Jitendra Nath Chaudhuri, J.
1. Criminal Appeal No. 339 of 1981 and Criminal Appeal No. 340 of 1981 both arise out of the same sessions trial No. 6(11) 80 held by the 10th Court of the Additional Sessions Judge at Alipore resulting in the convictions of all the 14 appellants Under Sections 148 IPC, 307/149 IPC and 302/149 IPC. They were each sentenced to one year R.I. Under Section 148 IPC, 7 years R.I. Under Section 307 IPC and to imprisonment for life Under Section 302/149 IPC, the sentences to run concurrently. Both these appeals involve 14 appellants in all, in Criminal Appeal No. 340 of 1981, Lakhraji Devi and her three sons viz., Ram Murad Prosad, Ram Samaj Prosad and Ram Surat Prosad alias Lotan being the appellant, while Criminal Appeal No. 339/81 is on behalf of the remaining 10 appellants. These two Criminal Appeals since they arise out of the same joint trial have been heard together and this judgment will govern both.
2. The 14 appellants are (1) Lakhraji Devi, (2) Ram Murad Prosad, (3) Kishen Jadav (4) Inder Hela, (5) Ganesh Show, (10) Mahesh Passi, (11) Bhola Passi, (12) Som Nath Passi, alias Prasad, (13) Raj Path Passi alias Manager, and (14) Ram Surat Prosad alias Lotan. All the appellants have been charged Under Section 148 IPC for being members of an unlawful assembly on '21.6.1978 at Mudipara, P.S. Titagar and in prosecution of the common object of the said assembly viz., in assaulting Provakar Tewari and his brother, committed rioting, being armed at the time with deadly weapons to wit, sword, pipe gun, nepala end lathi. They have all been further charged Under Section 307/149 IPC for an assault on Sudhakar Tewari the brother of Provakar Tewati, in prosecution of the said common object of the said unlawful assembly. They have all been also charged Under Section 302/149 IPC for causing death of Provakar Tewari, being members of the said unlawful assembly, in prosecution of the said common object of that assembly.
3. The prosecution case in brief is as follows: On 21.6.1978 at about 9.30/9.40 P.M. Sudhakar Tewari (PW 1) and Md. Abbas (PW 4) were gossiping on a Chabutar (a cemented platform rectangular in shape) at Muchipara (Mudipara) under P.S. Titagar. The accused Mahesh, Somnath and Kishen Jadav were sitting on the other side of the said Chabutar. After a while Provakar Tewari and Debakar Tewari the two brothers of Sudhakar (P.W. 1) came there. Thereafter the accused Lakhraji Devi also came near the said Chabutar and had talks with the accused Mahesh, Somnath and Kishen. Lotan, Ram Murad and Ram Samaj, the three sons of the accused Lakhraji Devi came there in the meanwhile along with the accused Fera Prosad. They began talking to each other. Soon thereafter Fera Prosad went to his house and came back with the accused Munna Passi, Gambler, Manager and Indar. They had talks with each other. Thereafter the accused Lakhraji came before Provakar and charged him by saying that last April he had assaulted her son Ram Samaj. Provakar denied the said charge and said that her son had been assaulted by Som Nath Passi. All on a sudden thereafter the accused Manager Passi assaulted him with a lathi on his head as a result of which Provakar fell down. The accused Lakhraji then assaulted Sudhakar with a sword on his back when Sudhakar (PW 1), a brother of Provakar, came to his rescue. The accused Mahesh assaulted PW 1 on his nose with a Nepala. PW 1 sustained blood injuries. In the meanwhile Provakar got up and started running away, but the accused Somnath, Lotan, Ram Murad, Ram Samaj and Daya Ram along with others chased him. Lotan and Ram Murad each had a sword and Som Nath had a nepala. Provakar took shelter in the house of one Kishore. But the accused Ram Surat and Ram Samaj along with others brought him out and assaulted him with swords while Somnath assaulted with a nepala. The accused Bhola Passi, had a pipe gun with him, fired one round from that gun threatening the persons present at the spot with dire consequences, as a result of which those persons could not proceed further to the assistance of Provakar. Provakar being assaulted in the above fashion fell down on the ground, his body covered with blood. The accused Lotan then told his mother the accused Lakhraji that they had finished their work. Thereafter under instructions of the accused Lakhraji all the accused fled. PW 1 went to the police station and lodged a written complaint which had been marked as FIR in this case (Ext. 1). PW 1 was sent to B.N. Bose Hospital, Barrackpore. Provakar was sent to R.G. Kar Medical College Hospital as his condition was precarious where he died at 1 A.M. on 22.6.78.
