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HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J) NO.35 OF 2016
1. Shri Sasthi Chakraborty,
S/O Late Makhan Chakraborty,
Resident of Office Tilla,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
2. Shri Kajal Roy @ Kajal Kumar Roy @ Kajal Sutradhar,
S/O Late Ramesh Roy,
Resident of Office Tilla,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
3. Shri Abhoy Kanta Bhushan @ Abhoy Bhushan,
S/O Late Nalini Bhushan,
Resident of Office Tilla,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
4. Shri Uttam Saha,
S/O Suresh Saha,
Resident of West Laxmibil,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
5. Shri Sukhendu Das,
S/O Suresh Das,
Resident of West Laxmibil,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
6. Shri Babul Das,
S/O Ramani Mohan Das,
Resident of West Laxmibil,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
7. Shri Chinmoy Ghosh,
S/O Late Rashik Lal Ghosh,
Resident of Office Tilla,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
8. Shri Hiranmoy Ghosh,
S/O Late Rashik Lal Ghosh,
Resident of Office Tilla,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
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9. Shri Mrinal Sengupta,
S/O Nirod Baran Sengupta,
Resident of Office Tilla,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
10. Shri Pradul Sengupta,
S/O Tejendra Sengupta,
Resident of Office Tilla,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
11. Shri Sajal Sarkar,
S/O Santosh Sarkar,
Resident of Office Tilla,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
12. Shri Bijoy Kumar Das,
S/O Makhan Das,
Resident of West Laxmibil,
P.O., P.S. Sub-Division-Bishalgarh,
District-Sepahijala, Tripura;
—-Appellant(s)
Advocate(s) for the appellant(s):
Mr. Z. Kamar, Sr. Advocate
Mr. Deep Chaim Kabir, Advocate
Mr. Subrata Sarkar, Advocate
Mr. S.B. Deb, Advocate
Mr. Arindam Basak, Advocate
Mr. Saptarshi Roy, Advocate
Ms. Piyali Chakraborty, Advocate
Ms. Mallika Dhar, Advocate
Mr. P. Roy Barman, Advocate
Mr. Samarjit Bhattacharjee, Advocate
Mr. Kawsik Nath, Advocate
Mr. Somik Deb, Advocate
Mr. Anujit Dey, Advocate
Mr. Sankar Bhattacharjee, Advocate
Mr. Jayanta Narayan Chatterjee, Advocate
Mr. Ranjit Dasgupta, Advocate
Mr. Apalak Basu, Advocate
Mr. H. Debnath, Advocate
Mr. Bhaskar Deb, Advocate
Mr. Saikat Rahman, Advocate
Mr. K.K. Roy, Advocate
Mr. S.K. Bhattacharjee, Advocate
Mr. B. Debnath, Advocate
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Versus
The State of Tripura,
—-Respondent(s)
Advocate(s) for the respondent(s):
Mr. Samrat Kar Bhowmik, Special Public Prosecutor
Ms.Mallika Debnath, Advocate
Ms. Ria Majumder, Advocate
Mr. Samrat Ghosh, Advocate
CRL.A. NO.29 OF 2016
Sri Mati Lal Saha,
S/O Late Suklal Saha of
Bishalgarh, P.O. P.S. Bishalgarh,
District-Sepahijala, Tripura.
—-Appellant(s)
Advocate(s) for the appellant(s):
Mr. P.K. Biswas, Sr. Advocate
Mr. P. Majumder, Advocate
Mr. A. Acharjee, Advocate
Ms. P. Ghatak, Advocate
Versus
1. The State of Tripura,
Represented by Secretary cum Commissioner,
Home Department,
Government of Tripura,
New Capital Complex,
P.O. Kunjaban, District-West Tripura.
2. Sri Satya Das,
S/O Late Makhan Das of
Office Tilla, P.S. Bishalgarh,
District-Sepahijala, Tripura.
3. Sri Arun Saha,
S/O Late Ramani Mohan Saha of
O.N.G.C. Bank Choowmuhani,
P.S. Amtali, District-West Tripura.
4. Sri Tapan Das,
S/O Late Jatindra Das of
Office Tilla, P.S. Bishalgarh,
District-Sepahijala, Tripura.
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5. Sri Uttam Kr. Saha,
S/O Late Lalit Mohan Saha of
Madhya Laxmibil, P.S. Bishalgarh,
District-Sepahijala, Tripura.
6. Chand Miah @ Chanu Miah,
S/O Late Ohid Miah of
Murabari, P.S. Bishalgarh,
District-Sepahijala, Tripura.
—-Respondent(s)
Advocate(s) for the respondent no.-1- State:
Mr. Samrat Kar Bhowmik, Special Public Prosecutor
Ms. Mallika Debnath, Advocate
Ms. Ria Majumder, Advocate
Mr. Samrat Ghosh, Advocate
Dates of hearing : 20.08.2019, 26.08.2019,
27.08.2019, 02.09.2019,
03.09.2019 09.09.2019
Date of delivery
of Judgment Order : 01.11.2019
Whether fit for reporting : YES
HON’BLE THE CHIEF JUSTICE MR. SANJAY KAROL
HON’BLE MR. JUSTICE ARINDAM LODH
JUDGMENT ORDER
(Arindam Lodh, J)
In K.S. Puttaswamy v. Union of India, (2017) 10
SCC 1, Hon’ble Apex Court of our land observed:
“614. It is wrong to consider that the concept of the
supervening spirit of justice manifesting in different forms to
cure the evils of a new age is unknown to Indian history. Lord
Shri Krishna declared in Chapter 4 Text 8 of The Bhagavad Gita
thus:
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The meaning of this profound statement, when viewed after a
thousand generations is this: That each age and each
generation brings with it the challenges and tribulations of the
times. But that supreme spirit of justice manifests itself in
different eras, in different continents and in different social
situations, as different values to ensure that there always
exists the protection and preservation of certain eternally
cherished rights and ideals. It is a reflection of this divine
“Brooding spirit of the law”, “the collective conscience”, “the
intelligence of a future day” that has found mention in the
ideals enshrined in, inter alia, Articles 14 and 21, which
together serve as the heart stones of the Constitution. The
spirit that finds enshrinement in these articles manifests and
reincarnates itself in ways and forms that protect the needs of
the society in various ages, as the values of liberty, equality,
fraternity, dignity, and various other constitutional values,
constitutional principles. It always grows stronger and covers
within its sweep the great needs of the times. This spirit can
neither remain dormant nor static and can never be allowed to
fossilise.”
2. In a murderous assault, one member of Tripura
Legislative Assembly and one of his associates were killed, and
four others had suffered simple/grievous injuries on their
persons. Altogether, initially twenty five persons were tried by
Additional Sessions Judge, West Tripura, Agartala(Court No.2)
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for various offences. The trial was concluded with judgement
and order of acquittal for five of them and conviction and
sentence of the other twelve, recorded under Sections
147/148/120B/326/307 and 302 read with Section 149 of IPC
and Section 3 of the Explosive Substances Act read with
Section 149 of IPC. It is to be mentioned here, in the
meanwhile, seven accused persons died and one is still
absconding. The incident occurred on 07.04.1983 in between
10.45/11.00 hrs. and the trial was completed with the
judgment dated 29.04.2016 and 30.04.2016 respectively as
aforesaid.
3. Twelve convicts, namely Shri Sasthi Chakraborty,
Shri Kajal Roy @ Kajal Kumar Roy @ Kajal Sutradhar, Shri
Abhoy Kanta Bhushan @ Abhoy Bhushan, Shri Uttam Saha,
Shri Sukhendu Das, Shri Babul Das, Shri Chinmoy Ghosh, Shri
Hiranmoy Ghosh, Shri Mrinal Sengupta, Shri Pradul Sengupta,
Shri Sajal Sarkar and Shri Bijoy Kumar Das have filed a joint
appeal registered as Criminal Appeal(J) No.35 of 2016, titled as
Sasti Chakraborty Ors. vs. State of Tripura.
4. The appeal being Crl. A. (J) 29 of 2016, titled as
Mati Lal Saha Vs. The State of Tripura Ors., has been
preferred by the complainant-PW1, Mati Lal Saha against the
order of acquittal of (i) Satya Das (S/o Late Makhan Das), (ii)
Arun Saha (S/o Late Ramani Mohan Saha), (iii) Tapan Das (S/o
Late Jatindra Das), (iv) Uttam Kumar Saha (S/o Late Lalit
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Mohan Saha) and (v) Chand Miah @ Chanu Miah (S/o Late
Ohid Miah) by the same common judgment.
5. Brief facts of the case giving rise to these appeals
are thus:
5.1. On 07.04.1983 at around 1530 hrs., one Sri Nikhil
Ranjan Ghosh, Sub-Inspector of Police of Bishalgarh Police
Station received a complaint through the driver of TRA-1601,
which was recorded by S.I. of Police, Sri P. Das Chowdhury as
per version of one Sri Mati Lal Saha, brother of Parimal Saha
disclosing the fact that, on 07.04.1983 at about 11.00 am was
scheduled for election of Chairman of Bishalgarh Block
Development Committee. For that purpose, at about 10.30 am,
he along with his elder brother Parimal Saha, Sankar Lal Saha,
Dilip Banik, Jitendra Saha and Banu Miah had taken
preparation to proceed for Bishalgarh Block Office. In the
meantime, he searched at Bishalgarh Bazar for deputed
personal guard of his elder brother, namely Ranjit Dasgupta,
who on being asked refused to accompany them for unknown
reason. Thereafter, without making any further delay, they
proceeded towards BDO office, Bishalgarh by a party vehicle
bearing registration No.DED-4279 and his elder brother was on
the driver‟s seat. The informant, Mati Lal Saha and Banu Miah
were seated in the front seat of the vehicle and Sankar Lal
Saha and Dilip Banik were in the rear seat.
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5.2. At around 11.00 am, when their vehicle reached
near the road of Office Tilla School, all on a sudden a „Q-Dodge‟
truck came in front of their vehicle from the side of Office Tilla-
Laxmibil road for which their vehicle was forced to stop.
Around 40/50 persons who were standing on the eastern side
of the road started hurling bombs aiming at them. Being
stunned, they all jumped down from the vehicle and, then, the
said miscreants being armed with “dao‖, “ballam‖(Spears), etc.
also attacked them. One Bijoy Das, son of Makhan Das of
Office Tilla gave a “dao‖ blow on his back. His elder brother,
Parimal Saha and Jiten Saha started running towards southern
side, when Bijoy Das, Sasthi Chakraborty, Dulal Sengupta,
Pradul Sengupta, Abhoy Bhushan, Satya Das, Kajal Sutradhar,
Biswajit Saha also chased them with “dao‖ and “ballam‖, etc.
in their hands. It is further stated that other miscreants were
also throwing bombs towards them. Among them, he could
recognize Mrinal Sengupta, Sadhan Karmakar, Biswajit Saha,
son of Haladhar, Tapan Das, son of Jatindra Das, Arun Saha,
Sajal Saha and 20/25 persons, names of whom are not known
but able to recognize them by face. When Bijoy Das gave “dao‖
blow on his back, he started to flee away but was following his
brother while he noticed that Bijoy Das, Sasthi Chakraborty,
Dula Sengupta, Pradul Sengupta, Abhoy Bhushan, Satya Das,
Kajal Sutradhar and Biswajit Saha started assaulting Parimal
Saha who fell down the ground. In order to save his life, he
somehow fled away and came to Bishalgarh market. Later on,
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from the mouth of other persons he came to learn that due to
the attack of above assailants, his elder brother Parimal Saha
and their companion Jiten Saha were hacked to death.
According to him, it was an incident of well-organized and pre-
planned murder.
5.3. On the basis of the said ejahar, Bishagarh P.S. Case
No.08(4)83 under Sections 148/149/302 of IPC read with
Section 3/5 of Explosive Substances Act was registered by S.I.
Nikhil Ranjan Ghosh. On the date of incident, the investigation
was started by S.I. Prabir Das Chowdhury (P-41).
5.4. The trial Court on examination of the record found
that at around 10.47 a.m., O/C, Bishalgarh P.S. directed ASI
Nakuleswar Debnath and Constable Paresh Ghosh to go with
the MLA in police vehicle bearing No.TRT-586. Accordingly,
they started from the police station and the said fact was
entered into the General Diary Book of Bishalgarh Police
Station. Thereafter, at about 10.52 a.m., Nakuleswar Debnath
returned to Police Station and reported that he could not see
the jeep of MLA, but heard some bomb blasts when he arrived
near Bishalgarh P.H.C. He further stated that he had to return
to Police Station as he had only one constable with him and
was unable to face the situation. He also asked for
reinforcement. That information was also entered into the
General diary book.
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5.5. Thereafter, O/C Bishalgarh P.S. Kshitish Ch.
Das(PW-28), SDPO, Dhurjuti Gautam(PW-38), S.I. Prabir Das
Chowdhury(PW-41), ASI Nakuleswar Debnath(PW-40), few
constables and one section of CRPF went to the place of
occurrence on the basis of General diary book Entry No.303
dated 07.04.1983. After arrival at the tri-junction of Agartala-
Bishalgarh-Laxmibil road they saw the dead-body of Jiten Saha
lying on the Agartala-Bishalgarh road, about 6/7 cubits to the
south of the jeep. They also recovered the dead-body of
Parimal Saha, which was lying on the eastern side of the
Agartala-Bishalgarh road at a distance of about 150 yards to
the south of the dead-body of Jiten Saha. Then, O/C Bishalgarh
P.S. instructed S.I. Prabir Das Chowdhury to take legal action.
After giving instruction of investigation, the SDPO Bishalgarh
and Officer-In-charge Bishalgarh P.S. along with some police
staff lifted the two dead-bodies in the police vehicle and
proceeded for Agartala as during that time the situation of
Bishalgarh was very much tensed and, if the dead-body of
Parimal Saha was taken to Bishalgarh, the situation would have
flared up.
5.6. When they reached at Arundhutinagar they came to
know that the tensed situation was also prevailing at Battala,
Agartala. Accordingly, they entered inside the Arundhutinagar
Police Line and contacted with Additional Superintendent of
Police, Mr. N.K. Majumder. Thereafter, on that day at about
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1.00 pm, as per order of O/C West Agartala Police Station, S.I.
Subodh Ch. Das recorded the fact of death of Parimal Saha and
another in the West Agartala Police Station General diary book
Entry No.373 dated 07.04.1983 and also came to
Arundhutinagar Police Line to take the dead-bodies of Parimal
Saha and Jiten Saha, when the dead-bodies of Parimal Saha
and Jiten Saha were handed over to him by the O/C Bishalgarh
P.S. Subsequently, he prepared the inquests over the dead-
bodies of Parimal Saha and Jiten Saha (Ext.P/13 and P/12)
respectively, and shifted them to morgue of erstwhile V.M.
Hospital for conducting postmortem examination of the dead-
bodies of Parimal and Jiten.
5.7. It has further been revealed that at in that
menwhile, S.I. Prabir Das Chowdhury, being instructed by O/C
at the place of occurrence itself to investigate the case, seized
the damaged jeep bearing No.DED-4279, few pieces of broken
glass, few pieces of papers having smell of gun powder, some
torn pieces of jute fibers with smell of gun powder, some
blood-stained earth, pieces of bones, a few pieces of hair, a
rexine made bag, small flags of Congress(I) party, diary of
1983, six passport size photographs of Parimal Saha, one
identity card of MLA Parimal Saha, citizenship card of Parimal
Saha, a copy of letter of Parimal Saha addressed to Dr.
Rajendra Kumari Bajpai, a letter of request addressed to
Parimal Saha to take part in the election of BDC, Bishalgarh on
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07.04.1983 at 11.00 am, telegram dated 23.03.1983, a
photograph of goddess “Kali‖, stamp and pad of Tripura
Legislative Assembly, few pieces of bones, pieces of wood with
blood-stain under seizure lists. He also prepared hand-sketch
map of the P.O., with index on the basis of Bishalgarh P.S.
G.D. Entry No.303 dated 07.04.1983, took photograph of the
P.O. by photographer of CID. On his return to Bishalgarh, he
met with the injured informant Mati Lal Saha and as per his
version, P. Das Chowdhury recorded complaint of Mati Lal Saha
and after recording it, the same was also read over to him and
on admitting the contents as true, the informant put his
signature thereon. He, then, brought Mati Lal Saha, Dilip Banik
and Sankar Saha to Bishalgarh Hospital for treatment.
6. Subsequent thereof, as per order of the competent
authority, the charge of investigation was handed over to
Inspector of CID, R. N. Chakraborty on that day itself at night.
During the course of investigation, on the requisition, Sri
Debajyoti Goutam, S.I. of Police of West Agartala P.S. seized
Q-Dodge Truck bearing No.TRL-529 at Motor Stand, Agartala
along with its driver, Mafiz Miah and he handed over the
seizure list along with arrested person and seized vehicle to Sri
R.N. Chakraborty, the investigating officer. On the same date
at about 6.00 pm, post-mortem examination was conducted
over the dead-bodies of Parimal Saha and Jiten Saha and on
being collected the wearing apparels of deceased, gold-made
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finger rings, wrist watch, silver made finger ring were also
seized under a seizure list.
7. In course of investigation, the I.O. had arrested
accused persons, namely (1) Uttam Saha, (2) Sukhendu
Bikash Das, (3) Babul Das and (4) Chand Miah @ Chanu.
8. As in this ejahar, it was not possible for the
informant to identify some of the assailants by name but he
told I/O that he could be able to recognize them by face, so,
the I.O. prayed before the Court for arranging Test
Identification Parade(TIP) of the above four accused persons
by producing them before the learned Court putting black mask
on their faces. Accordingly, that prayer of I.O. was allowed and
on 25.04.1983, in presence of a Judicial Magistrate 1st Class,
namely N.C. Das, the T.I. Parade of the suspects was held in
the Central Jail, Agartala. The witnesses, namely, Mati Lal
Saha, Sankar Saha and Dilip Banik were also present to
identify the suspects of the said incident. During T.I. Parade,
the witnesses identified the accused, namely Uttam Saha,
Sukhendu Bikash Das, Babul Das, and Chand Miah @ Chanu.
During investigation, I.O. also arrested accused Ranjit
Dasgupta, Mafiz Miah, Gulzar Harijan and Kali Harijan, but, the
remaining FIR named accused persons were found absconding.
9. On conclusion of investigation, charge-sheet was
filed against the 25(twenty five) accused persons and the case
was committed to the Court of Sessions and the Ld. Sessions
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Judge transferred the same to the Court of Ld. Additional
Sessions Judge, West Tripura, Agartala, Court No.2. Charges
were framed against the accused persons under Sections
147/149/120B/302/ 307/326 of IPC and Section 3 of the
Explosive Substances Act read with Section 149 of IPC against
23(twenty three) accused persons, except Mafiz Miah and
Ranjit Dasgupta. Accused Mafiz Miah absconded before framing
of charge. A separate charge was framed against Ranjit
Dasgupta under Sections 120B/302/109 of IPC. The contents
of the charges were read over and explained to all the accused
persons in Bengali to which they pleaded innocence and
claimed to be tried.
10. At a subsequent stage, before commencement of
examination of prosecution witnesses, on the prayer of
prosecution, charge has been altered on 04.12.1986 after
hearing both sides only in respect of offence under Section 148
of IPC, in place of charge under Section 147 of IPC as against
accused namely, Hiranmoy Ghosh, Sasthi Chakraborty, Bijoy
Das, Satya Das, Dudul Sengupta @ Dula, Abhoy Bhushan,
Sadhan Karmakar, Kali Harijan, Mrinal Sengupta, Kajal
Sutradhar, Tapan Das, Sajal Sarkar, Arun Saha, Uttam Kr.
Saha, Gulzar Harijan, Biswajit Saha @ Bishu, Chinmoy Ghosh
and Pradul Sengupta, and accordingly, the contents of the
charge, thus altered, were read over and explained them in
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Bengali to which they pleaded not guilty and claimed to be
tried.
11. However, the charge framed against the remaining
accused remained as before. Thereafter, almost all the material
witnesses were examined and by order dated 17.07.87, the
case was fixed for examination of accused persons under
Section 313 of CrPC. But the trial of the case was stayed as per
the order of this Court. Thereafter, the trial of the case again
started on 30.07.1988. On 16.09.1988, the charges were again
framed against the accused, namely Hiranmoy Ghosh, Sajal
Sarkar, Sukhen Das, Babul Das, Bijoy Das, Uttam Saha, Abhoy
Bhushan, Uttam Kr. Saha, Mrinal Sengupta, Dudul Sengupta,
Kali Harijan, Kajal Roy, Pradul Sengupta, Satya Das, Sadhan
Karmakar, Biswajit Saha and Gulzar Harijan under Sections
147/149/302/326/307/120B of IPC. On 11.12.1989, charges
were framed against accused Tapan Das, Chinmoy Ghosh, Arun
Saha and Ajit Deb under Sections 147/149/302/326/307/120B
of IPC. On 10.12.1993, charge was again framed against the
accused, namely Sasthi Chakraborty under Sections
147/149/302/326/307/120B of IPC. Thereafter, on
30.07.1997, charge has been again framed against the
accused, namely Chand Miah under Section
147/149/302/326/307/120B. The charges against the accused
persons were framed on different dates. On the basis of the
said charges, all the material witnesses were examined during
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trial. PW12, PW17 and PW38 were declared hostile and PW14,
PW15 and PW29 were tendered.
12. To substantiate the charges levelled against the
accused persons, the prosecution side had introduced as many
as forty six witnesses. In course of trial, seven accused
persons, namely Arun Saha(A17), Ranjit Dasgupta(A18), Kali
Harijan(A19), Gulzar Harijan(A20), Dudul Sengupta(A21),
Biswajit Saha(A22), Ajit Deb(A23), Sadhan Karmakar(A24)
died. On conclusion of trial, the learned trial Judge by the
impugned judgment and order convicted and sentenced the
appellants as aforesaid and acquitted Satya Das (A-5), Arun
Saha (A- 17), Tapan Das (A-3) and Uttam Kumar Saha (A-16).
Hence, the present appeals preferred by the convicted accused
persons and also by the victim-informant, Mati Lal Saha
against acquittal of the accused persons who are the
respondents in Crl. A. No. 29/2016.
13. Since both the appeals have been preferred
challenging the same judgment and order of conviction and
sentence dated 29.04.2016 and 30.04.2016 respectively, on
agreement between the parties represented by their Learned
Counsels, these are taken up together for hearing and disposal.
14. In course of hearing of the appeals, Mr. D.C. Kabir,
learned counsel has taken the lead role to argue the case and
his arguments have covered the entire case of the accused-
appellants, though, we also have heard Mr. Z. Kamar, learned
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Sr. counsel appearing for appellants No.2, 3 and 8, Mr. S.
Sarkar, learned counsel appearing for appellants No.1 to 5, 8
and 12, Mr. P. Roy Barman, learned counsel appearing for
appellant No.6, Mr. J.N. Chatterjee, learned counsel and Mr.
K.K. Roy, learned counsel appearing for appellant No.7, Mr.
Somik Deb, learned counsel appearing for appellant No.10, Mr.
B. Deb, learned counsel appearing for appellant No.9.
15. Mr. Kabir, learned counsel, in his attack to the
findings arrived at by the learned trial Judge, while convicting
the accused persons, has argued that the genesis of the
prosecution case is fraught with contradictions, inconsistencies,
concoctions and based on surmises, which either had escaped
the notice of learned trial Judge or he did not consider the
material evidence. According to Mr. Kabir, learned counsel, the
star witnesses, according to the prosecution, i.e. PW1, PW2
and PW3 are unreliable, untrustworthy and they implicated the
accused persons falsely. The story of a political rivalry and
animosity was cooked up by the prosecution witnesses that
Parimal Saha, the MLA from Congress(I) was murdered by the
accused persons, who are CPI(M) party activists. The learned
counsel has submitted that there is inordinate unexplained
delay in lodging the FIR which too suffered from overwriting
and interpolation. Furthermore, there is no FIR number.
Drawing our attention to order dated 09.04.1983 passed by the
concerned Court of Magistrate, Mr. Kabir, learned counsel has
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tried to persuade us that from the said order it is revealed that
the FIR was not received by the Court in time as prescribed in
the statute. Though, the FIR was registered on 07.04.1983 but
it was received by the Court on 10.04.1983 which would be
revealed from the order dated 10.04.1983. According to Mr.
Kabir, the said delay of three days had given the FIR maker
ample scope to improve the prosecution story and falsely
implicate the innocent persons in both the cases mentioned
above.
16. At the very threshold of his submission, Mr. Kabir
has clarified in his usual fairness that undisputedly an incident
had occurred where MLA, Parimal Saha and one of his
associates, namely Jiten Saha died and other associates had
suffered injuries on their persons but he has only questioned
the credibility of the statements of PW1, Mati Lal Saha, the
younger brother of the deceased Parimal Saha, PW2 Dilip Banik
and PW3 Banu Miah, who according to him, the prosecution
wanted to project as star witnesses. PW1, PW2 and PW3
cannot be termed as star witnesses, as because, according to
the learned counsel it was not possible for them to identify the
actual miscreants, and the present accused persons were only
implicated in the case out of political rivalry and strong
animosity. Further, the medical evidence does not support the
statements of the three injured eye-witnesses in regard to the
cause of injuries inflicted upon them by the accused persons.
