IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE PRESENT: The Hon’ble Justice Nadira Patherya And The Hon’ble Justice Indrajit Chatterjee

C.R.A. NO.284 of 2009

Sufiar Rahaman @ Sk. Sufiar Rahaman

-vs.-

The State of West Bengal

For the Appellants : Mr. Sekhar Kumar Basu Mr. Milan Mukherjee

Ms. Rupa Bandhopadhyay Mr. Souvik Mitter Mr. Suman De. Mr. Arun Ray Kukherjee Mr. Subhasish Das Gupta.

For the State : Mr. Manjit Singh Learned Public Prosecutor

Mr. Prasun Dutta Mr. Pawan Kumar Gupta.

Heard On : 21.04.2015 Judgment on : 6th day of July, 2015

Indrajit Chatterjee, J: The present appellants were convicted in respect of the

charge punishable under Sections 302 read with Section 149 and 307 read

with Section 149 of the Indian Penal Code (hereinafter called as the Code) as

passed by the Learned Sessions Judge, Birbhum at Suri in Sessions Trial No.1

(March) 1990 which arose out of Sessions Case No.64 of 1989. As per the

impugned judgment dated 30th March 1989, the Trial Court was pleased to

convict all the 46 appellants before us and sentenced them to suffer

imprisonment for life for the offence punishable under Section 302 read with

Section 149 of the Code. They were further sentenced to pay fine of Rs.5,000/-

(five thousand) each in default to suffer imprisonment for a further period of

one year each.

The appellants were also found guilty in respect of the charge punishable

under Section 307 read with Section 149 of the said Code and were sentenced

to suffer rigorous imprisonment for a period of seven years and each were

further sentenced to pay fine of Rs.1,000/- (one thousand) each in default to

suffer imprisonment for a period of six months.

The FIR was handed over by one Madhusudan Ghosh (PW-1), to the Sub-

Inspector Pravat Kumar Mukherjee (PW-20), the Officer-in-Charge of Bolpur

Police Station on 19.11.1987 at about 10:25 hours, when the police force was

camping at Muluk Adarshapalli. The said FIR was forwarded to the Officer-in-

Charge Bolpur Police Station through Home Guard Ram Narayan Ganguly (PW-

17) for starting a case under Sections 148/149/326/307/302 of the Code and

as such Bolpur Police Station Case No.9 dated 19.11.1987 was registered at

11:05 hours.

It was stated in the FIR that the incident took place on 19th of November,

1987 in which three persons of village Muluk within Bolpur Police Station,

District Birbhum were murdered and one was seriously injured. The incident

took place between 9 a.m. to 9:30 a.m. at Kalitaladanga at Village Muluk when

the victims Sk. Mannan, Ziyauddin Sk., Sudir Ghosh and Nirmal Ghosh @

Patkula were going through the village road. At that time one procession was

coming from the other side. The members of the procession were armed with

Sarki, Lathi, big Sticks and Tangi and they attacked the victims mentioned

above. The first three persons mentioned above died at the spot and the fourth

one died on that date at Bolpur Sub-Divisional Hospital. It was also stated in

the FIR that the members of the procession attacked Sk. Taiab (PW-2) and Abu

Hayat (not examined) and injured them seriously. In the FIR in all 41 persons

were named. PW-20 took up the investigation and in the process he conducted

the inquest on the dead bodies of the deceased, collected the post-mortem

reports and bed-head tickets of the two victims, Abu Tayeb and Abdul Hayat,

arrested three persons from the place of occurrence and thereafter submitted

charge-sheet against 56 accused persons for the offence punishable under

Sections 148/149/326/307/302 of the said Code. On enquiry it was found

that Sk. Enamul and Babul Sk. was the same person. Thus number of accused

persons came down to 55.

The trial court framed charge under Sections 148/307/302 read with

Section 149 of the Code against 55 accused persons. Later on accused Badal

Kumar Majhi and Ansarul Haque were held to be juveniles and trial against

them was split up vide order dated 30.11.1995 of the Learned Sessions Judge,

Birbhum. The case against accused Jillur Rahaman @ Jillu was filed for the

present. During the pendency of the trial Kanai Lohar, Abdul Haque, Laxmi

Ram Tuddu, Abdul Ohid and Lambodar @ Lambu Majhi died. The case was

filed as against those persons. The case was also filed for the present as

against Shankar Dhar as he absconded. It may be noted that in that sessions

trial forty six accused persons who are now before us faced the trial and all

were convicted as mentioned above.

The defence made out a case of false implication and innocence which

can be gathered from the trend of cross-examination and the answers given by

the accused persons in their examinations under Section 313 of the Code of

Criminal Procedure.

It may be mentioned that though charge was framed against accused

persons for the offence punishable under Section 148 of the Code the Trial

Court did not pass any order in respect thereof and as such it may be treated

that the accused persons were acquitted in respect of the charge punishable

under Section 148 of the Code giving benefit to the appellants as was conceded

by the Learned Public Prosecutor before us.

Before the trial court as many as 20 witnesses were examined. The

defence preferred not to adduce any oral or documentary evidence. Apart from

oral evidence the prosecution also proved some documentary evidence like the

carbon copies of post-mortem reports, carbon copies of inquest reports, seizure

lists, FIR, copy of G.D entry etc. Some articles were seized and marked as

material exhibits.

It may be mentioned that in the FIR 4 persons were cited as eye

witnesses with the clause “and others”. Of those four witnesses Dhanu Ghosh

is PW-7 (not deposed as eye witness) and Badaklal Hembram is PW-3. Other

eye witnesses as per FIR Sk. Allauddin and Meghnad Ghosh were not

examined. The other eye witnesses as per evidence on record are the de facto

complainants, Madhu Sudan Ghosh PW-1, the injured eye witnesses, Abu

Tayeb PW-2, Santoshi Ghosh PW-4, the daughter of the victim Sudhir Ghosh

and sister of another victim Nirmal Ghosh @ Patkula and Islam Mia PW-6.

There is another eye witness to the incident he is PW-5 Mangla Hansda. There

may be some dispute to brand him as eye witness as he deposed, “on 2nd

Agrahayan about 15/16 years ago I learnt about the incident” but the

evidence is to be read as a whole and should not be assessed on reading of a

single line.

It may be mentioned that though the incident took place in 1987 and

charge was framed on 8th of March, 1990 the first witness was examined only

on 5th of July, 2004 and the last one on 17th December, 2008. Thus, in

assessing the merit of the witnesses the Court will keep in mind that they came

to depose after 17 years of the incident. On scrutiny of the sessions court

record we are satisfied that the defence tried to delay the proceeding as much

as it could, but criminal trial is not won by delaying the trial.

The other witnesses examined by the prosecution were as follows: PW-8

is Chitta Ghosh, husband of PW-5 Santoshi Ghosh. PW-9 is Sanaulla Mollah,

who signed on the inquest reports. PW-10 is Sk. Nazrul another witness to the

inquest. PW-11 scribe of the FIR, who wrote it as per the instruction of PW-1.

PW-12 is a seizure list witness. PW-13 was called unnecessarily by the trial

court. PW-14 is Dr. S. Sorkhel who examined the two victims namely Abu

Tayeb and Abu Nuhu (not examined) both at Suri Sadar Hospital on

19.11.1987. PW-15 is constable Ashok Patra, who accompanied the officers

and police personnel including PW-16, Ashok Bhattacharya to village Muluk

Kalitaladanga and took the dead bodies to S.D. Hospital, Bolpur along with the

dead body challans wherefrom the dead bodies were taken to the Suri Hospital

for post-mortem examinations. PW-15 and PW-16 also signed the seizure lists.

PW-17 Home Guard, took the written complaint from village Muluk to Bolpur

Police Station for registering the case. PW-18, S.I Tapan Pal is a formal witness

who claimed that he wrote four seizure lists as per the instruction of PW-20, S.I

Pravat Kumar Mukherjee. PW-19 is the police officer who registered the case

being Bolpur P.S. Case no. 9 of 1987 dated 19.11.1987 by filling up the formal

FIR. PW-20 is the I.O, S.I Pravat Kumar Mukherjee.

It may be noted for future reference that the autopsy surgeon who

conducted the post-mortem examination on the dead bodies of the four victims

died during the pendency of the trial and the post-mortem reports were marked

as exhibits 16, 17, 18 and 19, on consent as per petition filed before the Trial

Court by the learned Public Prosecutor on 19th August, 2008. The said petition

was allowed by the Trial Court vide order no.181 dated 19.08.2008 and no

revisional application was filed therefrom before this Hon’ble Court.

There is another feature of this case which is apparent from the evidence

of PW-20 that Santoshi went to Bolpur P.S at about 09:45 hours on

19.11.1987 to inform the police regarding the incident and her information was

diarised as per G.D. entry no.702 dated 19.11.1987 of the Bolpur Police

Station, which was marked as exhibit 21. It was submitted before the Trial

Court that this G.D. entry ought to have been treated as FIR but the learned

trial court rightly decided that such cryptic information cannot be treated as

FIR.

Mr. Basu and Mr. Mukherjee counsels for the accused appellants did not

raise this point before this Court. It has been set at rest by different decisions

of the Apex Court that cryptic information should not be treated as FIR. On

this point we can refer to the decisions of the Apex Court as reported in (2012)

7 SCC 225 (Anand Mohan vs. State of Bihar), 1997 SCC (Cri) 33 (Binoy

Kumar vs. State of Bihar) and 1995 SCC (Cri) 534 (Ishaque vs. State of

Bihar).