4. S.I. Ranada Paul (PW 10) I.O. of this case, then attached to P.S. Titagar, on receipt of the complaint from P.W. 1 (Ext. 1) went to the place of occurrence seized alamats drew up a sketch map with index and arrested the accused Ram Murad, Kishen Jadav, Inder Hela, Lakhraji and Gambler from Muchipara on 21.4.78. He examined P.Ws. 2, 3 and 4 and some others. He seized the wearing apparels of the deceased being produced by his wife (P.W. 3) under a seizure list in the presence of the witnesses. After obtaining the post-mortem report and on completion of investigation he submitted a charge-sheet against all the accused persons on 29.8.79.
5. The prosecution examined 10 witnesses. The defence did not examine any witnesses. The defence of all the accused was one of innocence. According to the accused they have all been falsely implicated in this case at the instance of P.W. 1, as a few days before the incident some of the accused brought a criminal case against the two brothers Sudhakar (P.W. 1) and Provakar (deceased).
6. P.Ws. 1, 2, 3, 4 and 7 are the alleged five eye witnesses to the occurrence. P.Ws. 5, 6 and 9 are medical witnesses. P.W. 5 performed the post-mortem examination. P.Ws. 8 and 10 are police witnesses.
7. Sudhakar Tewari (PW 1) is the brother of the deceased Provakar and PW 2. All the brothers resided at Muchipara under P.S. Titagar. He is an employee of Empire Jute Mill. On 21.6.78 at 9.30/9.45 P.M. P. Ws, 4 and 1 were sitting on a cemented floor at Muchipara talking with each other. The accused Mahesh, Somnath and Kishen Jadav were sitting on the other side of the cement floor. After about two minutes PW 2 and Provakar came there. His evidence thereafter regarding the accusation levelled by the accused Lakhraji Devi against Provakar and the assaults that followed thereafter on Provakar and PW. 1 by the appellants, is as has already been set out in describing the prosecution case. Apart from injuries on his back and nose PW. 1 also sustained lathi injury. PW 1 identified all the accused as being persons at the time of the incident with the weapons in their hands. He proved his signature in the FIR. His evidence further is that the accused Lakhraji came in the thana in the meanwhile and was arrested. He identified the appellants as the assailants of Provakar and the weapons with which his brother Provakar was assaulted (II collectively). He (PW 1) was in hospital for 15 days. Provakar died in the hospital.
8. In cross-examination he admitted that the accused Ram Surat (Lotan) filed a case against him, Provaker, P.W. 2 and P.W. 3. The incident of assault continued for about ten minutes and there was a hue and cry. He saw the miscreants assaulting Provakar when he himself was being assaulted. P. W. 1 sustained injuries on his back and nose, as well as lathi injury at a space below the back. None of the miscreants could be apprehended at that time. There was blood on a cemented platform. He denied that the ghar of Kishore was closed. He denied that he had eloped with a woman of the locality for which the accused had raised objections, following which he had to live elsewhere. He denied that the accused did not assault him or Provakar and that out of grudge he was deposing falsely against them. He denied that there was no incident near the chabutar. He stated that he did not name any of the assailants before the hospital Doctor.
