Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2040 OF 2008
Akbar Sheikh & Ors. …Appellants
Versus
State of West Bengal …Respondent
WITH
CRIMINAL APPEAL NO. 2041 OF 2008
Akhtar Alam Alias Aktarul Sheikh …Appellant
Versus
State of West Bengal …Respondent
CRIMINAL APPEAL NO. 2042 OF 2008
Kabir Sheikh & Ors. …Appellants
Versus
State of West Bengal …Respondent
2
C RIMINAL APPEAL NO. 28 OF 2009
Kazem Sheikh @ Kamruzzaman …Appellant
Versus
State of West Bengal …Respondent
J U D G M E N T
S.B. SINHA, J :
1. Sajaedar Rahman (Complainant – PW-1) was a resident of a small
village Bujung situated within the Police Station of Nalhati, in the district of
Birbhum (West Bengal). He had a two-storeyed house made of mud with a
tin shed. It had a verandah on the ground floor as also on the upper floor. It
consisted of four rooms; two on the ground floor and two on the upper floor.
There was another house in the same compound. It was thatched with straw.
It was also a two-storeyed one.
2. The deceased Akramul Sheikh and Samsul Haque were his sons.
Ashraful (PW-9) and Nasir were his two other sons. His wife is Latifa Bibi
(PW-6) and Ahmuda Khatun (PW-7) is his daughter. Kazem (Accused No.
8) is his nephew. Ali Mohammed alias Kalu (PW-5) is his another brother.
3
3. On the fateful day, i.e., 16.05.1982 in the mid night, the complainant
was sleeping inside his room. On the verandah thereof his wife, two sons
Nasir and Saidul were sleeping. Ashraful and Kalu were sleeping in the first
floor of another house. In the ‘Baithakkana’ (living room) Akramul and his
wife Nadira were sleeping. Samsul Haque was sleeping in the courtyard. At
about 1 a.m. in the night, the complainant was woken up by his son Ashraful
and his nephew Kalu. He was informed that a large number of people had
attacked his house. They were armed with deadly weapons. A hurricane
was hanging in the verandah. He also came out with a torch. He found that
about 100 persons were there. They started assaulting Samsul with lathi and
ballam. Kazem (Accused No. 8) directed that he should be beheaded
whereupon Saifuddin cut his neck with one stroke by a big knife ordinarily
used by a butcher for slaughtering goats. Samsul was also assaulted by
Buddik (Accused No. 14) with a knife. Samsul Arefin assaulted him with
lathi. Kamruzzaman assaulted him with a ballam whereas Sadek (Accused
No. 4) assaulted him with tangi. He identified all of them. The accused
chased the inmates of the house who were standing on the verandah. Out of
fear, they entered into the room and bolted it from inside. Two-three bombs
were hurled at the door. They exploded. An attempt was made to break
open the door with an axe whereupon a gap was created. Ashraful (PW-9)
4
took out a sword from the room and pushed it through the gap towards the
accused persons. Then, Kazem asked Wahed to set fire on the chals of the
south-facing room. He also asked Maddin to do the same thing. Fire was
set in the house with thatched straw. They took shelter in the vacant space
outside the house. Akramul and his wife also came out from the house
which was set on fire. Buddik assaulted Akramul on his back with an axe.
On resistance offered by his wife and an appeal to the assailants not to kill
him, Sadek assaulted her on her forearm of right hand with a shovel.
Accused Buddik, Ruli, Sadek and Kabir forcibly kidnapped Akramul to the
house of the accused Arefin as directed by Kazem. All the accused
thereafter dispersed.
The complainant received an information that Akramul was killed
near the pond. He went to the spot and found him dead with his neck
chopped and a long cut injury on his chest upto abdomen.
D.N. Ghosh (PW-13), officer incharge of the Police Station received
an information about the incident on telephone. They came to the village in
the early hours of the morning.
A First Information Report was lodged at about 6 a.m. In the said
First Information Report, about thirty persons were named. Chargesheet
5
was issued as against twenty-nine persons. The trial took a long time.
Whereas the complainant was examined in 1992, his son Ashraful (PW-9)
was examined in 2001. The learned Sessions Judge convicted 20 persons.