Mr. Basu, the learned senior advocate submitted before this Court that

the carbon copies of the post-mortem reports should not have been marked as

exhibits by the Trial Court even though the advocate consented to them being

marked as exhibits. If one document is to be marked as exhibit then it must

come within the periphery of the Evidence Act. He referred to Sections 64 and

65 of the Evidence Act to substantiate his argument. It is true that as per

Section 64 of the Evidence Act documents must be proved by primary evidence

except in cases stated in Section 65 of the said Act. It may be noted that the

doctor being dead none could come to prove that the carbon copies were

prepared in the same mechanical process. Considering the circumstances

before us and which was before the Trial Court there was no alternative before

the Trial Court but to mark those documents as exhibits particularly when the

defence did not raise any objection. We are unable to accept the contention of

the defence counsels that those documents ought not to have been marked as

exhibits being carbon copies.

Mr. Basu also attacked the judgment of the Trial Court by relying on the

decision of the Apex Court reported in (2014) 6 Supreme Court Cases 672

(Nagesar vs. State of Chhattisgarh) to convince us that the persons whose

names did not appear in the FIR ought not to have been convicted by the Trial

Court. He submitted that in the FIR as many as 41 persons were named and as

such there was no scope to convict other accused persons. We may illustrate

here that the names of Sk. Samsul (Appellant No.35), Biswanath Pal (Appellant

No.36), Sk. Enamul (Appellant No.37), Anis Khan (Appellant No.38), Helu Khan

(Appellant No.39), Aktar Sk. (Appellant No.40), Jilai Sk. (Appellant No.41),

Khokan Sk. (Appellant No.42), Mirjan Khan (Appellant No.43), Ajijul Sk.

(Appellant No.44), Anath Ghosh (Appellant No.45) and Meher Sk. (Appellant

No.46) were not mentioned in the FIR but they were convicted by the learned

trial court. It may be mentioned that accused Badal Majhi (since declared

juvenile), Sk. Samsul (Appellant No.35), Biswanath Pal (Appellant No.36), Sk.

Enamul (Appellant No.37), Anis Khan (Appellant No.38 ) and Helu Khan

(Appellant No.39 ) and Lambodar Majhi (since deceased) were forwarded by the

I.O on the very next day of the incident to the court of the S.D.J.M, Bolpur

along with two FIR named accused namely Rausan Ali (Appellant No.2) and

Nandan Nandi (Appellant No.21 ) who were arrested by the Investigating Officer

from near the place of occurrence when the police force arrived.

Mr. Basu also submitted that neither Santoshi Ghosh (PW-4) nor (PW-5)

Mangla Hansda can be treated as eye witnesses. Regarding Mangla Hansda it

was his argument by taking us to one sentence in his examination-in-chief “on

2nd Agrahayan about 15/16 years ago I learnt about the incident” relying on

this sentence it was his argument that this Mangla Hansda only heard about

the incident. It is needless to say that evidence of a witness cannot be judged

on a single sentence and to appreciate the evidence the entire evidence is to be

considered and appreciated. It is true that Mr. Singh the learned Public

Prosecutor tried to abandon his earlier claim that Mangla Hansda was not an

eye witness but on reading and re-reading the entire evidence of this PW-5, we

are of the opinion that this witness is one eye witness of the incident. He

categorically deposed regarding the details of the incident and identified the

members of the procession in the courtroom. His presence at the place of

occurrence cannot be thrown away easily when this witness deposed “it is true

that I personally had been to the said Kali Temple for worshipping purpose”.

We have gone through the cross-examination of this witness only to conclude

that he is one eye witness. He further deposed in his cross-examination that

“upon hearing the hue and cry, more than 200 people came out of their

respective houses to the spot. Those people including myself remained present

at the spot till arrival of the police at the spot.”

As regards the evidence of Santoshi (PW-4), it was submitted by Mr.

Basu that the de facto complainant did not mention in the FIR the names of

this witness and rather admitted before the Court at the time of recording his

evidence that Santoshi (PW-4) was not seen by him at the place of occurrence.

It is true that even after such assertion we cannot shut our eyes to the

evidence of the other witnesses. PW-5, Mangla Hansda deposed in his

examination-in-chief “At the relevant time Santoshi Ghosh, daughter of Sudhir

Ghosh was seen by her to come out of her house with a view to save her father

and that she was chased by accused Appellant No.1 (Safi) and Swapan Nandi

(Appellant No.3) with Ballam and other weapons”.

We also get from evidence of PW-6, Islam Mia that this Santoshi was very

much there and she appeared at the spot and tried to save her father and

brother and she was chased by the accused persons named by this witness

(PW-6) including Swapan Nandi (Appellant No.3) and Sufiar Rahaman

(Appellant No.1). We also get from the evidence of PW-7, Dhanu Ghosh that

this witness met Santoshi Ghosh, wife of Chitta Ghosh coming on a stranger’s

bicycle as pillion rider and she stopped before him and Chitta Ghosh, her

husband, only to say that her father, elder-brother, one Ziauddin and Buro Sk.

were being assaulted by a group of people with the help of lathi, ballam, bow &

arrow, tangi etc. The evidence of PW-8 also goes to show that his wife Santoshi

is one eye witness to the incident when this PW-8 deposed that his wife told

him the names of the assailants which is natural.

Thus, we cannot concede to the argument of Mr. Basu on this count.

It was further argued by Mr. Basu by relying on the decision of the Apex

Court reported in AIR 1956 SC 181 (Baladin and others vs. State of U.P.), a

three judge bench decision wherein the Apex Court held :

“It is well settled that mere presence in an assembly does not

make such a person a member of an unlawful assembly unless it is

shown that he had done something or omitted to do something

which would make him a member of an unlawful assembly or

unless that case falls under Section 142 of the Code.

If members of the family of the appellants and other residents

of the village assembled, all such persons could not be condemned

‘ipso facto’ as being members of that unlawful assembly. It is

necessary, therefore, for the prosecution to lead evidence pointing to

the conclusion that all the appellants had done or been committing

some overt act in prosecution of the common object of the unlawful

assembly.

The omnibus evidence 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, phrases, axes, lathis ect.,

naturally has to be very closely scrutinised in order to eliminate all

chances of false or mistaken implication.”

In this case the Apex Court examined the case of each individual accused

to satisfy itself that mere spectators who had not joined the assembly and who

were unaware of its motive had not been branded as member of the unlawful

assembly which committed the dastardly crimes.

He also referred to the decision of the Apex Court reported in (2009) 16

SCC 337 (K.M. Ravi and others Vs. State of Karnataka) wherein the Apex

Court held that mere presence of association with other members in a case

under Section 149 etc. of the Code is not sufficient and there must be sufficient

evidence to show that the accused concerned intended or knew the likelihood

of commission of the offence in question. In another decision as cited by Mr.

Basu reported in (2011) 2 SCC 324 (Kuldip Yadav Vs. State of Bihar) the

Apex Court held that it is mandatory for the Court before convicting accused

with the aid of Section 149 to give clear finding regarding nature of unlawful

common object and in the absence of such finding as to any overt act on part

of the accused, mere fact that they were armed will not be sufficient to prove

common object. The Apex Court further illustrated that it must be shown that

the incriminating act was done to accomplish the common object of unlawful

assembly and it must be within the knowledge of other members that there was

every likelihood of the act being committed in pursuance of common object.

Learned counsel also relied on the decision of the Apex Court reported in

AIR 2013 (SC) 2354 (Khairuddin and others Vs. State of West Bengal)

wherein five persons were convicted out of 25 accused persons named in the

FIR. The Apex Court however observed that in a case under Section 300 read

with Section 149 of the Code that the proof of commission of an overt act by a

member is not necessary to show that he shared the common object, but it is

to be proved that he was a member of that assembly. This is the minimum that

the prosecution must prove.

Mr. Basu also cited a decision of the Apex Court reported in 2015 (2)

Supreme Court Cases 734 (Inder Singh vs. State of Rajasthan), wherein

the Apex Court as a matter of caution directed that when large number of

accused persons are involved in a crime the conviction can be sustained only if

supported by two or more witnesses giving a consistent account of the incident

in question. The reason for this is set out in Paragraph No.12 of the judgement

proceeds being that although there may be several independent witnesses in

that village who might have seen the occurrence but did not prefer to come out

to support the prosecution, but that will not take away the worth of deposition

of six eye witnesses when they have given a consistent account of the

occurrence which was disclosed in a nutshell soon after the occurrence. In the

FIR PW-15 who was seriously and critically injured in the incident his presence

cannot be doubted. It further proceeded to show if, per chance, he would have

been the sole witness even then it may have been possible for the courts below

to convict the accused person on his testimony after deciding its veracity in the

light of his earlier statement contained in the FIR.

In Inder Singh’s case (supra) the Apex Court relied on the decision of

(Roy Fernandes vs. State of Goa) as reported in (2012) 3 SCC 221 wherein

the Apex Court observed that to determine existence of common object, the

Court is required to show the circumstances in which the incident had taken

place, the conduct of members of the unlawful assembly as well as the

weapons they carried or used on the spot.

In another case relied on by the Apex Court in Inder Singh’s case

(supra) was that reported in (2011) 9 SCC Page 257 (Ramchandran and

others vs. State of Kerala) wherein the Apex Court observed that common

object may form on the spur of the moment and that prior concert by way of

meeting of members of unlawful assembly is not necessary.

Mr. Basu also relied on another decision of the Apex Court reported in

AIR 1965 SC Page 202 (Masalti vs. State of U.P.), wherein also the Apex

Court gave a caution to the trial courts regarding acceptance of evidence in

cases where several accused persons are involved. It was submitted by Mr.