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As for example, the learned counsel has submitted that PW1
has stated in his evidence that Bijoy Das, one of the assailants
had hit him from back with a “dao‖ i.e. a sharp weapon, while
he was trying to flee away from the spot and in running
condition. According to Mr. Kabir, had that been so, there must
be tail mark on the backside of his person (Mati Lal Saha). He
has further submitted that PW1, Mati Lal Saha has stated in his
evidence that he also saw Bijoy Das assaulting his deceased
brother, Parimal Saha. Learned counsel has questioned, how
two incidents at two separate places could be witnessed by
him.
17. Highlighting some of the statements made by PWs-
12, 17 and 38 that due to hurling of bombs, there was huge
dense smokes in and around the place of occurrence and due
to that it was not possible to identify the accused persons, Mr.
Kabir has questioned, in that situation, whether it was at all
possible for PW1, PW2 and PW3, who according to the
prosecution are the sterling witnesses, to identify the actual
assailants from the persons who assembled in that unlawful
assembly responsible behind the crime. Further Mr. Kabir,
learned counsel has submitted that none of the witnesses
during the treatment at Bishalgarh Public Health Centre(PHC)
had disclosed to the doctor, who treated them, about the
names of the assailants. The learned counsel has placed the
reference of bamboo fencing in view of the statements made
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by the witnesses that the assailants were hurling bombs from
behind the bamboo fencing erected over the boundary of the
surrounding houses, adjacent to the roadside. In course of
argument, he had placed some photographs of the bamboo
fencing and by showing such photographs, he tried to show
that the height of the bamboo fencing clearly reveals the
absurdity of the witnesses to identify any of the actual culprits
in the crime.
18. Mr. Kabir, learned counsel in his submission has
also tried to create a cloud in the mind of the Court that if the
bombs were hurled by 40/45 miscreants, then, why none of
the eye-witnesses was hit by the bomb and suffered any
injuries thereof on their persons, because the injury reports
mentioned in the medical examination of such witnesses do not
speak about any injury mark caused due to bombs. The
learned counsel also has highlighted that there is no sign or
mark of any bomb injuries in the medical examination reports
of the deceased, Parimal Saha and Jiten Saha. According to the
learned counsel, if bombs were hurled at all by 40-45 persons,
then, there must have been some injuries on the
persons/bodies of the victims. More so, the jeep through which
the deceased as well as his associates, i.e. PW1, PW2 and PW3
were going to the Block office has not been affected by such
hurling of bombs. According to him, had there been any bomb
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attack at all, then, there must have been some impact of such
explosion and some parts of the jeep might be dented.
19. Mr. Z. Kamar, learned Sr. counsel also has
questioned that if there was bombardment from both sides,
then, what would be the condition of the vehicle. According to
Mr. Kamar learned Sr. counsel, since there was no damage to
the vehicle out of any bomb attack, the theory of such
bombardment is liable to be brushed aside. Supporting the
submission of Mr. Kabir, learned counsel, Mr. Kamar, learned
Sr. counsel has submitted that enmity between the groups
always brings false implication of persons.
20. Mr. Kamar, learned Sr. counsel has next contended
that the complainant, Mati Lal Saha i.e. PW1 could have easily
lodged the complaint when he first entered into Bishalgarh
Police Station and also at Bishalgarh PHC and the incident
would have also been explained to the doctors who had treated
him. Mr. Kamar has further questioned the credibility of the
statements of the witnesses and found contradictions in the
statements of PW1, which he made in the FIR and later on, in
the course of trial and the inconsistencies in the statements of
the other injured witnesses, i.e. PW2 and PW3. Defending one
of clients, namely Hiranmoy Ghosh(appellant No.8), Mr.
Kamar, learned Sr. counsel has submitted that his name was
not found in the FIR and with the passage of time the injured
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witnesses had developed the story and wrongly implicated
Hiranmoy Ghosh.
21. Mr. Kamar, learned Sr. counsel in his effort to
convince the Court about the innocence of the accused,
Hiranmoy and other accused persons has submitted that the
place of occurrence is a densely habitated area and at that
time many persons could come out and gather at the place of
occurrence, but, that does not mean that they were involved in
committing the crime and for that reason the complicity of the
accused persons, including Hiranmoy Ghosh with the offence
has not been proved.
22. In regard to the damage of one eye of PW3, Banu
Miah due to splinter of the bomb, Mr. Kabir has submitted that
the doctor has also deposed in his evidence that the injury in
the eye of the said witness also might be caused by the pieces
of glass. To support his submission, Mr. Kabir learned counsel
has relied upon two decisions of the Apex Court, namely (i)
State of Madhya Pradesh vs. Budhiya, (1972) 3 SCC 34
and (ii) Nallabothu Ramulu vs. State of Andhra Pradesh,
(2014) 12 SCC 261(paras 16 to 22).
23. To shake the evidence of the prosecution in regard
to the charge of criminal conspiracy levelled against the
accused persons, Mr. Kabir learned counsel has submitted,
which has been echoed by other learned counsels appearing for
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the accused persons that only PW5, Nitya Gopal Saha had
spoken about the charge of criminal conspiracy, which
evidence does not sound good. The learned counsel has
highlighted that it is only PW5 who had stated that he saw Dula
Sengupta and Sasthi Chakraborty sitting in front of a shop,
namely, Bapan store.
24. Mr. Kabir, learned counsel has also taken us to the
statements of PW4 Usha Ranjan Sarkar, who brought out a
letter(Exbt.P2) written by the deceased Parimal Saha
addressed to the Officer-In-Charge of Bishalgarh Police Station,
which was seized during investigation by one of the
investigating officers(seizure list Exbt.P3). Exbt.P2 is a letter
dated 25.12.1978 which should not have any relevance to
constitute an offence under Section 120B of the IPC. The
learned counsel has submitted that only on the basis of some
apprehension of his danger to life, the deceased Parimal Saha
had levelled some allegations in the said communication made
to the Officer-In-Charge of Bishalgarh Police Station.
25. Taking us to the hand-sketch map(Exbt.P18)
prepared by the investigating officer, Mr. Kabir learned counsel
has submitted that the said map does not depict anything how
the incident happened and where the incident actually
happened and further it could not give the actual picture about
the fact that how the injured witnesses i.e. PW1, PW2 and PW3
had escaped and the actual spot of the attack.
Page 24 of 216
26. Mr. Kabir, learned counsel arguing for the accused
persons has found fault in conducting the Test Identification
Parade(TIP) of the accused persons. According to him, the
delay in conducting the T.I. Parade had given the prosecution
witnesses enough time to implicate the accused persons falsely
in the case. It is his further submission that the delay in
conducting T.I. Parade, particularly in a case of political rivalry
will give them enough opportunity to identify any one, out of
their personal political rivalry and animosity. To support such
submission, learned counsel has relied upon two decisions of
the Apex Court, namely (i) Md. Sajjad alias Raju alias Salim
vs State of West Bengal, (2017) 11 SCC 150 and (ii) State
Of Maharashtra vs. Syed Umar Sayed Abbas Ors,
(2016) 4 SCC 735.
27. Mr. P. Roy Barman, learned counsel has echoed with
the submission of Mr. Kabir, learned counsel and relied on a
decision of the Apex Court in State of Uttar Pradesh vs.
Wasif Haider Ors., (2019) 2 SCC 303(paras 14 and 15).
28. To make the genesis of the prosecution story as
false, Mr. Kabir has submitted that one of the initial
circumstances of the prosecution story is that one „Q-Dodge‟
truck had blocked the road through which deceased Parimal
Saha and his associates were moving, and if that be so, then,
why the truck, though seized, was not put under forensic
examination. His submission is that the bringing of the truck
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into the picture has made the prosecution story unreliable. It is
also the submission of Mr. Kabir, learned counsel that when the
jeep was moving and going along the road it collided with the
truck and the said truck had no business with the incident of
commission of the present crime. The nature of the accident
and the damage caused to the jeep on its bonnet sufficiently
indicates that the jeep simply collided with the truck while
moving.
29. Mr. Kamar, learned Sr. counsel and Mr. Kabir,
learned counsel in their strenuous efforts to dislodge the
prosecution story have submitted that the mandate of the
statute is that the copy of the FIR is to be forwarded to the
jurisdictional Magistrate forthwith, but in the present case, the
GD was registered on 07.04.1983 at 11.00 am on the basis of
information, by a police officer, namely Nakuleswar Debnath
where he informed that he heard the sound of bomb explosion
while proceeding towards Office Tilla to follow the jeep of
deceased Parimal Saha. That information was entered in the
G.D. vide No.303 and the formal FIR was only recorded at 3.30
pm on the basis of information furnished by PW1, Mati Lal
Saha. But, according to Mr. Kabir, investigation started on the
basis of GD Entry No.303. The bodies of the deceased were
carried to Arundhutinagar at about 1.00 pm, and there another
G.D. entry being No.373 was registered by the Officer-In-
Charge of West Agartala Police Station for conducting post-
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mortem and inquest. Mr. Kabir has pointed out that in the
inquest report there is no reference of FIR, but there is
reference of G.D. Entry.
30. Mr. Kabir, learned counsel has further drawn our
attention to the seizure lists dated 07.04.1983(Exbt.P7,
Exbt.P8, Exbt.P9) where there are only reference of Bishalgarh
P.S. G.D. Entry No.303. Again, in the hand-sketch map dated
07.04.1983[Exbt.P18,Exbt.P18(1)], there is reference of
Bishalgarh P.S. G.D. Entry No.303 dated 07.04.1983. The
learned counsel has submitted that the investigation actually
started on the basis of G.D. Entry being No.303 dated
07.04.1983 by Bishalgarh Police Station and by way of G.D.
Entry No.373 entered by the Officer-In-Charge of West
Agartala Police Station.
31. The learned counsels appearing for convict-
appellants as well as the accused-respondents have
strenuously urged that why PW1 Mati Lal Saha, despite his
arrival to the police station in conscious mind and health did
not disclose the names of the accused persons at the earliest
opportunity and why he lodged the formal FIR at about
3.00/3.30 p.m. disclosing the names of some of the accused
persons and the time gap between his first appearance in the
police station and lodging of his formal FIR had given him
enough time and scope to implicate the accused persons out of
political rivalry and personal animosity. The learned counsels
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have submitted that the FIR being a vital piece of evidence,
delay often results in embellishment, exaggeration as a result
of deliberation and consultation and such delay must
satisfactorily be explained by the prosecution.
32. Mr. Kabir has further submitted that the delay in
lodging the FIR was an attempt to bring in as many people as
possible motivatedly. In support of the submission of the
learned counsels, following case laws have been placed before
us:
(i) Thulia Kali vs. The State of Tamil Nadu, AIR 1973
SC 501: (1972) 3 SCC 393(para 12),
(ii) State of Andhra Pradesh vs. M. Madhusudhan Rao,
(2008) 15 SCC 582,
(iii) Ramdas Ors. vs. State of Maharashtra, (2007) 2
SCC 170(paras 12 to 14, 15, 16, 19 to 25),
(iv) State of Rajasthan vs. Bhanwar Singh, (2004) 13
SCC 147(para 6),
(v) State of M.P. vs. Ratan Singh, 2018(15) Scale 75.
33. In support of the submissions of the learned
counsels that the testimony of the injured witnesses or the
eye-witnesses may not be safe to believe and justify the
conviction of the accused persons when such witnesses,
despite being in safe custody of police, yet caused delay to
disclose the names of the assailants. According to the learned
counsels, the evidence of the witnesses who despite getting
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opportunity did not disclose the names of the accused persons,
would not be fair to be taken into consideration. In support of
their submissions, the following decisions are relied upon:
(i) State of Orissa vs. Brahmananda Nanda, (1976) 4
SCC 288(para 2),
(ii) Satguru Singh vs. State of Punjab, AIR 1995 SC
2449(paras 3 and 4),
(iii) Panda Nana Kare vs. State of Maharashtra, (1980) 1
SCC 131,
(iv) Jagir Singh vs. State(Delhi Admn.), AIR 1975 SC
1400(paras 7 and 8),
(v) Devinder vs. State of Haryana, AIR 1997 SC
454(paras 7 and 8).
34. In support of the submissions of the learned
counsels appearing on behalf of the accused persons in regard
to the consequences of contrary statements by the prosecution
witnesses, unmatched medical evidence, delay in recording of
statements of witnesses by the investigating officer, non-
availability of proper site plan, absence of authenticated expert
report, need to separate grains from the chaff and to dredge
the truth from the pandemonium, material exaggerations and
contradictions, inevitably raise doubt which is reasonable in
normal circumstances.
35. In support of the submissions that none of the
prosecution witnesses, particularly PW1, PW2 and PW3 are
reliable and trustworthy, and the learned counsels have relied
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upon the decision of Vadivelu Thevar vs. State of Madras,
AIR 1957 SC 614(paras 14 and 15) to outweigh such
evidence of being no value.
36. To substantiate the consequences of flouting the
mandatory provisions of law in regard to delay caused in
sending the FIR to the Magistrate, the learned counsels have
relied upon the following decisions:
(i) Meharaj Singh vs. State of U.P., (1994) 5 SCC 188–
partially overruled in Radha Mohan Singh vs. State of U.P.,
(2006) 2 SCC 450(paras 11 to 16),
(ii) Thanedar Singh vs. State of M.P., (2002) 1 SCC
487(paras 5 and 6),
(iii) Kunju Muhammed vs. State of Kerala, (2004) 9 SCC
193(para 9).
37. Mr. Kabir, learned counsel has submitted that in the
instant case the prosecution has failed to examine any of the
investigating officers in course of trial and he submits that non-
examination of the investigating officers is fatal to the
prosecution story. In support of this, learned counsel has relied
upon on the decision of Lahu Kamlakar Patil vs. State of
Maharashtra, (2013) 6 SCC 417(paras 18 and 23 to 27).
38. It is the consistent submission of learned counsels
appearing on behalf of the accused persons that to attract the
ingredients of common intention the prosecution witnesses
must be reliable, and until and unless the Court is satisfied that
Page 30 of 216
the prosecution witnesses are wholly reliable, trustworthy,
credible in all respects and found to be consistent, their
testimony should be discarded. To support the submission, the
learned counsels have relied upon on the following decisions:
(i) Masalti vs. State of U.P., AIR 1965 SC 202(para 16)
(ii) Busi Koteswara Rao vs. State of Andhra Pradesh,
(2012) 12 SCC 711,
(iii) Eknath Ganpat Aher vs. State of Maharashtra,
(2010) 6 SCC 519,
(iv) Inder Singh vs. State of Rajasthan, (2015) 2 SCC
734(para 20).
39. In course of hearing, this Court made a query to the
learned counsels regarding the evidentiary value of General
Diary Book. To answer our query, Mr. Kabir, learned counsel
has submitted that each and every document either public or
private has to be proved in accordance with law. Any
Acts/Regulations Rules of public authority are either
Executive, Legislative or Judicial, but even those documents
need to be proved in conformity with the provisions of Sections
56 and 57 of the Evidence Act. The learned counsel further
submits that the requirement of proof does not evaporate since
there is no scope of automatic proof as would be evident from
a bare reading of Sections 77 and 78 of the Evidence Act. To
draw a presumption that a document is genuine, also requires
to be proved in terms of Section 79 of the Evidence Act. The
learned counsel has submitted that the presumption may be
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that one certified copy is a genuine copy of the original, but, it
would not be a presumption that its contents are genuine or
correct. That has to be proved by the maker of the original
while bringing such copy into evidence. There is difference in
presumption of genuineness and conclusive proof and a
decision thereon. Even an original copy of a document has to
be proved in accordance with law and it cannot be brought to
evidence and be looked into without formal proof. As for an
example, Mr. Kabir learned counsel has considered the
evidentiary value of an attested copy of a school educational
certificate. The said copy, according to him, may be genuine,
but does it mean that its contents do not require to be proved.
He further submits that certified copy may be presumed to be
genuine but it still needs to be proved following the due
procedure of law.
40. Mr. Kabir, learned counsel has raised question about
the admissibility of the letter(Exbt.P2) dated 25.12.1978
which is a carbon copy. He has submitted that the said letter
being a carbon copy, is a secondary evidence and has to be
proved in conformity with Section 65(e) and 65(f) of the
Evidence Act. In absence of such proof, the said
document(Exbt.P2) should not be accepted as evidence. The
learned counsel argues that there may be some earth
shattering evidence that conclusively proves or disproves a
case, but, still it has to be brought on record as per law,
Page 32 of 216
exhibited as per law, and proved as evidence, subject to that
the witness is put to cross-examination, beyond which it
cannot be relied upon. In the instant case, Mr. Kabir contends
that the learned Special Public Prosecutor may argue that the
original G.D. book has been lost and he is having the certified
copy of the said G.D. Book/Register, but he poses question as
to whether it would be admissible in evidence and to be looked
at by this Court? According to the learned counsel, the Court
cannot look into such document, which is presumed to be
genuine but has not been proved in accordance with law. The
learned counsel has further contended that keeping a
document in the records/custody of a Court, without being
proved as per law, will not allow the document to be treated as
evidence as per the “procedure established by law” which
tantamounts to take away the liberty of an accused/individual.
41. In conclusion, Mr. Kabir learned counsel has
submitted that one must have respect to establish the Rule of
Law. The prosecution cannot fill up gaps and lacunae by
adopting a procedure that is not recognized by law. The
documents having not been produced and marked as required
under the Evidence Act cannot be relied upon by the Court and
contents of the document cannot be proved by merely filing it
in a Court as laid down by the Supreme Court in Life
Insurance Corporation of India vs. Ram Pal Singh Bisen,
(2010) 4 SCC 491.
Page 33 of 216
42. On the other hand, defending the prosecution case
and the judgment of conviction and sentence, Mr. S Kar
Bhowmik, learned Special P.P. has submitted that the case of
the prosecution has been established beyond any shadow of
doubt. The prosecution witnesses, particularly, PWs 1, 2, 3, 4
5 are consistent in their statements which makes the
prosecution story wholly reliable, trustworthy and of
unblemished character. Virtually, the defence has totally failed
to demolish the ocular evidence of the prosecution witnesses in
any manner whatsoever. Their versions are corroborated by
MO‟s (material objects) and medical evidence.
43. Mr. Kar Bhowmik, learned Special P.P. has
submitted that PW1, Sri Mati Lal Saha was totally perplexed
after the incident where his elder brother was brutally
assaulted and he suffered injuries to his person and it was
quite natural for a human being after being faced with such a
situation. After arriving at the police station the only intention
of PW1 was to save the life of his brother and another
associates. Even he was not in a position to speak and
according to the learned Spl. PP there is no infirmity for his
non-disclosure of names of the assailants at that juncture.
44. Mr. Kar Bhowmik, learned Spl. PP has submitted
that the accused persons were adequately identified even at
the place of occurrence. Some of them were known to the
informant by name whereas the others were known to him by
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face. All the accused persons, according to the learned Special
P.P. had assembled with the common intention and object to
murder them, particularly, his elder brother, Parimal Saha. He
further submits that the sequence of the incident amply proves
that the attack was a result of a deep rooted conspiracy
hatched by the accused persons which would be evident not
only from the statements of PWs 4 and 5 but also from the
letter dated 25.12.1978(Exbt.P2) which is also supported by
PW28, namely, Khitish Ch. Deb.
45. Drawing our attention to the statements of PW28,
Kshitish Ch. Deb in course of trial, learned Special P.P.
submitted that on 07.04.1983 at about 10.00 am the said
witness who was the Officer-In-Charge of Bishalgarh P.S. at
the relevant point of time had received a letter from Bhanu Lal
Saha and the facts of the said letter was also entered into the
General Diary of the Police Station and sent a few police
personnel under the command of one Sub-Inspector of Police
to the Office of Block Development Officer(BDO) of Bishalgarh.
The said witness has stated that he also sent a section of CRPF
personnel along with them.
46. In his cross, PW28 has confirmed that a
departmental proceeding was held against the accused Ranjit
Dasgupta after the occurrence and he was one of the witnesses
in that departmental proceeding.
Page 35 of 216
47. The learned Special P.P. has taken us to the sketch
map and showing the said map, learned Special P.P. has
submitted that PW1 ran away from the place of occurrence
through the foot track being marked as „10‟ of the hand sketch
map (Exbt P-18, 18/1) only after seeing the entire episode as
to how Parimal Saha was murderously assaulted by the
accused persons. The learned Special P.P. has candidly
submitted that the jeep by which deceased Parimal and his
associates were moving was substantially damaged due to
splinters from bombs and the front glass of the jeep was also
broken. Controverting the defence argument of collision of the
jeep with the truck, learned Special P.P. has drawn the
attention of this Court to the pictures (Ext P5-5/17 series) of
the Jeep, wherein the bumper of the jeep was found to be
intact.
48. Controverting further the arguments of the learned
counsels appearing on behalf of the accused persons/defence
that the prosecution witnesses failed to identify all the accused
persons and there are inconsistencies in identifying and naming
the accused persons and that they did not divulge the names
of the accused persons to the attending doctor, the learned
Spl. PP has submitted that there is no such law that one being
injured has to tell the doctor who assaulted the victims and
that kind of proposition of the learned defence counsels bereft
of any merit. In this regard learned Special P.P. has relied upon
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the following decision: Sukhchain Singh v. State of
Haryana, (2002) 5 SCC 100.
49. In reply to the contention of the learned counsels
for the defence that the road shown in the map would not allow
a truck to move, the learned Special P.P. has submitted that
the length of the truck was sufficient to block the road.
Further, to brush aside the argument of the learned counsels
for the defence that the prosecution witnesses failed to adduce
proper evidence in regard to the fact that from which side the
bombs were being hurled upon them, the learned Special P.P.
has argued that it was not humanely possible in mob attack to
accurately say and describe with precision from which side
bombs were being hurled in those attending circumstances.
50. Drawing our attention to Exbt.P8, the seizure list,
the learned Special P.P. has submitted that the jeep vehicle
holding registration No. No.DED-4279 was seized wherein the
marks of bomb hurling were found on different parts of the
jeep folding/twisting it. In course of investigation, the
remnants of bomb were also found which would be evident
from the seizure list Exbt.P8 dated 07.04.1983. From the
seizure of threads which were made of jute and half burnt
paper having smell of gun powder amply proves that there was
hurling of bombs by the assailants.
51. The learned Special P.P. has contended that the
defence has tried to project a case that the bombs were being
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carried in the jeep itself but this attempt of the defence counsel
would not stand because the rexine bag seized from the jeep
was found to be intact thwarting the proposition that there was
bomb inside the jeep.
52. In regard to the visibility of the place of occurrence,
the learned Special P.P. has submitted that the incident
occurred in broad daylight and the analogy as advanced by the
defence counsel that the place of occurrence was not visible at
all does not stand good at all as because the prosecution
witnesses, particularly, PWs 1, 2 and 3 had seen and identified
the assailants from close proximity. Learned Special P.P. has
drawn our attention to the statements of PW44, Narayan
Chandra Das who being a judicial officer conducted and
supervised the TI parade has categorically deposed that the TI
parade was conducted as per established procedure of law.
53. Referring to the evidence of PW2, Dilip Banik
learned Special P.P. has submitted that there is no ambiguity
about the implication of Kajal Roy who was identified by the
said witnesses as Kajal Sutradhar regarding his involvement in
the crime. PW1 and PW2 have corroborated each other about
the width of road which would be more or less 10-12 feet. The
learned Special P.P. has submitted that evidence of PW1 and
PW2 have not been shattered or shaken by the defence in any
manner whatsoever.
Page 38 of 216
54. PW3, Banu Mia has supported the version of PW1
2. The learned Special P.P. has submitted that the doctor has
specifically deposed that the left eye of Banu Miah was
damaged due to splinter of bombs. According to the learned
Special P.P., the blocking of road by the truck was a deliberate
attempt to stop the jeep. PW3, Banu Miah has confirmed his
statement made under Section 161 CrPC that he stated before
the IO that as soon as he got down from the jeep a bomb was
thrown at him by Chinmoy Ghosh, exploded on the ground and
the splinter hit and damaged his left eye. The statement of
Banu Mia, PW3 has not been shaken in cross even, as
submitted by the learned Special P.P.
55. Learned Special P.P. has submitted that the name of
Arun Saha surfaced in evidence of PW2. He was identified
properly in course of investigation as well as during trial but he
was illegally acquitted by the learned trial Court.
56. In regard to the evidentiary value of G.D. entry
records, learned Special P.P. has submitted that it is a public
document and in support of such statement he relied on a
decision of the Apex Court in Sone Lal Ors. Vs State of
UP, (1978) 4 SCC 302. He has further submitted that the
order sheets recorded by the court can be read and taken into
account by the Court. In this respect, he has relied on a
decision of the Apex Court in Y. Saraba Reddy Vs. Puthur
Rami Reddy Ors., (2007) 4 SCC 773.
Page 39 of 216
57. Learned Special P.P. has submitted that sufficient
explanation was given by the IO for delayed dispatch of FIR to
the jurisdictional magistrate. According to the learned Special
P.P., the letter(Exbt.P2) written by Parimal Saha has been
proved by PW4, Usha Ranjan Saha in its entirety in accordance
with law.
58. The learned Special P.P. has submitted that after
the incident, entire Bishalgarh was in a state of seize.
Bishalgarh P.S. is situated at the heart of the Bishalgarh town.
The intense situation also spread through Agartala city. It is in
the evidence that even the bodies of Parimal Saha and Jiten
Saha could not be brought to Agartala Hospital due to huge
gathering at Battala area and the police personnel were forced
to take the bodies into the A.D. Nagar police lines. The learned
Special P.P. has candidly submitted that PW1 and 2 had clearly
identified Satya Das as one of the assailants, but he was
acquitted by the trial court without proper appreciation of
evidence.
59. The learned Special P.P. making reference to the
injuries has submitted that all the accused persons were armed
with sharp cutting weapons which sufficiently prove that they
participated in the unlawful assembly with the clear common
intention and object to kill Parimal Saha and his associates.
