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i) Whether the appellants were present; and ii) Whether they shared a common object. The appellants undisputedly raided the house of Satyaban and they were armed with deadly weapons and they attacked Satyaban and PW4 Muralidhar Kuila and abducted Satyaban in order to murder him. The appellants right from the beginning viz., when they assembled in the house of Golak Mondal till the abduction of Satyaben, shared the common object of the assembly at all stages. We are of the view that the impugned judgment of the High Court does not suffer from any infirmity to warrant interference.


                        IN THE SUPREME COURT OF INDIA


                      CRIMINAL APPEAL NO.2147  OF 2009

Gyaneshwar Shyamal                         …     Appellant


State of West Bengal                           …  Respondent


                       CRIMINAL APPEAL NO.2295 of 2009

                               J U D G M E N T


1.    These two appeals are preferred against the  judgment  dated  9.2.2009
passed by  the High Court of Judicature at Calcutta in CRA No.7 of 1991.

2.    The appellants in Criminal Appeal No.7 of 1991 are  accused  Nos.1  to
5, 10 and 25 in Sessions Trial Case No. XIV of March 1987  on  the  file  of
5th Additional Sessions Judge  at  Midnapore.   They  along  with  28  other
accused were tried for the alleged offences  under  Sections  148,  364/149,
302/149 and 307/149 of the Indian Penal  Code.   The  Sessions  Court  found
accused Nos.1 to 5, 10 and 25 guilty of charges under Sections 148,  324/149
and 364/149 and not guilty of  the  charge  under  Section  302/149  of  the
Indian Penal Code. Accused Nos.1 to 5, 10 and 25 were sentenced  to  undergo
rigorous imprisonment for 10 years each with fine of Rs.1,000/- each and  in
default to undergo further rigorous imprisonment for  six  months  each  for
the  conviction  under  Section  364/149  IPC;  sentenced  them  to  undergo
rigorous imprisonment for one year each for  the  conviction  under  Section
148 IPC and further sentenced them to undergo rigorous imprisonment for  one
year each for the conviction under Section 324/149.  At the  same  time  the
Sessions Court acquitted remaining 28 accused of all the charges.

3.    Aggrieved by this conviction and sentence accused Nos.1 to 5,  10  and
25 preferred Criminal Appeal in CRA No.7 of 1991 before the  High  Court  of
Judicature at Calcutta.  The High  Court  by  its  judgment  dated  9.2.2009
dismissed the appeal.  Accused Nos. 2, 3 and 4 died during the  pendency  of
the appeal.  Challenging  the  impugned  judgment  accused  No.25  Ganeshwar
Shyamal preferred Criminal Appeal No.2147 of 2009 and  accused   No.1  Manik
Mondal, No.5 Amar Mondal and No.10 Mihir  Patra  preferred  Criminal  Appeal
No.2295 of 2009 before this Court.  These two appeals are heard together.

4.    Briefly the prosecution case is as follows :   PW2  Jitobahan  is  the
husband of PW3 Smt. Khiroda.  Deceased Satyaban  is  their  elder  unmarried
son and PW8 Manoranjan   Mondal is their younger son.   All  of  them  lived
together in Karthnala village.  PW4 Muralidhar Kuila is friend  of  deceased
Satyaban.  On 9.10.1983 between  9  and  10  a.m.,  the  cattle  of  accused
Hariram Mondal caused damage to the Kundri plants grown on the back side  of
the house of PW2 Jitobahan.  Satyaban drew away the cattle and this  enraged
Manik Mondal, son of Hariram Mondal, who retaliated with the bow  and  arrow
in his hand.  Satyaban came inside the  house.  It  was  also  alleged  that
there was political rivalry between them.   Around noon  time  on  the  same
day all the accused including the  appellants  armed  with  lathis,  tangis,
bows and arrows assembled in the  house  of  Golak  Mondal,  situated  at  a
distance of 30 cubits from the house of Satyaban.  At about  1.30  p.m.  PW4
Muralidhar Kuila came to the house of Satyaban and was  talking  to  him  in
his house.   At that time all the accused with  arms  in  their  hands  came
there and surrounded Satyaban and Muralidhar.   Accused  No.1  Monik  Mondal
hit Satyaban with tangi, a sharp cutting weapon and  he  also  attacked  PW4
Muralidhar above the right eye with tangi. PW4 Muralidhar  fled  away.   The
accused persons assaulted Satyaban and  took  him  to  the  house  of  Golak
Mondal. Satyaban was thereafter never found either alive  or  dead.   PWs  2
and 3, parents  of  Satyaban  and  PW8  Manoranjan,  brother  witnessed  the
occurrence.  Fearing for life PW8  Manoranjan  fled  to  the  house  of  his
brother-in-law at Satma village and narrated the occurrence to PW1  Ardhendu
Satpati who rushed to the police station  in his motor-cycle which was at  a
distance of about 44 kilometers.  PW1 Ardhendu Satpati lodged Exh.1  written
complaint and PW10 Sub-Inspector Mriganka Sekhar  Misra  received  the  same
and registered Exh.1(a) First Information Report at 6.15 p.m.  on  the  same
day.  The police had to requisition a vehicle  and  ultimately  reached  the
place of occurrence at about 5.00 a.m. in the morning on the next day.  PW10
Sub-Inspector searched for the accused persons but they were not found.   He
searched the house of accused Golak Mondal and  seized  a  large  number  of
blood-stained articles by preparing  Exh.6 and 6-A Mahazars.   He  sent  PW4
Muralidhar to Gopiballavpur primary health  centre,  though  PW4  was  given
first aid by  Dr.  Pushpa  Ranjan  Ghose.   PW9  Dr.  Bepari  examined   PW4
Muralidhar  Kuila at  the primary  health  centre  and  found     1½”  x  ¼”
sharp cut wound over right eye and ½”  x ¼”  sharp  wound  below  the  right
eye.  The injury report  given  by  him  is  Exh.3.  PW10  Sub-Inspector  on
completing the investigation filed  chargesheet  against  35  accused.   The
Sessions  Court  on  framing  of  charges  conducted  the  trial  in   which
prosecution examined 10 witnesses and marked  documents.   No  evidence  was
adduced by the defence.  The trial court convicted only  seven  accused  and
sentenced them as stated supra.  On appeal  the  High  Court  confirmed  the
conviction and sentence.  Aggrieved by the same  the  present  appeals  have
been filed.