Basu that Masalti’s case (supra) was subsequently followed in several cases

including the case of (Busi Ketewara Rao vs. State of A.P.) as reported in

(2012) 12 SCC 711 wherein the Apex Court in Paragraph 13 laid down in clear

terms,-

“It is clear that when a criminal court has to deal with

evidence pertaining to the commission of an offence involving a large

number of offenders and a large number of victims, the normal test

is that the conviction could be sustained only if it is supported by

two or more witnesses who give a consistent account of the incident

in question.”

Mr. Basu also relied on the decision of the Apex Court reported in (2011)

2 SCC 857 (Cri) : (2011) 5 SCC 423 (Sajhi and others Vs. State of Kerala)

to convince us that when no role was attributed to the other accused by eye

witnesses in attacking the deceased and only the appellant No.1 alone inflicted

three cut injuries on head of the deceased with a chopper the common object of

the assembly was held not to have been proved. It was specifically held that in

the absence of such a finding as to any overact on the part of the accused

person mere fact that they were armed would not be sufficient to convict them

with the aid of Section 149 and as such the Apex Court acquitted appellant

Nos. 2 to 4 sustaining the conviction in respect of the appellant No. 1. In this

case the chopper was in the hand of Appellant No.1 and he only cut the head of

the victim Usman. In that case Appellant No.1 was prematurely released by the

State Government. PW-1 did not attribute any overt act on the part of the

Appellant Nos. 2 to 4.

Mr. Basu also relied on the decision of the Apex Court reported in (2010)

1 SCC (Cri) 413 (Pandurang Chandrakant Mhatre and others vs. State of

Maharashtra) wherein the Apex Court relying on the judgment of Masalti’s

case (supra) held that where large number of persons were alleged to have

participated in commission of crime and the accused appellants were sought to

be convicted with aid of Section 149, Court needs to consider the particular

fact situation and convict those whose presence was clearly established and

overt acts proved.

Mr. Basu also relied on the decision of the Apex Court reported in J.T

2007 (11) SC 623 (Bhagga and others Vs. State of M.P) wherein the Apex

Court in a case inter alia under Sections 149 and 302 of the upheld the

conviction of five accused persons out of ten accused persons convicted by the

Trial Court on the ground that no specific role was attributed in the offence as

against the others and benefit of doubt was granted. It may be mentioned that

in the instant case there was enmity between the families and the accused and

the incident was witnessed by the family members of the deceased.

The learned defence counsel also referred to the decision reported in AIR

1955 SC page 274 (Nanak Chanda Vs. State of Punjab) wherein the Apex

Court decided that accused charged under Section 302 read with Section 149

of the Code cannot be converted under Section 302 of the Code when he was

not specifically charged only under Section 302 of the Code. On the same point

the learned defence counsel cited a decision of the Apex Court reported in AIR

1955 SC 419 (Suraj Pal Vs. State of U.P) wherein the Apex Court held in a

case where no direct and individual charges were framed against the accused

for the specific offences under Sections 307 and 302 of the Code, the absence

of specific charges against the accused under Sections 307 and 302 was a very

serious lacuna in the proceedings and had materially prejudiced the accused.

Thus, in substance it was held by the Apex Court that when one accused was

charged under Section 302/149 of the Code, he cannot be convicted in respect

of the charge punishable under Section 302 specifically.

It was further argued by Mr. Basu by taking us to the inquest reports of

the first three victims to show that the inquest reports were prepared even

before the registration of the FIR but unfortunately the P.S. case number was

mentioned in such reports. It is true that there is some apparent defects in this

regard but that cannot belie the entire prosecution case. It may be noted that

the FIR was handed over to the police at 10:25 am on that very date and was

also forwarded to Bolpur PS for registration of a case. It may be noted that after

registration of the case the said FIR was forwarded to the Officer-in-Charge of

Bolpur P.S camping at village Muluk. Thus, this discrepancy regarding the

noting of the police station case number in the first three inquest reports which

started from 10:35 am and continued up to 10:45 am on that date cannot take

away the wind from the sails of the prosecution boat.

It was faintly submitted by Mr. Basu that no TI Parade was held in

respect of the appellants which according to him was necessary. Mr. Basu also

attacked the evidence of the PWs to convince this Court that the witnesses are

not eye witnesses as claimed by them and their evidence is not consistent.

There are important contradictions and omissions in the evidence of the PWs

although one victim Abu Tayeb was admitted at Suri hospital for a long time

but he did not state before the doctor how he sustained the injuries including

the names of the assailants. There is no evidence that the doctor asked the

victim about the incident or he failed to say how it happened or who were the

assailants. The fault lies with the doctor and the witness cannot be blamed for

it.

As regards the evidence of Santoshi (PW-4), it was his submission that

Santoshi’s name was not mentioned in the FIR as eye witness. It was his

further argument that if the prosecution case is to be believed the assault on

the victims was sudden and there was no common object of the said assembly.

Thus, he tried to convince us that Section 149 of the Indian Penal Code cannot

be clamped in such a case to convict the accused appellants. He further

submitted that the blood stained earth was not forwarded to FSL and as

regards the seizure of lathi etc. it was his contention that those were not seized

from any person. Non-sending of blood stained earth to F.S.L cannot have any

bearing in this case as the defence did not claim that there was no murder and

the place of occurrence was not in dispute. Similarly non seizure of weapon of

offence from any of the appellants who were arrested from the P.O has little

role in this case.

On behalf of the State Mr. Singh, the learned Public Prosecutor cited one

decision of the Apex Court (Om Prakash vs. State of Haryana) 2014 (3)

AICRLR (SC) 464 wherein in all eight accused persons came together armed

with lathis and one of them armed with a gun. It was the further case of the

prosecution that assault was made by all the accused persons. It was held by

the Apex Court that the common object is clearly evident in such a situation

and attribution of specific individual overt act had no role to play. The Apex

Court was satisfied that all tests of Section 149 was satisfied and confirmed the

conviction of eight accused appellants before it under Section 302/149 of the

Code. In the reported decision the Apex Court explained the meaning of

common object in paragraph 16 of the decision which runs thus: “Common

object of an unlawful assembly can also be gathered from the nature of the

assembly, the weapons used by its members and the behaviour of the assembly

at or before the scene of occurrence. It cannot be stated as a general proposition

of law that unless an overt act is proven against the person who is alleged to be

a member of the unlawful assembly, it cannot be held that he is a member of the

assembly. What is really required to be seen is that the member of the unlawful

assembly should have understood that the assembly was unlawful and was

likely to commit any of the acts which fall within the purview of Section 141

Indian Penal Code. The core of the offence is the word “object” which means the

purpose or design and in order to make it common, it should be shared by all.

Needless to say, the burden is on the prosecution. It is required to establish

whether the accused persons were present and whether they shared the

common object. It is also an accepted principle that number and nature of injuries

is a relevant fact to deduce that the common object has developed at the time of

incident”.

We like to reiterate that the Apex Court has illustrated vide paragraph 16

of the above decision that:

(1) Common object of unlawful assembly can be gathered from the nature

of the assembly, the weapons used by its members and the behaviour

of the assembly at or before the scene of occurrence.

(2) It cannot be stated as a general proposition of law that unless an overt

act is proved against the person who is alleged to be a member of the

unlawful assembly, it cannot be held that he is a member of the

assembly.

(3) The core of the offence is the word “object” which means the purpose

or design and in order to make it common, it should be shared by all.

(4) The number and nature of injuries is a relevant fact to deduce that the

common object has developed at the time of incident.

(5) The burden is on the prosecution – it is required to establish whether

the accused persons were present and whether they shared the

common object.

This decision is in conformity with the principle laid down in

Khairuddin’s case (supra) at Paragraph no.11 which may be quoted thus:

“……. It is true that the commission of an overt act may not always be

necessary to prove that a member of an unlawful assembly shared the

common object of the assembly, but then, the minimum that the

prosecution must prove is that the persons concerned were members of

the unlawful assembly.”

In this case the Apex Court took into consideration the judgments of

Masalti (supra) and Baladin and Ors. (supra).

Learned Public Prosecutor also cited the decision of (Masalti vs. State of

U.P) as reported in 1965 AIR SC 202 (a four judge bench decision) to convince

this Court that trustworthy evidence given by a single witness would be enough

to convict an accused person. The rule of prudence was developed by the Apex

Court that where a criminal court has to deal with evidence pertaining to the

commission of an offence involving a large number of offenders and a large

number of victims, it is usual to adopt the test that the conviction could be

sustained only if it is supported by two or three or more witnesses who give a

consistent account of the incident.

It was his further argument that there is consistent evidence of at least five

eye witnesses to establish the case against the appellants. As regards the

identification of the accused persons it was his contention that there was no

question of TI Parade as the members of that unlawful assembly were very

much known to the witnesses including the de facto complainant. It was his

further claim that if the unlawful assembly is proved, which has been proved

through cogent and reliable evidence the specific role of the accused persons

need not be looked into for which he has referred to the decision of Om

Prakash (supra).

Regarding the argument of Mr. Basu that omission to name some of the

accused person in the FIR is enough to view their case with suspicion, it was

the argument of the Public Prosecutor relying on the decision of the Apex Court

reported in (2012) 6 SCC Page 204 (Jitendra Kumar vs. State of Haryana)

that omission of name of one of the accused in the FIR would not always result

in acquittal of the accused whose name was omitted from FIR. The court

should examine various factors. It was further held that even though accused

is not named in the FIR, if a definite role is attributed to him and the same is

proved beyond doubt he is liable to be convicted.

