Evidence; Ranjan Sharma Vs. State of W.B. [Calcutta High Court, 20-05-2016]

Evidence Law – Arms Act, 1959 – Ss. 25(1b)(a) & 27 – Penal Code, 1860 – Ss. 364/302/34 – the discrepancies found in the evidences of eyewitnesses cannot affect their credibility unless such discrepancies are so vital. 

# Evidence

In the instant case, from the evidence of the eye witnesses that they had vividly narrated about participation of all the appellants in attacking the deceased. It was evident from the evidence of eye witnesses that there was pre arranged plan to kill the deceased and these appellants forcibly dragged the victim from his house, who was desperately asking his mother to save his life, and when they were requested by the prosecution witnesses to release the victim they threatened and prevented them by showing fire arm from going to rescue of the victim declaring that they would deal with him and ultimately one of them fired on his chest critically wounding him resulting in his death. The entire circumstances and the evidence on record lead to the conclusion that the appellants shared common intention to kidnap and cause death of the deceased/victim. Therefore, dismiss the appeals and affirm the conviction and sentence imposed on the appellants.


IN THE HIGH COURT AT CALCUTTA

Criminal Appellate Jurisdiction

The Hon’ble Justice Debasish Kar Gupta
And
The Hon’ble Justice Md. Mumtaz Khan

Judgment on: 20.05.2016

CRA 224 of 2014 Ranjan Sharma @ Bubai & Anr. Vs.The State of West Bengal With CRA 324 of 2014 Debandra Shaw @ Chotka Lal Shaw @ Chottolal Vs. The State of West Bengal With CRA 285 of 2014 Rabi Das @ Rabi Vs. The State of West Bengal Mr. Arnab Sinha, Ld. Advocate …amicus curiae in CRA 324 of 2014 Mr. Sabyasachi Banerjee, Ld. Advocate …amicus curiae in CRA 224 of 2014 & CRA 285 of 2014 Mr. Ranabir Roychowdhury, Ld. Advocate …for the state

Md. Mumtaz Khan, J. :

The subject matter of challenge in these appeals are the judgment, order of conviction and sentence dated February 28, 2014 and March 3, 2014 respectively passed by the Additional District and Sessions Judge, Fast Track Court-VI, Alipore, South 24-Parganas in ST No. 1(6)2008 arising out of Sessions Case No. 62(2) 2008. By virtue of the impugned judgment all the appellants were convicted for commissioning of offence punishable under

# Sections 364/302/34 of the Indian Penal Code

(hereinafter referred to as IPC) and were sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 2000/- each in default to suffer rigorous imprisonment for one year for the offence punishable under Section 302 IPC and rigorous imprisonment for 10 years and to pay fine of Rs. 1000/- each in default to suffer rigorous imprisonment for one year for the offence punishable under Section 304 IPC.

Appellant Rabi Das @ Rabi (appellant in CRA No. 285 of 2014) was also convicted for commissioning of the offence punishable under

# Section 25(1b)(a)/27 Arms Act

and was sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for one year for the offence punishable under Section 25(1b)(a) of the Arms Act and rigorous imprisonment for three years and to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for one year for the offence punishable under Section 27 Arms Act. All the sentences were directed to run concurrently.

The genesis of the case is the statement of Buddha Das (PW3), maternal uncle of the victim Bapi Das @ Lalo, made on November 28, 2007, before S.I. R.K. Sinha ( I.O.), which is discussed in a nutshell as under:-

On November 28, 2007 in the night at about 12.30 hours, PW3 saw an altercation and scuffling was going on in between his nephew Bapi Das @ Lalo and two unknown persons near his house on Kalighat road in front of Sulabh Souchagar and his elder sister Bishakha Das was shouting and trying to stop that quarrel. In the meantime, police came there and stopped the quarrel and took those two unknown persons, who disclosed their name as Gutke and Rajib Sinha, to the police station. They, thereafter, returned back to their house with Lalo.