9. There was no suggestion given to this witness that the FIR was not lodged there and then by him as deposed to by him. All the appellants are FIR named. No discrepancy, contradictions or omissions was brought out from the said FIR. The FIR was lodged very shortly after the incident at 22-20 hours on 21.6.78, the date and hour of occurrence being between 21.35 hours to 22 hours on 21.6.78. The P.S. was at a distance of one and a half k.m. from the place of occurrence. It was after going to the police station and lodging of the said FIR that P.W. 1 was sent to the hospital. The fact that he did not name the assailants before the hospital Doctor is of ho consequence in view of the fact that the names of all the appellants were given by him in the FIR which he had already lodged. The time of making of the FIR not having been challenged the fact that he did not name the assailants before the hospital Doctor cannot in any way detract from his testimony. In view of the fact that he had already named the assailants in the FIR, it was quite unnecessary to name them again before the Doctor who was not a part of the investigating agency. The position may have been otherwise, if P.W. 1 had gone to the hospital first and thereafter gone to the police station to lodge the FIR.
10. P.Ws. 2, 3, 4 and 7 the other eye witnesses broadly corroborate the evidence of P.W. 1 regarding the incident and the presence and participation of the appellants. P.Ws. 2, 4 and 7 are not related to P. Ws. 1, 2 and 3 or Provakar P. Ws. 2, 3, 4 and 7 also identified all the appellants in Coun. The appellants were all known persons to P. Ws. 1, 2, 3, 4 and 7 by name and face.
11. In cross-examination P.W. 2 stated that he was not examined by any Doctor. 20/25 persons saw the accused assaulting Provakar before the house of Kishore. He did not see either Kishore or his wife on that occasion. After saying that there was blood at the place of assault he thereafter stated that he could not remember if there was any blood on the chabutar or at the place where Provakar was assaulted after being dragged out of the ghar of Kishore. He denied that P.W. 4 and Gopal the had deposed in examination-in-chief that Provakar after losing consciousness was taken to hospital by Gopal were rivals of the accused and that is why he had come to depose falsely.
12. P.W. 3 the widow of Provakar did not see the beginning of the incident as on hearing a row at about 9.30 A.M. she came out and saw her husband lying on the Chabutar, She however saw the rest of the assault and raised an alarm. Like P. W. 2 she also saw the accused Lotan. Ram Murad and Som Nath Passi assaulting Provakar with weapons. She also discussed in parts played by the other accused in the incident of assault on Provakar and P.W. 1, and the dragging of P.W. 1 and further assaults on him. She deposed that both P.W. 1 and P.W. 4 came to the rescue of her husband. The street light was burning, her house was close to the chabutar. The chabutar was 8 to 10 cubits from the house of Kishore. Provakar lay down before the house of Kishore. Her husband was assaulted mercilessly in the incident and his body was covered with blood. Her husband died in the hospital.
13. In cross-examination she stated that she saw her husband from a distance of 8/10 cubits. Her husband took meals at about 9.30 A.M. and told her that he was going to attend to his duties. After sometime she heard a row. It was brought on record that she omitted to state before the I.O. that Lotan, Ram Murad and Som Nath assaulted her husband before the ghar of Kishore. Nothing else however was brought on record to discredit any part of her testimony regarding the presence and participation of the appellants in the incident or that Lotan, Ram Murad and Som Nath had not been implicated by her in the assault on Provakar at all. The only omission seems to be on the question of the exact place viz., 'before the ghar of Kishore', where Lotan, Ram Murad and Som Nath assaulted Provakar.
14. In cross-examination she further stated that blood started rolling before the ghar of Kishore but she did not notice if there was any blood on the chabutar. She admitted that Lotan, Ram Murad and Som Nath filed a criminal case against her, Provakar and P.W. 1. She denied that she was deposing falsely out of grudge.
15. Mr. Abbas (P.W. 4) identified all the appellants as being present and participating in the incident with weapons. He is an employee of Empire Jute Mill. He went to B.N. Bose Hospital when Provakar was brought by Gopal. Provakar died in the R.G. Kar Hospital at 1 A.M. He and P.W. 2 went to R.G. Kar Hospital and got Provakar admitted there.