5.          Mr. P.K. Ghosh, learned senior counsel appearing on  behalf   of
the appellants would urge:

      a)         the prosecution case must be held to have not  been  proved
since the family members are the eye-witnesses;

      b)         Whether the occurrence  took  place  inside  the  house  or
outside is not established;

      c)         two of the appellants  belong  to  different  villages  and
their presence in the occurrence  place  is  doubtful  and  they  have  been
implicated falsely  due to political rivalry and the courts below  committed
error in passing the judgments;

      d)         in any event most of the appellants having  not  taken  any
active part, benefit of doubt should be given to them.

The learned senior counsel  in  support  of  his  submission  mainly  placed
reliance on the decision of this Court in Akbar Sheikh and  Ors.  vs.  State
of West Bengal  [(2009) 7 SCC 415].

6.    Mr. Joydeep Mazumdar, learned  counsel  appearing  on  behalf  of  the
State, on the other hand, supported the impugned  judgment  contending  that
the appellants armed with deadly weapons attacked PW4 Muralidhar Kuila   and
abducted Satyaban to murder him and  thereafter  Satyaban  was  never  found
alive or dead and each one  of  the  appellants  had  the  requisite  common
object and the conviction and sentence imposed on them are sustainable.

7.          The prosecution case is  that  the  accused  armed  with  deadly
weapons indulged in rioting and abducted Satyaban  from  his  residence  and
murdered him.  The trial court held that Satyaban was murdered in the  house
of accused  Golak Mondal was not proved since his dead body  was  not  found
despite vigorous search and it is a case of  untraceability  of  the  corpus
delicti  and hence the charge of murder was not proved.  The State  did  not
prefer appeal against the acquittal of the accused on the  said  charge  and
it became final.  At the same time the trial court held that the  appellants
indulged in rioting by causing injury to PW4 Muralidhar Kuila  and  abducted
Satyaban  by assaulting him with intent to  commit   murder  and  found  the
appellants guilty of the charges stated supra. PW2 Jitobahan  and  his  wife
PW3 Smt. Khiroda were living with their sons Satyaban and PW8 Manoranjan  in
their house in Karthnala village.  According to  PWs  2,  3  and  8  on  the
occurrence day in the morning cattle of accused  Hariram  caused  damage  to
the Kundri plants grown on the back side of their house  and  Satyaban  drew
away the cattle and enraged by this accused  No.1  Monik  Mondal  retaliated
with bow and arrow and Satyaban came inside the house. It is  their  further
testimony that by noon time on the same day all the  accused  including  the
appellants assembled in the house of Golak Mondal which  was  situated  near
their house and at that time they were armed with lathis,  tangis,  bow  and
arrows.  PWs 2, 3 and 8 have testified further  that  PW4  Muralidhar  Kuila
came at about 1.30 p.m. to their house  to meet Satyaban and  both  of  them
were talking in their house and at that time all the accused  with  arms  in
their hands came to their house and surrounded Satyaban and  PW4  Muralidhar
Kuila.  Accused No.1 Monik Mondal  hit  Satyaban  with  tangi  and  he  also
attacked PW4 Muralidhar Kuila above  right  eye  with  tangi  and   all  the
accused assaulted  Satyaban and took him  to  the  house  of  accused  Golak
Mondal  and  Satyaban  was  never  found  thereafter  alive  or  dead.   PW4
Muralidhar  Kuila  has  also  testified  that  when  he  was   indulged   in
conversation with Satyaban in their house they were surrounded  by  all  the
accused and he  was  attacked  by  accused  No.1  Monik  Mondal  with  tangi
resulting in injury in his right eye and he fled for life and  Satyaban  was
abducted by them.  PW9 Dr. Bepari examined PW4 Muralidhar  Kuila  and  found
two sharp cut wounds over and below his right  eye.   Exh.3  is  the  injury
report issued by him. PW8 Manoranjan fled to the house  of  his  brother-in-
law at Satma village and narrated the occurrence  to  PW1  Ardhendu  Satpati
who lodged the written complaint in the police station.