Learned Public Prosecutor also relied on the decision of the Apex Court in

Ramchandran (supra) wherein seventeen accused persons assembled, caused

grievous injuries, killed the victim by causing thirty four injuries and all the

accused persons were armed with sword, stick, two choppers, one knife and

twelve iron rods, the Apex Court held that the accused had participated to

prosecute the common object even if it was not so it had developed on the spur

of the moment.

In this decision in Paragraph 21 the Apex Court proceeded to say,

“Thus, this Court has been very cautious in the catena of judgment that where

general allegations are made against a large number of persons the court would

categorically scrutinise the evidence and hesitate to convict the large number of

persons if the evidence available on record is vague. It is obligatory on the part of

the Court to examine that if the offence committed is not in direct prosecution of

the common object, it yet may fall under second part of Section 149 Indian Penal

Code, if the offence was such as the members knew was likely to be committed.

Further inference has to be drawn as what was the number of persons; how

many of them were mere passive witnesses; what were their arms and

weapons. Number and nature of injuries is also relevant to be considered.

“Common object” may also be developed at the time of incident.”

It may be noted that in this decision the Apex Court took into

consideration several decisions

(1) (Bhanwar Singh & Ors. vs. State of M. P.) (2008) 16 SCC 657,

wherein the Apex Court held that it is not necessary in a case

of common object that there should be a prior concert in the

sense of a meeting of the members of the unlawful assembly.

The common object may form on spur of the moment.

(2) (Mizaji & Anr. vs. State of U.P.) AIR 1959 SC 572 and

(Gangadhar Behara & Ors. vs. State of Orissa) AIR 2002

SC 3633 wherein the Apex Court observed that the expression

“know” does not mean a mere possibility, such as might or

might not happen. For instance, it is a matter of common

knowledge that if a body of persons go armed to take forcible

possession of the land, it would be right to say that someone is

likely to be killed and all the members of the unlawful

assembly must be aware of that likelihood and would be guilty

under the second part of Section 149 of the Indian Penal Code.

(3) (Daya Kishan vs. State of Haryana) (2010) 5 SCC 81,

(Debashiss Daw vs. State of W.B.) (2010) 9 SCC 111,

wherein the Apex Court held that for the purpose of incurring

the vicarious liability offence committed during the

continuance of the occurrence, rests upon the fact whether the

other members knew beforehand that the offence actually

committed was likely to be committed in prosecution of the

common object.

(4) Case of (Masalti vs. State of Uttar Pradesh) AIR 1965 SC 202

and (K. M. Ravi & Ors. vs. State of Karnataka) (2009) 16

SCC 337 (Both the cases referred to by the defence).

(5) (State of U.P vs. Krishanpal & Ors.) (2008) 16 SCC 73, wherein

the Apex Court held that once a membership of an unlawful

assembly is established it is not incumbent on the prosecution

to establish whether any specific overt act has been assigned to

any accused. Mere membership of the unlawful assembly is

sufficient and every member of an unlawful assembly is

vicariously liable for the acts done by others either in

prosecution of common object or members of assembly knew

were likely to be committed.

Learned Public Prosecutor also took us to the decision reported in AIR

1997 (1) SCC 283 (Binoy Kr. Singh vs. State of Bihar) wherein the Apex

Court taking into consideration Section 134 and Section 3 of the Evidence Act

held that conviction can be based on identification by one witness alone. It was

submitted by the learned Public Prosecutor that in the present case before us

there are as many as five eye witnesses.

The Public Prosecutor further cited the decision of the Apex Court

reported in (2013) 2 SCC (Cri) 530 (Subal Ghorai and others vs. State of

West Bengal) to say that interested witnesses or related witnesses cannot be

thrown out and such witnesses are not necessarily bad witness. The apex

Court in this case specifically held that if the witness is related to the deceased,

there is less chance of his leaving aside the real assailants. He further

submitted that value of one injured witness in a criminal trial is very vital. We

may cite here the decision of the Apex Court as reported in AIR 2011 SC 2552

(Bhajan Singh @ Harbhajan Singh vs. State of Haryana) wherein the Apex

Court held that the testimony of such a witness cannot be ignored as such a

witness comes with a built in guarantee of his presence at the scene of the

crime and is unlikely to spare his actual assailant(s) in order to falsely

implicate someone.

In Subal Ghorai and others (supra) the Apex Court further held that

common object of unlawful assembly can be formed on spur of the moment

and the course of conduct adopted by the members of common assembly is a

relevant factor. It was further held by the Apex Court in this case that if a large

crowd of persons armed with weapons assault the intended victims, all may not

take part in the actual assault and it may happen that the weapons carried by

some members were not used, but that would not absolve them of liability for

the offence with the aid of Section 149 of the Indian Penal Code if they shared

common object of the unlawful assembly. The Apex Court asked the trial court

to be cautious regarding false implication of innocent bystanders and 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 stages.

On this point we are also aware of another decision of the Apex Court as

reported in 2013(15) SCC 298 : Cri.L.J. 4618 (Gangabhavani Vs. Rayapati

Venkat Reddy & Ors.), a two judge bench decision decided on 04.09.2013

wherein the Apex Court held that the FIR is not an encyclopaedia of all the

facts. Merely non-mentioning the names of all the accused or their overt acts

elaborately or in details the injuries said to have been suffered could not render

the FIR vague or unreliable. The Apex Court further held it is quite natural that

all the names and details may not be given in the FIR where a large number of

accused are involved.

Thus, this appeal is to be judged on the principles laid down by the

Apex Court so long referred to above.

In the majority of the Apex Court decisions referred to above cited by the

learned Counsels of the parties the Apex Court has laid down the principle that

the Court to establish a case of “vicarious liability” with the aid of Section 149

of the Code, must assess the nature of the assembly, weapons used, nature of

injuries, purpose or design of the offence, whether the said accused persons

were present and whether they shared the common object. It has also been set

at rest that the common object may form even on the spur of the moment. It is

also the recent trend of decisions of the Apex Court as noted above that overt

act of every member of such assembly is also not to be considered. It may be

that some person did not play any active role in the crime but he can be made

liable with the aid of Section 149 of the Code. The Court must be vigilant that

no bystander at the scene of occurrence is convicted taking the aid of

“vicarious liability”.

In the instant case, there is no dispute regarding death of four persons,

two persons received injuries and it was not even denied that there was such a

procession. The accused persons only raised a plea of innocence and false

implication. The place of occurrence is also not in dispute. To the injured

victim (PW 2) it was not suggested even that he did not receive any injury. Now

let us check-up the injuries sustained by the four deceased.

No.1 (Sk. Ziauddin): This victim sustained four injuries – (i) Multiple slight

abrasion on dorsal aspect of both knee joints (ii) One incised wound on scalp 4”

above the right ear 3 ½” × 3” × 3” (iii) One incised wound 2” below the left knee

joint on dorsal aspect 1 ½” × 1” × 1” (iv) Fracture in the right lateral aspect of

the temporal bone.

No.2 (Nirmal Ghosh): This victim sustained two vital injuries – (i) Surgical

dressing on left elbow joint & on opening slight abrasion on dorsal aspect of left

elbow joint (ii) One incised wound on scalp in mid region of back part of head

3½” × 3” × 4”.

No.3 (Sudhir Ghosh): This victim sustained seven injuries – (i) One incised

wound 2½” above the mid region of left upper eyebrow 3½” × 2” × 3” (ii) One

incised wound 2” below (i) 2½” × 2” × 3” (iii) One incised wound 2 ½” below left

eye bridge of the nose involved 3 ½” × 3” × 4” the same cut off (iv) One incised

wound 1½” below nose 2” × 1½” × 1” (v) Fractures are of the mandible (vi)

Facture 5th rib (right side) (vii) Facture left lateral aspect of frontal bone.

No.4 (Sk. Mannan @ Bura): This vimtim sustained two injuries – (i) One incised

wound on scalp 4” above the right ear 3½” × 3” × 4” (ii) Fracture right lateral

aspect of temporal & parietal bone.

Thus, it is apparent from the photocopies of the post-mortem reports

that the victims sustained slight injuries on the non-vital parts of their bodies

but sustained vital injuries on their head which were enough to cause their

death. Thus, the intention of the assembly was to kill the four victims. It was

the only design or purpose of that assembly. Let us now have a glimpse as to

the evidence on record.

PW – 1 is one important eye witness who lodged the FIR. He deposed

“there is a vacant field in front of Kalitala of our village. Local people go to

different places along that field. On 19.11.1987 at about 9/9.30 a.m. upon

hearing a tremendous high sound, I came out of my house, I found a group of

people being armed with lathi, tangi, bows and arrows and other deadly

weapons proceeding towards Kalitaladanga. Just at that point of time Abdul

Hayat, Abdul Taiyab and Ziauddin were proceeding towards the opposite

direction following (along) the said Kalitala field. I noticed the people belonging

to a group who were being armed with lathi and deadly weapons indicated

above coming along the Kalitala field started assaulting aforesaid Ziauddin

mercilessly. Meanwhile, his associates Taiyab and Abdul Hayat tried to rescue

Ziauddin and as such, they were also assaulted by the people belonging to the

said group. The people belonging to the group also started assaulting Sudhir

Ghosh, who was then standing on a certain portion of the Kalitala field. On

being assaulted by the group of people, Ziauddin fell down in injured condition.