16. In cross-examination he stated that he worked in the mechanical department while P.Ws. 1 and 2 worked in other department. He was a head mistry. He denied that Provakar and P.Ws. 1 and 2 are his special friends but he was contradicted by his statement to the police on this point. Certain other omissions in his statement to the police were also brought on record. He stated that he did not remember if he disclosed before the hospital any name except Lotan and Ram Murad. He denied that he did not see the incident and he was deposing falsely at the instance of P.Ws. 1 and 2. He was assaulted with a lathi but was not examined by any Doctor. Panchanan Shaw (P.W. 7) also identified all the accused as being present in the said assault with weapons and described the assaults on lines similar to the other witnesses. He also came to the rescue of Provakar but the appellant Bhola fired and threatened them with dire consequences. On 21.6.78 at 9.30/9-45 P.M. he had come out to purchase cigarettes.
17. In cross-examination he stated that he had a transport business and his house was near the chabutar. Provakar was wearing a lungi and a shirt. He knew Provakar and his brothers for a long time and they had been playmates. Police came to the spot shortly after the incident. Some omissions in his statement to the police were brought on record. He denied that he did not see any incident and was deposing falsely at the instance of P.Ws. 1, 2 and 4. No omission was however brought on record from which the presence of the appellants in this incident could be shaken as deposed boby this witness.
18. Dr. S.R. Dhar P.W. 6 was the M.O. attached to R.G. Kar Hospital since 1977. On 22.6.78 at 12.40 A.M. he examined Provakar Tewari and found multiple stab injuries all over the body (abdomen, testicle, thigh, back and at sides). The patient was in shock and blood pressure could not be recorded. Pulse was imperceptible, pupils dialated. Prognosis was bad and he was admitted.
19. In cross-examination he stated that the patient was brought by Md. Abbas (P.W. 4). As stated by him he was assaulted by Lotan, Ram Murad and others. These names significantly were brought out in cross-examination.
20. Dr. M.C. Mukherjee (P.W. 9) was the M.O. attached to B.N. Hospital. Barrackpore On 21.6.78 at 11.20 P.M. as injured named Provakar Tewari (21 years) was brought by one Gopal Sharma to him for treatment. On examination he found 10 injuries including stab injuries, incised cutting injury and lacerated injuries all over the body including the head, liver, thigh, back and elbow. All the injuries were fresh and grave in nature. Two of the stab injuries one on the right side of the liver and the other on the level of the 6th inter costal space on the right side were each sufficient to cause his death. The effect of all the injuries were sufficient to cause the death in ordinary course of nature. The incised wounds and stab injuries might have been caused by sharp cutting weapons like Ext. VI collectively. The lacerated injuries might have been caused by lathies like Ext. II collectively.
21. On 21.6.78 at about 10.30 P.M. he also examined one Sudhakar Tewari and detected three injuries. These were (1) one stab injury 3/4' x 1/6' x muscle deep placed on the left side of the back (2) one incised injury 1' x ' x skin deep on the left side of the bridge of nose, and (3) a lacerated injury 3/4' x ' x muscle deep on the upper lip. Injuries 1 and 2 could be caused by a sharp cutting instrument while injury No. 3 could be caused by fists and blows. All the injuries were fresh. The patient was admitted for further treatment.
22. In cross-examination he stated that as far as he could remember Provakar was not conscious. Neither Provakar nor Gopal made any statement disclosing the names of the assailants. P.W. 1 also did not disclose the names of the assailants. He could not say for how long P.W. 1 was in hospital or when he was discharged.
23. The nature and the gravity of the injuries which this Doctor found on Provakar was not challenged at all in cross-examination nor was there any challenge regarding the nature of the injuries on P.W. 1 as found by this Doctor.
24. Dr. D.K. Debnath (P.W. 5) was the M.O. attached to the department of Forensic and State Medicine N.R.S. Medical College, Calcutta since 1973. On 23.6.78 he held the postmortem examination on the dead body of Provakar Tewari after due identification by a constable as well as P.W. 2. On examination he found multiple injuries, lacerated, incised punctured, incised penetrating, and incised wound, abrasion ecchymosis all over the body. There were five lacerated wounds on the head, abrasions on the forehead, forearm and right leg, ecchymosis on the lower lip and lacerated wounds over the left arm. He found an incised punctured wound (stitched) on the chest and an incised penetrating wound (stitched) entering into the abdominal cavity. The track of this incised penetrating wound cut vital parts of the body before entering into the abdominal cavity, including the chest wall pleural cavity, right lung and large intestines and adjoining blood vesel. Incised perforating wounds were found on the left thigh wall. There were incised wounds over the scrotum and the right thigh and left palm. In his evidence he has put the injuries under eleven heads, many of them having a number of sub-heads. All the injuries were fresh with extravasated clotted blood in an around the injuries.