Then on the same night around 1.00 a.m., PW3, suddenly heard shouting coming out from the side of the house of his elder sister and his sister was shouting and telling to release Lalo and Lalo was also shouting and telling his mother to save his life otherwise they will kill him. Then he (PW3) along his younger brother Gautam and many others rushed towards the house of his elder sister and saw that his sister was coming from lane while running and going towards right side (towards the Kalighat Temple). They also ran towards that direction and saw the appellants Rabi (appellant in CRA 285 of 2014), Bubai, Bhuto (appellants in CRA 224 of 2014) and Chotka (appellant in 324 of 2014) were dragging Lalo and Lalo was crying and telling them to save his life. At that time appellant Rabi Das was carrying a fire-arm. When they shouted and asked the appellants to release Lalo they threatened them telling not to proceed further and they would deal with Lalo and dragged Lalo towards Adi Ganga through a lane by the side of sulabh Souchagar. Seeing this, they also proceeded further and when reached near the unfinished corporation building, saw appellant Rabi to fire at Lalo and Lalo to fell down while crying. Lalo was wearing half pant and was bare bodied. Appellants then fled away towards Adi Ganga. They then saw a deep injury below the left chest of Lalo and blood to was ooze out from that wound. Lalo was then taken to SSKM hospital where P.W.3 narrated the incident to the doctor and after sometime Lalo expired at the Hospital.

On the basis of the above statement of PW3, a Kalighat P.S. Case No. 226 dated November 28, 2007 under Section 364/302/34 IPC and 25(1b)(a)/27 Arms Act was started against the appellants by S.I. Rudra Kanto Sinha, officer-in-charge of Kalighat P.S. and he himself took up investigation of this case. Thereafter on completion of investigation charge sheet being No. 15/08 dated January 29, 2008 under Section 364/302/34 IPC and 25/27 Arms Act was submitted against the appellants. Charges were framed on June 16, 2008 under Section 364/34 and 302/34 IPC against the appellants and in addition to that under Section 25(1b)(a)/27 Arms Act against the appellant Rabi Das @ Rabi and after they denied their involvement in the commission of the crime, trial commenced. Prosecution examined 23 witnesses and also produced and proved certain documents and articles and thereafter on completion of trial and after examination of the appellants under Section 313 Criminal Procedure Code (hereinafter referred to Cr.P.C.) learned court below passed the impugned judgement.

Mr. Arnab Sinha, learned advocate appearing as amicus curiae on behalf of the appellant Debandra Shaw @ Chotka Lal Shaw (appellant in CRA 324 of 2014) submitted that the impugned judgment, order or conviction and sentence cannot be sustained in law for the following reasons:-

i) There were material discrepancies and contradictions in between the evidence of eye witnesses with regard to the place of occurrence and even P.W.2, the plan maker, could not say that the site shown by him in the plan was the actual the place of occurrence or not.

ii) There were also discrepancies and contradictions in between the evidences of the doctor who conducted post-mortem examination over the dead body of the victim and P.W.5, P.W.8 and P.W.9 with regard to the intake of food by the victim which gave rise to serious doubt regarding the veracity of the prosecution story.

iii) There was no evidence on record with regard to the common intention leading towards the commission of kidnapping and murder of the victim by the appellant Debandra Shaw @ Chotka Lal.

iv) The motive behind the commission of kidnapping and murder of the victim has not been proved by the prosecution.

According to Mr. Arnab Sinha, charges against the appellant, Debendra Shaw @ Chotka Lal was not proved beyond all reasonable doubt. According to him, learned trial court did not take into consideration the aforesaid aspects of the matter for passing the impugned judgment, order of conviction and sentence against the appellant Debendra Shaw @ Chotka. Reliance is placed by Mr. Arnab Sinha, on the decision of

# State of U.P. Vs. Atul Singh, Etc. Etc. reported in AIR 2009 Supreme Court 2713

in support of his submissions.

Mr. Sabyasachi Banerjee, learned advocate appearing as amicus curiae on behalf of the appellants Rabi Das @ Rabi (appellant in CRA 285 of 2014) and Ranjan Sharma @ Bubai and Krishna Das @ Bhuto (appellants in CRA No, 224 of 2014) submitted that there was tremendous suspicious about the role played by the appellants Krishna Das @ Bhuto and Debandra Shaw @ Chotka Lal as their name do not figure in the injury report (exbt. 3) which was the first document prepared at the hospital in presence of PW3,an eye witness, who was also the signatory of the injury report. He also submitted that on that night two incidents were reported to had taken place and in the first incident one Gutke and Rajib Sinha were reportedly involved and initially the name of Gutke appeared in the injury report but subsequently it was struck off which gave rise to doubt regarding the prosecution story.

According to Mr. Banerjee, inquest report prepared in presence of PW3, and PW10, the eye witnesses, was also silent about the name of the assailants which also gave rise to doubt regarding the involvement of the appellants in the commission of the alleged offence. According to him, rigor mortis was present all over the body of the victim and stomach was empty and there was strong smell of alcohol which casts doubt with regard to the time of death of the victim and the prosecution story.