Nine persons died during the pendency of the trial. Appeals were preferred
thereagainst. By reason of the impugned judgment, the High Court, while
affirming the judgment of conviction, remanded the case back to the learned
Trial Judge for determining the age of five appellants who advanced a plea
that they were ‘children’ on the date of commission of the offence.
5. In Criminal Appeal No. 2040 of 2008, there are seven appellants.
Criminal Appeal No. 2041 of 2008 was filed by Akhtar Alam alias Aktarul
Sheikh. Criminal Appeal No. 2042 of 2008 was filed by Kabir Sheikh with
three others. The Special Leave Petition of three petitioners was dismissed
leaving Kabir Sheikh as the only appellant. Criminal Appeal No. 28 of 2009
has been preferred by Kazem Sheikh alias Kamuruzzaman.
5. Mr. Pradip K. Ghosh, learned senior counsel appearing on behalf of
the appellants in Criminal Appeal Nos. 2040 and 2041 of 2008, would urge:
6
(a) Most of the accused persons having not taken active part and some
of them having not been named at all by the prosecution witnesses,
the learned Sessions Judge as also the High Court committed a
serious error in passing the impugned judgments.
(b) Appellants had falsely been implicated due to long standing enmity
as:
(i)
Even according to prosecution, Nadira, sister of Kazem, was
married to the son of PW-1. He committed suicide. The
said marriage took place without the consent of Kazem
Sheikh. Allegedly, a rein of terror was unleashed. They
have to leave the village. 20 days prior thereto, they came
back and got Nadira married with the deceased Akramul.
(ii) Asgar and Kuddus had deposted against the family of PW-1
in the matter of murder of one Dol Gobinda Acharya (ex-
Pradhan). PW-9 accepted that he had committed his murder
and was convicted in the criminal case and sentenced to life
imprisonment. In that case Kuddus had deposed and, thus,
all his brothers Sadek, Ruli, Kudrat and Kabir had been
roped in. Similarly, as Asgar had deposed in the said case,
his three nephews, viz., Habal, Hosi and Chosi, who were
7
said to be minors at the time of alleged incident were also
roped in.
(iii) It has furthermore come in evidence that father of Monir and
Maddin, i.e., Gastul had filed some criminal cases against
PW-1.
(iv) Five persons who were named in the First Information
Report, being children in the age group of 12-15 years had
not been spared.
(v) Gado and Kaku being son of Jabrish Sheikh were roped in as
Jabrish deposed against PW-1 in a criminal case wherein he
was convicted for commission of murder of one Munsef
Hazi.
(c) The prosecution case must be held to have not been proved as all
eye-witnesses are interested witnesses. Even Kalu (PW-5),
nephew of PW-1 was declared hostile. Moreover, out of four eye-
witnesses named in the First Information Report, only one had
been examined and three were not even examined as witnesses for
reasons best known to the State. Those villagers tendered as
witnesses by prosecution being PWs 2, 3 and 4 were also declared
8
hostile. Even PW-11, i.e., husband of PW-7 did not name
anybody. Nasir Sheikh, son of PW-1, who is said to have
identified the dead body of his brother Samsul at the time of
inquest was also not examined. Nazrul, another son of PW-1, who
was staying just outside the compound, was also not examined.
(d) The First Information Report was ante-dated and ante-timed.
According to PW-1, the inquest took place before the First
Information Report was lodged. The inquest report bears the
police case number although by then the First Information Report
was not lodged.
(e) The First Information Report having been sent to the Magistrate
after 24 hours, viz., on 17.05.1982, no reliance should be placed
thereupon.
(f) In any event, most of the appellants having not taken any active
part, the rule of prudence would demand that in absence of any
corroboration in material particulars benefit of doubt should be
according to the appellants.
6. Mr. Rauf Rahim, learned counsel appearing on behalf of the appellant
in Criminal Appeal No. 2042 of 2008 would urge that Kabir Sheikh
9
(Accused No. 7) being a minor on the date of offence, also deserves the
same treatment as accorded to other similarly situated, viz., remission of the
case to the Trial Court for determination of his age.
In support of the said contention, reliance has been placed on the
statement of the said appellant before the Trial Court under Section 313 of
the Code of Criminal Procedure as also a voters’ list.