25. Death according to him was due to the effects of the injuries anti mortem and homicidal in nature. The incised injuries might have been caused by sharp cutting instruments like nepala or sword. The lacerated injuries might have been caused by hard blunt substances like lathies. The multiple injuries suggested that there were more than one assailant.
26. In cross examination, it was brought out that the stomach contained brownish pasty substances (150 grams). There was no undigested particle in the stomach. There was no cross-examination as to the nature and gravity of the injuries as deposed to by this Doctor. We must remember that Provakar did not die there and then, but died at about 1 A.M. in the hospital quite a few hours after the incident and that therefore until his death, digestion was taking place. P.W. 8 a S.I. of police held the inquest on the dead body of Provakar at R.G. Kar Hospital on 24.6.78 and prepared a report in the presence of witnesses. He detected multiple injuries on his person.
27. In cross-examination he said that Md. Abbas (P.W. 4) was present at the time of the inquest. P.W. 8 did not ascertain the cause of the injuries.
28. S.I. Ranada Paul (P.W. 10) is the I.O. of this case. He proved the hand writing of Shri B.K. Bhattacharya the second officer who as the duty officer on 21.4.78 at 10.20 P.M. recorded the FIR lodged by P.W. 1 at the police station Ext. 1/2. P.W. 10 took up the investigation, visited the scene of crime, examined witnesses and seized alamats and drew sketch map with index (Ext. 2). The alamats seized were shown in Ext. 3. These were seized from the ghar of the accused Ram Murad. They included three lathico including one with an iron attachment on one and the Carbon copy of the seizure list (Ext. 3) was tendered as the original was not traceable. He sent P.W. 1 to B.N. Bose Hospital. Provakar was sent from B.N. Bose Hospital as he was in a precarious condition to R.G. Kar Hospital, where he died on that very night. P.W. 3 produced a blood stain Sd lungi and a shirt which was seized by him in the presence of witnesses under a seizure list, the carbon copy of which was marked as Ext. (4). The witness identified Ext. II collectively as the Nepala and lathies seized by him under Ext. III.
29. In cross-examination he stated that he arrived at the place of occurrence at 10.30 P.M. and visited both the places but found no blood. He examined local disinterested people including Panchanan (P.W. 7) and others. There was no denial of the seizures as effected by this witness in cross examination. There was no suggestion that the FIR was not recorded at 10.20 P.M. on 21.4.78. There was no suggestion of the police having acted in any manner prejudicial to the accused.
30. It was inter alia submitted on behalf of the appellants that since no blood was found the incident had not taken place as alleged by the prosecution. It was further submitted that disinterested witnesses had not been called by the prosecution and that even though P.W. 4 and alleged eye witness was present at the inquest, P.W. 8 who held the inquest did not ascertain the cause of the injuries. Reliance was placed by Mr. Dutt on behalf of the appellants on the case of Balaka Singh v. State of Punjab : 1975CriLJ1734 , where the Supreme Court had dealt with the question of omission of the names of the accused in the body of the inquest report and had held that the FIR which was found to have been recorded after the inquest report, lost its authenticity. In the present case the FIR was lodged long before the holding of the inquest and therefore the facts of this case stand on a completely different footing. Moreover in a later case reported in AIR 1978 SC 1558 Rameshwar Dayal v. State of U.P. the Supreme Court dealt with the question of the admissibility of the statements contained in an inquest report and held that the inquest report consists of two parts one of which is admissible and the other inadmissible. That part which is based on actual observation of the witness is admissible whereas the part based on information given to the police officer in course of investigation is inadmissible, being hit by Section 162 Cr.P.C. except for the limited purpose mentioned in that section. Therefore the fact that P.W. 8 did not ascertain the cause of the injuries is of no avail to the defence not only on the question of admissibility of whatever he may or may not ascertain as also because the FIR in this case was in fact lodged long before.