It is submitted by Mr. Ranabir Roy Chowdhury learned Advocate representing the state, that the instant case is based on the evidence of eye witnesses and the case against the appellants had been proved beyond all reasonable doubt.

According to Mr. Ranabir Roy Chowdhury, PW3, PW4, PW5, PW8, PW9, PW10 and PW11 were the eye witnesses of the crime and they had vividly narrated the presence and involvement of the appellants and the role played by them for commission of the offence in causing the death of the victim. According to him, evidence against the appellants was direct so the motive becomes irrelevant.

According to Mr. Ranabir Roy Chowdhury, the contradictions and discrepancies, as pointed by the learned advocate for the appellants, are minor in nature and not going to the root of the case. According to him, incident took place near sulabh souchagar opposite unfinished corporation building which had been corroborated by all the eye witnesses and there remains no for doubt about the place of occurrence.

According to Mr. Ranabir Roy Chowdhury, omission of the name of Chotka Lal in the injury report will not take away the evidence of eye witnesses who have clearly stated his presence and involvement in the commission of the offence along with other appellants.

According to Mr. Ranabir Roy Chowdhury, case against the appellants had been proved beyond all reasonable doubt and as such learned court below was justified to pass the impugned order of conviction and sentence which do not require any interference from this Court.

Mr. Ranabir Roy Chowdhury learned Advocate representing the state also relied on the judgement cited on behalf of the appellant Debandra Shaw @ Chotka Lal Shaw.

We have considered the submissions advanced by learned counsels appearing for the respective parties. We have also given our thoughtful consideration to the evidence of the prosecution witnesses and other materials-on-record for examining the propriety of the impugned judgement, order of conviction and sentence passed by the learned court below. It was not in dispute that the victim Bapi Das @ Lalo died on November 28, 2007 due to bullet injury. It is evident from the evidence of P.W.12, the doctor who first examined the victim in the Emergency Department of S.S.K.M. Hospital on November 28, 2007 and issued the injury report as also the death certificate (Exts.3 & 6) that on examination he found victim was in gasping condition and the left chest of the victim sustained one bullet injury which was deep in nature and there was also one superficial injury on the right side of the abdomen and in his opinion, the cause of death of the victim was due to cardio respiratory failure.

It is also evident from the evidence of P.W.17, the doctor who conducted the postmortem examination over the dead body of the victim as also the P.M. report, Ext.8, that during postmortem examination he found following injuries on the person of the victim:

1. Minute pellets, bruising and tattooing of the body front of neck to both iliac crest via chest and abdomen over an area 17”x15” including both upper arms;

2. One entry wound (bullet) 1½” X 1½” X abdomenal cavity deep situated 2” lateral side of left side of epigastrium, 8.5” below left clavicle, 3” below left nipple, 10” above left Iliac crest, 6” above and lateral to umbillicus;

3. Bruise 3”X3” below wound No. 2 between 6 & 7 ribs with fracture of cartilege;

4.Rupture of stomach;

5. Abdomen full of blood;

6. One bullet about 30 cm X ½ cm was lodged in the pancreas after rupturing the stomach and mesentery and

7. Punctured wound ½” X ½” above from right iliac crest present.

In the opinion of the doctor death was due to the effects of bullet injury which was ante mortem and homicidal in nature. Both the doctors were cross-examined by the defence at length but their evidence remained unshaken. Under the circumstances there appears no reason to disbelieve the version of the doctors.

Regarding the above injuries it was the specific allegations of the prosecution that in the night of November 28, 2007 at about 1.00 hrs. appellants in furtherance of their common intention forcibly dragged out the victim from his house and took him towards Adi Ganga and thereafter caused his death by firing at him with a firearm on his chest though the defence had denied the above allegation and had taken the plea of innocence.

The learned Court below took into consideration the evidences of P.W.3, P.W.4, P.W.5, P.W.8, P.W.9, P.W.10 and P.W.11, the eye witnesses, P.W.14, P.W.15 and P.W.16, the witnesses to the recovery and seizure of weapon of offence leading to the statement of the appellant Rabi Das, the evidence of the doctors,P.W.12 and P.W.17 as also the evidences of scientific experts, P.W.21, P.W.22 and P.W.23 to arrive at a conclusion that it was the appellants who in furtherance of their common intention forcibly dragged out the victim from his house and thereafter caused his death by firing on his chest with a firearm and thereby committed the offence punishable under section 364/302/34 I.P.C. and in addition to that appellant Rabi Das, who used the said firearm and at whose statements the said firearm was recovered, had committed the offence punishable under section 25(1b)(a) /27 Arms Act.