7. Mr. Seshadri Sekhar Ray, learned Amicus Curiae appearing on behalf
of the appellant Kazem Sheikh in Criminal Appeal No. 28 of 2009
supplementing the submissions of Mr. Ghosh urged that the learned Sessions
Judge as also the High Court failed to take into consideration the defence of
the said accused viz. he at the relevant time was physically handicapped.
There was no reason as to why the evidences of defence witnesses including
the certificate of a doctor to that effect should not be believed.
8. Mr. Avijit Bhattacharjee, learned counsel appearing on behalf of the
State, on the other hand, supported the impugned judgment contending that
the fact that more than thirty persons had attacked the deceased and the
prosecution witnesses with deadly weapons and they had not only murdered
Samsul Haque but also took away Akramul Sheikh and murdered him near
10
the pond clearly goes to show that each one of them had the requisite
common object.
It was furthermore contended that PW-1 having identified all the
accused in the court, there is no reason as to why his evidence should not be
relied upon.
9. Before adverting to the rival contentions raised before us by the
learned counsel for the parties, we may notice the following salient features:
PW-1 Sajedar Rahman is the informant/complainant. PW-9 Ashraful
Sheikh is the son of PW-1. Like PW-1, he was also an eye-witness.
PW-6 Latifa Bibi is the wife of PW-1 but as at the time of her
deposition, she having been found to have become senile, neither the learned
Trial Judge nor the High Court has placed any reliance on her evidence.
PW-7 Ahmuda Khatun is the daughter of PW-1. On the date of incident, she
had been residing in her matrimonial home and only upon receipt of the
information, she came to her parents’ place and came to know about the
incident from her father. Her evidence is, therefore, a hearsay one and not
considered by the High Court at all.
11
Other witnesses, viz., PWs. 2 to 4 and PW-5 were declared hostile.
We are, therefore, left with the evidences of PW-1 and PW-9 only.
10. Whereas according to PW-1, Akbar Sheikh (Accused No. 5) who had
been named but had not taken any active part in the incident, PW-9 merely
saw him as a member of the mob. Asgar Sheikh (Accused No. 1), Kuddus
Sheikh (Accused No. 3) and Kudrat Sheikh (Accused No. 6) had not been
named by PW-1 but they had been named by PW-9. Whereas Gado Sheikh
(Accused No. 11) was named by PW-1 as a person who had not taken active
part, he had not been named by PW-9. Kanku Sheikh (Accused No. 13) had
been named both by PW-1 and PW-9, although, according to PW – 1, he
also did not take any active part. Monir Sheikh (Accused No. 15) was
named by PW-1 without taking any active part. PW-9 did not name him at
all.
11. Akhtar (Accused No. 9) appellant in Criminal Appeal No. 2041 had
not been named at all either by PW-1 or PW-9.
12. Allegation against Kabir Sheikh (Accused No.7) appellant in Criminal
Appeal No. 2042 of 2008, is that he was one of the four accused who had
12
kidnapped Akramul and whose dead body was found at a distance of 500
yards from the house.
13. We have noticed hereinbefore that the role of Kazem Sheikh (Accused
No. 8), according to PW-1, was positive. He not only ordered that Samsul
Haque should be beheaded, pursuant whereto Saifuddin cut his neck with
one stroke; he furthermore, at the second stage of the occurrence, directed
Wahed and Maddin to set fire to the thatched house which was complied
with. The overt act of kidnapping Akramul has been attributed to Buddik,
Ruli, Sadek and Kabir. Buddik had also been attributed with the act of
assault on Akramul on his back with the axe. Sadek injured Latifa (PW-6)
on her forearm.
The summary of the evidences of PW-1 and PW-9, therefore,
demonstrates that whereas Akbar, Gado, Monir had been named by PW-1,
they had not been named by PW-9. Only Kanku has been named as a
miscreant person in the assembly by both PW-1 and PW-9.
The core question which arises for consideration is as to whether
some of the appellants who had not committed any overt act must be held to
13
be a part of the unlawful assembly or shared the common object with the
main accused.
Chapter VIII of the Indian Penal Code provides for the offences
against the public tranquility. Section 141 defines ‘Unlawful Assembly’ to
be an assembly of five or more persons. They must have a common object
inter alia to commit any mischief or criminal trespass or other offence.
Section 142 of the Indian Penal Code postulates that whoever, being
aware of facts which render any assembly an unlawful one, intentionally
joins the same would be a member thereof.
