGILAW 713 (CAL)

Mohanlal Das v. State of West Bengal

2017-08-24

SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : 1. Feeling aggrieved and dissatisfied with the judgment and order of conviction dated 29.03.2011 and 31.03.2011, passed by learned Additional Sessions Judge 13th Court at Alipore, the appellants preferred this appeal, ventilating their grievances that the learned trial court failed to appreciate the evidence of prosecution witnesses in its proper perspectives and also failed to consider the legal aspects on ‘common intention’. 2. It appears from the L.C.R. that the learned trial court has framed the charge, recorded evidence, examined the accused under Section 313 Cr.P.C. and thereafter passed a reasoned judgment. 3. This court is called upon to answer if the impugned judgment is sustainable or not. In the interest of effective adjudication, factual aspects and appreciation of evidence are to be considered very meticulously. 4. Shorn of unnecessary details, the prosecution case in a capsulated form is such that on 16th May, 1997 at or about 10 am., there was an altercation between two rival groups over some disputes of ‘Milan Tirtha Club.’ After the said altercation was over, at or about 1 pm. the accused appellants came to the spot and assaulted the deceased and his relation and thereafter they took to their heels. The victim was taken to a nearby rural hospital and after giving a first-aid, the victim was referred to National Medical College Hospital, where he breathed his last on the next day of alleged incident. The victim’s relation was also assaulted by the accused persons and he also sustained some injuries and had to take medical treatment. The principal victim died on the next day in the said hospital having sustained serious head injuries. Disclosing this episode, the de-facto complainant lodged the F.I.R. and set the law into motion. 5. After registration of the F.I.R. the investigating agency came into operation. In course of investigation, the Investigating Officer has recorded the statement of the available witnesses, prepared rough sketch map with index, collected injury report and post mortem report of the victim and thereafter submitted charge-sheet under Section 304/34 of I.P.C. against the accused appellants. 6. Pursuant to the charge-sheet submitted by the Investigating Officer the trial court has framed the charges and read over and explained the contents of the charge to the accused appellants to which they pleaded not guilty and claimed to be tried. 7. To come to a finding we should now listen to the witnesses. 6. Pursuant to the charge-sheet submitted by the Investigating Officer the trial court has framed the charges and read over and explained the contents of the charge to the accused appellants to which they pleaded not guilty and claimed to be tried. 7. To come to a finding we should now listen to the witnesses. P.W. 1 in his evidence stated that initially the accused appellant Mohan Lal was trying to kidnap one Kushal at or about 1 pm. The said Kushal, is the nephew of the de-facto complainant. Hearing the hue and cry, the victim came to the spot and then all the accused persons assaulted the victim with sticks, cycle chain and iron rod. When the son of the victim Surajit came to the spot, he was also assaulted. The F.I.R. was lodged in the evening. In course of his cross-examination, he specifically stated that Tapan Das assaulted the deceased with chain and other accused persons assaulted the deceased with iron rod and sticks. This P.W. 1 is not the eye-witness. 8. P.W. 2 claimed to have seen the incident. According to him, he had seen the appellant Kalipada Mondal, Ashok Mondal, Monoranjan Mondal, Manabendra Mondal, Madhusudan Mondal, Tusthu Mondal, Mohan Lal Das, Sourav Das and Tapan Das, (who were being armed with lathi, iron rod and chain), assaulting the victim. He categorically mentioned in his evidence that Manabendra and Tusthu were armed with iron rod, Tapan Das was armed with iron chain and rest accused appellants were armed with lathi. All of them assaulted the victim. He was not cross-examined at all, on the point if he had told the Investigating Officer about the involvement of the accused appellants. 9. P.W. 3 is the another eye-witness who mentioned the name of aforesaid accused appellants except the name of Madhusudan. He was also very specific in saying that Manabendra, Tusthu and Tapan assaulted the victim with rod and chain and other appellants assaulted the victim with lathi. In his cross-examination, he specifically stated that he told the Investigating Officer that the appellant Manabendra and Tusthu assaulted the victim with sticks and Tapan assaulted with a chain. So from his cross-examination, the defence could not fetch any dividend. Investigating Officer was not confronted in this regard. 10. P.W. 4 also mentioned the names of all nine assailants. He candidly stated about their roles. So from his cross-examination, the defence could not fetch any dividend. Investigating Officer was not confronted in this regard. 10. P.W. 4 also mentioned the names of all nine assailants. He candidly stated about their roles. No specific denial about the involvement of the accused appellants were taken in course of cross-examination. P.W. 5 is an independent witness. He also witnessed the appellants assaulting the victim. In course of cross-examination he stated specific involvement of the accused appellants. Evidence of P.W. 7 and P.W. 8 are very relevant because they are the independent witnesses. They also disclosed the involvement of the accused appellants in the commission of offence. Evidence of P.W. 9 is insignificant. P.W. 10 is one of the victims. He narrated the story of assault. His evidence is trustworthy on the ground that as he was assaulted from behind and possibly for that reason he could not say the names of the assailants of him. The defence could not shake his evidence in any way in course of cross-examination. Evidence of P.W. 11, 12 and 13 are also not much relevant for the purpose of adjudication of this case. P.W. 14 is the autopsy surgeon who conducted the post mortem report. He found four injuries in the scalp including the stitched wounds. He opined that the victim died due to injuries as mentioned in the post mortem report. P.W. 15 is the Investigating Officer. Defence Counsel asked him some questions but the defence did not put any question to him if the witnesses stated to him about the incident. Investigating Officer was not confronted regarding the statements under Section 161 of Cr.P.C. Therefore, it is crystal clear that the appellants were involved in the commission of offence. 