31. The fact that no blood was found cannot detract from the evidence of the eye-witnesses who have described the place of assault. The eye-witnesses corroborate each other broadly and the FIR substantially corroborates the evidence given by P.W. 1, All the appellants are FIR named, and the FIR was lodged very shortly after the occurrence. There is no evidence that any one was guarding the places where the incident took place and therefore traces of the crime (i.e. the blood) could have been obliterated by anyone. Moreover if the eye-witnesses were inclined to falsely implicate the appellants there is no reason why they should choose a place which was not the real place of assault.
32. P.W. 7 who is not related to Provakar has been called. It is not the duty of the prosecution to call all the witnesses of the neighbourhood. There is no evidence that either Kishore or his wife were present at the time of the incident and in fact P.W. 2 in cross-examination has stated that she did not see either Kishore or his wife on that occasion. The fact that Gopal who took Provakar to hospital has not been called does not detract from the evidence of the eyewitnesses and the other circumstances of this case. There is no evidence that Gopal arrived on the scene at any time before the assault had concluded.
33. The evidence shows that the assault on Provakar was a determined and merciless one. The presence and participation in some form or other of all the appellants stands established by the evidence of P. Ws. 1, 2, 3, 4 and 7. After giving due consideration to the discrepancies, contradictions and omissions brought out regarding the evidence of these witnesses we find that their evidence is reliable and implicates all the appellants as having participated in the common object as charged, of that unlawful assembly, at the place of occurrence at the time when the decesed Provakar and P.W. 1 who came to his rescue, were assaulted. All the appellants had arrived by the time the assault on Provakar began, they all remained side by side, each being armed until they have made sure that Provakar had been finished and only thereafter on the instructions of the accused Lakhraji Devi they all fled together. From the evidence a clear case of an offence Under Section 302/149 in respect of the deceased Provakar has been made out and an equally clear case Under Section 307/149 IPC also stands established in respect of P.W. 1. This is not a case where the offence in respect of Provakar can be whittled down to anything less than u/s. 302/149 IPC and similar is the position with regard to the charge in respect of P.W. 1 Under Section 307/149 IPC. It is clear of the evidence that none of the appellants was in that unlawful assembly as a mere spectator or a bystander.
34. The fact that it is the defence case that there was ill-feeling between some of the accused on the one hand and Provakar and his family on the other cuts both ways. It is impossible on the facts and circumstances of this case to assume that the real assailants of Provakar would be allowed to go scot free while the appellants, being really innocent would be falsely implicated out of grudge, however strong it might be. This would be contrary to the normal sentiment and conduct of the close relatives of the deceased such as his widow and brothers. It is also inconceivable that P.W. 1 would protect the real assailants who had assaulted him when he came to the rescue of Provakar and implicate totally innocent persons instead. In fact the ill-feeling between the parties which has been brought out in cross-examination and frankly admitted by the witnesses, seems to supply the reasons behind the brutal attack on unarmed Provakar on that occasion. The common object of the unlawful assembly of the appellants from the very beginning was to eliminate Provakar and when P.W. 1 came to his assistance the unlawful assembly also developed the common object of eliminating him so that he could not render any assistance to his brother.
35. Moreover it is the defence case, that some of the accused bore an animus against P.W. 1. The fact that the injuries on Provakar were very grave, were multiple in nature and were sufficient to cause death in the ordinary course of nature has not been challenged by the defence.
36. In our view, the charges framed are in order and no prejudice has been caused by the same, as submitted by Mr. Dutt.
37. We hold that the prosecution has proved beyond all reasonable doubt all the charges levelled against all the appellants. We accordingly uphold their convictions and sentences Under Sections 148, 302/149 and 307/149 IPC as passed by the learned trial Judge. Both the appeals therefore fail and are both dismissed. The appellants who are on bail will immediately surrender to their bail bonds and serve out their sentences.
B.C. Chakrabarti, J.
38. I agree.