Section 143 of the Indian Penal Code provides for punishment of
being a member of unlawful assembly. Section 149 provides for
constructive liability on every person of an unlawful assembly if an offence
is committed by any member thereof in prosecution of the common object of
that assembly or such of the members of that assembly knew to be likely to
be committed in prosecution of that object.
14
14. Whether an assembly is unlawful one or not, thus, would depend on
various factors, the principal amongst them being a common object formed
by the members thereof to commit an offence specified in one or the other
clauses contained in Section 141 of the Indian Penal Code. Constructive
liability on a person on the ground of being a member of unlawful assembly
can be fastened for an act of offence created by one or more members of that
assembly if they had formed a common object. The distinction between a
common object and common intention is well-known.
15. In Munna Chanda v. State of Assam [(2006) 3 SCC 752], this Court
held as under:
“10. The concept of common object, it is well
known, is different from common intention. It is
true that so far as common object is concerned no
prior concert is required. Common object can be
formed on the spur of the moment. Course of
conduct adopted by the members of the assembly,
however, is a relevant factor. At what point of time
the common object of the unlawful assembly was
formed would depend upon the facts and
circumstances of each case.
11. Section 149 IPC creates a specific and distinct
offence. There are two essential ingredients
thereof:
( i ) commission of an offence by any member of an
unlawful assembly, and
15
( ii ) such offence must have been committed in
prosecution of the common object of that assembly
or must be such as the members of that assembly
knew to be likely to be committed.
12. It is, thus, essential to prove that the person
sought to be charged with an offence with the aid
of Section 149 was a member of the unlawful
assembly at the time the offence was committed.
13. The appellants herein were not armed with
weapons. They except Bhuttu were not parties to
all the three stages of the dispute. At the third stage
of the quarrel, they wanted to teach the deceased
and others a lesson. For picking up quarrel with
Bhuttu, they might have become agitated and
asked for apologies from Moti. Admittedly, it was
so done at the instance of Nirmal, Moti was
assaulted by Bhuttu at the instance of Ratan.
However, it cannot be said that they had common
object of intentional killing of the deceased. Moti,
however, while being assaulted could free himself
from the grip of the appellants and fled from the
scene. The deceased was being chased not only by
the appellants herein but by many others. He was
found dead the next morning. There is, however,
nothing to show as to what role the appellants
either conjointly or separately played. It is also not
known as to whether if one or all of the appellants
were present, when the last blow was given. Who
are those who had assaulted the deceased is also
not known. At whose hands he received injuries is
again a mystery. Neither Section 34 nor Section
149 of the Penal Code is, therefore, attracted. (See
Dharam Pal v. State of Haryana and Shambhu
Kuer v. State of Bihar )”
16
16. The question came up for consideration before this Court in Baladin
& Others v. State of Uttar Pradesh [AIR 1956 SC 181] wherein B.P. Sinha,
J., as the learned Chief Justice then was, opined that with a view to invoke
the provisions of Section 149 of the Indian Penal Code, “it was necessary
therefore for the prosecution to lead evidence pointing to the conclusion that
all the appellants before us had done or been committing some overt act in
prosecution of the common object of the unlawful assembly”. It was
furthermore stated:
“…The evidence as recorded is in general terms to
the effect that all these persons and many more
were the miscreants and were armed with deadly
weapons, like guns, spears, pharsas, axes, lathis,
etc. This kind of omnibus evidence naturally has to
be very closely scrutinised in order to eliminate all
chances of false or mistaken implication. That
feelings were running high on both sides is beyond
question. That the six male members who were
done to death that morning found themselves
trapped in the house of Mangal Singh has been
found by the courts below on good evidence. We
have therefore to examine the case of each
individual accused to satisfy ourselves that mere
spectators who had not joined the assembly and
who were unaware of its motive had not been
branded as members of the unlawful assembly
which committed the dastardly crimes that
morning. It has been found that the common object
of the unlawful assembly was not only to kill the
male members of the refugee families but also to
17
destroy all evidence of those crimes. Thus even
those who did something in connection with the
carrying of the dead bodies or disposal of them by
burning them as aforesaid must be taken to have
been actuated by the common objective.”