Now with regard to the discrepancies and contradictions, as pointed by the learned advocate for the appellants, it is the settled proposition that the discrepancies found in the evidences of eyewitnesses cannot affect their credibility unless such discrepancies are so vital. Reference may be made to the decision of

# Leela Ram vs. State of Haryana, reported in (1999) 9 SCC 525

and the relevant portions of the above decision are quoted below:-

“9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimensions, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony. In para 10 of the Report, this Court observed: (SCC pp.514- 15)

“10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weightily and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.”

(emphasis supplied)

It is also well settled that there bound to be some discrepancies between the depositions of different witnesses when they speak in details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. But discrepancy has to be distinguished from contradiction. While minor discrepancy or variance in evidence will not make the prosecution’s case doubtful, contradiction in the statement of witness is fatal for the case. Reliance is placed on the decision of

# State of H.P. vs. Lekh Raj, reported in (2000) 1 SCC 247

and the relevant portion of the above decision is quoted below:-

“7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution’s case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagadish v. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person.”

(Emphasis supplied)

In the matter of

# Shyamal Ghosh vs. State of West Bengal, reported in (2012) 7 SCC 646

it has been held by the Hon’ble Apex Court that court should examine the statement of a witness in its entirety and read the said statements along with the statements of other witnesses in order to arrive at a rational conclusion instead of reading statement of a witness in part or in isolation. The relevant portion of the above decision is quoted below:-

“49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused.”

In the matter of

# State of U.P. vs. M. K. Anthony, reported in (1985) 1 SCC 505

it has been observe by the Hon’ble Apex Court that in examining the truthfulness of the evidence, the Appellate Court will have to attach due weightage to the appreciation of evidence by the Trial Court. Unless there are reasons weighty and formidable it would not be proper for the Appellate Court to reject the evidence on the ground of minor variations or infirmities in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. The relevant portion of the above decision is quoted below: –

“10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trival matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weightly and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.”

(Emphasis supplied)

In the instant case, the discrepancies as to the omission of the name of the miscreants in the inquest report and also omission of the name of one of the miscreants in the injury report were not of material dimension going into the root of the case making the prosecution case doubtful. The eye witnesses namely P.W.3, P.W.4, P.W.5, P.W.8, P.W.9, P.W.10 and P.W.11 had given vivid and consistent account of entire incident and clearly spoken about participation of all the appellants in attacking the deceased and also attributed specific overt acts to them and this evidence was corroborated by medical evidence. They also identified the appellants in course of their deposition before court. Thus, presence of eye witnesses at the scene of occurrence was established. Though no dispute was raised about the source of light and the identification of the miscreants but it was evident from the evidence of above eye witnesses that the light available there was sufficient to correctly identify the assailants. The weapon used and the injuries inflicted on the victim and narrated by the above eye witnesses finds corroboration from the doctor and the P.M. report. The ballistic expert report (Ext.14) also confirms firing of the bullet (Mat. Ext.VI), recovered from the body of the victim, from the weapon of offence namely the firearm (Mat. Ext.II) seized leading to the statements of the appellant Rabi Das (Ext.16). Thus, it was evident from the evidence of above eye witnesses that they had fully corroborated the prosecution case and their statements-in-chief remained unshaken during cross-examination and nothing brought on record to discredit them. There was no material to show that any of the witnesses had any animosity with the appellants or had any motive to falsely implicate them. Moreover, the evidence of eye witnesses can not be discarded merely on the ground that they were the relatives of the deceased. It is true that P.W.5, P.W.8 and P.W.9 were the mother and sisters of the victim but the evidence on record shows that they resided with the victim in the same house. So, they were the natural witnesses as the victim was forcibly dragged from his house in their presence and was taken to the place of occurrence where he was dealt a fatal blow on his chest by a fire arm in their presence. From the testimony of above witnesses it was clear that they had described the incident in a clear and graphic manner. The evidence of above witnesses also found corroboration from other independent eye witnesses. The eye witnesses account as corroborated by medical evidence was consistent, trustworthy and reliable, as such there was no reason to discard their evidences made on oath. In the light of the facts and circumstances involved here, we are not inclined to take a different view to that of the learned Court below in this regard.