60. Further, learned Special P.P. has submitted that
there is overwhelming evidence against both Satya and Tapan
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but they were acquitted from the charges by the trial court
without proper appreciation of evidence.
61. Lastly, the learned Special P.P. has argued that the
judgment of conviction and sentence declared against the
appellants should be maintained and the Appeal against
acquittal, preferred by the informant and supported by the
State should be allowed and appropriate conviction and
sentence should be declared against the respondents, i.e.
acquitted accused persons.
62. Having heard the rival submissions of the learned
counsels it becomes clear to us that the learned counsels
appearing for the appellants as well as the acquitted accused
persons have laid heavy emphasis on failure to observe the
mandatory procedures prescribed in different statutes for the
purpose of fair investigation, which according to them, had
caused serious prejudice resulting in miscarriage of justice to
the convict-appellants as well as the other accused persons
who were acquitted by the trial court.
63. The learned trial court has observed in its judgment
that it is established that the investigation started prior to the
registration of formal FIR. The sum and substance of the
submission of the learned counsels, in favour of which they
have submitted various authorities, is that the delay in lodging
FIR had given enough opportunity to PW1, Mati Lal Saha,
Page 41 of 216
based on whose oral statement the complaint was registered,
to improve and exaggerate the story and implicate the accused
persons because of personal animosity out of political rivalry.
64. The learned counsels have submitted that it is the
duty of the defence to create a cloud in the mind of the court
about the implication of the accused persons in a definite
crime, to establish that the case has not been proved beyond
any shadow of doubt, out of the irregularities or illegalities
which were committed in course of investigation. The
procedures mentioned in the Police Act, 1861 and the Police
Regulations Bengal, 1943 as adopted in the State of Tripura
are mandatory in nature and any violation would cause
prejudice to the accused persons.
65. Secondly, the Court cannot look into the entries
mentioned in the General Diary register. Thirdly, the
documents submitted in the case, particularly, Exbt-P2 cannot
be taken into evidence as it has not been proved in accordance
with the provisions of the Evidence Act. Fourthly, test
identification parade was not conducted in the manner
prescribed by law. Fifthly, there was no bomb hurling. Sixthly,
the prosecution witnesses are unreliable and untrustworthy,
and looking into the fact of their antecedents, the evidence of
PW2 and PW3 cannot carry any credence in the eye of law.
Seventhly, there are material discrepancies and inconsistencies
in the statements of PW1, PW2 and PW3.
Page 42 of 216
66. Having regard to the aforesaid crux of the
submission of the learned counsels for the accused persons, we
wish to first examine the statutory provisions.
67. Dealing with the first issue raised by the learned
counsels, first and foremost, for convenience, we may look at
the definition of “investigation”. Section 2(h) and 2(i) of the
CrPC defines “investigation” and “judicial proceeding”
respectively. “Investigation” includes all the proceedings under
this Code for collection of evidence, conducted by the police
officer or by any person (other than a Magistrate) who is
authorized by a Magistrate in this behalf. “Judicial Proceeding”
includes any proceeding in course of which evidence is or may
be legally taken on oath.
68. From the definition of “Investigation” we find that it
includes all the proceedings under the Code for the collection of
evidence conducted by a police officer or by any person (other
than a Magistrate) who is authorized by a Magistrate in this
behalf. It means that the formation of an opinion as to whether
on the material collected there is any cause to place the person
before the Magistrate for trial, and if so, for taking necessary
steps by filing charge sheet under Section 173 CrPC. [Ref:
State of UP Vs. Bhagwat Kishore Joshi,
MANU/SC/0066/1963 : 1964 CrLJ 140 and H.N. Rishbud
Page 43 of 216
Inder Singh Vs. State of Delhi, MANU/SC/0049/1954 :
1955 CrLJ 526].
69. Chapter XII of the Code of Criminal Procedure deals
with “information to the police and their powers to investigate”.
Section 154 provides that every information relating to the
commission of a cognizable offence, if given orally to an officer
in charge of a police station, shall be reduced to writing by him
or under his direction and the substance thereof shall be
entered in a book to be kept by such officer in such form as the
State Government may prescribe in this behalf.
70. Section 44 of the Police Act, 1861 stipulates:
―44. Police officers to keep diary. – It
shall be the duty of every officer in
charge of a police-station to keep a
General Diary in such form, as shall, from
time to time, be prescribed by the [State
Government] and to record therein, all
complaints and charges preferred, the
names of all persons arrested, the names
of the complainants, the offences charged
against them, the weapons or property
that shall have been taken from their
possession or otherwise, and the names
of the witnesses who shall have been
examined.
The Magistrate of the District shall be at
liberty to call for and inspect such diary.‖
Page 44 of 216
71. Section 243 of the Police Regulations Bengal, 1943
prescribes as follows, in regard to information:
―243. Recording of information under Section
154, Criminal Procedure code [12, Act V, 1861]
–
a) The first information of cognizable crime
mentioned in Section 154 Code of Criminal
Procedure shall be drawn up by the officer-in-
charge of the police-station in B.P. Form No. 27
in accordance with the instructions printed with
it.
b) The first information report shall be written
by the officer taking the information in his own
hand writing and shall be signed and sealed by
him.
c) The information of the commission of a
cognizable crime that shall first reach the police,
whether oral or written, shall be treated as the
first information. It may be given by a person
acquainted with the facts directly or on hearsay,
but in either case it constitutes the first
information required by law, upon which the
inquiry under Section 157, Code of Criminal
Procedure shall be taken up. When hearsay
information of a crime is given the station officer
shall not wait to record, the first information,
the statement of the actual complaint or eye-
witness.
d) A vague rumour shall be distinguished from
a hearsay report. It shall not be reduced to
writing or signed by the informant, but entered
in the General Diary, and should it, on
subsequent information prove well founded,
such subsequent information shall constitute the
first information.
e) A telegram is not a writing given to the
police signed by the person making the
statement and, therefore, does not comply with
Section 154, Code of Criminal Procedure. If,
however, in the opinion of an officer receiving a
telegram reporting the occurrence of a
Page 45 of 216
cognizable offence, the circumstances justify
action being taken, he should himself lodge the
first information on the basis of the telegram. If
he does not take such action, he should make an
entry in the General Diary.
In the case of a telephone message
reporting such an occurrence, the informant
should be asked to come to the police station to
lodge the information and an entry of the
message should be made in the general diary. If
it is considered necessary to start investigation
on the basis of the message and informant
remains unanimous or cannot be found, the
officer receiving the message must himself
lodge the information on the basis thereof.
f) Police officer should not defer drawing up
the information report until they have tested the
truth of the complaint. They shall not await the
result of medical examination before recording a
first information, when complaint is made of
grievous hurt or other cognizable crime.
g) A constable left in charge of a station may
accept a written report of a cognizable offence.
He shall get the report signed by the person
giving it, enter an abstract of it in the general
diary and report the fact to the officer-in-charge
of the station. If the report of a cognizable
offence is given to such constable orally he shall
immediately enter the substance of it in the
general diary and send the complainant or the
informant to the officer-in-charge of the station
with a note of the case. If the report relates to
the occurrence of a heinous crime, he shall send
immediate information to the Circle Inspector;
and if the facts of the case, as may occur in
dacoity, murder, etc., require the immediate
apprehension of the accused he shall take all
possible steps to effect arrest.
h) First information report, once recorded shall
on no count be cancelled by the station officers.‖
Page 46 of 216
72. Sub-section (1) of Section 156 of CrPC lays down
that any officer in charge of a police station may without an
order of Magistrate investigate any cognizable case which a
court having jurisdiction over the local area within the limits of
such station would have power to inquire into or try under the
provisions of Chapter XIII. Sub-section (2) of this section
provides that no proceeding of a police officer in any such case
shall at any stage be called in question on the ground that case
was one which such officer was not empowered under the
Section to investigate.
73. Section 157 of CrPC lays down that if from
information received or otherwise an officer in charge of a
police station has reason to suspect the commission of an
offence which he is empowered under Section 156 of CrPC to
investigate, he shall proceed in person or shall depute one of
his subordinate officers to the spot to investigate the facts and
circumstances, and if necessary, to take measures for
discovery and arrest of the offender.
74. Section 173 and sub-section (2) thereof is important
and it lays down that after investigation is complete the officer
in charge of the police station shall forward to a Magistrate
empowered to take cognizance of an offence on a police report
a report in the form prescribed by the State Government giving
details of the matters enumerated in clauses (a) to (g) of this
sub-section.
Page 47 of 216
75. From the above statutory provisions it is evident
that an investigation can be started on the basis of information
received by police personnel even. In the instant case, when
Parimal Saha and his companions including PWs 1, 2 3 were
proceeding towards BDO office without escort, through
Bishalgarh-Agartala road, to take part in the election process,
the Officer-In-Charge of the police station, after a while, sent
ASI Nakuleshwar Debnath, PW40 and Constable Paresh Ghosh,
PW30 and instructed them to follow Parimal Saha as escort.
Mentionably, Parimal Saha along with his companions had left
the PS at 10.45 a.m. When PW40 informed that he heard the
sound of bomb explosions and at that time GD entry was made
vide No. 303. Then the police personnel rushed to the place of
occurrence. Mati Lal Saha, PW1 had returned to the PS being
injured, and reported to the O/C, Bishalgarh PS that the life of
his elder brother was in danger and requested him to send
escort party, at that point of time, the Officer-In-Charge along
with other police personnel had rushed to the place of
occurrence. The said information of purported assault was
entered in the GD register at 11.05 a.m.
76. Mati Lal Saha(PW1) was sent to one pharmacy,
namely, Nirmala Pharmacy for first aid. The Officer-In-Charge
directed Prabir Das Choudhury, to take up the investigation
immediately. After that at about 1.00 p.m. they carried the
dead bodies to A.D. Nagar police lines where the Officer-In-
Page 48 of 216
Charge of West Agartala Police Station made another GD entry
No. 373 and prepared inquest report. After preliminary
investigation, the IO met with Mati Lal Saha (PW1) at Nirmala
Pharmacy and received oral information from him and reduced
it into writing which was sent to the police station at 3.30 p.m.
and Mati Lal Saha also put his signature on the said oral
statement for lodging a formal FIR. At 8.00 pm CID was
entrusted with the investigation. In the said FIR dated
07.04.1983 the names of the accused persons were disclosed
by PW1, Mati Lal Saha.
77. Here, the learned counsels appearing for the
accused persons in a cacophony assailed the theory of
concoction and fabrication, which according to them, is an
afterthought. Learned counsels appearing for the accused
persons also have found defect in the postmortem report
submitted by the doctor. According to them, there is no law
prescribed under any statute to furnish a preliminary
postmortem report. They questioned why the doctor had
submitted a preliminary report. They also raised the question
how the interpolation and overwriting were made in the
mentioning of time of the incident in the FIR.
78. According to them, the time 1700 hrs has been
interpolated and converted into 1500 hrs. They also questioned
that the copy of the FIR had to be sent to the jurisdictional
Magistrate forthwith but it was sent on 10.04.1983. Seizure of
Page 49 of 216
articles was made under GD entry No. 303 and not against the
FIR number which is illegal and arbitrary, according to the
learned defence counsels. The mandatory procedure laid down
under Section 102(3) CrPC was also not followed in causing the
seizures.
79. Now, according to us, considering the aforesaid
circumstances and keeping in mind the submissions of the
learned counsels for the accused persons, three questions
arise:
(i) Whether non-observance of the statutory
procedures can throw out the case of the
prosecution or vitiate the entire proceeding?
(ii) Whether under the circumstances, the FIR
lodged by Mati Lal Saha (PW1) can be
treated to be an FIR under Section 154 of
CrPC?
(iii) If this court finds any breach of mandatory
provisions relating to investigation, whether
on this ground alone, the entire judicial
proceedings vis a vis the prosecution case
can be thrown out unless such illegality in
the investigation is shown to have brought
about miscarriage of justice?
Page 50 of 216
80. The Apex Court in a catena of judgments has settled
this issue. A Constitution Bench of the Apex Court in Rupa
Ashok Hurra vs. Ashok Hurra Ors,
MANU/SC/0910/2002 : (2002) 4 SCC 388 has held thus:
―23. In S. Nagraj’s case (supra), an application
was filed by the State for clarification of the
order passed earlier. It was urged by the
petitioner that any modification or recalling of
the order passed by this Court would result in
destroying the principle of finality enshrined in
Article 141 of the Constitution. Sahai, J.
speaking for himself and for Pandian, J.
observed :
―Justice is a virtue which transcends all
barriers. Neither the rules of procedure nor
technicalities of law can stand in its way.
The order of the Court should not be
prejudicial to anyone. Rule of stare decisis
is adhered for consistency but is not as
inflexible in Administrative Law as in Public
Law. Even the law bends before justice.‖
81. In Union of India (UOI) Vs. Prakash P Hinduja
Ors., MANU/SC/0446/2003 : (2003) 6 SCC 195, the
Apex Court has held as under:
―20. An incidental question as to what will be
the result of any error or illegality in
investigation on the trial of the accused before
the Court may also be examined. Section 5-A of
the Prevention of Corruption Act, 1947 provided
that no police officer below rank of a Deputy
Superintendent of Police shall investigate any
offence punishable under Section 161, Section
165 and Section 165-A IPC or under Section 5 of
the said Act without the order of a Magistrate of
the First Class. In H.N. Rishbud (supra) the
investigation was entirely completed by an
officer of the rank lower than the Deputy
Superintendent of Police and after permission
Page 51 of 216was accorded a little or no further investigation
was made. The Special Judge quashed the
proceedings on the ground that the investigation
on the basis of which the accused were being
prosecuted was in contravention of the
provisions of the Act, but the said order was set
aside by the High Court. The appeal preferred by
the accused to this Court assailing the judgment
of the High Court was dismissed and the
following principle was laid down:-
“The question then requires to be
considered whether and to what extent the
trial which follows such investigation is
vitiated. Now, trial follows cognizance and
cognizance is preceded by investigation.
This is undoubtedly the basic scheme of the
Code in respect of cognizable cases. But it
does not necessarily follow that an invalid
investigation nullifies the cognizance or
trial based thereon. Here we are not
concerned with the effect of the breach of a
mandatory provision regulating the
competence or procedure of the Court as
regards cognizance or trial. It is only with
reference to such a breach that the
question as to whether it constitutes an
illegality vitiating the proceedings or a
mere irregularity arises. A defect or
illegality in investigation, however serious,
has no direct bearing on the competence or
the procedure relating to cognizance or
trial. No doubt a police report which results
from an investigation is provided in Section
190 of the Code of Criminal Procedure as
the material on which cognizance is taken.
But it cannot be maintained that a valid and
legal police report is the foundation of the
jurisdiction of the Court to take cognizance.
Section 190 of the Code of Criminal
Procedure is one out of a group of sections
under the heading “Conditions requisite for
initiation of proceedings.” The language of
this section is in marked contrast with that
of the other sections of the group under the
same heading, i.e. Sections 193 and 195 to
Page 52 of 216
199. These latter sections regulate the
competence of the Court and bar its
jurisdiction in certain cases excepting in
compliance therewith. But Section 190 does
not. While no doubt, in one sense, Clauses
(a), (b) and (c) of Section 190(1) are
conditions requisite for taking of
cognizance, it is not possible to say that
cognizance on an invalid police report is
prohibited and is therefore a nullity. Such
an invalid report may still fall either under
Clause (a) or (b) of Section 190(1)
(whether it is one or the other we need not
pause to consider) and in any case
cognizance so taken is only in the nature of
error in a proceeding antecedent to the
trial.‖
The Court after referring to Prabhu v. Emperor
AIR 1944 SC 73 and Lumbhardar Zutshi v. The
King AIR 1950 PC 26 held that if cognizance is in
fact taken on a police report initiated by the
breach of a mandatory provision relating to
investigation, there can be no doubt that the
result of the trial, which follows it cannot be set
aside unless the illegality in the investigation
can be shown to have brought about a
miscarriage of justice and that an illegality
committed in the course of investigation does
not affect the competence and the jurisdiction of
the Court for trial. This being the legal position,
even assuming for the sake of argument that the
CBI committed an error or irregularity in
submitting the charge sheet without the
approval of CVC, the cognizance taken by the
learned Special Judge on the basis of such a
charge sheet could not be set aside nor further
proceedings in pursuance thereof could be
quashed. The High Court has clearly erred in
setting aside the order of the learned Special
Judge taking cognizance of the offence and in
quashing further proceedings of the case.‖
Page 53 of 216
82. In Kusum vs Kanchan Devi Ors.,
MANU/SC/0489/2005 : (2005) 6 SCC 705 the Apex Court
has held thus:
―6. All the rules of procedure are the handmaid
of justice. The language employed by the
draftsman of processual law may be liberal or
stringent, but the fact remains that the object of
prescribing procedure is to advance the cause of
justice. In an adversarial system, no party
should ordinarily be denied the opportunity of
participating in the process of justice
dispensation. Unless compelled by express and
specific language of the Statute, the provisions
of the CPC or any other procedural enactment
ought not to be construed in a manner which
would leave the court helpless to meet
extraordinary situations in the ends of justice.
The mortality of justice at the hands of law
troubles a Judge’s conscience and points an
angry interrogation at the law reformer.
The processual law so dominates in certain
systems as to overpower substantive rights and
substantial justice. The humanist rule that
procedure should be the handmaid, not the
mistress, of legal justice compels consideration
of vesting a residuary power in judges to act ex
debito justice where the tragic sequel otherwise
would be wholly inequitable. – Justice is the goal
of jurisprudence – processual, as much as
substantive. (See Sushil Kumar Sen v. State of
Bihar : MANU/SC/0028/1975 : ([1975] 3 SCR
942).
No person has a vested right in any course
of procedure. He has only the right of
prosecution or defence in the manner for the
time being by or for the Court in which the case
is pending, and if, by an Act of Parliament the
mode of procedure is altered, he has no other
right than to proceed according to the altered
mode. (See Blyth v. Blyth (1966 (1) All E.R. 524
(HL). A procedural law should not ordinarily be
construed as mandatory, the procedural law is
Page 54 of 216always subservient to and is in aid to justice.
Any interpretation which eludes or frustrates the
recipient of justice is not to be followed. (See
Shreenath and Anr. v. Rajesh and Ors. :
MANU/SC/0286/1988 : [1998] 2 SCR 709.
Processual law is not to be a tyrant but a
servant, not an obstruction but an aid to justice.
Procedural prescriptions are the handmaid and
not the mistress, a lubricant, not a resistant in
the administration of justice.
83. In Sangram Singh Vs. Election Tribunal Kotah
Anr., MANU/SC/0044/1955 : [1995] 2 SCR 1, the Apex
Court considering the provisions of the code dealing with the
trial of the suits, held that:
―Now a code of procedure must be regarded as
such. It is procedure, something designed to
facilitate justice and further its ends: not a Penal
enactment for punishment and penalties; not a
thing designed to trip people up. Too technical
construction of sections that leaves no room for
reasonable elasticity of interpretation should
therefore be guarded against (provided always
that justice is done to both sides) lest the very
means designed for the furtherance of justice be
used to frustrate it.‖
84. In State by Lokayukta Police vs. H Srinavas,
reported in (2018) 7 SCC 572, the Apex Court while dealing
with the importance and significance of General Diary entry
and the FIR, taking into account the Constitution Bench
judgment in Lalita Kumari Vs. Government of UP, (2014)
2 SCC 1 has held as under:
―16. As both sides have placed excessive reliance on
the case of Lalitha Kumari Case (Supra), it would be
appropriate for us to discuss certain nuances of this
case in detail. This Court therein, having noticed
certain contradictory judgments concerning the
Page 55 of 216interpretation of Section 154 of CrPC, referred the
matter to a larger Bench for providing a mechanism
under the criminal justice system imbued with due
process.
17. In the aforesaid case, this Court while repelling
the contention by the learned ASG appearing for the
State of Chhattisgarh that recording of the first
information under Section 154 in the ―book‖ is
subsequent to the entry in the General Diary, held
that the concept of General Diary does not flow from
the Section 154 of CrPC, 1973 and the same
conclusion would be apparent from the departure
made in the present Section 154 of CrPC when
compared with Section 139 of the Code of Criminal
Procedure, 1861. It may be relevant to extract some
paragraphs, which may have bearing on the case
concerned –
―64. The General Diary is a record of all
important transactions/events taking place in a
police station, including departure and arrival of
police staff, handing over or taking over of
charge, arrest of a person, details of law and
order duties, visit of senior officers, etc. It is in
this context that gist or substance of each FIR
being registered in the police station is also
mentioned in the General Diary since
registration of FIR also happens to be a very
important event in the police station. Since
General Diary is a record that is maintained
chronologically on day-to-day basis (on each
day, starting with new number 1), the General
Diary entry reference is also mentioned
simultaneously in the FIR book, while FIR
number is mentioned in the General Diary entry
since both of these are prepared simultaneously.
65. It is relevant to point out that FIR book is
maintained with its number given on an annual
basis. This means that each FIR has a unique
annual number given to it. This is on similar
lines as the case numbers given in courts. Due to
this reason, it is possible to keep a strict control
and track over the registration of FIRs by the
Page 56 of 216
supervisory police officers and by the courts,
wherever necessary. Copy of each FIR is sent to
the superior officers and to the Judicial
Magistrate concerned.
66. On the other hand, General Diary contains a
huge number of other details of the proceedings
of each day. Copy of General Diary is not sent to
the Judicial Magistrate having jurisdiction over
the police station, though its copy is sent to a
superior police officer. Thus, it is not possible to
keep strict control of each and every FIR
recorded in the General Diary by the superior
police officers and/or the court in view of
enormous amount of other details mentioned
therein and the numbers changing every day.
67. The signature of the complainant is obtained
in the FIR book as and when the complaint is
given to the police station. On the other hand,
there is no such requirement of obtaining
signature of the complainant in the General
Diary. Moreover, at times, the complaint given
may consist of large number of pages, in which
case it is only the gist of the complaint which is
to be recorded in the General Diary and not the
full complaint. This does not fit in with the
suggestion that what is recorded in the General
Diary should be considered to be the
fulfilment/compliance with the requirement of
Section 154 of registration of FIR. In fact, the
usual practice is to record the complete
complaint in the FIR book (or annex it with the
FIR form) but record only about one or two
paragraphs (gist of the information) in the
General Diary.
…………
70. If at all, there is any inconsistency in the
provisions of Section 154 of the Code and
Section 44 of the Police Act, 1861, with regard
to the fact as to whether the FIR is to be
registered in the FIR book or in the General
Diary, the provisions of Section 154 of the Code
Page 57 of 216
will prevail and the provisions of Section 44 of
the Police Act, 1861 (or similar provisions of the
respective corresponding Police Act or Rules in
other respective States) shall be void to the
extent of the repugnancy. Thus, FIR is to be
recorded in the FIR book, as mandated under
Section 154 of the Code, and it is not correct to
state that information will be first recorded in
the General Diary and only after preliminary
inquiry, if required, the information will be
registered as FIR.
(Emphasis supplied)‖
18. On the aspect of the preliminary enquiry the court
discussed as under –
―115. Although, we, in unequivocal terms, hold
that Section 154 of the Code postulates the
mandatory registration of FIRs on receipt of all
cognizable offences, yet, there may be instances
where preliminary inquiry may be required
owing to the change in genesis and novelty of
crimes with the passage of time. One such
instance is in the case of allegations relating to
medical negligence on the part of doctors. It will
be unfair and inequitable to prosecute a medical
professional only on the basis of the allegations
in the complaint.
……….
117. In the context of offences relating to
corruption, this Court in P. Sirajuddin [P.
Sirajuddin v . State of Madras , (1970) 1 SCC
595 : 1970 SCC (Cri) 240] expressed the need
for a preliminary inquiry before proceeding
against public servants.
(Emphasis supplied)‖
85. Keeping in mind the aforesaid ratio settled by the
Apex Court, we are of the considered view that procedural law
is designed to render substantial justice to a party but not to
come in way of rendering justice. The police officers have to
Page 58 of 216
keep the General Diary with the object of recording all
important transactions or chronological/sequential events; in
some cases even the gist of the facts only to unearth and
usher to find out the real truth, but, FIR is mandatorily to be
registered on receipt of any information of cognizable offence.
Further, it is not the requirement of law that information will be
first recorded in the General Diary and only after preliminary
inquiry, if required, the information will be registered as FIR.
86. In the present case, ASI Nakuleshwar Debnath,
PW40 while proceeding to follow the jeep of Parimal Saha
heard the sound of bomb explosion and immediately decided to
return back to the police station and informed the same to the
Officer-In-Charge and that information was entered into
Bishalgarh P.S. G.D. Entry No. 303 dated 07.04.1983. At that
time there was report or knowledge to the Officer-In-Charge or
even to PW40 regarding the commission of any cognizable
offence.
87. From the evidence of PW28, Khitish Ch. Deb, the
then Officer-In-Charge of Bishalgarh PS, it is revealed that
PW40 and Paresh Ghosh, PW30 had started from the police
station at 10.47 a.m. and returned back at 10.52 a.m. When
they reported that they could not see the jeep of the MLA but
heard some bomb bursts when they arrived near Bishalgarh
PHC and this witness has categorically stated that he has
entered this fact into the GD Book.
