Arun Kumar Bhattacharya, J.@mdashThe present appeal is directed against the judgment and order of conviction and sentence passed by the ld. Additional Sessions Judge, 2nd Court, Midnapore in Sessions Trial case No. XXX/September, 1996 on 29.06.1998.
2. The prosecution case, in short, is that on 11.09.1994 at about 12.00 hrs. accused Kameshwar Basuri, Deben Basuri, Pulin Basuri, Jaggeswar Basuri & Gyan Basuri prevented Aswini Basuri (P.W.6) and Ashok Basuri (P.W.8) from catching fish from their purchased land at Charchita Mouza and abused them filthily. At the intervention of Bimal Basuri (P.W.5) the dispute ended were. At about 1.00 p.m. all those accused persons along with accused Priyanath Basuri, Mrityunjoy Basuri, Mrigen Basuri and Satyaban @ Baidyanath Basuri being armed with deadly weapons raided the house of Ashok Basuri and as soon as his father Padmalochan came out, they assaulted him with arrows, axes and crowbars resulting in his death on the spot. When Ashok and Aswini reached there, they were also attacked with sticks, axes, arrows etc. thereby causing serious injuries to them. The female-folks of the house were also assaulted. Hence, all the nine accused persons were charged under Sections 148 302/149 307/149 326/149 325/149 and 324/149 IPO.
3. The defence case, as suggested to P.Ws. and as contended by the accused persons during their examination u/s 313 Cr. PC, is that no such incident in the manner as deposed took place. The accused persons did not commit murder of Padmalochan nor assaulted any person.
4. 16 witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence and after considering all the facts, circumstances and materials on record, the ld. Court below while acquitted accused Jaggeswar Basuri and Mrityunjoy Basuri of all the charges, found the balance accused persons guilty u/s 148 IPC, accused Kameswar Basuri, Mrigen Basuri and Pulin Basuri guilty u/s 302/149 IPC, Pulin Basuri & Satyaban @ Baidyanath Basuri u/s 324/149 IPC, accused Deben Basuri u/s 307/149 IPC and accused Gyanballav Basuri & Priyanath Basuri u/s 325/149 IPC, convicted them thereunder and sentenced Kameswar, Mrigen & Pulin to suffer imprisonment for life, accused Pulin and Satyaban R.I. for one year, accused Deben R.I. for seven years and to pay fine of Rs. 5,000/- i.d. to R.I. for three months, accused Gyanballav and Priyanath R.I. for three years each and to pay fine of Rs. 2000/- each i.d. to S.I. for two months each and no separate sentence was passed for the offence u/s 148 IPC.
5. Being, aggrieved by and dissatisfied with, the said order of conviction and sentence, all the seven accused persons have preferred the present appeal.
6. All that now requires to be considered is whether the ld.Court below was justified in passing the above order of conviction and sentence.
7. Out of the above witnesses, P.Ws. 3 to 8 being eye-witnesses, P.Ws. 10, 12 to 14 (doctors), P.W.11 (autopsy surgeon) and P.W.16 (I.O.) are vital, others being post-occurrence or formal witnesses.
8. According to the evidence of P.W.1, on 11.09.1994 at about 12.00 hrs. when he was working in his land about five bighas away, Padmalochan and his sons Aswini (P.W.6) and Ashok (P.W.8) were catching fish at Charachita Char of river Subarnarekha. There was an altercation between them and the accused persons who being armed with lathi, tangi, bows and arrows attacked the former, for which Padmalochan died on the spot and Ashok & Aswini sustained severe injuries. The accused persons also made an attempt on the female folks of the house of injured persons. He came to the spot and arranged for sending the injured to Gopiballavpur and Sasra PHC for medical treatment. He lodged an FIR (Ext.1) with the P.S. Police came to the P.O. for investigation, seized certain articles from the P.O. and he was a witness to the seizure in respect of x-ray plate and injury report relating to Ashok. P.W.9 Panchanan Sahoo, the then Pradhan, on getting information after 1.00 p.m. about murder of Padmalochan, went to the house of the victim, found the deadbody of the victim, marks of injuries on the person of his two sons and daughter-in-law when Prankrishna (P.W.3) narrated the incident to him.