Regarding non-mentioning of the name of appellants in the inquest report, we find from the record that PW13 made inquest over the dead body of the victim at the SSKM Hospital morgue on November 28, 2007 in presence of P.W.3 and P.W.10. Fact remains that the inquest report (Ext.5) is silent about the assailants and no name has been mentioned therein. The provision for holding of an inquest and preparing an inquest report is contained in Section 174 Cr.P.C. The requirement of the section is that the police officer shall record the apparent cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted and this has to be done in the presence of witnesses. The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. Reference may be made to the decision of the Hon’ble Supreme Court in the matter of

# Amar Singh vs. Balwinder Singh & Ors., reported in (2003) 2 SCC 518.

So, mere omission of the name of assailants in the inquest report is not fatal and no inference adverse to the prosecution could be drawn for the same. Therefore, in view of the settled proposition of law as discussed herein-above the above discrepancy cannot affect the credibility of the evidence of the eye witnesses concerned.

Regarding omission of the name of Krishna Das @ Bhuto and Debandra Shaw @ Chottolal @ Chotka in the injury report and striking out of the name of Gutke appearing in the injury report, we find from the injury report (Exbt. 3) that names of Rabi Das, Bubai and Bhuto Das had been clearly mentioned therein and the only omission appears to be that of Chotka @ Chotkalal. From Ext.3 there appears striking out of names like Butke and beneath the same Gutka before the name of Bhuto Das. But P.W.3 has clearly deposed that he stated the names of accused persons before the doctor at the SSKM Hospital. Surprisingly, he was not challenged by the defence on this score. It is also evident from his statements (Ext.2), made immediate after the death of the victim and which had been treated as FIR, that he had clearly stated participation of all the appellants in attacking and causing death of the deceased. Though P.W.12 had admitted about striking out of names but nowhere he was asked the reason behind such striking out of names. Behind such striking out possibility of pronunciation or spelling mistake can not be ruled out. It is true that before the incident in question there was one incident of quarrel and scuffling between the victim and two unknown persons who disclosed their name before police as Ghutke and Rajib and the police took them to the P.S. but there was no evidence on record to connect the said incident and those two persons with the instant case. It was also not the case of the accused- appellants that those two persons were the actual culprits involved in the commission of death of the victim. Under such circumstances, mere omission of the name of Chotka @ Chottolal @ Debendra Shaw in the injury report and/or striking out of some names will not ipso facto lead to disbelieve the ocular evidence.

Therefore, our interference with the impugned judgment is not required on the above grounds considering the same was not contradiction of a material dimension.

Regarding discrepancies in between the evidence of the doctor and P.W.5, P.W.8 and P.W.9 over intake of food by the victim and presence of rigor mortis and strong smell of alcohol, we find from the evidence on record that incident in question took place on November 28, 2007 at 1.00 hrs. and the victim was brought at the SSKM Hospital on that night at 1.30 hrs. with the history of bullet injury over left side of his chest and in a gasping condition(Ext.3) where he died at 1.35 hrs. due to cardio respiratory failure for bullet injury (Ext.6 ). Postmortem examination was held at the same hospital on the very date at 2.30 P.M. (Ext.8). As per the Modi’s Medical Jurisprudence, in India rigor mortis usually commences in one to two hours after death and in temperate regions, it lasts for two to three days. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. In the instant case postmortem examination was held more than twelve hours after the death of the victim, so presence of rigor mortis all over the body of the deceased was not unusual. Similarly, the time required to digest food depends on various circumstances varying from nature of food, quantity of food taken, health of the person particularly his digestive system etc. There was no evidence on record to show the quantity of food taken by the victim. According to P.W.5, mother of the victim, her son Lalo used to take liquor but she was not sure whether on the relevant night her son had taken liquor or not. She had not stated the exact time of taking food by the victim but from the evidences of P.W.8 and P.W.9, sisters of the victim, it appears that victim took dinner at 8.30. P.M. in the night of on November 27/28, 2007 i.e. about 4 ½ hrs. before the incident. According to P.W.17, doctor, it takes 4-5 hrs. time for the stomach to empty after intake of food. During postmortem examination both the intestines were found to be congested with gas and faecal matters. So, in view of the above and in the light of the ocular evidence no adverse inference, with regard to the date and time of incident, can be drawn only because of presence of rigor mortis, empty stomach and smell of alcohol detected during postmortem examination of the victim. Therefore, our interference with the impugned judgment is not required on the above grounds.