Page 59 of 216
88. PW40, Nakuleswar Debnath also had asked for
reinforcements and that fact also was entered into the GD
which was confirmed by the said witness, Khitish Ch. Deb,
PW28, after refreshing his memory with reference to the
general diary. Accordingly, reinforcement was made and he
along with SDPO, SI of police Sri Prabir Das Choudhury, ASI of
police Nakuleshwar Debnath, a few constables and a section of
CRPF “had rushed towards Office Tilla of Bishalgarh in order to
see what had happened.‖ After 5/7 minutes they arrived at the
tri-junction of Agartala-Bishalgarh-Laxmibill road and found the
jeep of the MLA in damaged condition which was standing on
Agartala-Bishalgarh road and also saw the dead bodies of
Parimal Saha, MLA and Jiten Saha lying on the Agartala-
Bishalgarh road.
89. PW28, Khitish Ch. Deb then requested PW41,SI
Prabir Das Choudhury to take necessary legal action and he
along with SDPO went towards Agartala with the dead bodies
of Parimal and Jiten. The said witnesses had decided to come
to Agartala as the situation at Bishalgarh was tensed and when
they arrived near AD Nagar they came to know that another
tensed situation was also prevailing at Battala over the issue of
murder of Parimal Saha and finding no other alternative they
entered into the Police Lines of AD Nagar along with those two
dead bodies.
Page 60 of 216
90. From the aforesaid police lines, PW28, Kshitish
Chandra Deb contacted with the Addl. S.P. over telephone and
accordingly the Addl. S.P. had sent SI of police Subodh Deb of
Agartala P.S. and he handed over both the dead bodies to him.
He further stated that at that time the shops of both sides of
Agartala-Bishalgarh road near the place of occurrence were
closed.
91. What we have gathered from the evidence of PW28,
Kshitish Ch. Deb is that being reinforced, when he along with
other police officials arrived at the Tri-junction of Agartala-
Bishalgarh-Laxmibill road they found the damaged jeep and
the dead bodies and there itself PW28 instructed SI Prabir Das
Choudhury to take all steps in accordance with law. In our
considered view, at that instance only the process of
investigation was started and the IO had carried out
investigation at the place of occurrence itself, but, at this
juncture one crucial fact is to be kept in mind that at that
moment police was without any clue how that gruesome
incident happened and by whom.
92. From the deposition of PW-41, Prabir Das Chowdhury it
reveals that he being taken over charge of investigation at the
instruction of the O/C at P.O. itself, seized some blood stained
earth, a locket with photo, few pieces of bones, few hairs,
some pieces of wood with blood from the place where the dead
body of Parimal Saha was lying by preparing seizure list in
Page 61 of 216
presence of witnesses(Exbt-P9, P9/1, P9/2); prepared hand
sketch map of place of occurrence with index (Exbt.-P18,
P18/1) and arranged for taking photographs of place of
occurrence (Exbt.-P4, P5 and P6). Thereafter, he returned back
to Bishalgarh where he met with Mati Lal Saha, PW1 and
recorded his oral complaint, who was one of the eye witnesses
and victim of the murderous assault. He also read over the
contents of the complaint to PW1 who after knowing the
contents thereof, put his signature in the complaint (Exbt.-P1,
P1/1) at 15.00 hrs on 07.04.1983.
93. It is revealed that he returned to Bishalgarh at about 2
p.m. when he found huge assembly of persons at Bishalgarh
South market. He went there, met with Mati Lal Saha at a
pharmacy and noticed cut injuries at his back below the neck.
Then he recorded his oral statements which were reduced into
writing and later on was treated as FIR. Thereafter, PW-41
returned to PS at 15.50 hrs when he transmitted the said
written complaint (Exbt.-P1) to the Bishalgarh PS. Thereafter,
he ensured the treatment of three injured persons in the
attack, namely, PW1, Mati Lal Saha, PW2, Dilip Banik and PW3,
Benu Miah and brought them to the Bishalgarh PHC. At about
5.15 p.m. he seized the shirt of Mati Lal Saha by preparing
seizure list in presence of witnesses (Exbt.-P7, P7/1).
Thereafter, on his return to PS at about 5.30 p.m. he found
that the formal FIR was filled up by Nikhil Ghosh and registered
the same as Bishalgarh PS case No.08(4)83(Exbt.-P/19).
Page 62 of 216
94. In cross examination, PW28, Kshitish Ch. Deb has
stated that on 07.04.1983 when he left the police station he
had given the charge of the PS to SI of police Sri Dinesh Ghosh
and there was another SI of police whose name was Nikhil
Ghosh and he was the duty officer on that day after 11.00 a.m.
He returned to PS at about 3.50 p.m. and up to that time Nikhil
Ranjan Ghosh was the duty officer.
95. We have given our thoughtful consideration to the
definition of the word “investigation” but in the Evidence Act,
the word “investigate” has not been defined. The word
“investigate” has been defined in the Code of Criminal
Procedure, 1973 as a word of narrow import and refers to the
proceedings of a police officer directed to the collection of
evidence. There is any warrant for the view that the word
“investigate” used in Section 157 of the Evidence Act should be
understood in the narrow sense in which the word is used in
the Code of Criminal Procedure. The word “investigate”
occurring in Section 157 must be taken in its ordinary
dictionary sense to ascertainment of facts, shifting of
materials, search for relevant data; it merely means in this
section a fact-finding process and is not confined to one
conducted by the police for the collection of evidence. As long
as an authority legally competent to deal with the matter
investigates, the requirement of Section 157 appears to be
satisfied. Therefore, a statement made before any authority
Page 63 of 216
which has the legal competence to investigate the fact, can be
proved to corroborate the present testimony. [Ref: Sarju Vs.
State of West Bengal, (1961) 2 CrLJ 71]
96. PW1, Mati Lal Saha has deposed in course of trial
that after managing to escape he rushed to the police station
and “reported to the O/C of Bishalgarh PS that the life of my
elder brother was in danger and requested him to send escort
party”(at page 83 of paper book). There were some other
persons with him at that time and then, he was taken to the
Nirmala Pharmacy for first-aid by those persons. Then the said
witness stated that “after some time I came to know from Usha
Sarkar, Ashish Paul, Chand Mohan Saha and others that
Parimal Saha and Jiten Sarkar were murdered” and he was laid
at rest in the pharmacy. At about 3.00 p.m. he met the
darogababu, i.e. PW28 and lodged the written complaint to
him. The said darogababu took down information according to
his dictation.
97. The entire episode as disclosed above, has made it
clear that neither the information received by PW28, Officer-In-
Charge of the police station from PW40, Nakuleswar Debnath
nor the information given by PW1, Mati Lal Saha disclosed
anything relating to the commission of cognizable offence.
98. In our considered view, after receipt of such
information where the life of an MLA was in danger it was very
natural for the police officials, who are the protectors of
Page 64 of 216
citizens and monitor the situation in their solemn duty to
prevent any breach and to maintain the law and order situation
in the area, had rushed to the spot to save the life of Parimal
Saha and others. The mental shock and trauma which was
suffered by PW1 also makes it quite clear that the situation
was not so conducive to disclose or express anything but for
begging to save his brother‟s life. The statements of PW28 in
course of trial have clearly revealed that they without wasting
a single moment rushed to the spot led by the SDPO.
99. So applying the ratio of Lalita Kumari (supra) and
State by Lokayukta Police (supra) we may hold that the
information of PW40, Nakuleswar Debnath about the hearing of
sound of bomb explosions and the information supplied by
PW1, Mati Lal Saha apprehending the danger to his brother‟s
life should not be treated as an FIR, because, those
informations did not disclose commission of cognizable offence.
100. According to us, when PW1, Mati Lal Saha came to
be confirmed from others that his brother Parimal Saha and
one of their associates Jiten Saha was murdered and further
when disclosed to the persons that he saw Parimal Saha was
being chased with deadly weapons forcing him to fall down the
ground, then only he gathered the knowledge of commission of
cognizable offence when he was at Nirmala Pharmacy. The
police officials who rushed to the spot first had gathered the
knowledge of commission of cognizable offence at the P.O. and
Page 65 of 216
during the course of inquiry when the concerned police official
met Mati Saha at Nirmala Pharmacy and took down the oral
complaint reduced into writing and transmitted the same into
the police station prompting the said complaint be registered,
in our considered view that complaint only is to be treated as
FIR as it only disclosed commission of cognizable offence
wherein the informant had unfurled for the first time as to how
the incident happened and by whom.
101. In other words, this complaint, exhibit-P1 for the
first time discloses the commission of cognizable offence and
there should not be any legal impediment to treat this written
complaint as ejahar based on which the formal FIR form was
filled up at 15.30 hrs on 07.04.1983 itself, i.e. the date of
occurrence.
102. Section 2(c) of the Code of Criminal Procedure,
1973 defines “cognizable offence”.
(c) ―cognizable offence‖ means an offence for
which, and ―cognizable case‖ means a case in
which, a police officer may, in accordance with
the First Schedule or under any other law for the
time being in force, arrest without warrant;‖
103. The First Schedule of CrPC deals with classification
of offences and such cognizable offence starts from Section
109 of IPC and it ends with Section 511 of the said Code. A
glance of the said provisions mentioned in the First Schedule of
Code of Criminal Procedure, 1973 makes it more explicit that
the information supplied by both PW40 and PW1 were not
Page 66 of 216
related to the commission of any cognizable offence under the
First Schedule, as stated above.
104. Having observed thus, we repel the submission of
the learned counsels appearing for the accused persons that
the FIR is hit by Section 162 CrPC and the finding of the
Learned Trial Judge that Ext.P-1 the ejahar lodged by PW-1,
Mati Lal Saha is hit by Section 162 CrPC is misconceived; and
as such, we are not in agreement with the Ld Trial Judge on
this issue for the reasons as has been enumerated above.
105. True it is, the FIR has to be sent forthwith to the
Magistrate and delay in transmitting the same sometimes may
be a serious defect in the process of fair investigation. But, it is
also equally true that each and every circumstance has to be
looked upon on the facts and circumstances of a particular
case. In the instant case, the FIR was registered on
07.04.1983 and it was transmitted to the jurisdictional
magistrate on 10.04.1983. In the evening of 07.04.1983 CID
took up the investigation but the copy of the FIR could not be
transmitted till 10.04.1983. On 09.04.1983 CID made a prayer
to detain, if any of the accused persons surrendered before the
Court of the learned Magistrate. On that date itself, the
Magistrate passed an order directing the investigating agency
to produce the FIR. We have perused the order sheets of the
court of the learned Magistrate and we find that the learned
Page 67 of 216
Magistrate has recorded the reasons assigned by the IO for
failure to transmit the copy of the FIR.
106. We may gainfully refer the decision of
Superintendent of Police, CBI Ors. Vs. Tapan Kumar
Singh, (2003) 6 SCC 175 where the Apex Court held thus:
“20. It is well settled that a First Information
Report is not an encyclopedia, which must
disclose all facts and details relating to the
offence reported. An informant may lodge a
report about the commission of an offence
though he may not know the name of the
victim or his assailant. He may not even know
how the occurrence took place. A first
informant need not necessarily be an eye
witness so as to be able to disclose in great
details all aspects of the offence committed.
What is of significance is that the information
given must disclose the commission of a
cognizable offence and the information so
lodged must provide a basis for the police
officer to suspect the commission of a
cognizable offence. At this stage it is enough if
the police officer on the basis of the
information given suspects the commission of
a cognizable offence, and not that he must be
convinced or satisfied that a cognizable
offence has been committed. If he has reasons
to suspect, on the basis of information
received, that a cognizable offence may have
been committed, he is bound to record the
information and conduct an investigation. At
this stage it is also not necessary for him to
satisfy himself about the truthfulness of the
information. It is only after a complete
investigation that he may be able to report on
the truthfulness or otherwise of the
information. Similarly, even if the information
does not furnish all the details, he must find
Page 68 of 216
out those details in the course of investigation
and collect all the necessary evidence. The
information given disclosing the commission
of a cognizable offence only sets in motion the
investigative machinery, with a view to collect
all necessary evidence, and thereafter to take
action in accordance with law. The true test is
whether the information furnished provides a
reason to suspect the commission of an
offence, which the concerned police officer is
empowered under Section 156 of the Code to
investigate. If it does, he has no option but to
record the information and proceed to
investigate the case either himself or depute
any other competent officer to conduct the
investigation. The question as to whether the
report is true, whether it discloses full details
regarding the manner of occurrence, whether
the accused is named, and whether there is
sufficient evidence to support the allegations
are all matters which are alien to the
consideration of the question whether the
report discloses the commission of a
cognizable offence. Even if the information
does not give full details regarding these
matters, the investigating officer is not
absolved of his duty to investigate the case
and discover the true facts, if he can.
21. In the instant case the information
received by the Superintendent of Police,
C.B.I. clearly spells out the offence of criminal
mis-conduct under Section 13 of the
Prevention of Corruption Act, 1988, inasmuch
as there is a clear allegation that the
respondent has demanded and accepted a sum
of rupees one lakh by way of illegal
gratification. The allegation is not as vague
and bald as the High Court makes it out to be.
There is a further assertion that the
respondent is carrying with him the said sum
of rupees one lakh and is to board the
Page 69 of 216
Gitanjali Express going to Nagpur. The
allegation certainly gives rise to a suspicion
that a cognizable offence may have been
committed by the respondent, which the
Superintendent of Police, C.B.I. was
empowered to investigate. Therefore if the
Superintendent of Police, C.B.I. proceeded to
intercept the respondent and investigate the
case, he did only that which he was in law
obliged to do. His taking up the investigation,
therefore, cannot be faulted.”
107. Here, it would be apposite to refer the case of
Yanob Sheik @ Gagu Vs. State of West Bengal, (2013) 6
SCC 428 where the Apex Court had occasion to deal with two
informations, the later being termed as second FIR being hit by
Section 162 CrPC and affect of delayed transmitting of the copy
of FIR to the Court and held thus:
“8. First and foremost, we may examine the
question whether FIR, Ext.1/3, can be treated
by the Courts as the First Information Report
and if so, what is the effect of Ext.7 in law,
keeping in view the facts and circumstances of
the present case. It is clearly established on
record that the occurrence took place in the
evening of 19-12-1984. The occurrence was a
result of an altercation and the abuses hurled
at PW1 and the deceased by Yanab near the
water tank. Immediately upon the altercation,
the accused had ran to his house and returned
along with Najrul and threw a bomb at the
deceased. PW1, brother of the deceased, PW5,
Basera Bibi, wife of the deceased and PW6
Abdus Sukur, cousin of the deceased are the
eye-witnesses and they said that they had
seen the appellant throwing a bomb upon the
deceased and that the accused, Yanab, had
Page 70 of 216taken the said bomb from the bag of Najrul.
After the incident, PW6 had gone to the Duni
Gram Post Office and informed the police
about the incident over the telephone. He
informed the police that there had been a
murder in the village and they should come.
When the police arrived, he was in the village
and he met the police at the house of the
deceased Samim. This phone call was taken
and the G.D. Entry was registered by PW14, SI
R.P. Biswas.
9. According to PW14, on 19-12-1984 at about
the 0805 hours, he had received a telephonic
information and noted the information in
General Diary No. 708 and thereafter he had
proceeded towards village Lauria along with
PW15, SI S. Chaterjee. Ext.7 had been
recorded by PW14 and he had received the
written complaint by PW1, Sadek Ali, and the
same was submitted to him after he had
reached the village Lauria and was addressed
to the Officer In-charge, Rampurath Police
Station. This written complaint was Ext.1. The
cumulative effect of the statements of PW1,
PW6 and PW14 clearly indicate that Ext.7 was
not the First Information Report of the
incident. It gave no details of the commission
of the crime as to who had committed the
crime and how the occurrence took place. A
First Information Report normally should give
the basic essentials in relation to the
commission of a cognizable offence upon
which the Investigating Officer can
immediately start his investigation in
accordance with the provisions of Section 154,
Chapter XII of the Code. In fact, it was only
upon reaching the village Lauria that PW14
got particulars of the incident and even the
names of the persons who had committed the
crime. A written complaint with such basic
details was given by PW1 under his signatures
Page 71 of 216
to the police officer, who then made
endorsement as Ext.1/1 and registered the
FIR as Ext.1/3. In these circumstances, we
are unable to accept the contention that Ext.7
was, in fact and in law, the First Information
Report and that Ext.1/3 was a second FIR for
the same incident/occurrence which was not
permissible and was opposed to the provisions
of the Section 162 of the Code.
10.In Manu Sharma v. State (NCT of Delhi)
(2010) 6 SCC 1, a Bench of this Court took the
view that cryptic telephone messages could
not be treated as FIRs as their object is only
to get the police to the scene of offence and
not to register the FIR. The said intention can
also be clearly culled out from the bare
reading of Section 154 of the Code which
states that the information if given orally
should be reduced to writing, read over to the
informant, signed by the informant and a copy
of the same be given to him, free of cost.
Similar view was also expressed by a Bench of
this Court in the case of State of Andhra
Pradesh v. V.V. Panduranga Rao (2009) 15
SCC 211, where the Court observed as under: –
“10.Certain facts have been rightly noted
by the High Court. Where the information
is only one which required the police to
move to the place of occurrence and as a
matter of fact the detailed statement was
recorded after going to the place of
occurrence, the said statement is to be
treated as FIR. But where some cryptic or
anonymous oral message which did not in
terms clearly specify a cognizable offence
cannot be treated as FIR. The mere fact
that the information was the first in point
of time does not by itself clothe it with
the character of FIR. The matter has to be
considered in the background of Sections
154 and 162 of the Code of Criminal
Page 72 of 216Procedure, 1973 (in short “the Code”). A
cryptic telephonic message of a
cognizable offence received by the police
agency would not constitute an FIR.”
11. Thus, the purpose of telephone call by
PW6, when admittedly he gave no details,
leading to the recording of Entry, Ext.7, would
not constitute the First Information Report as
contemplated under Section 154 of the Code.
The reliance placed by the learned counsel
appearing for the appellant upon the
provisions of Section 162 of the Code, is thus,
not well-founded. Even in Ravishwar Manjhi
Ors. v. State of Jharkhand, (2008) 16 SCC 561,
another Bench of this Court took the view that
“32..we are not oblivious to the fact that a
mere information received by a police
officer without any details as regards the
identity of the accused or the nature of the
injuries caused to the victims as well as
the name of the culprits may not be
treated as FIR, but had the same been
produced, the nature of the information
received by the police officer would have
been clear.”
12. On this principle of law, we have no
hesitation in stating that the second FIR
about the same occurrence between the
same persons and with similarity of scope
of investigation, cannot be registered and
by applying the test of similarity, it may
then be hit by the proviso to Section 162 of
the Code.
20. In T.T. Antony v. State of
Kerala [(2001) 6 SCC 181], the Court
explained that an information given under
sub-Section (1) of Section 154 of the Code
is commonly known as the First
Information Report (FIR). Though this
term is not used in the Court, it is a very
important document. The Court concluded
Page 73 of 216
that second FIR for the same offence or
occurrence giving rise to one or more
cognizable offences was not permissible.
In this case, the Court discussed the
judgments in Ram Lal Narang (supra) and
M. Krishna (supra) in some detail, and
while quashing the subsequent FIR held as
under: (T.T. Antony case, SCC pp.198-99
204, paras 23-25 35)
“23. The right of the police to investigate
into a cognizable offence is a statutory
right over which the court does not
possess any supervisory jurisdiction
under CrPC. In King Emperor v. Khwaja
Nazir Ahmad (1943-44) 71 IA 203 the
Privy Council spelt out the power of the
investigation of the police, as follows:
“In India, as has been shown, there is a
statutory right on the part of the police to
investigate the circumstances of an
alleged cognizable crime without
requiring any authority from the judicial
authorities, and it would, as Their
Lordships think, be an unfortunate result
if it should be held possible to interfere
with those statutory rights by an exercise
of the inherent jurisdiction of the court.”
24. ……..
25. ……….
XXX XXX XXX
35. …………
XXXXXXXX
14. In light of the above settled principle, we
are unable to accept that Ext.1/3 was a
second FIR with regard to the same
occurrence with similar details and was hit
by Section 162 of the Code. On the contrary,
Ext.7 was not a First Information Report upon
Page 74 of 216
its proper construction in law but was a mere
telephonic information inviting the police to
the place of occurrence. Thus, we have no
hesitation in rejecting this contention raised
on behalf of the appellant.”
108. According to us, the reasons for failure to transmit
the copy of the FIR to the learned Magistrate has sufficiently
been explained which would be evident from the series of
orders passed by the trial court. The extract of the order
sheets of the learned trial court dated 09.04.1983, 10.04.1983,
12.04.1983, 13.04.1983, 18.04.1983, 19.04.1983, 25.04.1983
and 27.04.1983. The relevant extracts of the orders passed by
the jurisdictional magistrate may be reproduced here-in-below
for convenience and ready reference:
“09.04.1983
Received record from RN Chakraborty I/O of the case. Seen
the report, FIR of the case not yet received…… I.O will
submit FIR in the Court positively by tomorrow without fair
with explanation as to why FIR was not forwarded to the
court in due time. Inform IO Accordingly.
10.04.1983
Received Bishalgarh P.S. case No. 8(4)83 ……. seen the
FIR. Entered the case in GR.
12.04.1983
It is seen in the case record that explanation is not yet
submitted and for submitting FIR in the Court in late. O.C.
Bishalgarh P.S. is asked to explain in the Court 15.04.83 as
to why FIR in the said murder case was not submitted in
the Court in due time………
13.04.1983
IO by another forwarding report forwarded 5 accused
persons, namely, Chan Miah, Dulal Ghosh, Sukhendu Das,
Uttam Saha and Babul Das under arrest with proper face
Page 75 of 216cover with prayer to hold T.I. Parade for the said accused
persons……. to conduct the TI Parade on 19.04.83 in the
Centrail Jail, Agartala at 11.30 A.M.
18.04.1983
Seen the explanation of O.C. Bishalgarh P.S. (Note: this is
explanation regarding delayed dispatch of FIR)
19.04.1983
I.O. by a petition prays to fix another date for T.I.
Parade…… Fix 25.04.83 at 11 AM for T.I. Parade
25.04.1983
T.I. Parade Conducted
25.04.1983
Gulzar and Kajal Harizan granted bail
27.04.1983
….. I.O. submitted explanation denying the allegation made
on behalf of the accused persons on 13.04.83 regarding T.I.
Parade.”
109. From the order sheets it is revealed that in
compliance of the order of the learned Magistrate, the
Investigating Officer has submitted explanation denying the
allegations made on behalf of the accused persons regarding
delayed dispatch of FIR to the court of the Magistrate and also
the IO has submitted his explanation denying the allegations
made on behalf of the accused persons on 13.04.1983.
It would be apposite to refer para 15 of Yanob Sheikh
(supra) wherein the Apex Court has held thus:
“15. Equally without merit is the contention
that the case of the prosecution must fail as
the copy of the FIR had been sent to the Court
after ten days of the registration of the FIR.
The learned counsel appearing for the
appellant stated that the FIR was registered
on 19-12-1984 but was sent to the Court of
the Magistrate on 29-12-1984. He pointed out
the Entry No.793/1984 in this regard. The said
G.D. Entry is not the entry sending the First
Page 76 of 216Information Report to the Court. The
document shown by the learned counsel for
the appellant is neither the copy of the FIR nor
does it contain any acknowledgment of the
Court. It is merely a note of the case
proceedings as to what steps have been taken
by the Investigating Officer and was signed by
the Investigating Officer on 19-12-1984 itself.
The learned counsel appearing for the
appellant has not pointed out any other
document from the record which could
substantiate this contention raised on behalf
of the appellant. The argument is entirely
misconceived and is not based on any record
of the case and is thus, rejected.”
110. Moreso, we find from the evidence of PW-38,
Dhurjuti Goutam that the situation at Bishalgarh was so
alarming that they did not think it prudent to take the dead
bodies to Bishalagarh and forced to decide to bring the dead
bodies of Primal and Jiten to Agartala where also they could
not reach and was compelled to take shelter in the police line
at Arundhutinagar.
111. Furthermore, even if, for argument sake, there are
any defects, but those procedural defects should not come in
the way of rendering justice to the aggrieved party unless and
until such delay has caused any prejudice resulting in grave
miscarriage of justice to the other party, in view of law laid
down in the decisions of the Apex Court in Kusum (supra),
Prakash P. Hinduja (supra) and Rupa Ashok Hurra (supra).
Page 77 of 216
112. Further, we do not find any illegality in perusing the
order sheets of the Court and we find support from the decision
of the Apex Court in Y. Saraba Reddy Vs. Puthur Rami
Reddy Ors., reported in (2007) 4 SCC 773, wherein the
Apex Court has held thus:
―8. We find that the High Court has failed to
notice the fact that there was in fact no delay in
making the application. Though the charge sheet
was filed on 7.11.1997, charges were framed on
25.8.2003. The order sheet shows that the delay
cannot in any way be attributed to the
complainant. There is a basic fallacy in the
approach of the High Court. It called for the file
to be satisfied as to whether the enquiry
conducted was to be preferred to the evidence
of PW-1. If the satisfaction of the Investigating
Officer or Supervising Officer is to be treated as
determinative, then the very purpose of Section
319 of the Code would be frustrated. Though it
cannot always be the satisfaction of the
Investigating Officer which is to prevail, yet in
the instant case the High Court has not found
the evidence of PW-1 to be unworthy of
acceptance. Whatever be the worth of his
evidence for the purposes of Section 319 of the
Code it was required to be analysed. The
conclusion that the IO’s satisfaction should be
given primacy is unsustainable. The High Court
was not justified in holding that there was
belated approach.