The aforementioned observation was, however, not accepted later by
this Court as an absolute proposition of law and was held to be limited to the
peculiar fact of the case in Masalti v. State of U.P. [(1964) 8 SCR 133] in
the following terms:
“…What has to be proved against a person who is
alleged to be a member of an unlawful assembly is
that he was one of the persons constituting the
assembly and he entertained long with the other
members of the assembly the common object as
defined by Section 141 IPC Section 142 provides
that however, being aware of facts which render
any assembly an unlawful assembly intentionally
joins that assembly, or continue in it, is said to be a
member of an unlawful assembly. In other words,
an assembly of five or more persons actuated by,
and entertaining one or more of the common object
specified by the five clauses of Section 141, is an
unlawful assembly. The crucial question to
determine in such a case is whether the assembly
consisted of five or more persons and whether the
said persons entertained one or more of the
common objects as specified by Section 141.
While determining this question, it becomes
relevant to consider whether the assembly
consisted of some persons who were merely
passive witnesses and had joined the assembly as a
18
matter of idle curiosity without intending to
entertain the common object of the assembly…”
17. We may, however, notice that whereas the principle of law laid down
in Masalti (supra) is beyond any doubt or dispute, its application in the later
cases has not been strictly adhered to. This Court, as would appear from the
discussions made hereinafter, in some of its decisions had proceeded to
determine the issue in the factual matrix obtaining therein although some
observations of general nature had been made.
18. In Sherey and Others v. State of U.P. [1991 Supp (2) SCC 437]
involved a case where there was a dispute between Hindus and Muslims of a
village regarding a grove. Whereas the Hindus were claiming that it was a
grove, the Muslims were claiming it to be a graveyard. A large number of
Muslims, about 25 in number, came out with lethal weapons and killed three
persons and injured others. Before this Court an argument was advanced
that the appellants against whom no overt act was attributed but were part of
the unlawful assembly should be held to be not guilty was accepted, stating:
“…Therefore, it is difficult to accept the
prosecution case that the other appellants were
members of the unlawful assembly with the object
of committing the offences with which they are
charged. We feel it is highly unsafe to apply
19
Section 149 IPC and make everyone of them
constructively liable. But so far as the above nine
accused are concerned the prosecution version is
consistent namely that they were armed with lethal
weapons like swords and axes and attacked the
deceased and others. This strong circumstance
against them establishes their presence as well as
their membership of the unlawful assembly. The
learned counsel appearing for the State vehemently
contended that the fact that the Muslims as a body
came to the scene of occurrence would show that
they were members of an unlawful assembly with
the common object of committing various offences
including that of murder. Therefore all of them
should be made constructively liable. But when
there is a general allegation against a large number
of persons the Court naturally hesitates to convict
all of them on such vague evidence. Therefore we
have to find some reasonable circumstance which
lends assurance. From that point of view it is safe
only to convict the abovementioned nine accused
whose presence is not only consistently mentioned
from the stage of FIR but also to whom overt acts
are attributed…”
19. Similarly, in Musa Khan and Others v. State of Maharashtra [(1977) 1
SCC 733], it was opined:
“…It is well settled that a mere innocent
presence in an assembly of persons, as for example
a bystander, does not make the accused a member
of an unlawful assembly, unless it is shown by
direct or circumstantial evidence that the accused
shared the common object of the assembly. Thus a
20
court is not entitled to presume that any and every
person who is proved to have been present near a
riotous mob at any time or to have joined or left it
at any stage during its activities is in law guilty of
every act committed by it from the beginning to
the end, or that each member of such a crowd must
from the beginning have anticipated and
contemplated the nature of the illegal activities in
which the assembly would subsequently indulge.
In other words, it must be proved in each case that
the person concerned was not only a member of
the unlawful assembly at some stage, but at all the
crucial stages and shared the common object of the
assembly at all these stages…”
It was opined therein that as evidence was wholly lacking that all of
them had taken part at all stages of the commission of offence, they were
held to be not guilty of the charges levelled against them.