11. Learned Counsel for the defence argued that there is no ‘common intention’. This legal phrase has stolen away many judicial hours of our Indian Courts. What is common intention and when can it be applied were also discussed in plethora of judgements. Over and above, it has to be always kept in mind that there is hardly any scope to get direct proof of common intention. At the same time, I am not oblivious to the fact that common intention may develop on the spur of the moment. Therefore, total judicial scrutiny of evidence is the urgent desideratum to arrive at a conclusion. 12. At the same time, I am not oblivious to the fact that common intention may develop on the spur of the moment. Therefore, total judicial scrutiny of evidence is the urgent desideratum to arrive at a conclusion. 12. A synoptical resume of the evidences go to show that three the accused persons assaulted the victim on his head and other areas of face. In all nine persons have been entangled. Pre-concert to kill was not there but pre-concert to assault the victim has been established. Initially the victim was not on the spot but it came into evidence that hearing the din and bustle, he arrived there. Before his arrival some of the accused persons were armed with sticks and others were having iron rod and iron chain (bicycle chain) in their hands. Therefore, intention to commit the offence is clearly established. Had it not been so why they came enmasse with those weapons. 13. It has been emphatically argued that there is nothing on record that the incident was the outcome of ‘in furtherance of common intention’. Learned Counsel for the defence has referred to a decision reported in (2016) 15 SCC 471 (Balu alias Bala Subramaniam and Another –vs.- State (UT of Pondicherry). I have gone through the said decision and the reasoning given by the Hon’ble Apex Court. It is perhaps needless to say it is the essence of Section 34 I.P.C. that the person must be physically present at the time of commission of offence. Even if he is a by-stander in that case also he can be convicted if it is shown that his presence was only to commit the offence. Two elements are necessary to fulfil the requirements of Section 34 I.P.C. One is that the person must be present at the scene of occurrence and the second is that there must be a prior concert amongst them. This apart, such intention to commit an offence may be on the spur of a moment. Therefore, existence of common intention to commit an offence is the main thing and if after that he participates in a criminal act with a view to cherishing his intention to commit the offence, then it comes within the purview of ‘in furtherance of the common intention’. It is practically a principle of joint liability in doing a criminal act. Therefore, existence of common intention to commit an offence is the main thing and if after that he participates in a criminal act with a view to cherishing his intention to commit the offence, then it comes within the purview of ‘in furtherance of the common intention’. It is practically a principle of joint liability in doing a criminal act. The distinctive feature is the element of participation in action and essence of liability is to be found in existence of a common intention animating the accused to do a criminal act in furtherance of such common intention. 14. From the evidence it transpires that all the accused persons came enmasse with lathi, rod and cycle chain and thereafter assaulted the victim. It comes obviously within the purview of Section 34 I.P.C. It is immaterial who had given blows upon the victim and the number of blows. By referring the said decision learned Counsel argued that in this instant case it may be considered as an offence under Section 325 of I.P.C. On perusal of the judgment referred to by the learned Counsel appearing on behalf of the appellant, I find that there were three sets of accused and their individual role was quite different. As a result some of them were acquitted by the Hon’ble Apex Court, some of them were convicted in different sections. In this instant case, factual scenario is not like that. Therefore, all these accused appellants shall be dealt with, under Section 304, Part – II of I.P.C. It is true that they had no intention to kill the victim. It has been argued by the learned Counsel on behalf of the appellants, that they are facing the ordeal for the last 20 years. This aspect cannot be overlooked. Therefore, considering all these aspects, I am of the view that purpose of justice shall be best served if the sentence of 7 years imprisonment of the appellant be reduced to sentence of imprisonment for 5 years and this will certainly meet the demand of justice. 15. This aspect cannot be overlooked. Therefore, considering all these aspects, I am of the view that purpose of justice shall be best served if the sentence of 7 years imprisonment of the appellant be reduced to sentence of imprisonment for 5 years and this will certainly meet the demand of justice. 15. Accordingly, the impugned judgment passed by the learned trial court is hereby modified to the extent that each of the accused shall suffer rigorous imprisonment for 5 years each and to pay a fine of Rs.2000 each i.d. to suffer for imprisonment of 6 months each for the offence under Section 304/34 of I.P.C. The period of detention already undergone by the appellants be set off against the sentence of imprisonment. The accused appellants are on bail so they are hereby directed to surrender before the trial court within two weeks from the date of this judgment, failing which learned trial court shall take coercive measures against them for serving out the sentence. 16. Accordingly, the instant criminal appeal is allowed in part. The judgment and order of conviction is hereby modified to the extent as above. 17. Let a copy of this order and LCR be sent to the learned Court below at once for information and taking necessary action. 18. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.