Sudhir Ghosh on being injured fell down. One Mannan who was also then

present in the said field was assaulted by the people belonging to the same

group. Accordingly, Sudhir, Ziauddin and also Mannan succumbed to their

injuries at the spot. Nirmal Ghosh, son of deceased Sudhir Ghosh, who tried to

save his father was also assaulted with lathi, tangi etc. Nirmal Ghosh being

assaulted by the people, became senseless at the spot. In the meantime, police

vehicle appeared at the spot. Seriously injured Nirmal Ghosh was, however,

taken to Bolpur S.D Hospital (Sean) in senseless condition for his treatment.

Injured Taiyab and Abdul Haiyat were also taken to said hospital for treatment.

Aforesaid Haiyat is also known as Nuhu.”

As regards identification this witness deposed “……………but true it is

that today all the accused person who had taken active part in the incident of

murder are present inside the court-room already duly identified on dock.”

PW – 2 is an injured eye witness and naturally his evidence is of

immense value. This witness deposed that there is a field named Kalitaladanga

near his house and local people go to different places along with the said field,

that the incident took place on 19.11.1987 at about 9 a.m. when he, Ziauddin

(the deceased), Nuhu @ Abu Haiyat (the victim) were proceeding to attend their

daily works through the Kalitala Math and they noticed one big procession of

C.P.I (M) party supporters was proceeding towards Kalitala Math and such

processionists were armed with lathi, tangi and other deadly weapons, that

they started assaulting his elder brother Ziauddin mercilessly and that his

elder brother sustained such serious injuries that he succumbed on the spot.

Sufiar Rahaman (Appellant No.1) assaulted his elder brother by ballam and

Rausan Ali (Appellant No.2) assaulted the said victim with tangi. Haiyat came

to rescue Ziauddin when accused Khelan Sk. (Appellant No.19) gave a lathi

blow on his left hand and accused Alla Rakha (Appellant No.15) assaulted him

with arrows aiming at right waist and the other arrows thrown by Alla Rakha

hit his left thigh and considering the situation he left the P.O. Sudhir Ghosh

(victim) who was then standing at the P.O. was also assaulted by accused

Swapan Nandi (Appellant No.3), Arzoo Sk. (Appellant No.4), Sufiar Rahaman

(Appellant No.1) and Nepal Das (Appellant No.22) with tangi. Sudhir’s son

Nirmal Ghosh came to his father’s rescue but he was also assaulted by accused

Sufiar Ranaman (Appellant No.1), Arzoo Sk. (Appellant No.4), Swapan Nandi

(Appellant No.3), Nepal Das (Appellant No.22), Rausan Ali (Appellant No.2) and

others.

This witness also deposed that victim Mannan Sk. who was then coming

through the field was also assaulted by these persons with ballam, causing

death on the spot.

This witness identified Sk. Rausan Ali (Appellant No.2), Sk. Sufiar

Rahaman (Appellant No.1), Sk. Arzoo (Appellant No.4), Swapan Nadi (Appellant

No.3), Nepal Das (Appellant No.22), Lalan Sk. (Appellant No.17), Khelan Sk.

(Appellant No.19), Ratan Saha (Appellant No.27), Mana Nandi (not before us),

Shankar Dhar (not before us now and case against him been filed for the …….),

Biswanath Pal (Appellant No. 36), Thakur Bhakat (Appellant No.6), Jurman Sk.

(Appellant No.7), Tabarok Sk. (Appellant No.11), Jelai Sk. (Appellant No.41),

Samsul Sk. (Appellant No.35), Rashed Sk. (Appellant No.10), Khokan Sk.

(Appellant No.42), Akbar Sk. (Appellant No.12), Jamal Sk. (Appellant No.33),

Mehar Sk. (Appellant No.46), Mir Jan Khan (Appellant No.43), Alla Rakha Khan

(Appellant No.15), Allauddin Khan (Appellant No.20), Nitya Bangal (Appellant

No.34), Helai Sk. (not before us), Salim Sk. (Appellant No.24), Lakhiram Tuddu

(since dead), Mistry Murmu (Appellant No.31), Makhan Murmu (Appellant

No.30), Lambu Majhi (since dead), Hopna Tuddu (Appellant No.9), Jiten

Birbangshi (Appellant No.25), Sukumar Das (Appellant No.28), Santi Das

(Appellant No.23), Sk. Jikriya (Appellant No.18), Sk. Alim (Appellant No.5), Sk.

Asraf (Appellant No.13), Ansar Sk. (declared as juvenile), Badal Majhi (declared

as juvenile), Badal Bagdi (Appellant No.26), Kanai Lohar (since dead), Lokhu

Hansda (Appellant No.32), Ohid Sk. (since dead), as the persons who

participated in the incident of murder. This witness also identified all the

accused persons who faced trial.

PW – 3 Badak lal Hembram deposed that the incident took place on 2nd

Agrahayan, 17 years ago at about 9 to 9:30 am and he noticed one procession

(michhil) coming towards Kalitala of his village. The processionists were armed

with lathi, tangi, ballam etc. and at the time of incident Ziauddin, Taiyab,

Nuhu alias Haiyat (not examined but a victim) were proceeding towards the

opposite direction of the processionists and suddenly some of the

processionists started assaulting Ziauddin with ballam, lathi, arrows etc. and

Ziauddin’s companion Taiyab and Nuhu alias Haiyat who tried to rescue

Ziauddin also assaulted by the members of that procession and due to serious

assault Ziauddin fell down.

He further deposed that Sudhir Ghosh who was then standing at the

spot was also assaulted and Nirmal Ghosh who tried to save his father Sudhir

was also seriously assaulted by the members of the procession. Due to serious

assault by the members of the procession Buro alias Mannan, Sudhir and

Ziauddin succumbed to their injuries on the spot and seriously injured Nirmal

was taken to hospital for treatment by the police in a police van but he

succumbed to his injuries later on. He also deposed that two other victims

Taiyab and Haiyat also sustained injuries on the spot and were taken to

hospital for treatment. As regards identification this witness deposed “I find all

of them present inside the court-room” (identified).

PW – 4 Santoshi about whom we have already stated earlier deposed

that the incident took place on 2nd Agrahayan about 15/16 years ago at about

9 am. At the time of incident upon hearing hue and cry she came out of her

house and noticed one procession consisting of 100/150 people proceeding

towards Kalitala following the metal road. She further deposed that the

processionists were armed with deadly weapons like lathis, tangis, bows and

arrows etc. and the accused Safi (Appellant No.1), Swapan Nandi (Appellant

No.3), Rousan (Appellant No.2), Biswanath Pal (Appellant No.36), Nepal Bayen

(Nepal Das is Appellant No.22, in villages the villagers very often are not sure

about the title of a person), Nitya Bangal (Appellant No.34), Ratan Saha

(Appellant No.27), Shankar Dhar (since dead), Lokhu Majhi (not before us),

Hopna Majhi (not before us) and others were the members of the procession.

She duly identified not only those persons but also other persons who were

present inside the court-room on that date. It is also in her evidence that at the

relevant time Ziauddin, Taiyab, Nuhu, Mannan alias Buro and others were

going to attend their daily work in the opposite direction of the procession and

incidentally her father Sudhir Ghosh was standing near the place of incident

and the members of the procession suddenly assaulted Ziauddin and also

Taiyab and Mannan alias Buro. She also deposed that her father was assaulted

by the members of that procession and at that time her elder brother Nirmal

Ghosh was proceeding towards the local market for selling curd and she

apprised Nirmal Ghosh to save their father (Sudhir) who was then being

assaulted by the members of the procession and accordingly her elder brother

keeping his bicycle on the road side tried to rescue their father but

unfortunately her elder brother Nirmal was also spared. He was also assaulted

by the members of the procession.

She also deposed that she took initiative for saving her father and elder

brother and as such she was resisted and chased by Swapan Nandi (Appellant

No.3), Safi (Appellant No.1) and Biswanath Pal (Appellant No.36) she had no

alternative but to rush to the local police station following the local paddy field

when she came across one unknown man who was coming on his bicycle and

she disclosed to that person what had happened and then that unknown man

took her on his bicycle and they started for the local police station and on the

way she met her husband (PW-8) and one Dhanu Ghosh (PW-7).

She also deposed that she apprised her husband and Dhanu about the

incident and thereafter she was taken to local police station by her husband on

his bicycle and after reaching the police station she orally reported the incident

to the police authorities and thereafter she again came back to the place of

occurrence, where she found her father lying dead as her elder brother had

already been shifted to local hospital for treatment. Subsequently in the noon

she came to learn that her elder brother died in the hospital.

PW – 5 (Mangala Hansda) as we have already discussed earlier is one

eye witness to the incident. He deposed that he learnt about the incident on 2nd

Agrahayan about 15/16 years ago that one procession consisting of 100/150

people was coming towards Kalitala from Muluk side and the members of that

procession were equipped with lathis, ballams, bows and arrows etc. He named

some of the members of that procession namely Sofi (Appellant No.1), Rousan

(Appellant No.2), Nepal Bayen ( Nepal Das is appellant no. 22, in villages the

villagers very often are not sure about the title of a person), Arzoo (Appellant

No.4), Alim (Appellant No.5), Lalan (Appellant No.17), Khelan (Appellant No.19),

Alla Rakha (Appellant No.15), Swapan Nandi (appellant-3), Bana Nandi (it may

be that Bana Nandi and Nandan Nandi (Appellant No.21) is the same person,

the defence did not raise this point in the cross examination) and others whose

name he could not say before the court. It may be noted that this witness

deposed after a gap of roughly 17 years of this incident and this omission to

name the other miscreant is very natural one but he identified all the members

of that procession inside the court-room.

He further deposed that at the relevant time Ziauddin, Taiyab and Nuhu

were going towards Muluk from Adarsha Pally, and that Ziauddin was

mercilessly assaulted by Safi (Appellant No.1). Sudhir Ghosh and Mannan were

also assaulted and son of Sudhir Ghosh, that is Patkula, was also assaulted.