113. In Thanedar Singh Vs. State of M.P., (2002) 1
SCC 487 the Apex court has observed thus:
―The evidence of the date of sending the copy of
FIR to the Magistrates court was not adduced by
the prosecution inspite of giving more than one
opportunity, as borne out by the endorsements
on the order sheets dated 28.11.1984 and
7.12.1984. On 28.11.1984, it was noted that
Page 78 of 216adverse inference will be drawn if the record
was not produced. Yet, the prosecution failed to
adduce proof.‖
114. From the said decision, we find that there is no
embargo for the court to look into the order sheets of the
court. Furthermore, in the instant case, from the order sheets
of the court it is revealed that delay was sufficiently explained
which remained unchallenged in any courts of law and thus
acceptable. As such, the argument of the learned counsels for
the accused persons that delay in transmitting the copy of the
FIR to the court of the learned Magistrate does not bear any
legal foundation.
115. The sum and substance of our answer to question
No.(i), as set forth hereinabove, is that the prosecution case
and the judicial proceedings thereof, should not be thrown out
only because of procedural defects and there is no delay in
lodging the FIR by PW1 considering the peculiar facts and
circumstances of the case. From the evidence of PW-38
Dhurjuti Gautam, the than SDPO of Bishalgarh, it transpired
that the situation of Bishalgarh was so alarming , he did not
think it prudent to take the dead bodies to Bishalgarh. The
entire situation was tensed, even the police officials could not
reach Agartala with the dead bodies and finding no other
alternative they had to enter into the police lines at A.D. Nagar
and the police officials were busy in maintaining the law and
order problems prevailing at that point of time.
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116. Now, whether apart from the controversies as raised
by the learned counsels appearing for the accused persons
relating to the irregularities in regard to the delayed
registration of FIR which is further hit by Section 162 CrPC and
transmission of the copy of the FIR to the Court, as we
discussed and settled here-in-above, we are to examine
whether the statements of the witnesses are consistent,
reliable and trustworthy, and do not suffer from any
embellishment, improvement or exaggeration to establish the
charge of conspiracy, the unlawful assembly, causing assault to
some of the witnesses and murder of Parimal Saha and Jiten
Saha.
117. On careful analysis of the submissions of the
learned counsels for the accused persons as well as the
prosecution, we may discuss the entire episode sequentially to
understand how the incident happened.
118. The first sequence/episode in regard to pre-
occurrence of the incident, we find the statements of PW1,
PW2, PW3 and PW4.
PW1, Mati Lal Saha has deposed in course of trial
that 07.04.1983 was fixed for election of Chairman of Block
Development Committee(BDC), Bishalgarh at the office of the
Block Development Officer, Bishalgarh and MLA Parimal Saha
was one of the candidates to participate in the process. On that
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day, he went out of home at about 7.00/8.00 a.m. and went to
the tea-stall, namely “Sujata Mistanna Bhander” and he talked
with the owner of the shop, Usha Ranjan Sarkar(PW4). At
about 9.00 am, Parimal Saha also came to “Sujata Mistanna
Bhander”, and at about 10.00 a.m., the said PW1, Parimal
Saha, Jiten Saha, Dilip Banik(PW2), Banu Miah(PW3), and
Sankar Lal Saha prepared to go to the office of the BDO,
Bishalgarh. One Ranjit Dasgupta was the personal bodyguard
of Parimal Saha, but, he was not present. For that reason,
he(PW1) and Banu Miah(PW3) went to search for him(Ranjit).
Ranjit Dasgupta was a constable, deputed by the Government
to guard Parimal Saha on his application dated 25.12.1978,
which was submitted to the Bishalgarh P.S. on 25.12.1978.
Parimal Saha was under the apprehension that he could be
murdered as his personal influence was at deterrence in the
way of winning of CPI(M) party. During search, they found
Ranjit Dasgupta in the shop of Jatindra Shib, a clock repairer,
and told him to go quickly, as Parimal Saha was about to start
for the BDO‟s office, but Ranjit refused to go. Then, PW1
requested Ranjit Dasgupta to inform the same to Parimal Saha,
and in reply Ranjit told him that he already informed about his
non-availability to Parimal Saha. Then, the said witness told
him to go personally and tell him, but he told that he would
come and request them to go.
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119. Those conversations were exchanged in presence of
Jatindra Shib(PW6). Thereafter, PW1 informed Parimal Saha,
who requested him to go to Bishalgarh P.S. and to arrange
another bodyguard. Then, he and Banu Miah went to
Bishalgarh P.S. and told the duty officer of Bishalgarh P.S. that
Ranjit Dasgupta had refused to go with Parimal Saha and
requested the duty officer of Bishalgarh P.S. to arrange
another bodyguard for Parimal Saha because Ranjit Dasgupta
refused to accompany Parimal Saha on his way to BDO‟s office.
But, the P.S. authority told that it would take some time to
arrange substitute, as according to the duty officer, there was
no staff. Then, PW1 went back to Parimal Saha and informed
him the said fact. Then, he again went back to “Sujata
Mistanna Bhander” and found Ranjit Dasgupta telling that he
would not be able to go as he had some business in the house
of Upendra Debnath at Laxmibil.
120. Then, Usha Ranjan Sarkar(PW4) told him that no
Upendra Debnath resided within the vicinity, when Ranjit told
him that he was not acquainted with that person. Thereafter,
Parimal Saha himself went to the Bishalgarh P.S., and after
about 5-7 minutes he came back and reported that as there
was no staff, there would be delay to provide substitute of
Ranjit.
121. After some time, Parimal Saha again sent Jiten Saha
in the Police Station, but, Jiten Saha also returned back with no
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further development. As it was getting late to participate in the
election process, which was scheduled to be held at 11.00 a.m.
so, they started for the office of the BDO without any further
delay.
122. The registration number of the jeep was DED-4279
and that jeep was provided by the AICC to the Tripura Pradesh
Congress, led by Parimal Saha for party activities. Besides
Parimal Saha, the said witness PW1 himself, Jiten Saha, Banu
Miah, Dilip Banik and Sankar Saha were in the jeep.
123. PW2, Dilip Banik has deposed that on 07.04.1983,
at about 10.10 a.m. while he was sitting in “Madhav Mistanna
Bhander” at Bishalgarh market, at that time Banu Miah came
and told him that Parimal Saha was going to contest the BDC
election as Chairman. His bodyguard, Ranjit Dasgupta was not
going with him, though he was requested by Parimal. Then, the
said witness along with Banu Miah went to “Sujata Mistanna
Bhander”. There he saw Parimal Saha asking Jiten Saha to
arrange security, but on return, he reported that there would
be delay to arrange security. Then, the said witness along with
Parimal Saha, Banu Miah, Jiten Saha, Mati Saha, Sankar Lal
Saha had boarded the jeep No.DED-4279 and started towards
south from north on Agartala-Udaipur road.
124. PW3, Banu Miah has deposed that on 07.04.1983,
at about 9.00/9.15 a.m., he went to “Sujata Mistanna
Bhander”, and at that time he found Parimal Saha there.
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Parimal asked him and Mati Lal Saha to call his bodyguard, and
on search they found him in a clock repairing shop, but he
expressed his inability to go with Parimal Saha. Then, they
returned back and told Parimal Saha what Ranjit had told.
Thereafter, they again went to Bishalgarh P.S. for security,
when the duty officer told them that there was no staff and it
would take some time to send escort. They also informed the
said fact to Parimal. Then, Parimal asked him to bring their
boys and he went to “Sujata Mistanna Bhander” and requested
Dilip Banik, PW2 to accompany Parimalda. Thereafter, at about
10.30/10.45 a.m., he along with Parimal Saha, Jiten Saha, Mati
Lal Saha, Sankar Lal Saha and Dilip Banik boarded the jeep to
proceed towards the Block office.
125. PW4, Usha Ranjan Sarkar has stated that on
07.04.1983, at about 9.00/9.30 a.m., Parimal came to his shop
and after some time he asked Mati and Banu to look for Ranjit
Dasgupta, his security guard. After some time, they returned
back and told that Ranjit did not agree to perform his duty.
But, after some time, Ranjit came and told that he would not
go, as he had to go to the house of one Upendra Debnath of
Laxmibil. The said witness also requested Ranjit to go with
Parimal and told him that there was no person named,
Upendra Debnath at Laxmibil, when he told that he did not
know that man. Thereafter, when they failed to arrange
security from Bishalgarh P.S., they decided to go without
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security. Then, Parimal Saha, Banu Miah, Jiten Saha, Mati Lal
Saha, Sankar Lal Saha and Dilip Banik went to BDO‟s office,
boarding in a jeep.
126. PW5, Nitya Gopal Saha, in course of his deposition
has stated that on 07.04.1983, after 10.30 a.m., when he was
returning from Office Tilla riding a bicycle, on the way in front
of the petrol pump, he saw Parimal Saha and others going
towards north in a jeep on Udaipur-Agartala road.
127. PW28, Kshitish Chandra Deb has stated that on
07.04.1983, he was the Officer-In-charge of Bishalgarh P.S.,
and on that day, at about 10.35 a.m., Parimal Saha, MLA came
to the police station with a request to provide security, as his
personal security guard was missing. PW28, then, requested
Parimal Saha to wait till deployment of security. At about 10.45
a.m., Parimal Saha without waiting for security guard
proceeded towards north in his jeep on Agartala-Bishalgarh
road.
128. PW40, ASI Nakuleswar Debnath, in course of trial
has deposed that, on 07.04.1983, at about 10.30 a.m., as per
the order of Officer-In-Charge, Bishalgarh P.S., he with some
staff went out to accompany Parimal Saha, MLA, who was
going to BDO‟s office, Bishalgarh, and when he started, he
noticed that Parimal Saha had already left. The said witness,
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then, went up to Bishalgarh P.H.C., but could not see the jeep
of Parimal Saha. Then, they returned back to P.S.
129. PW30, Constable Paresh Ghosh also accompanied
ASI Nakuleswar Debnath at that time and he deposed almost
in the same tune as has been deposed by PW40.
130. Now, we are to trace out whether there is any
inconsistency in the statements of PW1, PW2, PW3, PW4, PW5,
PW28, PW30 and PW40 in regard to the facts and
circumstances of pre-occurrence of the incident.
131. On analysis, we find that PW1, PW2, PW3, PW4,
PW5, PW28, PW30 and PW40 are very consistent to their
statements in course of trial, which they have stated in their
examinations under Section 161 of CrPC in course of
investigation about Ranjit Dasgupta‟s refusal to accompany
Parimal Saha.
132. The request made by PW1, PW2 and Parimal Saha
himself to the police officials to provide a substitute of Ranjit,
police station‟s inability to provide security at that moment and
boarding of Parimal Saha along with Jiten Saha, Mati Lal
Saha(PW1), Dilip Banik(PW2), Banu Miah(PW3) and Sankar Lal
Saha, are also consistent in nature.
133. Further, each of their statements in regard to the
facts and circumstances of pre-occurrence of the incident get
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support from the statement of Jatindra Shib(PW6), the owner
of the clock repairing shop at Bishalgarh market, when he has
deposed that on 07.04.1983, Ranjit Dasgupta went to his shop
at about 9.30/10.00 a.m. and was telling about his mental
anxiety and his desire to give up the job and his inability to do
the same as one of his sisters remained unmarried till then. At
that time, Mati Lal Saha(PW1) and Banu Miah(PW3) went to
Bishalgarh and they told Ranjit that they were searching for
him, as he had to go with “barda”(Parimal Saha) at the
meeting of BDC, when Ranjit told that he would not go and he
had already sent a message to „barda‟. Then, Mati Lal Saha
asked him to tell the thing personally to „barda‟. Then, Ranjit
told them that he was going and asked them to go away. After
some time, Ranjit went away.
134. In cross-examination of the said witness, the
statements in regard to such factual aspects could not be
demolished. The said witness, PW6 is also found to be
consistent to his earlier statement which he made before the
investigating officer in course of investigation under Section
161 of CrPC.
135. We also do not find any serious contradictions in the
statements of said PW1, Mati Lal Saha, PW2 Dilip Banik and
PW3 Banu Miah in course of deposition before the Court.
Consequentially, we do not find any infirmity in the findings of
the learned trial Judge that the statements of PW1, PW2, PW3
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and PW4 were substantially supported and corroborated by
PW5, PW28, PW30 and PW40 in regard to facts and
circumstances of pre-occurrence of the incident.
136. Now, we are to carefully examine and scrutinize the
most crucial episode of what actually happened after boarding
of the jeep by PW1, PW2, PW3 along with Parimal Saha, Jiten
Saha and Sankar Lal Saha, as well as the reliability and
truthfulness of their statements made in the course of trial.
137. In the second sequential event, we find that PW1,
PW2 and PW3 had given a description how they occupied their
respective seats in the jeep while proceeding towards BDO‟s
office.
138. PW1 has stated that his elder brother, Parimal Saha
was in the driving seat, as he was driving the vehicle himself.
PW1, Mati Lal Saha, Banu Miah and Jiten Saha were in the
front seat and Dilip Banik and Sankar Lal Saha were in the rear
seat. PW1 has also stated that when they reached in front of
the Office Tilla School, a truck having make and model “Q-
Dodge” came from east side and blocked their way. Their jeep
had to be stopped. Then, he noticed that about 40 persons
were hurling bombs towards them from both sides of the road.
Amongst those persons, he could recognize Sasthi
Chakraborty, Hiranmoy Ghosh, Sadhan Karmakar, Dula
Sengupta, Pradul Sengupta, Mrinal Sengupta, Bijoy Das, Satya
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Das, Kali Harijan, Bishu Saha alias Biswajit, Uttam Kumar
Saha, Kajal Sutradhar, Arun Das and Abhoy Bhushan. Then,
they got down from the jeep and started running towards west.
The said witness could identify all of them by names in the
dock but could not name the accused persons. Amongst those
identified accused, Dula Sengupta, Kali Harijan, Kajal
Sutradhar and Arun Das denied their names as was told by the
said witness. However, the said witness(PW1) has said that
from his boyhood he knows Dula Sengupta as Dula who is also
known as Dudul Sengupta.
139. Bijoy Das, son of Makhan Das dealt a blow of a
„dao‖ aiming at his head and he tried to protect his head by his
right hand, when his right hand was struck by the blow causing
bleeding injury. The said witness has stated that Bijoy Das has
dealt another blow which caused a bleeding cut injury on the
middle of his neck, just below his neck. He went on running.
140. He has further stated that he also saw his elder
brother Parimal was also running towards south by the western
side of the road. In that situation, he saw Parimal Saha was
being chased by Sasthi Chakraborty, Kajal Sutradhar, Bijoy
Das, Satya Das, Sadhan Karmakar, Dula Sengupta, Pradul
Sengupta, Bishu Saha alias Biswajit Saha and Abhoy Bhushan,
having armed with „dao’. The said witness has further stated
that he saw Sasthi Chakraborty, Bishu Saha and Sadhan
Karmakar had dealt blows of „dao’ on Parimal Saha, who fell on
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the ground and then he was surrounded by the rests of the
accused, who were chasing. Thereafter, out of fear to save his
life he ran away by a foot-track on the west side of the road
and reached to Bishalgarh P.S. through backside.
141. PW1 has further stated that after running for a little
distance by the said foot-track, he saw Dilip Banik and Sankar
Lal Saha were running ahead of him, and after seeing his
injuries they lent their hands to help him, when he found
bleeding injuries on their faces. Then, he reported the Officer-
In-Charge of Bishalgarh P.S. that the life of his brother was in
danger and requested him to send an escort party. When he
told these things to the Officer-In-Charge of Bishalgarh P.S., at
that time, Usha Ranjan Sarkar, Asish Pal, Gour Netai Roy and
Chan Mohan Saha were present there.
142. Then, he was taken to Nirmala Pharmacy for first-
aid by the said persons. After some time, he came to know
from Usha Ranjan Sarkar, Asish Pal, Chan Mohan Saha and
others that Parimal Saha and Jiten Saha were murdered and he
was laid at rest in the pharmacy.
143. At 3.00 pm, he met with the Darogababu when he
lodged information to him, who took down the said oral
statement according to his dictation, which was read over and
explained to him and after being satisfied with the contents of
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the said writing, he put his signature, which is marked as
Exbt.P1 and has been treated as FIR.
144. PW1 in his cross-examination has stated that he
was sitting on the western side of the jeep. He heard the sound
of first bursting of bomb after a few seconds from the time
when the jeep was stopped. He has confirmed in cross that at
about 11.00 a.m. they started from “Sujata Mistanna Bhander”
and further said that it was the time of starting of the jeep and
the distance between the tri-junction and the Bishalgarh P.S.
and the “Sujata Mistanna Bhander” will be about one kilometer.
145. He has categorically stated in his cross-examination
that no bomb had directly hit him. He denied the suggestion
that he did not see any person to throw bomb on that day. He
has further stated that the blow of „dao’ hit him at his back.
146. In cross, he has confirmed that he has stated in the
FIR that as soon as he got down from the jeep the miscreants
attacked him, being armed with „dao’, „ballam’, etc. and, then,
Bijoy Das, son of Makhan Das of Office Tilla gave a blow of
„dao’ on his back.
147. To describe the second sequence/episode, PW2
has stated in course of trial before the Court that, on
07.04.1983, he accompanied Parimal Saha in a jeep vehicle.
Besides him, Banu Miah, Jiten Saha, Mati Lal Saha and Sankar
Lal Saha boarded in the jeep bearing No.DED-4279 in front of
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Bishalgarh P.S. He has stated that as soon as the said jeep
vehicle reached Office Tilla, a truck came from Laxmibil side
and blocked the way. Parimal Saha stopped his vehicle. At that
time, bombs were being rained upon them from both sides of
the road. He saw Sadhan Karmakar, Hiranmoy Ghosh, Sasthi
Chakraborty, Mrinal Sengupta, Dula Sengupta, Abhoy Bhushan,
Kajal Sutradhar, Sajal Sarkar, Kali Harijan, Bijoy Das, Satya
Das, Uttam Kumar Saha, Arun Saha and Bishu Saha were
throwing bombs. Then, they jumped down of the vehicle and
fled away through a narrow foot-track. Then, Sadhan
Karmakar, Hiranmoy Ghosh, Sasthi Chakraborty, Mrinal
Sengupta, Dula Sengupta, Abhoy Bhushan, Kajal Sutradhar,
Sajal Sarkar, Kali Harijan, Bijoy Das, Satya Das, Uttam Kr.
Saha, Arun Saha and Bishu Saha attacked them with ‗dao’ and
„ballam’. He has stated that he ran towards south for a little
distance and then entered a narrow foot-track and ran towards
west. The foot-track went in the direction of Bishalgarh to the
south. He has stated that Sadhan Karmakar, Hiranmoy Ghosh,
Sasthi Chakraborty, Mrinal Sengupta, Dula Sengupta, Abhoy
Bhushan, Kajal Sutradhar, Sajal Sarkar, Kali Harijan, Bijoy
Das, Satya Das, Uttam Kumar Saha, Arun Saha and Bishu
Saha were recognized by him as the persons, who attacked
them with „dao’ and „ballam’.
148. PW2 has further stated that after some time he
looked back and saw Sankar Lal Saha was running behind him
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and they ran together for certain distance and looked back
when they saw Mati Lal Saha was also coming behind them. He
saw Mati Lal Saha when he ran for a distance of about 300
yards. He saw that the wearing apparel of Mati Lal Saha was
soaked with blood, when he extended his helping hand, when
he told that Parimal Saha was being hacked to death.
149. The said witness also saw cut injuries on his right
hand and back. The cut injury was on the right side of the
back. Then, they ran through a field to reach the backside of
Bishalgarh P.S. Mati went inside the police station and he and
Sankar entered the police barrack of the police station where
he saw that there was none in the barrack and all the police
personnel were running hither and thither within the police
station. Then out of fear, he fled away to home. The said
witness has deposed that he received splinter injuries on his
face, back and waist.
150. PW2 in his cross-examination has stated that the
width of the road at the place where the jeep was stopped
would be about 10/12 feet. The distance between the truck and
the jeep is about 4 to 5 cubits. He has further stated that the
miscreants were standing on both sides of the road before they
reached there.
151. He has further confirmed that he has suffered injury
by splinters on his back, face and hand. In his cross-
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examination, he has given a description of the road saying that
the width of the road will be about 10/12 feet. He has further
stated that the front of the jeep was directed to the north when
it was stopped after the obstruction was placed. He has also
stated that the distance between the truck and their jeep was
about 4/5 cubits.
152. PW3, Banu Miah describing the nature of attack and
consequential events has deposed that, on 07.04.1983 at
about 10.30/10.45 a.m., he along with Mati Saha, Dilip Banik,
Sankar Lal Saha and Jiten Saha accompanied Parimal Saha on
the way to Block office by boarding a jeep. When they reached
at Office Tilla, a „Q-Dodge‟ vehicle came out from Laxmibil area
and blocked the entire road. He has further stated that
Parimalda had stopped the vehicle when the bombs were
rained upon them from all sides of the road. The said witness
could recognize Dudul Sengupta(A21), Mrinal Sengupta(A4),
Abhoy Bhushan(A9), Sadhan Karmakar(A24), Bijoy Das(A7),
Satya Das(A9), Biswajit alias Bishu Saha(A22), Hiranmoy
Ghosh(A11), Chinmoy Ghosh(A10), Kajal Sutradhar(A8),
Sasthi Chakraborty(A1) and Arun Saha(A17), as the
miscreants, who threw bombs at them. The said witness could
identify all the accused persons on the dock, except Satya Das,
Arun Saha and Kajal Sutradhar. The said witness further has
stated that there were about 20/30 more persons along with
those miscreants. Then, they got off the jeep and as soon as
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they got down, the miscreants jumped upon them and
attacked them with „dao’, „ballam’, etc. PW3 has further stated
that as soon as he got down, Chinmoy Ghosh threw a bomb at
him, but it was bursted on the ground. However, a splinter
struck his eye and damaged his left eye. The said witness also
received a blow of a „dao’, but he could not recognize the
miscreants. Then, he entered the hospital which was situated
at a distance of about 200 yards from the place of occurrence
and he ran all the distance. PW3 has further stated that he also
saw other occupants of the jeep to run away. He was treated
at Bishalgarh PHC and after about half an hour he was referred
to Agartala. He has further stated that Parimal Saha and Jiten
Saha were murdered on that day.
153. In his cross-examination, he has stated that he told
the doctor at the PHC that how seriously he suffered injuries
and Parimalda was being murdered, but did not tell who did
this. He was unconscious when he arrived at G.B. hospital at
Agartala and he has stated in cross that he had no opportunity
to tell the doctor who had caused his injuries.
154. He has further stated in cross that he was in G.B.
hospital for about 40/45 days and was unconscious for two
days. About 5/6 days afterwards, a police officer met him in
the hospital.
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155. To a question, the said witness has stated that
Matibabu did not visit him at hospital. He was examined by the
police officer on the first day when he visited him and he gave
his statement to him. He has stated the name of Dudul
Sengupta as one of the miscreants to the police.
156. He has further confirmed in the cross that he stated
to the investigating officer that as soon as he got down from
the jeep, a bomb was thrown at him by Chinmoy Ghosh, which
exploded on the ground, the splinter of which hit him and
damaged his left eye.
157. PW3 in his cross-examination has also stated that
they reached at the place of occurrence at 10.45/11.00 a.m.
There were few houses and shop rooms on both sides of the
road.
158. He denied the suggestion that Parimal was trying to
turn the vehicle to the right side. He has confirmed that he was
sitting on the left side of Parimal, who was driving the vehicle.
Jiten Saha was sitting on his left and Mati Lal Saha to his left.
PW3 further has described that he got down of the vehicle to
the east side of the road, i.e. the side by which Parimal Saha
had got down. The bomb was hurled at him as soon as he got
down from the jeep and it was very near to the jeep. A
suggestion was put to PW3 at the time of cross-examination
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that the bombs were hurled at the jeep before it stopped,
which he had denied.
159. Let us see how the statements of PW1, PW2 and
PW3 are corroborated about the nature and the effect of
occurrence and the effect of attack at Office Tilla tri-junction.
160. PW4, Usha Ranjan Sarkar in his evidence has stated
that when he was in the shop, the younger sister of Parimal
came to his shop and inquired about Parimal Saha. When he
told her that he had gone to the office of the BDO, then, she
told him that probably the vehicle of „barda‟(Parimal) was
attacked and sounds of bombs were being heard from the
direction of Office Tilla. On getting that information, the said
witness(PW4) had rushed to the police station along with
Chhaya(the sister of Parimal Saha). PW4 requested the Officer-
in-Charge to go immediately to Office Tilla as he apprehended
that Parimal was attacked.
161. He has further stated that since the matter was
taken some time to arrange the police personnel, he saw Mati
came to the police station from its back side and reported that
„barda‟(Parimal) was being killed and requested the officer-in-
charge to go immediately. Then, he told the O/C to go
immediately without any delay.
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162. The said witness also saw bloodstains on the
wearing apparels of Mati and also saw injuries on his face and
back. Then, O/C and SDPO went away.
163. Thereafter, PW4 and Mati came out of the police
station, when he asked to Mati what had happened. At that
time, Mati has reported that their jeep was attacked with
bomb. Mati has further informed him that there were about
40/45 miscreants, out of them he could recognize 10 to 15,
who attacked upon them and he disclosed the names of Dula
Sengupta alias Duldul Sengupta(A21), Mrinal Sengupta(A4),
Sajal Sarkar(A15), Kajal Roy(A8), Bijoy Das(A7), Satya
Das(A5), Uttam Saha(A16), Arun Saha(A17), Sasthi
Chakraborty(A1) and Biswajit Saha(A22).