9. P. W. 3, nephew of the victim, stated that on 25th Bhadra, 1401 B. S., Sunday, after 12.00 hrs. when he along with Aswini (P.W.6) and Ashok (P.W.8) was catching fish on their land under Mouza Charchita Char, accused Kameswar, Pulin, Deban and Jaggeswar came there for catching fish. There was an altercation between them and those accused persons and his uncle Bimal Basuri (P.W.5) who was grazing cows nearby, came to the spot and separated them from altercation. Thereafter those accused persons left for their houses, but before departure accused Kameswar threatened them with dire consequences. They also proceeded towards their houses. They heard a hue and cry near the house of Padmalochan and found the accused persons being armed with deadly weapons like lathi, tangi, bows, arrows, axes etc. Accused Kamewsar assaulted Padmalochan with arrow on his chest, accused Mrigen assaulted him with blunt side of an axe while accused Pulin assaulted him with blunt side of tangi. Accused Kameswar and Deben aimed arrow at Ashok (P.W.8) and accused Jaggeswar assaulted him with a shabal while accused Mrityunjoy assaulted him with a lathi. Accused Satyaban assaulted Aswini (P.W.6) with a tangi on his head, while accused Gyan struck him with a lathi. Accused Pulin assaulted Sandhya (P.W.7) with a tangi on her head. All the accused persons thereafter left the place with their weapon on arrival of witnesses Dhiren Nandy (P.W.1), Rabin Giri (P.W.4) and Bimal Basuri (P.W.5). Thereafter Sudhir Nandy (P.W.2) and the villagers assembled and on their query he narrated the incident to them. Victim Padmalochan died on the spot. Injured Aswini and Sandhya were removed to Sasra PHC and injured Ashok was sent to Gopiballavpur PHC. Dhiren Nandy (P.W.1) informed the local P.S. Police came at about 4.30 p.m., held inquest over the deadbody of the victim in his presence. The above evidence is fully corroborated by P.Ws. 4 to 8 in material particulars. The first part of the incident regarding altercation between P.Ws. 3, 6 & 8 on the one hand and accused Kameswar and three other accused persons on the other over the issue of catching fish took place in front of P.W.4 who was catching fish at Charchita Char and P.W.5 who separated them from altercation. Both P.Ws. 4 & 5 on hearing a hue and cry from the house of the victim went there and found the victim Padmalochan lying dead with arrow injury, Aswini and Sandhya with bleeding injuries on head, injured Ashok with an arrow on chest and P.Ws.1, 3 etc. there. P.W.6 on hearing a hue and cry went to their house, found accused Kameswar and Deben with bows and arrows in their hands, accused Mrigen with an axe, Satyaban and Pulin with tangis, Jaggeswar with shabal and Mrityunjoy, Gyan and Priyanath with lathis. On hearing abusive language hurled by those accused persons when his Baudi (P.W.7) and father Padmalochan came out from their house and separated them, accused Kameswar assaulted his father with an arrow on his chest resulting in his fall on the mud with an arrow injury, accused Pulin assaulted him on his head with blunt side of tangi and Mrigen assaulted him with the blunt side of axe. While he and his elder brother Ashok (P.W. 8) went to the rescue of his father, accused Kameswar and Deben aimed arrows at Ashok, for which he fell down on the mud with an arrow on his chest. Accused Mrityunjoy assaulted Ashok with lathi, while Jaggeswar assaulted him with a shabal and accused Satyaban assaulted him with a tangi on his head. Accused Priyanath and Gyan assaulted him (P.W. 6) with lathis on his back and right hand resulting in his bleeding injury with severe pain. Accused Pulin assaulted his Baudi (P.W.7) with a tangi on her head. When Dhiren Nandy (P.W. 1), Rabin Giri (P.W.4) and Bimal Basuri (P.W. 5) appeared there, the accused persons left with their respective arms from the scene of occurrence. He was treated at Sasra PHC. Similar is the evidence of P.Ws. 7 & 8.