Regarding place of occurrence, we find that the eye witnesses had given vivid and consistent account of the place of occurrence near sulabh Souchagar near incomplete Corporation building at Kalighat. They were cross-examined by the defence at length but nothing came out contrary to their statements -in-chief rather they affirmed the same during their cross- examination. Though the plan-maker (P.W.2) could not say whether the site shown by him in his map was the place of occurrence or not but that can not be a ground to disbelieve the vivid description of the place of occurrence given by the eye witnesses. Admittedly, P.W.2 was not the witness to the occurrence. He had simply drawn the plan of the places shown by the I.O. (Ext.1). The function of the plan-maker was to make sketch map of the places shown to him and he was not supposed to carefully observe the site of the blood stained earth. His statements in cross-examination is thus based on whatever impression was left on his mind, as a result of his visit to the spot for the purpose of making sketch map and the impression conveyed by the sketch map. It was also true that forensic evidence with regard to the blood stained earth could not be available due to insufficient blood, as evident from Ext.15, but failure to lead forensic evidence with regard to the blood stained earth by itself does not jeopardize the success of the prosecution case where there is other reliable evidence to fix the scene of occurrence. The evidence of eye witnesses appears to worthy of reliance to fix the scene of occurrence.

Therefore, our interference with the impugned judgment is not required on the above ground.

With regard to the absence of motive, we do not find any substance in the contention of the learned advocate for the appellants in view of the ocular evidence. It is well settled that when independent testimony is available to prove the murder charge against the accused persons the question of motive becomes more or less academic. Furthermore, absence of motive does not disprove a murder charge.

With regard to other contention as to the proof of criminal act of the appellants in furtherance of their common intention, we also do not find any substance in view of the overwhelming and consistent eye witnesses account of entire incident. The cardinal principle of analysing the evidence to find out the answer to the question of a criminal act of the accused persons in furtherance of their common intention was laid down by Privy Council in

# Barendra Kumar Ghosh vs. Emperor, reported in AIR 1915 PC 1.

In

# Mahabub Shah vs. Emperor, reported in AIR (32) 1945 PC 118

the Privy Council repeated and reiterated the same view. The above proposition of law was adopted by a Bench consisting of three Hon’ble Judges of the Supreme Court in

# Pandurang, Tukia and Bhillia vs. State of Hyderabad, reported in AIR 1955 SC 216.

The above well settled proposition of law was repeated and reiterated time and again by the Apex Court. The decision in the matter of State of U.P. vs. Atul Singh (Supra) relied on by both sides is also in the same line. The relevant portions of the above decision are quoted below:-

“15. ……………Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The Section is only a rule of evidence and does not create a substantive offences. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in

# Ashok Kumar v. State of Punjab (AIR 1977 SC 109)

the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

16. The Section does not say “the common intention of all”, nor does it say “an intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the commission of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in

# Ch. Pulla Reddy and Ors. V. State of Andhra Pradesh (AIR 1993 SC 1899)

Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.”

The above principles of law with regard to the common intention has been elaborately discussed by us in the Judgement delivered on May 6, 2016 in the matter of Gopal Chandra Das & Ors. vs. The State of West Bengal (In re: CRA 420 OF 2011).

In the instant case, we find from the evidence of the eye witnesses that they had vividly narrated about participation of all the appellants in attacking the deceased. It was evident from the evidence of eye witnesses that there was pre arranged plan to kill the deceased and these appellants forcibly dragged the victim from his house, who was desperately asking his mother to save his life, and when they were requested by the prosecution witnesses to release the victim they threatened and prevented them by showing fire arm from going to rescue of the victim declaring that they would deal with him and ultimately one of them namely appellant Rabi Das @ Rabi fired on his chest critically wounding him resulting in his death. The entire circumstances and the evidence on record lead to the conclusion that the appellants Ranjan Sharma @ Bubai, Krishna Das @ Bhuto and Debendra Shaw @ Chotkalal Shaw @ Chottolal shared common intention with the appellant Rabi Das @ Rabi to kidnap and cause death of the deceased/victim.

Therefore, our interference with the impugned judgment is not required on the above grounds.

Taking into consideration the entire facts and circumstances on the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment need not require our interference on the above grounds in view of the settled proposition of law as discussed herein above.

We, therefore, dismiss the appeals and affirm the conviction and sentence imposed on the appellants.

Copy of this judgement along with the lower court records be sent down to the trial court immediately by special Messenger for information and taking necessary action.

Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.

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