164. The said witness has also deposed that Mati
disclosed other names also but he cannot remember their
names. Then, he has deposed that Mati also told the name of
Sadhan Karmakar(A24) and, thereafter, he escorted Mati to
Nirmala pharmacy. Afterwards, he came to know that Parimal
Saha and Jiten Saha were murdered.
165. In his cross-examination, in reply to a question from
the defence side he replied that the gap between the time of
his meeting with the Officer-In-Charge and arrival of Mati
would be about two minutes.
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166. PW5, Nitya Gopal Saha, according to the trial Court,
is a very vital witness to the occurrence of the incident, which
needs to be scrutinized meticulously.
167. The said witness has stated that on 07.04.1983, in
the morning, he went to the house of Duldul Sengupta,
situated by the side of Block office to recover his dues. From
there he went to the house of Pranab Sengupta, the husband
of his cousin sister and the younger brother of the accused,
Pradul Sengupta and that house is situated at a distance of
about 30/40 meters from the place of occurrence. At that time,
while he was taking tea in that house, Pradul Sengupta came
and told his mother that there would be a disturbance in the
Office Tilla, going to be held within a short while. Then, his
sister asked him to wait, and, accordingly he waited there at
about 10/12 minutes. After that, while he was returning to his
shop at about 10.30 a.m., he saw Sasthi Chakraborty and Dula
Sengupta were sitting in front of Laxmibil road, at a distance
about 4-5 cubits in the house of the owner of Bapan store.
168. The said witness has further stated that he also saw
20/25 people were proceeding and going towards north. Out of
them, he could recognize Satya Das, Bijoy Das, Tapan Das and
two sons of sweeper, but, he did not know their names.
Thereafter, when PW5 reached near the petrol pump,
Bishalgarh, he saw Parimal Saha and others were going
towards north in a jeep by Udaipur-Agartala road.
Page 99 of 216
169. PW7, Pulin Saha has deposed that on 07.04.1983,
at about 11.00 a.m., as per direction of the duty officer, he
drove the P.S. vehicle No.TRT-586 taking Nakul Babu, a police
officer and some home-guards to Office Tilla, and when they
arrived at Bishalgarh PHC, he found people were running
indiscriminately, and also heard sounds of bomb explosion. So,
as per direction of police officer on board, he turned back his
vehicle and returned back to Bishalgarh P.S. He has further
stated that after about 5/7 minutes, he again went to that
direction with more police force and stopped the vehicle at the
junction of Laxmibil-Bishalgarh road and saw a dead-body of a
person. On return back, he also saw the dead-body of Parimal
inside a drain.
170. PW16, Chhaya Saha has stated that on 07.04.1983,
she was unmarried and used to stay at her father‟s house at
Bishalgarh. On that day, at about 11.00 a.m. she was
preparing to go for college. She, suddenly, heard sounds in
front of their house. When she came out she could learn that a
fight has taken place at Office Tilla.
171. Apart from the injured eye-witnesses i.e. PW1, PW2
and PW3, other witnesses namely PW4, PW5, PW7 and PW16
have corroborated that Parimal Saha, Banu Miah, Mati Saha,
Jiten Saha, Sankar Saha and Dilip Banik boarded a jeep and
went towards BDO office.
Page 100 of 216
172. PW5, Nitya Gopal Saha is really a vital witness, as
observed by the learned trial Court. On his return from his
sister‟s house, he saw Sasthi Chakraborty and Dula Sengupta
were sitting in front of Bapan stores and one „Q-dodge‟ truck
No.TRL-529 was standing at Laxmibil at a distance of about 4-
5 cubits from the house of the owner of Bapan stores. He also
saw 20-25 people were proceeding and going towards north,
out of them he could recognize Satya Das, Bijoy Das, Tapan
Das and two sons of sweeper.
173. So, from the statements of this witness we have
gathered the situation of the area just before the incident as
described by PW1, PW2 and PW3, most importantly, from this
witness, the presence of „Q-dodge‟ truck is confirmed, at a
close proximity from the place of occurrence.
174. PW7, Pulin has confirmed that at 11.00 a.m. he
drove the vehicle to the direction of Block Office along with
Nakul babu and a few home-guards. They found people were
running helter-skelter and he heard sounds of bombs. They
were coming from north. Then, darogababu told him to turn
back to the police station and accordingly he returned back to
police station. After about 5/7 minutes, he again went to that
direction along with full police force and he stopped his vehicle
at Laxmibil and saw a dead-body there and when he turned the
vehicle he again saw the dead-body of Parimal.
Page 101 of 216
175. So, this evidence of PW7, Pulin also gets support
from PW13, Paresh Ghosh, who was a constable at that point
of time, who accompanied Nakuleswar Debnath (Nakulbabu)
(PW14). So, in the second sequence of events, it is confirmed
that a „Q-dodge‟ truck blocked the road.
176. On culmination of the evidence of PW1, PW2, PW3,
PW4, PW5, PW7, PW16, PW30 and PW40, it is confirmed that
the deceased, Parimal Saha and Jiten Saha were accompanied
by PW1, PW2 and PW3 on 07.04.1983, and while proceeding
towards Office Tilla, on way to BDO‟s office, a Q-dodge truck
blocked their way, Parimal Saha stopped the vehicle, bombs
were hurled at them, forcing them to stop and get out of the
jeep and saw accused persons, namely Sasthi Chakraborty,
Hiranmoy Ghosh, Sadhan Karmakar, Dula Sengupta, Pradul
Sengupta, Mrinal Sengupta, Bijoy Das, Satya Das, Kali Harijan,
Bishu Saha alias Biswajit, Uttam Kumar Saha, Kajal Sutradhar,
Arun Das and Abhoy Bhushan. They attacked upon Parimal
Saha, Jiten Saha , Sankar Saha and PW1, PW2 and PW3. Banu
suffered grievous injury as splinter from one bomb thrown by
Chinmoy Ghosh, damaged his eye totally. He somehow
managed to go to Bishalgarh, PHC. As they jumped out, Mati
Saha suffered cut injury, Dilip Banik also suffered splinter
injury being hit by splinters of the bombs, Mati Saha entered
into the police station, found PW4 Usha and PW16 were there
Page 102 of 216
at the police station. Mati Saha requested the Officer-In-
Charge to save his brother, whose life was being endangered.
177. We find no contradictions in the statements of PW1,
PW2, PW3, PW4, PW5, PW7, PW16, PW30 and PW40. Mr.
Kabir, learned defence counsel has tried to persuade this Court
in his attempt to disbelieve the statements of prosecution
witnesses, particularly, PW1, by drawing our attention that
Mati Saha has stated in his evidence that Bijoy Das had dealt a
blow upon him, causing cut injury on his person and Mati
Saha(PW1) has further stated that he saw Bijoy Das also
attacked Parimal Saha. The learned counsel has tried to
highlight that how Bijoy Das, being one person would be at two
different places at the same time.
178. We again have given our anxious look to the
evidence of Mati Saha(PW1). We find that Mati Saha has stated
in his evidence that while he was running he also saw his elder
brother was also running towards south by the western side of
the road and Bijoy Das was one of the assailants, who also was
chasing Parimal Saha along with other assailants like Sasthi,
Kajal, etc. According to us, it was very natural while Mati was
running ahead of Parimal he naturally would look behind to see
whether his brother was coming or not. When Mati could make
a substantial progress, it would not be improbable that Bijoy
Das, finding that Parimal Saha was also running, joined with
other accused persons to chase Parimal Saha. Needless to say,
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that Parimal Saha was the prime target of the assailants. It is
most probable as emphasized by the Ld.Spl. PP that after
Parimal , the 2nd target of Bijoy Das was Moti (PW-1). Further
no where in his evidence PW-1 stated that he and Parimal were
chased simultaneously by Bijoy Das. As such, we find no force
in the submission of Mr. Kabir that Bijoy Das cannot hit two
persons considering the statements of Mati Saha(PW1).
179. Mr. Kabir, learned counsel also submitted that the
front portion of the jeep, i.e. the bonnet side, was damaged
and showing the photographs to us, he has submitted that
such damage could not be caused out of bombs and his simple
submission is that the jeep, which was driven by Parimal had
collided with the „Q-Dodge‟ truck.
180. It leads us to peruse the evidence of explosive
expert. PW33, Prakash Chandra Sribastav is the chemical
examiner, who conducted the physical examination of the
articles seized at the place of occurrence and sent the same to
the Director of Forensic Laboratory, Assam, Guwahati for
chemical examination. He has deposed in course of trial that,
according to his opinion, the three packets marked as Exbts.A,
B, C were remnants of one or more exploded objects, which
being examined was found to contain an explosive mixture of
chlorate of potassium and sulphur of arsenic. The report, as a
Page 104 of 216
whole has been proved and marked as Exbt.P16 and his
signature has been marked as Exbt.P15.
181. In his cross-examination, he has stated that the
speed of the splinters depend on the properties of the
explosive mixture and on its quantity.
182. Thus, there is no room left to us to doubt the
hurling of bombs at the time and place of occurrence and we
do not find any scope to disbelieve the statements of the
witnesses about the explosion of bombs. The submission of
learned counsel that the nature of damage caused in the
bonnet is not due to the bomb, in order to brush aside the
story of the prosecution that bombs were hurled, when Parimal
and others got down of the jeep is thus bereft of merit.
183. This Court cannot throw out the ocular evidence of
of the prosecution witnesses that bombs were hurled, when the
jeep got stopped. From a bare perusal of the exhibited
photographs (Ext.P5-5/17), it is quite evident that there are
distinct marks/ spots of bomb explosion on the body of the
jeep.
184. On careful analysis of the above, we may
conclusively hold that the chain up to the second sequence is
complete and no link is missed out.
185. We may now proceed to the post-occurrence
situation as a third sequence of the entire episode. PW1
has stated that he reported the matter to Bishalgarh Police
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Station that the life of his brother was in danger and requested
him to send escort party, and at that time some persons,
namely Usha Sarkar(PW4), Asish Pal(PW13), Gour Netai
Roy(PW14) and PW15, Chan Mohan Saha were present there
when he also requested the O/C to rush to the place of
occurrence. Then, he was taken to Nirmala pharmacy for first
aid by them. After some time, he came to know from Usha
Sarkar, Asis Pal, Chan Mohan Saha and others that Parimal
Saha and Jiten Saha were murdered and he was laid at rest in
the pharmacy.
186. At about 3.00 p.m. he met with Darogababu and
lodged information to him, which was taken down by
Darogababu according to his dictation. After being reduced into
writing, the contents of the complaint were read over and
explained to him, and on being satisfied he put his signature.
The said written ejahar has been proved and marked as
Exbt.P1. Then, Darogababu took him to Bishalgarh PHC, and
after receiving medical aid at about 5.15 to 5.30 p.m. he went
to V.M. Hospital, Agartala and identified the dead-bodies of
Parimal Saha and Jiten Saha. At that time, he was escorted in
a police vehicle to Agartala.
187. On 25.04.1983, he was asked by police officer of
Bishalgarh Police Station to identify the miscreants of the
occurrence through test identification parade. Then, he along
with Dilip Banik and Sankar Lal Saha went to Central Jail,
Page 106 of 216
Agartala by a police vehicle. After some time, he was called by
a jail staff and entered in the jail premises, where he found 10
persons were standing inside the jail on a veranda and there
was a Magistrate present, who asked him to recognize the
miscreants amongst those persons, who threw bomb and
chased him with „dao’. He could recognize one Babul Das
amongst them, and then, he was taken to another room,
where he sat down and he was again called. He found another
10 persons were standing in that veranda of which he could
identify one of the miscreants who threw bomb, namely
Sukhendu Das(A12). He was again taken to the office room
and after some time he again went to that veranda and found
10 more persons were standing, wherefrom he could recognize
one of the miscreants who threw bomb, namely Uttam
Saha(A2). He was again taken to a room and after some time
he again went to that veranda and found 10 new persons
standing there, wherefrom he could identify one of the
miscreants, who threw bomb, namely Arun Kr. Saha(A17).
Subsequently, police also seized the jeep in which they went to
the place of occurrence on that day.
188. Most importantly, PW1 in his cross-examination has
stated that he did not submit his FIR with the police station
when he for the first time arrived there after the occurrence
because he thought it more important to save the life of his
elder brother.
Page 107 of 216
189. PW2 has stated that he first saw Sankar Lal Saha
and then Mati Saha were running at the same direction and
Mati Lal Saha suffered a cut injury on his right hand and that
he personally received splinter injury on his face, back and
wrist.
190. On 25.04.1983, he was taken to Agartala CJM‟s
Court at first and thereafter to Central Jail, Agartala where Mati
Lal Saha and Sankar Lal Saha were also with him. Inside the
jail from the group of 10 persons, in presence of the
Magistrate, he identified one Sukhen Das, Babul Das and
Uttam Saha, who chased PW2 with „ram-dao’ and hurled bomb
aiming at him.
191. PW2 has further stated that there was no bamboo
fencing on the houses of both sides of the road where their
jeep stopped. He has further stated that he cannot remember
whether he told to doctor who had attacked him with bombs.
192. PW2 has admitted that at about 3.00 p.m. a police
vehicle went to his home and looked for him and thereafter he
was taken to Bishalgarh PHC in that police vehicle. The doctors
wanted to admit him in the hospital, but he did not agree on
the apprehension of re-attack and he went back home after
medical treatment.
193. PW2 has further stated that he was brought to
Agartala from Bishalgarh by the police for identifying the
miscreants. Sankar and Mati also were with him. At first, Mati
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Saha was called by the jail authority and he entered inside the
jail compound. After about half an hour, PW2 was called by a
jail staff and there he saw 10 persons were standing on a
veranda. A Magistrate who was present there asked him
whether he could identify any of them. He saw 10 persons
were of almost similar appearance and their wearing apparels
were also almost same. He caught hold of a person and told
the Magistrate that he was the person who threw bomb. He
also told that he had thrown bomb at him and also chased with
a „ram-dao‟. The Magistrate asked his name, when he told that
his name is Sukhen Das. He was again taken in the office room
and after some time he was again called and saw 10 persons
standing and in the same process he caught hold of a person,
who threw bomb at him and chased him with a „ram-dao’. The
Magistrate asked the name of that person, when he replied,
Babul Das. In the same process, he identified Uttam Saha.
194. PW3 has stated that he rushed to Bishalgarh
hospital and received treatment there. He was referred to
Agartala. He has further stated that after getting down from
the vehicle, he noticed that the other occupants of the vehicle
were also fleeing.
195. Now, in order to examine the veracity and
truthfulness of the evidence laid by PW1, PW2 and PW3 in
regard to post-occurrence episode, we should find out the
corroborative statements made by other witnesses.
Page 109 of 216
196. PW4 stated that while he was in his shop, after
some time, the jeep left. The younger sister of Parimal Saha
came to his shop and asked about Parimal. The said witness
told her that he had gone to the office of the BDO. Then, she
told that probably the vehicle of „barda‟(Parimal) was attacked
and sounds of bombs were being heard from the direction of
Office Tilla. On getting that information he immediately rushed
to the police station along with the sister of Parimal Saha, i.e.
Chhaya Saha, PW16. Then, he requested the Officer-In-Charge
to go immediately to Office Tilla as he apprehended that
Parimal was attacked. As it was taking some time to arrange
the police personnel, he saw Mati came from the backside of
the police station, who also requested the O/C to go
immediately as his „barda‟ might be killed. PW4 also told the
O/C to go immediately without any delay. The said witness saw
bloodstains on the wearing apparels of Mati and also injuries on
his face and back. Then, the O/C and SDPO went away. Then,
he and Mati came out of the police station. He also asked Mati
what had happened when Mati reported them that their jeep
was attacked with bomb. Mati has further stated that there
were 40-45 miscreants, out of which he could recognize 10/15.
Mati told him the names of Dula Sengupta(A21), Mrinal(A4),
Sajal(A15), Kajal(A8), Bijoy Das(A7), Satya Das(A5), Uttam
Saha(A16), Arun Saha(A17), Sasthi Chakraborty(A1), Biswajit
Saha(A22). He also told the said witness their names but he
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could not remember their names at the time of deposing
before the Court. Then, he has deposed that Mati told him the
name of Sadhan Karmakar(A24). Then, he escorted Mati to
Nirmala pharmacy for first aid. Afterwards, he came to know
that Parimal Saha and Jiten Saha were murdered.
197. Most importantly, Darogababu seized a copy of an
application of Parimal Saha from him. Darogababu also
prepared a seizure list, which he signed as a witness. During
his deposition he identified the copy of this application, which
he has stated that it is written and signed by Parimal Saha and
he knows that it is the hand-writing of Parimal Saha. On being
identified, the said written application has been marked as
Exbt.P2. He also identified his signature, which he signed on
the date of seizure, which has been marked as Exbt.2/1.
198. PW7, Pulin Saha has stated that on their return to
Bishalgarh police station, just about 5/7 minutes later, he
again proceeded towards Office Tilla with full police force and
stopped the vehicle at the junction of Laxmibil road. There he
noticed a dead-body. As per direction, he again turned back
the vehicle and on the way he saw the dead-body of Parimal
Saha in a drain at a distance of 100 yards.
199. PW8, Netai Saha has deposed on the date of
incident at around 10.00 to 10.30 a.m. he heard sound of
explosion of bomb from his saw-mill at Office Tilla and came
out from his mill when he saw much smoke. Then, he
Page 111 of 216
instructed his employee to close the mill and he also left for
home. He also noticed smoke at the northern side.
200. So the statement of PW1 that he was taken to
Nirmala Pharmacy for first aid from the police station is
corroborated by PW4 and PW13. Therefore, the statement of
PW16 appears to be doubtful to us. More so, the statements
made by one witness, if contradicted by another witness,
should not be said to be a contradiction keeping in mind the
provision of Section 145 of the Evidence Act.
201. Section 145 of the Evidence Act may be reproduced
here-in-below for convenience:
―Cross-examination as to previous
statements in writing.–A witness may be cross-
examined as to previous statements made by
him in writing or reduced into writing, and
relevant to matters in question, without such
writing being shown to him, or being proved;
but, if it is intended to contradict him by the
writing, his attention must, before the writing
can be proved, be called to those parts of it
which are to be used for the purpose of
contradicting him.”
202. From a bare reading of this Section, it is clear that
the said provision applies only to cases where the same person
makes two different versions in the same proceeding or in two
different proceedings, at different stages of a proceeding. We
may gainfully refer to Mohanlal vs. State of Maharashtra,
AIR 1982 SC 839 where the Apex Court has held thus:
Page 112 of 216
―Section 145 applies only to cases where
the same person makes two contradictory
statements either in different proceedings or in
two different stages of a proceeding. If the
maker of a statement is sought to be
contradicted, his attention should be drawn to
his previous statement under Section 145 . In
other words, where the statement made by a
person or witness is contradicted not by his own
statement but by the statement of another
prosecution witness, the question of the
application of Section 145 does not arise.‖
203. According to us, here, it would be apposite to refer
to a decision of the Gauhati High Court in The State vs. Md.
Misir Ali Ors., AIR 1963 Assam 151, wherein the scope of
application of Section 145 of the Evidence Act has been
beautifully scripted and summarized following the decision of
Tahsildar Singh Anr. vs. State of U.P., AIR 1959 SC
1012 at para 14, 15, 16, and 17.
―14. On the third charge against accused
4 Abbas Ali, accused 5, Amjad Ali, accused 6
Amchar Ali and accused 8 Salimuddin, we find
them guilty under Section 324 read with Section
149, Indian Penal Code and would accordingly
sentence each of them to rigorous imprisonment
for two years. The sentences in each case shall
run concurrently.
15. Before we conclude this judgment it is
necessary to point out that an unfortunate
practice still continues in the subordinate
Courts, of placing much importance on mere
omissions from the statements made by
prosecution witnesses to the police during
investigation. Strictly according to law an
omission cannot be regarded or proved as a
contradiction, firstly because there is no diction
in the case of an omission, because an omission
implies absence of diction, and secondly
because Section 162, Criminal Procedure
Page 113 of 216
Code permits the limited use of a statement
made to the police, and what is permitted to be
used is a portion of that statement which is
found to be contradictory to the evidence given
in the Court. Section 162, Criminal Procedure
Code thus only permits the statement made to
the police officers to be used for that limited
purpose, and not the statements not made
during the police investigation. Again, an
omission cannot be proved as a contradiction,
because Section 145 of the Evidence Act which
is the section dealing with the procedure to
prove a contradiction, deals with statements in
writing, and requires the portion of the writing
which is sought to be used for contradiction to
be brought to the notice of the witness and the
witness being questioned about it. For that
reason again, an omission in a previous
statement cannot be used for the purpose of
contradiction under Section 145 of the Indian
Evidence Act. Hence, what is not found in a
police statement under Section 162, Criminal
Procedure Code, cannot be used under that
section, nor can the same be proved
under Section 145 of the Evidence Act.
16. We should not, however, be
understood as stating that in no case could a
serious and glaring omission from a police
statement be relied on. It may not be relied on
as a contradiction as such, but it may be relied
on as a relevant circumstance. To give an
example, if a witness stated on oath before the
Court trying a murder charge, that A, B and C
attacked and caused the death of the deceased,
and before the police he only stated that A and B
did the murderous assault, that circumstance
may be brought out not as a contradiction
under Section 145 of the Evidence Act but as
something having an effect somewhat similar to
a contradiction, in that a different case as it
were, is put forward by the witness for the
prosecution, disclosing perhaps an attempt to
improve or develop the prosecution case, which
thus may have the effect of casting a doubt on
the prosecution case as put forward before the
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Court, and also on the veracity of the witness, at
least to the extent of his implicating ‘C.
17. We also regret to note that the
procedure to be followed in the case of proving
the contradictions appearing in the statements
made by prosecution witnesses to the police
during investigation, is not being followed by
subordinate Courts, as well as by the counsel
appearing in criminal cases. We had occasion to
point out the correct procedure more than once
and it would be worth while restating it. If it is
intended by an accused to contradict the
evidence given by a prosecution witness at the
trial, with a statement made by him before the
police during the investigation, the correct thing
to do is to draw the attention of the witness to
that part of the contradictory statement which
he made before the police and question him
whether he did in fact make that statement. If
the witness admits having made the particular
statement to the police that admission will go
into evidence and will be recorded as part of the
evidence of the witness and can be relied on by
the accused as establishing the contradiction. If
on the other hand, the witness denies having
made such a statement before the police, the
particular portion of the statement recorded
under Section 162, Criminal Procedure
Code should be provisionally marked for
identification, and when the investigating officer
who had actually recorded the statement in
question, comes into the witness box, he should
be questioned as to whether that particular
statement had been made to him during the
investigation, by the particular witness and
obviously after refreshing his memory from the
Police Case Diary the investigating officer would
make his answer in the affirmative. The answer
of the investigating officer would prove the
statement which is then exhibited in the case
and will go into evidence, and may, thereafter,
be relied on by the accused as a contradiction.
This is the only correct procedure to be followed,
which would be in conformity with Section
145 of the Evidence Act.‖
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204. Furthermore, this discrepancy in the statement of
PW16 should not have serious consequence in the context of
the present case, for the simple reason that the fundamental
issue in this case is that whether there was any incident which
took place at Office Tilla on 07.04.1983 at about 11.00 a.m.;
whether Mati Lal Saha arrived at the Police station from the
place of occurrence just immediately after the occurrence and
whether he disclosed the names of the assailants. PW16 in her
statement has concretized the factum of the circumstances
that Mati Lal Saha along with others were attacked at Office
Tilla on 07.04.1983 at about 11.00 a.m.; being injured he
arrived at the police station; PW13, PW14 and PW15 were
present and the informant disclosed the names of the
assailants. Moreover, the investigating officer, Prabir Das
Choudhury recorded the written complaint of Mati Lal Saha at
Nirmala Pharmacy which was treated as FIR(Exbt.-P1).
205. PW26, Jhunu Malakar, a Havildar and PW27, Ajoy
Majumdar, a Constable of Police and PW34, Ajit Kr. Das SI of
police posted at Bishalgarh PS at the relevant point of time
were the other witnesses who narrated the post occurrence of
the incident.
206. PW26 has stated that the O/C reported that
deployment was not necessary. Thereafter, he said that Mati
Lal Saha and Sankar entering the Bishalgarh P.S. in a state of
fear. Many other persons also entered the P.S. at that time and
Page 116 of 216
he heard the sound of bursting of bombs and the O/C ordered
him to get ready for duty. The said witness has further stated
that he saw fire towards the west of the P.S. Then, he along
with the others ran towards Office Tilla along with other
officers of police. After reaching Office Tilla he saw people were
running helter-skelter.
207. In his cross examination the said witness has stated
that he has made the statement before Sri T.K. Sanyal, DSP at
Agartala Police Station and he was not examined by any other
police officer.
208. PW27, Ajoy Majumdar has stated that at about
11.00 a.m. Mati Lal Saha, Dilip Banik and 2/3 persons came to
Bishalgarh P.S. who had blood stains on their persons and they
applied first aid to them with Dettol. Then, they got ready for
duty. The said witness has further stated that the persons
entered into the police station were looking very perturbed.
209. In cross examination, he has stated that he was
examined by the I.O. after about 1/2 days of the occurrence.
He has further stated that Mati and others came through the
backside, i.e. the north west side of the P.S.
210. PW28, Kshitish Ch. Deb, the then O/C Bishalgarh PS
has stated in his evidence that after being informed from
Nakuleshwar Debnath and being reinforced he went to the
place of occurrence and found the jeep of Parimal Saha in
Page 117 of 216
damaged condition and also found the dead bodies of Parimal
Saha and Jiten Saha and asked SI Prabir Das Choudhury to
take all legal actions. Then he along with SDPO proceeded
towards Agartala with the dead bodies but could not reach
because there was tensed situation at Battala in Agartala and
they were compelled to enter into the A.D. Nagar Police Lines
with the dead bodies. Then the police officials from the West
Agartala P.S. went to the A.D. Nagar Police Lines and brought
the dead bodies to Agartala Hospital.