20. Yet again in Nagarjit Ahir v. State of Bihar [(2005) 10 SCC 369], it
was opined:
“…Moreover, in such situations though many
people may have seen the occurrence, it may not
be possible for the prosecution to examine each
one of them. In fact, there is evidence on record to
suggest that when the occurrence took place,
people started running helter-skelter. In such a
situation it would be indeed difficult to find out the
other persons who had witnessed the
occurrence…”
21
It was furthermore observed:
“…In such a case, it may be safe to convict only
those persons against whom overt act is alleged
with the aid of Section 149 IPC, lest some innocent
spectators may get involved. This is only a rule of
caution and not a rule of law…”
21. Almost a similar view has been taken in Hori Lal and Another v. State
of U.P. [(2006) 13 SCC 79] wherein this Court noticed both Baladin (supra)
and Masalti (supra) as also other decisions to opine:
“23. Common object would mean the purpose or
design shared by all the members of such
assembly. It may be formed at any stage.
24. Whether in a given case the accused persons
shared common object or not, must be ascertained
from the acts and conduct of the accused persons.
The surrounding circumstances are also relevant
and may be taken into consideration in arriving at
a conclusion in this behalf.
25. It is in two parts. The first part would be
attracted when the offence is committed in
furtherance of the common object. The offence,
even if is not committed in direct prosecution of
the common object of the assembly, Section 149
IPC may still be attracted.”
22
What was, therefore, emphasized was that not only the acts but also
the conduct and surrounding circumstances would be the guiding factors.
22. In Shankaraya Naik & Ors. v. State of Karnataka [2008 (12) SCALE
742], this Court held:
“5…It is clear from the record that the accused had
come to the place of incident duly armed and had
immediately proceeded with the attack on the
opposite party and had caused serious injuries to
the deceased and to as many as eight witnesses. It
is also clear from the facts preceding the attack
that there was great animosity between the parties
and it must, therefore, be inferred that when the
accused had come armed with lethal weapons, the
chance that somebody might be killed was a real
possibility.”
23. In Maranadu and Anr. v. State By Inspector of Police, Tamil Nadu
[2008 (12) SCALE 420], this Court stated the law, thus:
“17. `Common object' is different from `common
intention' as it does not require a prior concert and
a common meeting of minds before the attack. It is
enough if each has the same object in view and
their number is five or more and that they act as an
assembly to achieve that object. The `common
object' of an assembly is to be ascertained from the
acts and language of the members composing it,
and from a consideration of all the surrounding
23
circumstances. It may be gathered from the course
of conduct adopted by the members of the
assembly. For determination of the common object
of the unlawful assembly, the conduct of each of
the members of the unlawful assembly, before and
at the time of attack and thereafter, the motive for
the crime, are some of the relevant considerations.
What the common object of the unlawful assembly
is at a particular stage of the incident is essentially
a question of fact to be determined, keeping in
view the nature of the assembly, the arms carried
by the members, and the behaviour of the members
at or near the scene of the incident. It is not
necessary under law that in all cases of unlawful
assembly, with an unlawful common object, the
same must be translated into action or be
successful. Under the Explanation to Section 141 ,
an assembly which was not unlawful when it was
assembled, may subsequently become unlawful. It
is not necessary that the intention or the purpose,
which is necessary to render an assembly an
unlawful one comes into existence at the outset.
The time of forming an unlawful intent is not
material. An assembly which, at its
commencement or even for some time thereafter,
is lawful, may subsequently become unlawful. In
other words it can develop during the course of
incident at the spot co instanti.”
24. We may, however, notice that therein this Court had taken note of an
earlier decision of this Court in State of U.P. v. Dan Singh and Ors. [(1997)
3 SCC 747] wherein it was held:
“34. Mr Lalit is right in submitting that the
witnesses would be revengeful as a large-scale
24
violence had taken place where the party, to which
the eyewitnesses belonged, had suffered and it is,
therefore, necessary to fix the identity and
participation of each accused with reasonable
certainty. Dealing with a similar case of riot where
a large number of assailants who were members of
an unlawful assembly committed an offence of
murder in pursuance of a common object, the
manner in which the evidence should be
appreciated was adverted to by this Court in
Masalti case at p. 210 as follows:
“Then it is urged that the evidence given by the
witnesses conforms to the same uniform pattern
and since no specific part is assigned to all the
assailants, that evidence should not have been
accepted. This criticism again is not well-founded.