10. P.W. 11 Dr. Amalendu Mondal, M.O., S.D. Hospital, Jhargram, on holding PM examination over the deadbody of the victim Padmalochan, identified by P.W.15, on 12.09.1994 found (1) alter bloody discharge from the head with mudstain on both legs, (2) penetrating wound 1/2" x 1/2" x 11/2" on the left side of chest wall, 11/2 below the clavicle away from the mid line, (3) lacerated wound on the temporal region with bloody discharge and on dissection, haematoma on the left pleura and the left lung punctured wound with a big haematoma and on further dissection of heart, haematoma in the penetonium and punctured injury on the left side of heart with an arrow embedded in the heart and opined that death was due to shock and haemorrhage on account of the injuries on the heart and lung by arrow which was ante-mortem and homicidal in nature. He further opined that a person may die instantaneously due to such type of injury. P.M. 10, Dr. Prabhat Kumar Mahanto, M.O. of Sasra PHC, on examination of Aswini Basuri (P.W.6) on 11.09.1994 at about 3.00 p.m. found (1) one cut injury 1" x 1/2" x 1/4 on scalp on the right parietal region, caused by sharp cutting weapon like tangi, (2) one cut injury 1" x 1/2" x 1/4" on the scalp, right frontal region, caused by a sharp-cutting weapon like tangi, (3) one cut injury 1" x 1/2" x 1/4" on scalp at occipital region, caused by sharp-cutting instrument like tangi, (4) ecchymosis on right dorsum of hand with fracture of 4 metacarpal bone, caused by lathi and the injury is grievous. On that date on examination of Sandhyarani Basuri (P.W.7) at about 3.30 p.m. he found one cut injury 11/2" x 1/2" x 14" on mid-occipital region of the scalp, caused by a sharp-cutting weapon like tangi. P.W. 12 Banibrata Chandra, Orthopedic Surgeon attached, to Jhargram Hospital, on examination of Aswini Basuri (P.W. 6) on 24.09.1994 found (1) shortening of right ring finger, (2) dressed scalp injury, (3) tenderness on the right fifth rib on the anterior aspect and on x-ray examination, fracture of the fourth metacarpal bone on right hand. There was a history of assault about 14 days back from the date of examination, as informed by the patient. P.W. 14, Dr. Tapan Kumar Bapari, M.O. of Gopiballavpur PHC stated that his colleague Dr. S. P. Routh examined Ashok Basuri (P.W. 8) of village Ukta and issued an injury report [Ext. 8(c)] in his own handwriting and signature. The said injury report reveals that on examination of Ashok Basuri on 11.09.1994 at about 3.45 p.m. 1" wound could be found on the left second intercostal space medial to mid-clavicle bine with oozing of blood with movement and a foreign body (arrow) felt clinically inside the wound on the chest and the nature of injury is grievous. P.W. 13 Dr. Kamalendu Bhattacharya, M.O. of N.R.S. Medical College & Hospital, on examination of Ashok Basuri (P.W. 8) on 14.09.1994 found (1) 1" x 1/2" deep cut wound over left intercostal space, 2" away from the left of the sternum--chest x-ray shows arrow-head inside. The history of the injury, as reported by the patient, is that he was assaulted by Deben Basuri of village Ukta at about 1.30 p.m. on 11.09.1994 by an arrow due to previous lighting over the issue of catching of fish.
11. P.W. 2 Sudhir Kumar Nandy, elder brother of P.W. 1, after return to house at about 1.30 p.m. and on coining to learn about murder of Padmalochan and severe injuries of his two sons and daughter-in-law rushed to the house of the victim, found the deadbody of Padmalochan in a pool of blood with bleeding injuries on head and chest lying on the road in front of his house, Ashok with arrow injury and Aswini & Sandhyarani with bleeding injuries on head. On his query, Prankrishna (P.W. 3) reported him the entire incident which is quite consistent with the evidence of P.Ws. 3 to 8. He further stated that Dhiren (P.W.1), Rabin (P.W. 4), Bimal (P.W. 5) and Prankrishna (P.W. 3) who were at the P.O. removed the injured to hospital for their treatment. Ashok at first was admitted at Gopiballavpur PHC and thereafter shifted to Jhargram Hospital and then to NRS Hospital and Sandhyarani was treated at Sasra PHC. Police came at about 4.30 p.m. held inquest over the deadbody of the victim Padmalochan, recovered 3 mud-stained arrows from the P.O. and seized the same in his presence under a seizure list. I.O. also seized mud-stained arrows from the house of accused Kameswar, a bow from the house of Mrityunjoy, 3 arrows from the house of Durjodhan Basuri under seizure lists in his presence, P.W. 16 S.I. Mriganko Sekhar Mishra, on receipt of the written complaint (Ext.1) at about 15.30 hrs. from P.W. 1 started Gopiballavpur P.S. case No. 37/94 dated 11.09.1994 u/s 147/148/149/324/325/326/302 IPC against nine FIR named accused persons and took up investigation of the case. On seeing Ashok Basuri who was brought to him, he sent him to Gopiballavpur PHC for medical treatment. He visited the P.O., prepared a sketch map with index (Ext. 15), held inquest (Ext. 16) over the deadbody of the victim Padmalochan, forwarded the said deadbody to Jhargram Hospital for PM examination, seized three mud-stained arrows from the P.O. under a seizure list (Ext. 17), conducted search in the house of the accused persons, seized mud-stained arrow from the house of accused Kameswar under a seizure list [Ext.17(a)], seized one bow from the house of accused Mrityunjoy under another seizure list [Ext. 17 (b)], seized three arrows from the house of Durjodhan Basuri -- father of accused Satyaban under another seizure list [Ext.17(c)], examined available witnesses and recorded their statements, received injury report of Ashok Basuri from Gopiballavpur PHC, arrested accused persons on different dates, collected injury reports of Aswini and Sandhya and also PM Report and seized bed-head-ticket of Ashok Basuri from N.R.S. Medical College & Hospital and after completion of investigation submitted chargesheet against nine accused persons. Cross-examination of those witnesses did not elicit any infirmity in their evidence relating to the substratum of the prosecution case.