He further deposed that at the relevant time Santoshi (PW-4), the

daughter of Sudhir Ghosh came out of her house with a view to save her father

and that she was chased by Safi (appellant-1) and Swapan Nandi (appellant-3)

with ballam and other weapons. He candidly deposed that out of fear he and

others could not take any action in that matter and after sometime police

arrived at the spot and thereafter he and others dared to go to that spot and he

noticed the dead bodies of Ziauddin, Sudhir and Mannan lying on the spot.

Patkula, son of Sudhir Ghosh was also lying at the spot in a seriously injured

condition. Patkula and Nuhu were shifted to the hospital for treatment in a

police vehicle and he came to learn that Patkula succumbed to his injuries in

the hospital 3 hours later. From the cross-examination of this witness it

transpires that he had been to the Kali temple for worshiping purpose.

His cross-examination has perfectly matched with the site plan prepared

by the Investigating Officer marked as exhibit 22 (collectively). The site plan

clearly shows that three sides of the place of occurrence were occupied by

houses and this was duly deposed by this witness in his cross-examination.

Thus, this witness cannot be called a chance witness who duly withstood the

test of cross-examination. It may be noted that the site plan was not

questioned either before us or before the trial court by the defence.

PW – 6, Islam Mia, is another eye witness to the incident who deposed

that the incident took place on 2nd Agrahayan, about 15/16 years ago at about

9 to 9:30 am when he was present inside his residence. Suddenly he heard a

hue and cry then he came out of his house and found one procession

consisting of 100/150 people proceeding towards the Kali temple following the

metal road. The processionists were equipped with lathis, tangis, bows &

arrows etc., and that at the same relevant time the local people namely

Ziauddin, Nuhu and Taiyab were passing through a pathway of the danga. He

also noticed Sudhir Ghosh standing near Kali temple.

He further deposed that meanwhile the members of that procession

namely Sufiar Rahaman (Appellant No. 1), Rousan Ali (Appellant No.2), Swapan

Nandi (Appellant No.3 ), Arzoo Sk. (Appellant No.4 ), Nepal Bayen (Nepal Das is

Appellant No.22, in villages the villagers very often are not sure about the title

of a person), Lalan Sk. (Appellant No.17 ), Rashed Sk. (Appellant No.10 ),

Tabarak Sk. (Appellant No.11 ), Hopna Tudu (Appellant No.9 ), Julman Sk.

(Appellant No.7 ), Chandu Khan (Appellant No.14 ), Chanai(May be the

colloquial name of Kanai Khan who is appellant no. 16), Kanai (Since

deceased), Sk. Hakai (Since Deceased), Asraf (Appellant No.13 ), Ansar

(Declared as juvenile ), Ohid Sk. (Since deceased ), Alim Sk. (Appellant No.5 ),

Khudi Khan (Appellant No.8 ), Makhan Murmu (Appellant No.30 ), Mistri

Murmu (Appellant No.31 ), Lokhu Hansda (Appellant No.32 ), and others

started assaulting Ziauddin with lathi, tangi, ballam etc. and his companions

Taiyab and Nuhu tried to save Ziauddin and he was also assaulted seriously by

them with bows & arrows, tangi, ballam etc.

It is clear from his evidence that Sudhir Ghosh who was standing near

Kali temple came forward and tried to ascertain the reason for the assault and

he was also not spared. It is also clear from his evidence that Nirmal alias

Patkula, son of Sudhir Ghosh tried to save his father and when he was also

assaulted by the above named persons. It is also clear from his evidence that

Patkula’s didi, Santoshi appeared there and tried to save her father and

brother etc. She was also chased by the above named persons including

Swapan Nandi (appellant-3) and Sufiar Rahaman (appellant-1) with lathi and

other weapons and considering the circumstances Santoshi fled away from the

spot. This witness further deposed that the police came to the spot about half

an hour after departure of Santoshi and apprehended two or three persons

including Swapan Nandi from the spot. It is also clear from his evidence that

Sudhir Ghosh, Ziauddin and Mannan were killed at the spot, while Nirmal

Ghosh, Taiyab and Nuhu were taken to the hospital by police for their

treatment and thereafter he came to learn regarding the death of Nirmal Ghosh

at Bolpur S.D. Hospital.

PW-7 (Dhanu Ghosh) was cited as eye witness in the FIR but at the time

of recording his evidence he did not pose himself to be an eye witness. This

witness deposed that he is one milk man and about 9 am when he was

returning home and reached near Arati Cinema Hall at Bolpur market area, he

met Chitta Ghosh (PW-8) who is also his co-villager and selling partner of milk.

He further deposed that he also saw Santoshi Ghosh (PW-4), the wife of Chitta

Ghosh who was coming by a stranger’s bicycle as pillion rider and Santoshi

stopped before him and Chitta Ghosh and told them that her father, elder

brother, one Ziauddin and Buro Sk. were being assaulted by a group of many

people with the help of lathi, ballam, bow & arrow, tangi etc.

It is also clear from his evidence that Santoshi was taken by her

husband Chitta to Bolpur police station. This witness also came forward to

depose that thereafter he had been to his village i.e. village Muluk to see that

four persons were lying in the field of Kalitaladanga of the said village and they

were Sudhir Ghosh, Nirmal Ghosh, Ziauddin and Buro Sk., of them three were

dead except Nirmal, it is also apparent from his evidence that police came to

the spot and he was examined by the police and police made inquest reports in

respect of three dead bodies.

PW – 8 (Chitta Ghosh) that is husband of Santoshi, son-in-law of Sudhir

Ghosh and brother in law of Nirmal Ghosh @ Patkula is also an important

witness. He being a relative will not hide the real assailants nor will he

implicate some persons falsely in place of the real assailants. This witness has

supported PWs-4 and 7. He deposed that the incident took place before 20

years on 2nd Agrahayan and he has corroborated PW-7 that he met him at Arati

Cinema and found that his wife (Santoshi) was coming on a bicycle of a

stranger as a pillion rider and she was weeping. He also deposed that on seeing

him his wife stopped there and told him that some miscreants were assaulting

her father, elder brother and two Muslim persons with the help of lathi, tangi

and other weapons.

This witness also deposed that he took his wife to the Bolpur Police on

his cycle and when he asked the names of the assailants she mentioned the

names of Rousan Ali (Appellant No.2), Swapan Nandi (Appellant No.3 ), Sofi

(Appellant No.1 ), Nepal Das (Appellant No.22) and many others. She also

reported the matter to the police station. This witness also narrated thereafter

that he and his wife left for village (Muluk) and when they were about to enter

their village they noticed that many people had assembled, on the western side

of their residence at Kalitaladanga field, and were standing with weapons i.e.

lathi, tangi etc. This witness however could identify the four persons named

above.

It is also clear from his evidence that being frightened they did not

approach inside their village and thereafter they noticed two police vehicles

coming. One police vehicle approached the spot where some persons were lying

dead in the field and some police personnel from another police vehicle

attempted to arrest the miscreants. 3/4 persons were arrested from the spot.

He also deposed that they followed the police vehicle and reached Kalitala field

and found three persons lying dead viz. Ziauddin, Buro Sk. and Sudhir Ghosh.

His brother-in-law Nirmal Ghosh was also lying unconscious on the spot and

was taken by the police inside the van to the Bolpur S.D. Hospital where

ultimately Nirmal expired.

PW-9 Sanaulla Mollah, PW-10 Sk. Nazrul, PW-11 Kamarujjaman Mallick,

PW-12 Prasanta Chawdhury are all formal witnesses either being the scribe

witness or to the inquest or seizure list.

PW-13 Dr. Ruchirendu Sarkar was unnecessarily called who did not play

any role.

PW-14 Dr. S. Sarkhel treated Abu Taiyab (PW-2) and Abu Nuhu (not

examined) at Suri Sadar Hospital and found fracture on the lower fourth alna

of Abu Taiyab on his examination on 19.11.1987. This witness also deposed

that he also found fracture in the right index finger of Abu Nuhu. Thus this

witness has corroborated in details regarding the injuries sustained by the

victim, PW 2 Abu Taiyab. This increases the reliability of the evidence of PW-2

as this Court can very well say that this witness was very much present at the

scene of occurrence at the material point of time. Unfortunately for the

prosecution another victim of this case Abu Nuhu was not examined before the

trial court but the evidence of the doctor supports the prosecution’s case that

this victim was admitted at Suri Sadar Hospital and the said victim also

received fracture injury.

PW-15, constable no.551 and PW-16, constable no.284 are also formal

witnesses. PW-15 took the dead bodies to the S.D hospital at Bolpur and

thereafter at Sadar Hospital at Suri and he deposed that he signed on the

inquest reports as regards the dead bodies. This witness also signed on a

seizure list. PW-16 deposed regarding his signature on the inquest but

unfortunately those were not marked as exhibits. The signature of this witness

was proved in respect of one seizure list which was marked as exhibit 9/2.

PW-17, is home guard Ram Narayan Ganguly, who went to village Muluk

and received the written complaint at the spot which he carried to Bolpur P.S

and handed over the same to the duty officer of Bolpur police station. In his

cross-examination he deposed that the written complaint was made over to him

in the morning.

PW-18 is a formal witness who claimed that he prepared the seizure list

in presence of the witnesses at the spot as per direction of the then OC Bolpur

P.S S.I Pravat Kumar Mukherjee (PW-20). There is some dispute between his

evidence and PW-20 as regards preparation of seizure list but in the instant

case before us on the facts and circumstances it is of no value.