211. PW34, Ajit Kumar Das in his short description of the
post occurrence circumstances has deposed in course of trial
that he was on law and order duty in the Block office at
Bishalgarh and he went to Bishalgarh market after seeing
smoke of fire and he saw the house of Bhanu Saha, MLA and
the nearby shops were burning.
212. On appreciation of the evidence of PWs 1, 2, 3, 4, 7,
8, 16, 26, 27, 28 and 34 it has been established that PW5
informed the O/C that he heard sound of bombs while
proceeding to Office Tilla; the O/C being led by SDPO had
proceeded towards Office Tilla along with police personnel; Mati
Saha was taken to Nirmala Pharmacy; after reaching at the
place of occurrence they found the damaged jeep of Parimal
Saha and also recovered the dead bodies of Parimal Saha and
Jiten Saha; there were smoke due to bursting of bombs; house
Page 118 of 216
of Bhanu Lal Saha and nearby shops were burning; the police
personnel of Bishalgarh P.S. could not enter into the Agartala
town on their way to Agartala Hospital and were forced to take
shelter in the police lines at A.D. Nagar and later on with the
assistance of the police officials of West Agartala P.S. the
bodies of Parimal and Jiten were taken to V.M. Hospital where
their post mortem was conducted and the situation was very
tensed; on their way they found shops on both side of the
Agartala Bishalgarh road were closed.
213. Thus, according to us, the chain of circumstances
commencing from the fact of gathering at “Sujata Mistanna
Bhander”; refusal of Ranjit Dasgupta, now dead to accompany
Parimal Saha; requests being made to the O/C to provide
substitute; being found no hope of any substitute body guard
Parimal, Jiten, Mati, Banu, Sankar, Dilip boarded the jeep to go
to the BDO office to participate in the process of BDC election
of Bishalgarh Block, factum of attacks upon Parimal and Jiten;
factum of injuries suffered by Mati, Banu, Sankar, Dilip being
able to flee away from the place of occurrence arrived at the
police station when Mati(PW1) and PW4 requested the O/C to
rush immediately to the place of occurrence when Mati told him
that he apprehended the life of his elder brother was in
danger; Mati being escorted to Nirmala pharmacy by PW4 and
others; disclosure of names of the assailants who are the
accused persons; police officials rushed to the place of
occurrence and found the jeep of Parimal Saha in damaged
Page 119 of 216
condition and thereafter the recovery of dead bodies of Parimal
and Jiten; their proceeding towards Agartala and failure to
reach Agartala; the tensed situation in and around Bishalgarh
and Agartala; the fact of burning of house of Bhanu Saha(MLA)
and other shops; have been proved and there is clear link
between all the facts and circumstances.
214. Now, we are to examine the merit of the submission
of the learned counsels appearing for the accused persons that
there are serious discrepancies and inconsistencies between
the ocular versions of the injuries suffered by PWs 1, 2 and 3
and the medical examination reports, particularly, absence of
tail mark in the injury that was caused at the back side of the
person of Mati.
215. PW20, Dr. Nitya Ranjan Datta was posted at
Bishalgarh PHC on 07.04.1983. He has stated in his evidence
that he examined the injuries on the person of Mati Lal Saha,
Sankar Saha and Dilip Banik. He found the following injuries on
the person of Mati Lal Saha:
―1. one sharp cut (incised) wound on the back of
the right side 1½‖ X 1‖ X ½―.
2. one sharp cut incised wound on the back of
right hand (dorsal aspect of the palm) – 1‖ X ½‖
X ¼‖.
3. One abrasion on the forehead of the left side
½‖ X ½‖.
The injuries were simple in nature. Injuries Nos.
1 2 were caused by sharp cut object, by object
I meant weapon. It is not mentioned in my
report, but the injuries might have been caused
by any light weapon like a knife. The injury No.3
Page 120 of 216
was caused by any blunt object. All the injuries
were recent. The injuries could not have been
self inflicted.‖
He found the following injuries on the person of
Sankar Saha:
―1. One abrasion on the left side of face above
the upper lip, 1‖ in diameter (circular).
2. Abrasion on the right side of the cheek 1‖ X
½‖.
Both the injuries were simple in nature caused
by blunt object like a fist or fall on hard surface.
These injuries were also recent.‖
He found the following injuries on the person of Dilip
Banik:
―1. One nail prick on the right sole – 2 in number
– they were 6‖ apart.
2. Abrasion on the left side of the left thai – 3 in
number
Injuries were simple in nature. Injury No.2 was
caused by a blunt object. Injury could have been
caused by a fall on hard surface. The injury
could also be caused by a hard kick. Injury No.1
could have been caused by any sharp
penetrating object. By nail I also meant not only
human nail but also iron nail too.‖
216. In cross examination, the doctor has stated that the
patient did not name about any of the assailants to him. To a
question, he replied that injury No.1 caused to Mati Lal Saha is
not possible if he was fleeing and the chaser had dealt him a
blow of a knife when he was running. He has further stated
that all the patients had no such injury on their persons to be
fit to be admitted as indoor patients for treatment. Being
recalled, the said witness has stated that they were assaulted
at about 10.45 a.m. on 07.04.1983.
Page 121 of 216
217. The basis of the submission of Mr. Kabir is found in
the evidence of PW20, Dr. N.R. Dutta, who in his cross-
examination has stated that ―if a person is in a running
condition and if from backside some sharp cutting injury was
made on his body, the injury should have some tail mark. In
the instant injury report, I did not mention that there was any
tail mark.‖
218. According to us, this answer is of no consequence to
the description of the injuries given by the Doctor for the
reason that the Doctor was not asked why he did not mention
the presence or absence of any tail mark and further it is a
statement of general nature and not specific to any of the
injured persons. If he would have been questioned specifically
then he would have given the specific description stating the
reasons why he did not mention whether there was any tail
mark on the person of any of the injured persons or not.
219. In furtherance thereof, even if there is no
discrepancy in the description of injuries, even then, the
evidence of the prosecution witnesses, particularly, PW1 should
not be thrown away because of the fact that the injuries
suffered by PW1 were inflicted or caused by the assailants-
accused persons, has been proved beyond any shadow of
doubt. Moreover, mere non explanation of the cause of injuries
would not ipso facto throw out the prosecution case. Here,
evidently the injuries of PW1 are simple in nature.
Page 122 of 216
220. Here, we may gainfully refer the case of
Munishamappa and ors. vs. State of Karnataka,
MANU/SC/0071/2019 : (2019) 3 SCC 393 where the Apex
Court has dealt with the defects in the evidence of injury and
its consequence in the manner as follows:
―19. PW 20 Dr Srinivasan examined these
injured eye-witnesses on the date of theincident. His evidence indicates the nature of the
injuries to be as follows:"PW 3 : Dhanegowda
1. An irregular 1 c.m. cut injury superficial over
the left deltoid (shoulder).2. A contusion of 3"x 1/2" over medial aspect of
left scapula.3. An irregular contusion of 7" x ½" running
across from the top of right scapula to left loin.4. An ½" length clean cut injury by scalp depth
over vertex.5. Another contusion 2 ½‖ x ½" over left
chest."
"PW 5 : Sriramappa1. A clean cut injury over vertex 1 ½" x scalp
depth.2. An irregular wound 1' x superficial depth over
left bizen.3. A contused abrasion of 1.5 c.m. above both
medial end of eyebrows.4. 4-5 pellet injuries over the chest.
5. A clean cut injury across left thigh 1"
superficial depth."
"PW-6 : Govindappa1. A clean cut injury 1" in length to the left of 3-
9 vertebra cutting the erecto spine longitudinally
to the left the midline.""PW-7 : Bhagayamma
1. ¾" superficial cut injury over dorsum of right
hand wrist.2. 1 c.m. superficial cut injury diskful to it.
3. Tenderness over left buttock."
Page 123 of 216
PW 20 opined that the injuries on the body of
the injured persons may be caused by means of
a knife or a baku, the contusion caused by clubs
and the irregular injuries by means of a cycle
chain. Venkatamma (CW 25) and CW29 were
included among other members of the family
whose injuries were examined by PW 20.‖221. On analysis of the principles laid down by the Apex
Court in various decisions, the apex Court in Munishamappa
(supra) has declared the judgment of acquittal passed by the
trial court as perverse and upheld the judgment of the high
court setting aside the judgment of the trial court on the point
of consequence of defects in explaining the injuries suffered by
the witness/s.
222. Mr. Kabir has strenuously argued that Mati Lal Saha
has stated in his evidence that being attacked he was running
and at that time Bijoy Das had dealt a blow on his back by a
„dao' (sharp weapon). According to the learned counsel, the
doctor has clearly stated that the nature of injury speaks that
the statement of Mati Lal Saha, PW1 is false for the reason that
if he was in a running condition then this type of injury always
would have a tail mark.
223. This submission of the learned counsel has taken us
to re-visit the evidence of Mati Lal Saha, PW1. In his cross-
examination, he has categorically stated that ―as soon as I got
down from the jeep the miscreants attacked us being armed
with Dao and Ballam, etc. and then Bijoy Das, S/o Makhan Das
Page 124 of 216of Office Tilla dealt me a blow of dao on my neck (the witness
has confirmed the FIR). It is not a fact that I have deposed
falsely that Bijoy Das dealt me a blow.‖
224. So, what we find from this statement in the cross of
PW1, is that as soon as he got down from the jeep the
miscreants attacked upon him and Bijoy Das, one of assailants,
had dealt him a blow of ‗dao' on his back below the neck. Thus,
he has never stated that when the „dao' blow was made on the
back side of his person, he was in running condition. Moreso, if
we try to visualize the matter then, it may come to light that
as soon as the victims got down from the jeep, all the
members of the group came closer to the victims and hacked
blows with the weapons in the hands. Entire episode of the
attack stood concluded within a few minutes. The learned trial
court in its finding has dealt with this matter and has observed
thus:
"................. In cases where there are a large number
of assailants, it can be difficult for a witness to
identify each assailant and attribute a specific role to
him, in the instant case, a very large number of
assailants attacked the two deceased and caused
injuries four others with deadly weapons. The
incident stood concluded within a few minutes. Thus,
it is natural that the exact version of the incident
revealing every minute detail, i.e. meticulous
exactitude of individual acts cannot be given by the
eye witnesses. But lot is clearly established from
circumstantial evidence and materials on record as
well as post mortem report of Jiten Saha that Jiten
Saha was also murdered by the same assailants in
the same incident by the same assailants on 7.4.1983
at about 11 a.m. at Office Tilla tri-junction,
Bishalgarh."Page 125 of 216
225. After revisiting the entire evidence of Mati Lal
Saha(PW1) we have tried to visualize the fact of attack by a
group of armed miscreants. From the evidence of PW20 we
find that that there are other two injuries also which according
to PW1 were caused at the time of attack by the said accused
persons. In our considered view, it is a case where the
assailants in a group attacked upon all the six persons, out of
which, two died and four suffered injuries. PW1 nowhere has
stated that all the injuries he suffered were caused while he
was in running condition but in cross, he clarified that just after
getting down from the jeep, they faced assault with deadly
weapons and particularly, named Bijoy Das who inflicted a
„dao' blow on his back below the neck.
226. Further, in our considered view, he was attacked
and suffered injuries on his person due to blows inflicted by the
group of assailants whose names have surfaced in the evidence
of the prosecution witnesses, thereby establishing the fact of
injury caused by the accused persons.
227. Thus, the statements which PW1 has made in his
examination-in-chief that he was running to save his life and
the assailants were chasing him when he was inflicted blows
were being clarified in his cross examination, as we have said
earlier. In view of the analysis outlined above, we repel the
submission of the learned counsel appearing for the accused
persons that the discrepancy in the injury report in regard to
Page 126 of 216the inconsistencies and contradictions in describing the nature
of injuries by PW1 makes his evidence untrustworthy and of no
credence. In furtherance, thereof, the contradictions which Mr.
Kabir has adverted to, in the evidence of PW1, is not of a
nature that should result in discrediting the entire case of the
prosecution.
228. PW1, PW2 and PW3 have stated in their evidence
that they were attacked by the accused persons with „dao',
„ballam' and other weapons. They somehow managed to flee
away from the spot. While fleeing, PW1, Mati had seen armed
accused persons were chasing Parimal who was also being
attacked by them.
229. In our opinion, when a few persons face murderous
assault by a violent mob consisting of many persons, then, it is
very natural that there may be some omissions and
discrepancies. In the instant case, the victims had suffered
injuries where two persons died who were attacked by a well-
organized group of assailants. In that situation, it would be an
absurdity to put all the minute and accurate descriptions of the
entire episode. According to us, PWs, 1, 2 3 are the most
natural witnesses. Minor discrepancies here and there,
inconsistencies or insignificant embellishments in reproducing
the descriptons of the incident should not affect or demolish
the core of the prosecution case. The courts must be cautious
that only in case of serious contradictions and omissions which
Page 127 of 216are so evinced in the evidence itself and pre-dominantly affect
the genesis and modus operandi of the prosecution case
affecting the credibility and trustworthiness, are only to be
reckoned with.
230. Now, let us examine the nature of injuries suffered
by Parimal and Jiten. PW10, Dr. Jyotirmoy Ghosh had sufficient
experience to conduct post-mortem examination and he
examined and conducted the post-mortem examination over
the dead-bodies of Parimal Saha and Jiten Saha, being
identified by S.I. of Police, Subodh Deb and Mati Lal Saha,
brother of deceased Parimal Saha. PW10 has stated that post-
mortem examination over the dead-bodies of Parimal Saha and
Jiten Saha were conducted by him at 5.10 p.m. and 5.30 p.m.,
respectively. In his evidence, he indicates the nature of injuries
as follows:
―The deceased Parimal Saha was aged about 28 years,
a Hindu male. The body was fresh and of normal built. I found
the following injuries on the person of the deceased.1. Neck found almost severe. One clean cut gapping wound 5‖ x
2‖ X servical spinal column deep on the posterior and right
lateral aspect of the neck at the level of 3rd and 4th servical
vertibras. 3rd and 4th servical vertibras found bisected.
Neck vessel of the right side found bisected.2. One clean cut gapping wound 2‖ X ½― X muscle deep on the
right deltoid region.After dissection I found the following:-
1. Brain--health and animy,
2. Spinal cord--found bisected at the level of 3rd and 4th servical
vertibras.3. Walls, Ribs and cartilages, Pleurae, and trache, right lungs
and left lungs, pericardium, larings--were found healthy.Page 128 of 216
4. Hearts--were found healthy and both chambers were found
healthy.5. Vessel of the neck on the right side found bisected.
9. Wall, Peritoneum, Mouth, pharynx and esophagus, small
intestine and large intestine--were found healthy.10. Stomach-health, anemic and empty.
11. Liver, spleen, Kidneys-were health and anemic.
12. Bladder-healthy and empty.
13. Organs of generation of external and internal-healthy.
14. Injury on the neck--as described earlier.
3rd and 4th servical vertrebras found bisected.The cause of death in my opinion was shock and
haemorrhage as a result of bisection of the neck vessel of the
right side and bisection of the servical spinal column due to the
injuries received which have been caused by an external
violence with a sharp and heavy weapon(homicidal).The injuries were ante mortem in nature.
By sharp and heavy cutting weapon I meant a weapon like dao.
Jiten Saha--Hindu male, aged about 28 years, body fresh and of
normal built. I found the following external injuries:-1. The neck found almost severed.
i). transverse clean cut gapping wound 4‖ X 2‖ X skull bone
deep on the posterior aspect of the neck occipital and left
temporal bone found fractured.2. Right hand found severed--just below the wrist missing right
middle and ring finger.3. Left index finger found severe. only slight skin found intact
on the palmer aspect--at its proximal end.4. One clean cut gapping wound 2‖ X 1‖ X muscle deep on the
left shoulder(posterially)5. One clean cut gapping wound 2‖ X ½‖ X muscle deep on the
upper part of left hand(dorsum).On disscection I found the following:-
1. On removal of the scalp effusion of fluid and clotted blood on
the surface of the skull at its occipital and left temproparital
region was found.2. On removal of the skull efussion of fluid and clotted blood on
the surface of the brain under the doramater on both
hemisphere was found. Doramater found torn. Brain tissues
found lacerated.Page 129 of 216
3. Walls, ribs and cartilages, pleura, larynx and trachea, right
lung, left lung, pericardium, vessels--were found healthy.4. Heart--healthy but both chamber found empty.
5. Wall, peritoneum, mouth, pharynx and esophagus, small
intestine, large intestine--found healthy.6. Stomach--Healthy and anemic and empty.
7. Liver, spleen, Kidneys, --Healthy and anemic.
8. Bladder--Healthy and Empty.
9. Organs of generation external and internal--healthy.
10.Injury--as described earlier.
11.Occipital and left tempural bone found fractured. Right hand
found bissected at the level just below the wrist. Only slight
skin found intact on the plamer aspect. Left index finger
found bissected.The death in my opinion was due to shock and
intracranial haemorrhage as a result of fracture of the cranial
bone along with bissection of the right hand due to injuries
received which have been caused by an external violence with a
sharp and heavy weapon(Homicidal).The injuries were antimortem in nature.
By sharp and heavy weapon I meant a weapon like
dao.‖231. The learned defence counsel has tried to create a
cloud by submitting that the report does not show that there
was any tail mark in the injuries of the dead-body of Parimal
Saha. The Doctor has replied that, "the injuries will show that
it was slightly oblique. It is not a fact that both the injuries
were not oblique‖. The Doctor has again said that Injury No.1
was slightly oblique. Then, to a question, the Doctor has
answered that "If victim runs and the assailant chases him and
caused the blow the injury must be oblique and that injury
must have a tail.‖
Page 130 of 216232. From a bare look at the nature of injuries inflicted
upon the body of the victim Parimal it is found that he was not
only attacked while running but also he fell down on the
ground. The Injury No.1 clearly reveals that neck found almost
severed and one clean cut gapping wound 5"x2"x servical
spinal column deep on the posterior and right lateral aspect of
the neck at the level of 3rd and 4th servical vertebrae . 3rd and
4th servical vertibraes found bisected. Neck vessel of the right
side found bisected. The doctor has opined that cause of death
in his opinion was shock and haemorrhage as a result of
bisection of the cervical spinal column due to the injuries
received which have been caused by an external violence with
a sharp and heavy weapon(homicidal).
233. Jiten Saha, was also murdered almost in a similar
fashion. His right hand was severed. Left index finger also was
found severed. The nature of injuries reveals that the injuries
were inflicted upon them not only during running but also when
they had fallen on the ground and even after their last breath.
234. On the basis of the above post-mortem examination
on the bodies of Parimal Saha and Jiten Saha, Dr. Jyotirmoy
Ghosh had submitted preliminary post-mortem report. After
submission of preliminary post-mortem report, Dr. Jyotirmoy
Ghosh had submitted post-mortem report in the prescribed
format. Those reports have been proved and marked as
Exbt.31 and Exbt.32.
Page 131 of 216
235. The learned counsels appearing for the accused
persons have found illegality in marking those post-mortem
examination reports and marking of the same as Exbts.31 and
32. Their contention is that, these being certified copies of the
original and being secondary evidence , could not be proved in
the manner, as was allowed to be proved by the learned trial
Court.
236. In course of trial, it was found that Dr. Jyotirmoy
Ghosh expired and his daughter, namely Soma Ghosh was
brought to prove the said preliminary examination report which
was written by her father. She appeared in the witness box as
PW46. She has deposed that her father is no more in the world
and he died in the year 2011. She further has deposed that she
knows the handwriting and signature of her father. Then, the
attention of the witness was drawn to the post-mortem reports
on record in respect of deceased Parimal Saha and Jiten Saha
and on perusal of those documents, PW46 has confirmed that
those were written by her father and those contains signature
of her father with seal. On identification, the preliminary post-
mortem reports of Parimal Saha is marked as Exbt.25 as a
whole and post-mortem report of Jiten Saha conducted by her
father is marked as Exbt.26 as a whole. Those documents were
taken into evidence subject to objection.
Page 132 of 216237. As we said earlier that the learned counsel for the
accused persons has led much emphasis on the issue that
Exbt. 31 and 32 being certified copies of the original copy of
the post- mortem report it should not be taken into evidence.
Having due regard to this submission, we have compared the
contents of Exbt.31 and 32 with the contents of the injury
reports being exhibits 25 and 26 i.e. preliminary post mortem
reports of deceased Parimal Saha and Jiten Saha as was
conducted by Dr. Jyotirmoy Ghosh. We find that the basic
features of the injuries mentioned in Exbt.24 and 25 and
Exbt.31 and Exbt. 32 are similar and identical. In the instant
case, from the order sheets of the learned trial Court, it is
revealed that many original alamats(Material objects)
containing various records/documents were found missing from
court‟s Malkhana. In course of trial it is found that the original
post mortem reports were not found with the judicial records.
As such, the learned Special Public Prosecutor had filed an
application for bringing those certified copies of the post
mortem reports as evidence. The order sheet dated
08.02.2016 passed by the learned trial Court has evinced that
against the said application filed on behalf of the prosecution,
the defence has also filed written objection and a detailed
hearing took place before the learned trial Court. For
convenience, the relevant portion of the order dated
11.02.2016 passed by the learned trial Court may be
reproduced here-in-below for convenience, in extenso:-
Page 133 of 216―11.02.2016
.......On perusal of the case record it is clear that the
original post mortem reports of Parimal Saha and Jiten
Saha are not available in the case record at all. There
are two carbon copies of the postmortem reports of
Parimal Saha and Jiten Saha available in the case
record and as such the prosecution failed to taken into
those documents in evidence at the time of
examination of PW 46 , Smti Soma Ghosh, daughter of
late Dr. Jyotirmoy Ghosh, who actually conducted the
post mortem examination of the deceased Parimal
Saha and Jiten Saha. On the submission of Learned
defence counsel it is also clear that on 22.4.1983 the
Medical Superintendent of V.M. Hospital forwarded the
duplicate copies of the P.M. report of Parimal Saha and
Jiten Saha to the Superintendent of Police, West
Tripura. So it is obviously clear that those
duplicate/carbon copies were prepared from the
original P.M. reports of Parimal Saha and Jiten Saha by
one uniform process itself. Moreover, the evidence so
far recorded in this trial and the trend of cross
examination of the defence , it is not the case of
defence that deceased Parimal Saha and Jiten Saha
were not murdered on 7.4.1983 . Therefore, it is clear
that defence did not raise any dispute regarding the
genuineness of the P.M. reports rather there only
dispute as to whether those certified copies were
prepared from the original P.M. report of Parimal Saha
and Jiten Saha or not. It is also contended that as it
was prepared from the copies , hence the same are not
taken into evidence as per section 90 of Evidence Act.
Now let me look into the law. Any document filed by
either parties, passes through three stages before it is
held proved or disproved.These are : in the first stage- when the documents are filed by either parties in the
court , these documents though on file , do not form
part of the judicial record. In the second stagewhen
documents are tendered or produced in evidence by a
party and the court admits the documents in evidence ,
such document becomes a part of Judicial record of the
case and in the third stage - when the court is called
upon to apply its judicial mind, the documents which
are held proved , not proved or dis-proved by reference
to section 3 of Evidence Act it constitute evidence. In
the case in hand , the P.M report have already became
the part of the Judicial record and the defence counsel
have never raised any objection in that aspect .
Moreover the genuineness of the report are also not
disputed ,therefore, in view of section 294 of Cr.P.C
when the genuineness of the P.M. report are not
disputed by any of the parties, it could be looked into
for all practical purposes and it is a piece of evidence
on which the prosecution as well as the defence can
rely upon and it is clearly an admissible evidence
notwithstanding the fact that the maker of P.M reports
have not appeared before the court to prove its
genuineness. At the time of argument though the
defence pleaded in their written objection that the post
mortem report is not a public document , but in
support of such contention they did not show any
Page 134 of 216authority of law. But in a decision reported in 1995
Cr.L.J 1742 in para 15 the Hon'ble Delhi High Court
observed that ................‖ it must also said that MLC is
prepared by public servant in discharge of his duties ,
that documents is prepared in due course of his duties
as public servant and therefore, it would be a public
document . The contents of public document will be
admissible in evidence ...‖
In the instant case also the post mortem report
was prepared by a Government Doctor in discharge of
his official duties, therefore, the post mortem report be
treated as public document. Apart from this , in a
decision reported in AIR -1989 SC 702 , the Hon'ble
Supreme Court in para 4 of its decision held that
...........‖ section 32 of Evidence Act provides that when
a statement written or verbal , is made by a person in
discharge of professional duty , whose attendance can
not be procured without an amount of delay. The same
is relevant and admissible in evidence. Besides since
the carbon copy was made by one uniform process, the
same was primary evidence within the meaning of
explanation - 2 to section 62 of the Evidence Act.
Therefore, the medical certificate Ex.P-E was clearly
admissible in evidence. .........‖ Considering the
aforesaid circumstances and in all probabilities of law
as mentioned above, I do not find any scope to reject
the prayer of prosecution in respect of admitting the
certified copies of Post Mortem report of deceased
Parimal Saha and Jiten Saha into evidence without
being proved by calling witness/ maker of it as the
same are certified copies of public documents invoking
the provision of Section 77 and 79 of the Evidence Act.