12. A glance to the above evidence will reveal that the evidence of P.W. 3 and injured eye-witnesses P.Ws. 6 to 8 are corroborated with each other and also buttressed by other P.Ws. as also medical evidence.
13. There are a few contradictions due to omission e.g. there is absence of earlier statement u/s 161 Cr.PC of P.W.2, as is evident from the evidence of I.O. (P.W.16), that accused Pulin and Mrigen assaulted Padmalochan with tangi and axe, of P.W. 6 that accused Kameswar assaulted Ashok with an arrow, of P.W. 7 that accused Mrigen and Pulin assaulted her father-in-law with blunt side of axe and tangi and the accused Jaggeswar assaulted Ashok with a shabal and Mrityunjoy with a lathi and of P.W. 8 that accused persons assaulted P.Ws. 6 & 7. In respect of other omissions, since the attention of the concerned witness to that part of statement was not drawn, it becomes of no aid to the defence. Even if the above evidence of P.Ws. 2, 6, 7 & 8 to that extent are excluded from consideration due to contradiction on account of omission on vital points, it does not at all affect the prosecution case as there are other corroborative evidence, as discussed above.
14. There are one or two contradictions e.g. presence of accused Mrigen at the time of altercation at Charchita Char, as deposed by P.W. 4, which does not find place in the testimony of other witnesses. Such discrepancies appear to be minor and cannot undo the effect of evidence otherwise sufficient. The witnesses are deposing after about three years four months of the incident and so as memory faints, some discrepancies in their testimony are bound to occur. Discrepancies which do not go to the root of the matter and do not shake the basic version cannot be annexed with undue importance.
15. Mr. Ashim Kumar Roy, ld. Counsel for the appellants, at the outset, assailed the charge to be defective as for different offences by different persons charge should have been framed separately and as it has not been done here, the accused persons, have been prejudiced. As stated earlier, all the nine accused persons were charged under Sections 148 302/149 307/ 149 326/149 325/149 and 324/149 IPC. Second charge relates to murder of the victim Padmalochan, third and fourth charge relate to causing grievous hurt of Ashok Basuri and fifth & sixth charge relate to causing grievous hurt and hurt of Aswini Basuri and Sandhya Basuri respectively. The basic requirement is that the charge must be so framed as to give the accused a fairly reasonable idea of the case he is to face. Sections 215 & 464 Cr.PC cure every conceivable type of error and irregularity in charge that can possibly arise. The object of the charge is to give an accused notice of the matter he is charged with. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges the, accused cannot succeed by merely showing that the charges framed were defective, as was held in the case of
16. Mr. Roy on referring to the evidence of de facto complainant (P.W.1) contended that whereas according to the FIR the incident of altercation started at Charchita Char over the issue of catching fish and ended in front of the house of the victim where Padmalochan, as alleged, was murdered and three witnesses were injured, considering the evidence of P.W.1 it stands as if the entire incident of altercation, murder and injury took place at Charchita Char and so since the P.O. has been shifted, the prosecution story is doubtful. An FIR need not always be given by a person having first hand knowledge of the fact or by a person who is not an eye-witness. It may be used to contradict or corroborate the author of the same, but in the case on hand, P.W.1 was not confronted with the statement as borne out in the FIR. Though the evidence of P.W.1 is at variance with the contents of the FIR, a glance to the evidence of P.W.1 himself as also P.W. 2 and eye-witnesses, P.Ws. 3, 6 to 8 in particular will reveal that the incident of altercation started at Charchita Char between P.Ws. 3, 6 and 8 on the one hand and accused Kameswar, Jaggeswar, Pulin and Deben on the other over the issue of catching fish and the said altercation ended at the intervention of P.W. 5 and after an interval all the accused persons being armed with deadly weapons caused murder of Padmalochan and injuries to P.Ws. 6 to 8. It will also appear from the evidence of those P.Ws. that after the incident was over, on arrival of P.W.1, P.W. 4 & P.W. 5 the accused persons left the P.O. So P.W. 1 had no occasion to witness the incident. In other words, he is not an eye-witness. That apart, his very evidence in cross-examination that there was an exchange of arrows between the two parties leads to negate his presence at the time of the incident since; it is nobody''s case that the injured party was armed with any weapon nor there is any evidence in this regard on the part of any other witness. It is to be borne in mind that P.W. 1 is deposing after a lapse of about 3 years 4 months. Power of observation and memory differs from man to man and memory is apt to be blurred in the passage of time. The above evidence of P.W.1 regarding occurring of the entire incident at Charchita Char which is quite inconsistent with the FIR and not supported by any witness may be ignored and as such the question of shifting of the P.O. is out of the way.