PW-19 Raghupati Biswas was then posted as Sub-inspector of Police,

Bolpur Police Station and he deposed that on that date he received one written

complaint through one Home Guard Ram Narayan Ganguly which was

forwarded by the then OC Bolpur PS, PW-20, from village Muluk to Bolpur

police station. And he started Bolpur police case no.9 of 1987 by filling up the

formal FIR (exhibit-20). This witness also deposed that after starting of the case

he sent the written complaint along with the formal FIR to PW-20 as he (PW-

20) took up investigation of the case.

PW-20, Pravat Mukherjee sub-inspector of police, Bolpur PS and the

Investigating Officer of this case is a vital witness. He deposed that on

19.11.1987 at about 09:45 hours he received information from Santoshi Ghosh

(PW-4) of village Muluk that one cognizable offence was committed in her

village and accordingly he diarised the information being Bolpur PS G.D entry

no.702 dated 19.11.1987 (exhibit 21). After diarising the matter he left for the

place of occurrence and when he reached there he found some miscreants were

running away from the spot that is from village Muluk, he chased the

miscreants and managed to apprehend three such miscreants. It may be noted

that on checking the record of the Sub-Divisional Judicial Magistrate, Bolpur

as per the forwarding report dated 20.11.1987 in all nine accused persons were

forwarded about which we have stated earlier. These nine accused persons

were Sk. Rohsan Ali (appellant-2 ), Nandan Nandi (appellant- 21), Badal Majhi

(declared juvenile), Sk. Samsul (appellant-35 ), Biswanath Pal (appellant-36 ),

Lombudar (since deceased ), Sk. Enamul (appellant- 37), Anis Khan (appellant-

38) and Helu Khan (appellant-39) with this allegation that Sk. Rowsan Ali &

Nandan Nandi were named in the FIR and the involvement of the other seven

accused persons transpired in this case. This Court can take judicial notice of

this fact as the forwarding report being the papers of a court proceeding is also

a public document which could have been even marked as exhibit.

It is also apparent from his evidence that he found three dead bodies

lying at Kalitaladanga Math being that of Sk. Ziauddin, Sk. Mannan and

Sudhir Ghosh. He also found one injured person namely Nirmal Ghosh at the

said spot and the said injured person was forwarded to Bolpur Hospital where

he died on the same day. It is also clear from his evidence that he received the

FIR from PW 1 at 10.20 a.m. and made an endorsement therein and forwarded

the same to the police station for starting a case. This witness prepared the

rough sketch of P.O with index, proved the inquest reports prepared by one

Kanailal Chakraborty (since deceased), prepared three seizure lists regarding

blood stained earth, controlled earth and some weapons. He took up

investigation after the registration of the case, forwarded the dead bodies for

P.M examination, examined witnesses and recorded their statements under

Section 161 of the Cr.P.C., collected the P.M. reports and the injury reports

and after investigation submitted charge sheet against 56 accused persons. He

categorically denied that there was any camp at the P.O at the relevant time

and as such the faint submission of Mr. Basu senior defence counsel on this

point cannot be accepted.

Some contradictions were taken by the defence counsel vis-à-vis the

statement on oath and the 161 Cr.P.C statement but those may be treated as

unimportant omissions and cannot touch the merit of the case. Such

omissions cannot be fatal for the prosecution. In a genuine case there may be

some minor embellishment but variations by reason thereof will not render the

evidence of eye witnesses unbelievable. Trivial discrepancies ought not to

obliterate an otherwise acceptable evidence. On this point we rely on the

decision of the Apex Court Leela Ram (Dead) through Duli Chand vs. State

of Haryana as reported in 2000 SCC (Cri) 222. In that case the Apex court

also held that mere hair splitting on available evidence ought not to be

undertaken, instead the totality of the situation ought to have been reviewed.

Thus, being the Court of first appeal and also the final Court as regards

facts this Court has travelled through the evidence of the witnesses at length

as stated above. On scrutiny of the evidence on record it appears that the eye

witnesses have given consistent evidence as regards the incident. Each one of

them duly corroborated the other. The public witnesses who were not eye

witnesses have duly supported the prosecution case. At the risk of repetition

we can say that the witnesses were examined either after 17 years or after 20

years of the incident and naturally human memory is bound to fade with the

passage of time. The minor omissions and contradictions which may have crept

in the evidence cannot be treated as vital. We have read the cross-examination

of the witnesses at length and on careful consideration thereof we can say that

all the eye witnesses have withstood the test of cross-examination. None could

be shaken. There is nothing to impeach their credibility or presence at the P.O

at the time of the incident.

The eye witnesses duly identified the accused persons on dock and some

of the accused persons were also named by some of the witnesses about which

we have noted in details while discussing the evidence. But simply because

some of the accused persons were not named in the FIR although their role

transpired during investigation and the witnesses duly identified them in open

court we cannot give benefit of doubt to those persons simply for an omission

in the FIR. FIR is not an encyclopaedia. It is the starting point of investigation.

Thus, the argument of Mr. Basu on this point cannot be accepted in view of the

clinching evidence as against such appellants, more so in view of the decision

of the Apex Court in Jitendra Kumar (supra). Simply because some accused

persons were not named in the FIR who were duly identified in open Court

such accused persons cannot get any benefit of doubt for non-mentioning of

their names in the FIR.

All the 46 appellants who faced trial were duly identified by the material

witnesses. The defence did not venture to put any suggestion as to the

identification of those accused persons to discredit the same. The defence did

not venture to question the witnesses as regards the names of the accused

persons vis-à-vis their faces (on dock) and if that was not done the prosecution

will certainly get the benefit of unchallenged testimonies of the witnesses.

While discussing the decisions of the Apex Court cited by the Counsel of

the parties it is now settled law as per the recent trend of decisions that overt

act is not necessary to convict the accused persons with the aid of Section 149

of the Code. What is material is the presence of the accused persons at the

place of occurrence, that an unlawful assembly took place and such persons

were members of such assembly having knowledge of the same.

At the risk of repetition we can say that the members of the unlawful

assembly were armed with deadly weapons like lathi, tangi, ballam, bomb, etc.

which weapons when used to their knowledge could cause the offence of

murder. The procession was not a peaceful one of which mention has been

made earlier. We are also satisfied that even if there was no common object

when the procession was coming with such deadly weapons but the common

object developed at the spur of moment, is a circumstance covered with the aid

of Section 149 of the Code. We are also satisfied that the members of such

assembly were fully aware as to the penultimate act of the assembly that is

death of the victim and assault of the two other victims. We have already noted

that all the victims received vital injuries on their heads which is a clear

indication of the motive of the unlawful assembly i.e. to cause death of the

victims.

Thus, after considering the evidence of PWs, judgments of the Apex

Court, the circumstances and arguments put forward by the parties, we are

satisfied that there is nothing to impeach the judgement of the Trial Court. The

findings of the Trial Court are hereby affirmed. We have already said that the

Trial Court did not pass any order of acquittal or conviction in respect of the

charge punishable under Section 148 of the Code, and in such circumstances

it may be treated as an order of acquittal. The judgment and order of

conviction are both affirmed and upheld. The appeal stands dismissed.

There will be no order of cost.

The accused/appellants are on bail. The bail granted to the accused

appellants is hereby cancelled. They are directed to surrender before the

Chief Judicial Magistrate, Birbhum at Suri to serve the remaining part of

the sentence as imposed by the Trial Court and affirm by this Court

within thirty days from this day, failing which the Chief Judicial

Magistrate will be at liberty to issue warrant of arrest against the accused

appellants and proceed against the defaulting sureties under Section 446

of the Code of Criminal Procedure.

Before we part with the judgment we would like to refer to Section 357 A

as inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of

2009) (w.e.f. 31.12.2009 vide Notification No. S.O. 3313E, dated 30.12.2009).

The said Section reads as follows :-

[357A. Victim compensation scheme. – (1) Every State Government in

co-ordination with the Central Government shall prepare a scheme for

providing funds for the purpose of compensation to the victim or his

dependents who have suffered loss or injury as a result of the crime and who

require rehabilitation.

(2) Whenever a recommendation is made by the Court for compensation,

the District Legal Service Authority or the State Legal Service Authority, as the

case may be, shall decide the quantum of compensation to be awarded under

the scheme referred to in sub-section (1).

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the

compensation awarded under Section 357 is not adequate for such

rehabilitation, or where the cases end in acquittal or discharge and the victim

has to be rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is

identified, and where no trial takes place, the victim or his dependents may

make an application to the State or the District Legal Services Authority for

award of compensation.

(5) On receipt of such recommendations or on the application under Sub-

Section (4), the State or the District Legal Services Authority shall, after due

enquiry award adequate compensation by completing the enquiry within two

months.

(6) The State or the District Legal Services Authority, as the case may be,

to alleviate the suffering of the victim, may order for immediate first-aid facility

or medical benefits to be made available free of cost on the certificate of the

police officer not below the rank of the officer in charge of the police station or

a Magistrate of the area concerned, or any other interim relief as the

appropriate authority deems fit.]

The latest decision on this point is reported in AIR 2015 SC 518

(Suresh & Anr. vs. State of Haryana) wherein the Apex Court in a case of

murder which took place in December, 2000 that is long before this

amendment came into force awarded interim compensation of Rs.10 lacs in

favour of the widow of Devender Chopra, who is the mother of the deceased,

representing the family of the victim and the Apex Court directed that it will be

payable by the Haryana State Legal Services Authority within one month from

receipt of a copy of the order and it further directed that if the funds are not

available for the purpose with the said authority, the State of Haryana will

make such funds available within one month from the date of receipt of a copy

of this judgment and Legal Services Authority will disburse the compensation

within one month thereafter.