Where a crowd of assailants who are members of
an unlawful assembly proceeds to commit an
offence of murder in pursuance of the common
object of the unlawful assembly, it is often not
possible for witnesses to describe accurately the
part played by each one of the assailants. Besides,
if a large crowd of persons armed with weapons
assaults the intended victims, it may not be
necessary that all of them have to take part in the
actual assault. In the present case, for instance,
several weapons were carried by different
members of the unlawful assembly, but it appears
that the guns were used and that was enough to kill
5 persons. In such a case, it would be unreasonable
to contend that because the other weapons carried
by the members of the unlawful assembly were not
used, the story in regard to the said weapons itself
should be rejected. Appreciation of evidence in
such a complex case is no doubt a difficult task;
but criminal courts have to do their best in dealing
with such cases and it is their duty to sift the
evidence carefully and decide which part of it is
true and which is not.”
25
25. The decisions of this Court in Shankaraya Naik (supra) and Maranadu
(supra), therefore, do not militate against the proposition of law in regard to
appreciation of evidence, which we have to apply herein.
26. The prosecution in a case of this nature was required to establish (i)
whether the appellants were present; and (ii) whether they shared a common
object.
The mob indisputably raided the house of the first informant. Most of
the members thereof were armed with deadly weapons. They not only
committed gruesome acts but also when their attempt to assault others was
frustrated as the prosecution witnesses bolted themselves in a room, set the
two portions of the house on fire, as a result whereof they had to come out.
It had not been denied or disputed that they were inimically disposed of
towards the family.
We have been taken through the evidences of PWs 1 and 9 almost in
their entirety. We did not find even a suggestion having been thrown at
them that their story that the sister of the appellant Kazem was married twice
to two sons of PW-1 as a result whereof Kazem bore a grudge against them
is incorrect.
26
27. We also do not find any material on record to disbelieve that part of
the evidences of PWs 1 and 9 that keeping in view the rein of terror
unleashed by Kazem they had to leave the village and they came back only
after 20 days prior to the occurrence. In the meanwhile, the sister of Kazem
having come to their residence, she was married to Akramul.
28. Whereas this part of the prosecution story, in our considered opinion,
has rightly been relied upon by the learned Sessions Judge as also the High
Court in arriving at their conclusion, the defence side of the story should
also not be ignored. While saying so, we are not oblivious of the dicta that
enmity is a two-edged weapon. Whereas it is possible as was the case in
Masalti (supra) that the accused had formed a common object, the chances
of some of the accused having been falsely implicated for extraneous
reasons also cannot be ruled out.
29. The discrepancies in the statements of PWs 1 and 9 with regard to the
presence of some of the appellants have been noticed by us hereinbefore.
Akhtar, appellant in Criminal Appeal No. 2041 of 2008 had not been named
by any of those witnesses. On what basis, a judgment of conviction could be
27
recorded against him is beyond our comprehension. Similarly, three others
had not been named by PW-1 at all. In the court, PW-1 identified 19
persons. Three were absent. He, therefore, did not identify the others.
According to him, he did not remember the names of other persons.
30. Mr. Bhattacharjee would contend that whereas PW-1 was examined
ten years after the occurrence, PW-9 had been examined after twenty years
after the occurrence. This may be so. It is unfortunate that for one reason or
the other the trial was not completed for a period of twenty years. Pendency
of a criminal case for a long time, as is evident from the fact noticed
hereinbefore, is extremely hazardous. But, then omission on the part of a
prosecution witness to name and identify an accused in the dock cannot be
held to be wholly insignificant so as to record a judgment of conviction.
Presence of an accused while the offence was committed is a sine qua non to
find him guilty of being a member of unlawful assembly. If his presence is
doubted, question of finding him guilty does not arise.
31. In a case of this nature, the rule of prudence should be applied.
Something more than their being cited as an accused in a witness box would
be necessary. The court must have before it some materials to form an
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opinion that they had shared a common object. It has not been denied or
disputed that whereas five brothers were implicated as one brother had
deposed against PW-9 and sons had also been implicated because a father
had deposed against them. Whereas PW-1 in his deposition denied that the
accused deposed in the case in which a son was found to be guilty of murder
of Dol Gobinda Acharya (ex-Pradhan), PW-9 admitted that he committed
the said murder in broad daylight. The defence that there were other reasons
for their false implication cannot also be ruled out. In our opinion, there
exists absence of any clinching evidence as against the seven appellants in
Criminal Appeal No. 2040 of 2008, particularly when three of them had not
been named at all by PW-1 and four of them had not been named by PW-9.