17. Mr. Roy relying upon the cases of
18. Mr. Roy on referring to the evidence of P.Ws. 10, 12 and 13 next contended that P.Ws. 6 & 7 did not tell the names of assailants before the doctors and P.W. 8 Ashok simply disclosed the name of Deben alone. It is the specific evidence of P.W.12 that he did not enquire about the names of assailants. There is nothing to indicate in the evidence of P.W. 10 that he asked the patients (P.Ws. 6 & 7) about the names of assailants. So, they being rustic villagers could not be expected to disclose the names of assailants to the doctor out of their own. As regards P.W. 8 who had an arrow-head inside the chest and whose breath sound was depressed on the left side and whose condition as such was serious, he could not be expected to tell all the names of his assailants in that condition. Mere non-disclosure of names of assailants before the doctor''s is not any ground for discarding their testimony. The incident of murder and injuries having taken place in the broad daylight and they themselves being injured, they cannot exculpate the real offenders.
19. Mr. Roy on referring to the statements 3 of the accused persons u/s 313 Cr. PC further contended that as no caution was given to the accused persons prior to putting the question and examination is cryptic, it has vitiated the trial. Want of adequate examination does not vitiate the trial unless it has caused prejudice or failure of justice which is well-settled. It is also well-recognized that a judgment is not to be set aside on account of inadequate compliance with Section 313 Cr.PC. Clear prejudice to the accused must be shown and not a possibility of prejudice, as was held in the case of
20. Last but not the least, Mr. Roy referring to the evidence of P.Ws. 3, 6 to 8 submitted that assault by accused Mrigen and Pulin to the victim with the blunt side of axe and tangi respectively indicates that they had no intention to commit murder of the victim Padmalochan and as such they could not be roped with the offence of murder with the aid of Section 149 IPC. Relying upon the cases of Maina Singh v. State of Rajasthan, reported in 1976 SCC (Cri) 332 and Amar Singh v. State of Punjab, reported in 1987 SCC (Cri) 232 Mr. Roy further contended that though all the seven convicts were charged u/s 302/149 IPC, conviction of three accused only for the offence of murder denotes acquittal of other accused persons for the said charge and so, Section 149 cannot be invoked. 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 along with the other members of the assembly the common object as defined in Section 141. Section 142 provides that whoever, being aware of facts which render any assembly unlawful, intentionally joins that assembly, or continues 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 objects specified by the five clauses of Section 141, is an unlawful assembly. In this connection the case of
21. in the circumstances, there being no material to interfere with the decision of the ld.Court below, the appeal be dismissed. The impugned order of conviction and sentence passed by the ld.Court below on 29.06.1998 is hereby confirmed.
22. Appellants 1, 2, 4 & 7 viz. Priyanath Basuri, Gyanballav Basuri, Debendra Basuri and Satyaban @ Baidyanath Basuri are directed to surrender before the Court below at once to serve out the sentence. In default, the ld. Court below is directed to take steps to secure their arrest and to put them behind the bars for serving out the remaining part of sentence.
23. Alamats, if any, be destroyed after the period of appeal is over.
24. Let a copy of this judgment along with the LCR be sent down at once to the ld.Court below.
Debiprasad Sengupta, J.
25. I agree.