This Section 357-A is a beneficial amendment in favour of the victims. In

(Ankush Vhivaji Gaikwad vs. State of Maharashtra) as reported in (2013) 6

SCC 770 : (AIR 2013 SC 2454) Section 357-A of the Cr.P.C was considered by

the Apex Court and in Paragraph No.48 of that judgment the Apex Court posed

the following question,

“the question then is whether the plenitude of the power vested in the

Courts under Section 357 & 357-A, notwithstanding, the Courts can simply

ignore the provisions or neglect the exercise of a power that is primarily meant to

be exercised for the benefit of the victims of crimes that are so often committed

though less frequently punished by the Courts. In other words, whether Courts

have a duty to advert to the question of awarding compensation to the victim and

record reasons while granting or refusing relief to them?”.

Paragraph 66 and 67 of the said judgment requires to also be considered

which are set out hereunder:-

66. “To sum up: While the award or refusal of compensation in a particular

case may be within the Court’s discretion, there exists a mandatory duty on the

Court to apply its mind to the question in every criminal case. Application of

mind to the question is best disclosed by recording reasons for

awarding/refusing compensation. It is axiomatic that for any exercise involving

application of mind, the Court ought to have the necessary material which it

would evaluate to arrive at a fair and reasonable conclusion. It is also beyond

dispute that the occasion to consider the question of award of compensation

would logically arise only after the court records a conviction of the accused.

Capacity of the accused to pay which constitutes an important aspect of any

order under Section 357, Code of Criminal Procedure would involve a certain

enquiry albeit summary unless of course the facts as emerging in the course of

the trial are so clear that the Court considers it unnecessary to do so. Such an

enquiry can precede an order on sentence to enable the court to take a view, both

on the question of sentence and compensation that it may in its wisdom decide to

award to the victim or his/her family”.

67. “Coming then to the case at hand, we regret to say that the trial Court

and the High Court appeared to have remained oblivious to the provisions of

Section 357, Code of Criminal Procedure. The judgments under appeal betray

ignorance of the Courts below about the statutory provisions and the duty cast

upon the Courts. Remand at this distant point of time does not appear to be a

good option either. This may not be a happy situation but having regard to the

facts and the circumstances of the case and the time lag since the offence was

committed, we conclude this chapter in the hope that the courts remain careful in

future”.

In Paragraph 20 the Apex Court held as follows:-“……..it is a paradox

that victim of a road accident gets compensation under no fault theory, but the

victim of crime does not get any compensation, except in some cases where the

accused is held guilty, which does not happen in a large percentage of cases”.

Paragraph 21 reads as follows:- “Though a provision has been made for

compensation to victims under Section 357, Cr.P.C., there are several inherent

limitations. The said provision can be invoked only upon conviction, that too at

the discretion of the Judge and subject to financial capacity to pay by the

accused. The longtime taken in disposal of the criminal case is another

handicap for bringing justice to the victims who need immediate relief, and

cannot wait for conviction, which could take decades. The grant of

compensation under the said provision depends upon financial capacity of the

accused to compensate, for which, the evidence is rarely collected. Further,

victims are often unable to make a representation before the Court for want of

legal aid or otherwise. This is perhaps why even on conviction this provision is

rarely pressed into service by the Courts. Rate of conviction being quite low,

inter alia, for competence of investigation, apathy of witnesses or strict standard

of proof required to ensure that innocent is not punished, the said provision is

hardly adequate to address to need of victims”.

The other decisions on this point like Nilabati Behera vs. State of

Orissa (1993) 2 SCC 746 : (AIR 1993 SC 1960), in Chairman, Railway

Board vs. Chandrima Das and Hari Krishan and State of Haryana vs.

Sikhbir Singh as reported in AIR 1988 SC 2127.

In Hari Krishan (supra) the Apex Court observed as follows:- “This

power was intended to do something to re-assure the victim that he or she is not

forgotten in the criminal justice system” and the Apex Court recommend to all

Courts “to exercise this power liberally so as to meet the ends of justice in a

better way”.

We are not unmindful of the fact that in Suresh (supra) the matter was

allowed to be argued on Section 357-A of the Code of Criminal Procedure but in

the instant case before us this matter was not agitated by the learned Public

Prosecutor. It may be mentioned that the legal heirs of the victims did not take

part in this proceeding. It is apparent from Paragraph 13 of Suresh (supra)

that out of 29 State Governments 25 State Governments have notified victim

compensation schemes about which there is reference in Sub-Section (1) of

Section 357-A of the Code of Criminal Procedure. However, the observation of

the Apex Court in the above noted case “in fact even without such petition, the

High Court ought to have awarded compensation” is of great relevance. It may

be mentioned that in that case the de-facto complainant, PW-2 Raman Anand,

filed Criminal Revision No.1477 of 2004 for compensation to the family

members of deceased Devender Chopra and his son Abhishek Chopra and the

same was dismissed by the High Court without any reason and we may note

here the observation of the Apex Court that “there is no reason as to why the

victim family should not be awarded compensation under Section 357- A by the

State”.

Therefore even without a petition for compensation the Supreme Court

supported award of compensation to the victim’s family.

In the case before us as per the post-mortem reports 4 (four) victims

died, they were 1. Sudhir Ghosh (aged 60 years), son of Haripada Ghosh 2.

Nirmal Ghosh @ Patkula (aged 26 years), son of Sudhir Ghosh 3. Sk. Mannan

@ Bura (aged 30 years), son of Ikims Sk. all of Muluk Adarshapally and 4. Sk.

Ziauddin (aged 40 years), son of Abu Taher of Muluk all within Bolpur Police

Station of District Birbum. Four of them lost their lives, three at a tender age.

It is also true that this incident took place in November, 1987 much before the

Amendment Act, 2008 came into force but this Court following the decisions of

the Apex Court referred to above especially the decision of the Apex Court in

Suresh (supra) is inclined to award interim compensation to the widows or

their legal heirs or dependants, as the case may be, to the tune of Rs.2(Two)

lacs each, (we illustrate per victim) this being beneficial legislation, in favour of

the victim/victims or his dependants or legal heirs who has suffered loss or

injury as a result of the crime. This is to enable rehabilitation considering the

untimely death of the victims for no fault of theirs.

We have had occasion to consider the West Bengal Victim Compensation

Scheme 2012 wherein the maximum compensation to be awarded to a victim

for loss of life is fixed at Rs.2 (Two) lacs. This sum is insufficient when

compared with loss of a dear one’s life.

It is true that human life is priceless but sometimes death comes

otherwise than in normal circumstances and to combat this several

compensation schemes have been framed by the Government both Central and

State. The most favourable one being the scheme framed under the Mortor

Vehicles Act, 1988 and Sections 163A and 166 of the said Act in particular.

The 2012 Compensation Scheme has not set out the reasons for fixing

the compensation amount. In fact, the Motor Vehicles Act has set out a

formula, namely, the factors that need to be looked into while granting

compensation, that is, the income of the person at the time of the road traffic

accident and his age at that point of time. This formula is reasoned but

compensation under the 2012 scheme is without any basis. The State Legal

Services Authority (SLSA) OR District Legal Services Authority (DLSA) has been

given authority to make enquiry for purposes of fixing compensation. Loss of

life whether under the Motor Vehicles Act or Victim Compensation Scheme

stands on the same footing and, therefore, the formula laid down under the

second schedule of the 1988 Act ought to be followed while granting

compensation to a victim and it is only for this purpose that Rs.2(Two) lacs is

granted to each of the victims as an interim compensation and Member

Secretary, DLSA, Birbhum at Suri is directed to adjudicate the final

compensation based on the formula contemplated under the Motor Vehicles

Act, 1988. The Secretary, DLSA, Birbhum at Suri is directed to make payment

of the interim compensation within one month from the date of receipt of the

order passed and if the funds are not available with DLSA, the State of West

Bengal will disburse such amount available within a month from the date of

receipt of a copy of this judgment and within a month, thereafter, DLSA, will

disburse the same to each of the victim or the legal heirs, as the case may be.

The final compensation to be fixed by DLSA will also be disbursed within

one month from the date of determination of such sum. In the event funds are

not available with DLSA, the State of West Bengal will disburse such amount

within a month from the date of receipt of DLSA’s order and payment be made

within a month thereafter.

If there is any dispute with regard to succession of the victims the matter

will be resolved by the said authority, after making proper enquiry and the

same distributed amongst the legal heirs and representatives proportionately.

Criminal section is directed to send a copy of this judgment along with

the LCR to the Sessions Judge, Birbhum at Suri forthwith who will forward a

copy of the judgment to the Chief Judicial Magistrate, Birbhum at Suri for

necessary action. The said section is also directed to forward a copy of the

judgment to the Secretary, District Legal Services Authority, Bolpur at Suri, for

compliance.

No order is passed as regards the disposal of seized articles as the case

has been filed for present in respect of the accused Jillur Rahaman @ Jillu and

Shankar Dhar.

Certified copy of the judgement be supplied to the parties if applied for as

expeditiously as possible.

(Indrajit Chatterjee, J.)

I agree.

(Nadira Patherya, J.)

Later:

After the judgment was pronounced, it is submitted by the learned Public

Prosecutor that a copy of the judgment be given to the Principal Secretary,

Government of West Bengal.

Let the Department be directed to forward a copy of this judgment to the

said Principal Secretary.

I agree.

(Nadira Patherya, J.) (Indrajit Chatterjee, J.)