8.    The occurrence had taken place at about 2.00  p.m.  on  9.10.1983  and
the complaint had been lodged at about 6.15 p.m. on the same day,  on  which
the case came to be  registered.   As  mentioned  in  the  FIR,  the  police
station was situated at a distance of 54 kms.  from  the  occurrence  place.
In such circumstances there is no delay in  lodging  the  complaint  and  it
assumes significance.   Seven accused persons have  been  named  with  their
residential village in the complaint and it includes the appellants  herein.
The complainant PW1 Ardhendu Satpati has not witnessed  the  occurrence  and
on the instruction given by PW8 Manoranjan he had lodged the complaint.

9.    PW4 Muralidhar Kuila in his testimony has stated that he saw  Satyaban
and his brother Manoranjan in front of the house and he started  talking  to
Satyaban and at that time the accused persons surrounded and attacked  them.
 PWs 2, 3 and 8 have categorically stated that PW4 Muralidhar Kuila  on  the
occurrence day at about 1.30 p.m. came to their house to meet  Satyaban  and
both of them were talking inside the  house  at  which  point  of  time  the
accused barged in.  The Investigation  Officer  PW10  in  Exh.5  Sketch  Map
prepared by  him  has  shown  the  occurrence  place  inside  the  house  of
Satyaban.  We also perused  the  sketch  map  and  are  convinced  that  the
occurrence had taken place only inside the house of Satyaban.  In  the  same
way we are unable to appreciate the other contention that the  eye-witnesses
are only the family members and their testimonies are interested ones.   The
occurrence having taken place  inside  the  house  it  is  only  the  family
members who could witness  it.   PW4  Muralidhar  Kuila  is  an  independent
witness and he was also  injured  during  the  occurrence.    His  testimony
corroborates  the testimonies of other eye-witnesses.

10.   It is true that two of the appellants/A10 and A25 belong to  different
villages.  As already stated their names  are  found  mentioned  with  their
residential village in the complaint which was lodged at the earliest  point
in time. PWs 2, 4 and 8 have testified about the participation of  both  the
above accused in  the occurrence and have identified them also.  Nothing  is
put in the cross-examination of the  prosecution  witnesses  either  denying
their presence or absence of any role played by them in the  assembly.   Not
even a suggestion is made in this regard.   It is  also  relevant  to  point
out that these accused in their  replies  made  under  Section  313  Cr.P.C.
have not denied their presence in the occurrence.   On the other hand  their
presence in the occurrence place is established by the   evidence  available
on record.

11.   In the facts of the decision cited supra 29 accused  had  faced  trial
and the testimony of two eye-witnesses were found to be credible  and  those
witnesses had not named some of the accused in their testimonies and in  the
absence of any clinching evidence against those accused they were  acquitted
by this Court.

12.    The prosecution in a case of this nature was required to establish  :
i) Whether the  appellants  were  present;  and           ii)  Whether  they
shared a common object.  The appellants undisputedly  raided  the  house  of
Satyaban and  they  were  armed  with  deadly  weapons   and  they  attacked
Satyaban and PW4 Muralidhar Kuila and abducted Satyaban in order  to  murder
him.   The appellants right from the beginning viz.,  when  they   assembled
in the house of Golak Mondal till the  abduction  of  Satyaben,  shared  the
common object of the assembly at all stages.  We are of the  view  that  the
impugned  judgment of the High Court does not suffer from any  infirmity  to
warrant interference.

13.   There are no merit in the appeals and the same are dismissed.


                                                      (Jagdish Singh Khehar)


                                                   (C. Nagappan)

New Delhi

March 29, 2016

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