32. We are not unmindful that Akbar and Kanku have been named by
both the witnesses but even against them no overt act has been attributed.
33. We, therefore, are of the opinion that doubts legitimately arise as
regards their presence and/ or sharing of common object. While saying so,
we are not oblivious of the fact that the incident had taken place at the dead
of night. Enmity between two groups in the village is admitted. But, we
cannot also lose sight of the fact that a person should not suffer rigorous
29
imprisonment for life although he might have just been a bystander without
anything more.
34. Submission of Mr. Ghosh that the First Information Report is ante-
timed cannot be accepted. It is possible that PW-1 because of lapse of time
has made certain statements which go beyond the record, viz., holding of
inquest before the FIR was recorded. The number of accused persons in the
First Information Report might have also been put by the investigating
officer at a later point of time. The fact that the post mortem examination
had been held on 16.05.1982 itself goes a long way to establish the genesis
of the occurrence. While saying so, we are not unmindful of the fact that the
First Information Report was sent to the Magistrate after 24 hours. But then,
in a case of this nature such a delay may not, by itself, be held to be fatal.
35. We are also unable to accept the submission of Mr. Rauf Rahim that
Kabir was a juvenile on the date of occurrence. No such question had ever
been raised. Even where a similar question was raised by five other accused,
viz., Jahangir, Motahar, Mosi, Chosi and Habal, no such plea was raised
even before the High Court. Reliance inter alia has been placed on the
statement of Kabir under Section 313 of the Code of Criminal Procedure
30
wherein he stated his age to be 33 years in 2001. Such a statement, in our
opinion, is not decisive. Reliance has also been placed on a voters’ list. The
said voters’ list had been prepared long after the incident occurred. The
same is again not decisive.
36. In the facts and circumstance of this case and particularly having
regard to the specific role attributed to him, viz., he was one of the four
persons who had taken away Akramul with Buddik, Ruli and Sadek and the
said evidence brought on record by the prosecution having been relied upon
by both the courts below, we do not see any reason to interfere therewith.
Similarly, not only in the First Information Report but also the
prosecution witnesses, viz., PWs 1 and 9, specifically attributed role of
Kazem. Kazem took a specific defence of alibi. It was for him to prove the
same.
37. The Trial Court noticed that the certificate issued by Dr. Dulal
Chowdhury was issued by him in his private capacity as Medical
Practitioner. The Trial Court noticed:
31
“In cross-examination it transpires that he issued
the certificate in the year 1991 but he cannot
recollect the time and date when Kazem Ali was
admitted at Suri Hospital and also cannot say also
under what condition he was discharged from Suri
Hospital without perusal of the records.”
The Trial Court held:
“Ext. B and C are the certificates dated 7.5.91 and
the discharge certificate issued by Dr. Dulal
Chowdhury was issued on 7.5.91 and Ext. C was
issued on 5.12.81. It is crystal clear from Ext. C
that Kazem Ali was discharged on 5.12.81 and on
the reverse side of this certificate it is also crystal
clear that pt. can resume his usual duty. This
shows that on and from 05.12.81 the pt. i.e. Kazem
Ali was fit to resume his normal duty. That
Kazem Ali was not fit on the date of incident i.e.
on 16.05.82 does not arise at all. The defence
lawyer has failed to establish the fact that Kazem
was under the treatment of Dr. Chowdhury on the
date of occurrence i.e. 16.05.82 does not stand at
all. Therefore, the contention of the defence is that
at the time of the said occurrence, accused Kazem
was under the treatment of Dr. Dule Chowdhury
has not been established.”
38. The learned Trial Judge, in our opinion, has for good reasons
disbelieved the certificate given by Dr. Dulal Chowdhury. If the appellant
could not establish his plea of alibi, in our opinion, on the face of the
32
records, no case has been made out to interfere with the judgment of Trial
Court/ High Court.
39. In the result, Criminal Appeal Nos. 2040 and 2041 of 2008 are
allowed and Criminal Appeal Nos. 2042 of 2008 and 28 of 2009 are
dismissed.
………………………….J.
[S.B. Sinha]
..…………………………J.
[R.M. Lodha]
New Delhi;
May 05, 2009