Hence, the petition filed by the prosecution is hereby
allowed. The certified copies of the P.M. reports are
also marked as Exhibit-31 and 32 as a whole
respectively.‖238. Thereafter, from the subsequent part of the order
dated 11.02.2016, passed by the learned trial Court, it is
revealed that the learned trial Court rejected the application
filed by the accused persons to file revision petition before the
High Court challenging the decision of the learned trial Court
about the admissibility of certified copies of the post mortem
reports relating to Parimal Saha and Jiten Saha into evidence.
Learned trial Court while rejecting the said application has
observed thus:-
Page 135 of 216
"11.02.2016
A petition is filed on behalf accused persons
seeking time to postpone the examination of accused
persons under Section 313 of Cr.P.C. as they have
intended to file a revision petition before the Hon'ble
High Court against the order of admissibility of certified
copy of Post Mortem report into evidence. Heard both
sides.I do not find any cogent reason to postpone
examination of accused persons under Section 313,
Cr.P.C. at this stage. Hence the prayer is rejected. All
the accused persons are hereby examined under Section
313, Cr.P.C. in supplementary form to which they denied
the questions and inclined to adduce D.Ws in their
defence. Accused persons are asked to furnish the list of
D.Ws by the next date positively. Fix 18.02.2016 for
furnishing list of D.Ws/ further order.‖239. We do not find any such order later on as to
whether the defence i.e. the accused persons had preferred
any revision petition before the High Court and the
consequence whereof also in course of argument has not been
traced out in the order sheets. More so, in course of hearing
before this Court none of the learned counsels appearing for
the accused persons has submitted that the High Court has
interfered with the order of the trial Court dated 11.02.2016
wherein certified copies of the post mortem reports relating to
Parimal Saha and Jiten Saha were taken into evidence and
marked as Exbt.31 and 32 as a whole respectively. As such,
there cannot be any doubt about genuinity of Exbts. 31 32
since their admission into evidence has attained finality.
Accordingly, we have no hesitation to give due weightage to
Exbt.31 and 32 as substantial evidence in the context of the
present case.
Page 136 of 216
240. In this regard, we may gainfully refer the decision in
Kaylia Vs State of Madhya Pradesh, (2013) 10 SCC 758,
the Apex Court while dealing with the admissibility of dying
declaration has held thus:
"13. Section 65(c) of the Act 1872 provides that
secondary evidence can be adduced relating to a
document when the original has been destroyed or
lost, or when the party offering evidence of its
contents cannot, for any other reason, not arising
from his own default, or neglect, produce it in
reasonable time. The court is obliged to examine the
probative value of documents produced in court or
their contents and decide the question of
admissibility of a document in secondary evidence.
(Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam,
AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal
Anr. v. M.S.S. Food Products, (2012) 2 SCC 196).
However, the secondary evidence of an ordinary
document is admissible only and only when the party
desirous of admitting it has proved before the court
that it was not in his possession or control of it and
further, that he has done what could be done to
procure the production of it. Thus, the party has to
account for the non-production in one of the ways
indicated in the section. The party further has to lay
down the factual foundation to establish the right to
give secondary evidence where the original document
cannot be produced. When the party gives in
evidence a certified copy/secondary evidence without
proving the circumstances entitling him to give
secondary evidence, the opposite party must raise an
objection at the time of admission. In case, an
objection is not raised at that point of time, it is
precluded from being raised at a belated stage.
Further, mere admission of a document in evidence
does not amount to its proof. Nor, mere marking of
exhibit on a document does not dispense with its
proof, which is otherwise required to be done in
accordance with law. (Vide: The Roman Catholic
Mission v. The State of Madras, AIR 1966 SC
1457; Marwari Khumhar Ors. v. Bhagwanpuri Guru
Ganeshpuri Anr., AIR 2000 SC 2629; R.V.E.Page 137 of 216
Venkatachala Gounder v. Arulmigu
Viswesaraswami and V.P. Temple Anr., AIR 2003
SC 4548; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004
SC 4082; and Life Insurance Corporation of India
Anr. v. Rampal Singh Bisen, (2010) 4 SCC 491).14. In M. Chandra v. M. Thangamuthu Anr., (2010)
9 SCC 712, this Court considered this aspect in detail
and held as under:"47. We do not agree with the reasoning of the High
Court. It is true that a party who wishes to rely upon
the contents of a document must adduce primary
evidence of the contents, and only in the exceptional
cases will secondary evidence be admissible.
However, if secondary evidence is admissible, it may
be adduced in any form in which it may be available,
whether by production of a copy, duplicate copy of a
copy, by oral evidence of the contents or in another
form. The secondary evidence must be authenticated
by foundational evidence that the alleged copy is in
fact a true copy of the original. It should be
emphasised that the exceptions to the rule requiring
primary evidence are designed to provide relief in a
case where a party is genuinely unable to produce
the original through no fault of that party."
A similar view has been re-iterated in J. Yashoda v. K.
Shobha Rani, AIR 2007 SC 1721."241. In Prithi Chand Vs. State of Himachal Pradesh,
(1989) 1 SCC 432 the Apex Court while dealing with a similar
situation has held thus:
"4. ........................ The learned counsel for the
appellant contended that this certificate was
inadmissible in evidence since the prosecution has
failed to prove that the original certificate was lost
and not available. Section 32 of the Evidence Act
provides that when a statement, written or verbal, is
made by a person in the discharge of professional
duty whose attendance cannot be procured without
any amount of delay, the same is relevant and
admissible in evidence. Besides, since the carbon
copy was made by one uniform process the same was
primary evidence within the meaning of Explanation
Page 138 of 2162 to Section 62 of the Evidence Act. Therefore, the
medical certificate Ex.P-E was clearly admissible in
evidence. That apart, there is strong, reliable and
dependable evidence of the prosecution witnesses
which clearly proves that the prosecutrix was raped
by the appellant."242. In furtherance thereof according to us, the finding of
the learned trial Court with regard to admissibility of the
certified copies of the post mortem reports (Exbt.31 and 32)
does not suffer from any illegalities. Further, we find that
ocular evidence of P.W.1, P.W.2 and P.W.3 that they were
attacked by the accused persons who were armed with sharp
weapons like „dao‟, „ballam‟ etc. are sufficiently corroborated by
the medical evidence as contained in Exbts. 25, 26, 31 and 32.
Hence, it is proved beyond any shadow of doubt that Parimal
Saha and Jiten Saha were murdered due to the attack inflicted
upon them by several blows of sharp cutting weapons like
„dao‟, „ballam‟ etc.
243. It is the stage, we are to examine the injuries
suffered by Banu Miah and the medical reports thereof. P.W.3,
Banu Miah has stated in his evidence that as soon as he got
down from the jeep, Chinmoy Ghosh had thrown a bomb at
him which got burst on the ground, the splinters of which
damaged his left eye. P.W.21 Dr. Rajat Kanti Bhattacharjee has
stated in his evidence that on 07.04.1983 at 1:00 pm he
examined one Banu Miah i.e. P.W.3 and found the following
injuries:
Page 139 of 216
(1) Multiple uncountable lacerated burns with
splinters on face, scalp, chest and both hands.
(2) Left eye lid was damaged partially.
(3) Left eye ball was injured.244. He has stated that the injuries were simple in
nature and those might have been caused by a bomb. Banu
Miah was admitted with a history of bomb burst injury. The
said witness has further admitted that Banu Miah was received
at Bishalgarh PHC at 11 am on 07.04.1983 and got first-aid
treatment there. He has further stated that P.W.3 thereafter
was sent from Bishalgarh PHC at 12:10 pm as per reference
ticket of Bishalgarh PHC and was received in GB Emergency at
1:00 pm in conscious condition. There were multiple stitched
and dressed wound over his face, chest and both hands and
when he was bleeding profusely. The doctor has further
admitted that the general condition of the patient was poor and
he mentioned in his report that the injury was dangerous and
left eye was damaged due to which P.W.3 was admitted in GB
hospital.
245. In cross-examination, it is found that after
refreshing his memory with reference to the bed head ticket as
sent as per requisition of the trial court the witness has
deposed that Banu Miah was in the Surgical Department upto
28.04.1983 and thereafter he was referred to Eye Department.
But the patient did not tell him anything about the assailants
during his treatment under him. He identified his report which
Page 140 of 216is marked as Exbt.30 and his signature thereon was marked as
Exbt. 30/1(S.O. by defence). In his deposition, P.W.21 has
further stated that in the next page of his report he mentioned
as N.B. that Eye Surgeon, Dr. M.K.Bhowmik was consulted and
he made the said entry by ink. The said witness has admitted
that in the 2nd page regarding the injury, nature of injury was
prepared through carbon copies. The details of the injury
portion and his signature in the back side were made through
carbon impression as multiple copies were prepared. He has
denied in cross-examination that he has manipulated any of
the documents.
246. P.W.42, Dr. Mrinal Kanti Bhowmik is an Eye
Specialist with whom P.W.21 had consulted in regard to eye
injury suffered by P.W.3. Dr. Bhowmik (P.W.42) has stated in
his evidence that Banu Miah was referred to Eye Department
from another department on 09.04.1983 and he treated him.
He has admitted that Banu Miah had a lacerated injury on the
lids of his left eye with swelling. He had also rupture of cornea
etc. prolapsed with total hyphaema. He has further stated that
Banu Miah was an indoor patient and he was transferred to eye
department from surgical department. He has stated that at
the time of discharge, the left eye of Banu Miah (P.W.3) was
blind. According to him, the injury was possible by any kind of
trauma and the trauma which was suffered by P.W.3 could
have been caused by a bomb splinters.
Page 141 of 216
247. Being faced with the cross-examination he has
stated that Banu Miah did not disclose about the cause of his
injuries.
248. Mr. Kabir, learned counsel has tried to persuade this
Court to disbelieve the statements of both P.W.3 and P.W.42
as P.W.42 in his cross-examination has stated that this kind of
injury was also possible if anyone is hit by any glass splinters
with heavy force. According to us this statement of the doctor
that the nature of the injury as suffered by P.W.3 was also
possible by hit of the splinter of glass would have no
consequence since the doctor has specifically stated in his
evidence that the injury which has been suffered by Banu Miah
was due to trauma and that trauma would have been caused
by a bomb splinter. In contrast thereto, the question posed to
the doctor (P.W.42) is of vague in nature and not specific and
it is a general statement. Thus, we find no inconsistency in
regard to the ocular statement of P.W.3 regarding the cause of
injury he suffered on his person and the medical evidence of
the doctors (P.W.21 and 42). The said corroboration of
evidence in regard to total damage of his left eye out of bomb
splinters has further confirmed one of the important facts and
circumstances that the bombs were hurled at them by the
accused persons and particularly, it was the bomb which was
thrown by accused Chinmoy Ghosh that caused the damage of
his eye.
Page 142 of 216
249. Further, in the case in hand, on scrutiny of the
evidence, we find that P.W.2 Dilip Banik while fleeing away he
was looking back and he saw Sankar Saha was running behind
him. Then, they started to run together for a certain distance
and again looked back when they saw Mati Saha was also
going behind them. P.W.2 has further stated that he saw Mati
Saha when he ran for a distance of about 300 yards. Mati
Saha, P.W.1 has stated in his evidence that he saw his elder
brother Parimal was also running towards south by the eastern
side of the road being chased by the accused persons including
Satya Das who were armed with „dao‟ etc. and he saw that
some of the accused persons had dealt a „dao‟ blow to Parimal
when he fell down the ground and was further surrounded by
rest of the accused persons who were chasing Parimal.
250. Satya Das being a chaser out of those accused
persons who surrounded Parimal after he fell down. Now, if we
try to create a picture in front of us, we find that Mati Saha
was far behind of P.W.2 and Sankar Saha vis-a-vis ahead of
Parimal and naturally, he was able to follow about the position
of his elder brother Parimal and further, his evidence that he
saw the accused persons chasing his brother and surrounded
him afterwards is quite natural and carries enough credence
sufficient to inspire confidence in the mind of this Court. If we
concentrate to the severity with the blows inflicted upon the
deceased Parimal and Jiten, we find that their bodies were cut
Page 143 of 216into pieces and unhasitantly, we are of the conscious opinion
that all the convicted accused persons including Satya Das
participated in the entire sequence of events culminating into
in the murder of Parimal and Jiten including hatching of
criminal conspiracy, presence of that unlawful assembly till the
murder of Parimal Saha and Jiten Saha and also causing
grievous injuries in their attempt to murder P.Ws.1, 2 and 3.
251. Mr. Kabir, learned counsel in his attempt to
demolish the prosecution case in regard to the fact that it was
the Q-dodge truck that blocked the road compelling the jeep of
Parimal Saha to stop at the tri-junction, has tried to persuade
this court that the jeep of Parimal Saha had collided with the
Q-dodge truck when both the vehicles were in motion.
252. Mr. Kabir, learned counsel has further questioned
that had the Q-dodge truck been blocked the road, and there
was hurling of bombs, then, the Q-dodge truck also would have
been affected with the bombs. Learned counsel has further
questioned as to why the Q-dodge truck was not sent for
forensic analysis to find out whether there was any bomb
explosion at the place of occurrence.
253. In view of the above submissions, if we revisit the
evidence of P.W.5, who narrated the pre-occurrence situation
at Office Tilla has stated that while he was returning back from
his sister‟s house, he saw a Q-dodge truck at the tri-junction.
Page 144 of 216Further, from the photographs (Exbt. P/5 to P/7 series) which
Mr. Kabir had shown to us in course of hearing itself are
sufficient to dislodge such submission of the learned counsel
when we have seen that the front bumper of the jeep remains
intact and un-affected, without any doubt. The pictures further
throw a light that the bonnet of the jeep which was dented in
our thoughtful consideration, might be due to bomb explosion
or by any other means which also could be caused by heavy
materials. A bird‟s eye view to the photographs aptly shows the
mark of bomb affect at the body of the jeep. Moreover, there is
no reason to disbelieve the ocular versions that it was the Q-
dodge truck that blocked the road and forcing the jeep of
Parimal Saha to stop therein. Again, from the evidence of
P.W.17, Muslem Miah, who was working as an Assistant of that
Q-dodge truck being No. TRL-529, though was declared hostile,
it has further come to light that the Q-dodge truck was not in
motion, rather, the said witness has stated that on the day of
incident two persons hired their vehicle to take away some
construction materials from Office Tilla to Bishalgarh. They
reached at Office Tilla at about 8-30/9-00 am when those two
persons asked them to keep their vehicle on the road going
towards west. Thereafter, those two persons went away asking
them to wait. Thereafter, they decided to take tea in a tea
stall. Then he suddenly stated that he could perceive that a
jeep came and collided with the truck. After 5/7 minutes they
fled away with the truck and the vehicle was stopped by the
Page 145 of 216police at the Drop Gate at A.D.Nagar. On critical analysis of his
evidence, we firstly find that the Q-dodge truck was hired by
two persons when it was waiting on the road and after about
5/7 minutes of the incident they fled away with the truck.
254. According to us, though P.W.17 was declared
hostile, we may use that part of his evidence to the extent it
supports the prosecution case. From his evidence coupled with
the factum of damage of the jeep, we may arrive at a clear
finding that the jeep was never collided with the truck; and the
prosecution story that it was the Q-dodge truck who blocked
the road forcing Parimal Saha to stop his jeep has been proved
beyond any shadow of doubt. Another question which naturally
arises in the circumstances of the case is as to why the truck
driver Mafiz Miah absconded and did not face trial and he
remained untraceable throughout the trial. Had he not been
one of the conspirators and part and parcel of the murderous
assault, he would have easily faced the trial to prove his
innocence.
255. In regard to the question posed by the learned
counsel as to why the Q-dodge truck as well as the jeep were
not sent for forensic analysis, our simple answer is that it may
be a defect on the part of the investigating agency, but, failure
on the part of the police officer to do that would not by itself
wipe out the prosecution case, particularly in view of the
proven facts that the said vehicle was hired by two persons
Page 146 of 216and was waiting near the place of occurrence, its subsequent
seizure by the police and the absconsion of the driver-accused
Mafiz Miah, the ocular evidence of the victim eye-witnesses
(P.Ws 1, 2 and 3) coupled with the ocular versions of P.W.5 as
we discussed in the preceding paragraphs in connection with
case no Crl. A(J) 35/2016.
256. In our considered view, defective or illegal
investigation should not be always fatal if the substratum of
the offence is proved beyond reasonable doubt by either direct
or circumstantial evidence.
257. In this context, we may gainfully refer the case of
Sheo Shankar Singh V. State of Jharkand , (2011) 3 SCC
654, wherein the Apex Court in Para 57,58 and 59 has
observed thus:-
―57. In Amar Singh v. Balwinder Singh and Ors.
(2003) 2 SCC 518 the investigating agency had not sent
the firearm and the empties to the forensic science
laboratory for comparison. It was argued on behalf of
the defence that omission was a major flaw in the
prosecution case sufficient to discredit prosecution
version. This Court, however, repelled that contention
and held that in a case where the investigation is found
to be defective the Court has to be more circumspect in
evaluating the evidence. But it would not be right to
completely throw out the prosecution case on account of
any such defects, for doing so would amount to playing
in the hands of the investigating officer who may have
kept the investigation designedly defective.58.This Court said in Balwinder Sing (supra) said:
"15.....It would have been certainly better if the
investigating agency had sent the firearms and the
empties to the Forensic Science Laboratory for
comparison. However, the report of the ballistic
expert would in any case be in the nature of an
expert opinion and the same is not conclusive. The
failure of the investigating officer in sending the
firearms and the empties for comparison cannot
completely throw out the prosecution case when
Page 147 of 216the same is fully established from the testimony of
eyewitnesses whose presence on the spot cannot
be doubted as they all received gunshot injuries in
the incident."58. In the light of the above the failure on the part of the
investigating officer in sending the blood stained clothes
to the FSL and the empty cartridges to the ballistic
expert would not be sufficient to reject the version given
by the eye witnesses. That is especially so when a
reference to the ballistic expert would not have had
much relevance since the weapon from which the bullets
were fired had not been recovered from the accused and
was not, therefore, available for comparison by the
expert.‖258. Mr. KK Roy, learned counsel appearing for the
accused Chinmoy Ghosh has contended that the said accused
has been deprived of being afforded reasonable opportunity to
prove his innocence on his plea of alibi as he being a bank
employee was on official duty on the date of incident. It is
contended that the said accused, in course of trial, had
submitted application to adduce evidence in his defence and
had urged the court to call for a bank official in the witness
box. This brings us to go through the judgment of the learned
trial court and the order sheets and we find that he was given
sufficient opportunity to produce the witness of his choice
which he wanted to produce in his defence, but, despite
providing opportunities for reasonable dates he had failed to
produce the witness and the learned trial court proceeded with
the trial in accordance with law. Having regard to this aspect,
we are unable to accept the submission of Mr. Roy, learned
counsel appearing on behalf of accused-appellant No.7 in Crl.A.
(J) 35 of 2016, that he was not given opportunity to adduce
evidence in his defence. Accordingly, we repel this submission
Page 148 of 216of the learned counsel. Furthermore, there is direct evidence
against accused Chinmoy Ghosh who threw bomb at Banu Mia
(PW-3) causing his left eye total blind.
Discussion and findings on criminal conspiracy
259. In the instant case the accused persons have been
charged under Section 120(B) of IPC for committing offence of
criminal conspiracy with the common object of murder of
Parimal Saha and others.
260. Let us reproduce Section 120(B) of IPC. It stipulates
thus:
"120B. Punishment of criminal conspiracy.--
(1) Whoever is a party to a criminal conspiracy
to commit an offence punishable with death,
[imprisonment for life] or rigorous imprisonment for a
term of two years or upwards, shall, where no express
provision is made in this Code for the punishment of
such a conspiracy, be punished in the same manner as if
he had abetted such offence.(2) Whoever is a party to a criminal conspiracy
other than a criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with
imprisonment of either description for a term not
exceeding six months, or with fine or with both.]‖261. A bare reading of the said Section crystalizes that
the essence of criminal conspiracy is that there must be an
agreement by two or more persons to do an illegal act and
such agreement can be proved either by direct evidence or by
circumstantial evidence or by both. It is worthy to note that
there is no distinction between the methodologies of proof of
Page 149 of 216the offence of criminal conspiracy with that of any other
offence. The factum of criminal conspiracy can be established
by direct or circumstantial evidence. Privacy and secrecy are
pre-dominant characteristics of a conspiracy rather than a loud
discussion in an elevated place open to public view. Generally,
a conspiracy is hatched in secrecy and it may be difficult to
adduce direct evidence of the same. Direct evidence in proof of
a conspiracy is not always available. Further, it is not always
possible to give affirmative evidence about the exact date of
the formation of the criminal conspiracy, about the persons
who took part in the formation of the conspiracy, about the
object which the objectors set before themselves as the object
of conspiracy, and about the manner in which the object of
conspiracy is to be carried out. All these unnecessarily are
matters of inference. The prosecution will often rely on
evidence of acts of various parties to infer that they were done
in consequence of their common intention.
262. In Rajiv Kumar Ors. Vrs. State of U.P. Ors.,
MANU SC 0932/2017: (2017) 18 SCC 791 laying down the
principle of proof of criminal conspiracy has observed thus
(Para 44 and 45):
―44. The essential ingredients of the offence of
criminal conspiracy are: (i) an agreement between
two or more persons; (ii) the agreement must relate
to doing or causing to be done either (a) an illegal act;
or (b) an act which is not illegal in itself but is done by
illegal means. It is, therefore, plain that meeting of
minds of two or more persons for doing or causing to
be done an illegal act or an act by illegal means is sine
Page 150 of 216qua non of criminal conspiracy. It is extremely difficult
to adduce direct evidence to prove conspiracy.
Existence of conspiracy and its objective can be
inferred from the surrounding circumstances and the
conduct of the accused. In some cases, indulgence in
the illegal act or legal act by illegal means may be
inferred from the knowledge itself.45. After referring to Yash Pal Mittal v. State
of Punjab, MANU/SC/0169/1977:(1977) 4 SCC 540
and Ajay Aggarwal v. Union of India and
Ors. MANU/SC/0265/1993:(1993) 3 SCC 609,
in State of Maharashtra and Ors. v. Som Nath
Thapa and Ors. MANU/SC/0451/1996: (1996) 4 SCC
659 in para (24), it was held as under:-―24. The aforesaid decisions, weighty as they
are, lead us to conclude that to establish a
charge of conspiracy knowledge about indulgence
in either an illegal act or a legal act by illegal
means is necessary. In some cases, intent of
unlawful use being made of the goods or services
in question may be inferred from the knowledge
itself. This apart, the prosecution has not to
establish that a particular unlawful use was
intended, so long as the goods or service in
question could not be put to any lawful use.
Finally, when the ultimate offence consists of a
chain of actions, it would not be necessary for
the prosecution to establish, to bring home the
charge of conspiracy, that each of the
conspirators had the knowledge of what the
collaborator would do, so long as it is known that
the collaborator would put the goods or service
to an unlawful use.‖ The above judgment was
quoted with approval in Ram Narain Popli v.Central Bureau of Investigation
MANU/SC/0017/2003:(2003) 3 SCC 641.‖263. In the backdrop of aforesaid legal proposition, we
are to appreciate the evidence led by the prosecution keeping
in pace with the submissions/arguments of the learned counsel
appearing for the accused persons to find out the guilty mind
behind the murders and assault. What was the motive and
simultaneously we have to take note of the fact that what
prompted the accused persons to make the criminal
Page 151 of 216conspiracy. From the evidence of P.W.1, 2 and 3 and being
corroborated by other evidence it is established that there is
political rivalry between the groups of Parimal Saha who was
elected as MLA from Congress (I) Party and the groups of
accused persons being leaders/supporters of CPI(M) Party. The
defence i.e. the accused persons have tried to project a case
that the injured persons were the rouges and they were
entangled with some criminal cases under Bishalgarh Police
Station.
264. We deem it appropriate to start with the acts and
commissions of Ranjit Dasgupta (A-18). A critical analysis of
the evidence outlined above, it is clear that Ranjit Dasgupta
(A-18) was the personal security guard of deceased MLA,
Parimal Saha appointed with sanction of the competent
authority of the Home Department. On the fateful day i.e. on
07.04.1983 it has been proved that he was found at the shop
of Jatindra Shib, a clock repairer. It has come to light that
despite repeated requests by P.W.1 he refused to accompany
Parimal Saha to go to the office of BDO, Bishalgarh to
participate in the BDC election where Parimal Saha wanted to
contest the post of Chairman as a Congress(I) candidate. The
said statement of P.W.1 was corroborated by P.W.4, Usha
Ranjan Sarkar who also requested Ranjit Dasgupta to go with
Parimal. But Ranjit told P.W.4 that he would go to the house of
Upendra Debnath of Laxmibill when P.W.4 again told him that
Page 152 of 216there was no Upendra Debnath at Laxmibill. That Ranjit
refused to accompany Parimal i.e. in other words the fact that
Ranjit, A-18, would not perform his official duty as personal
security guard of deceased MLA, Parimal Saha on 07.04.1983
was also informed to the Officer-in-Charge of the Police
Station. Even Parimal Saha requested the O.C. to arrange for
substitute. This fact about the role of Ranjit, A-18 has been
proved even by P.W.28, Kshitish Ch. Deb, the then O.C. of
Bishalgarh P.S. in his evidence.
265. The second episode of conspiracy has transpired
from the fact that in course of investigation, the first I.O.
Prabir Dasgupta has seized a copy of a complaint written by
Parimal Saha 25.12.1978 addressed to the O.C., Bishalgarh
P.S. with a copy to the Prime Minister of India, Chief Minister of
Tripura, IGP and SP of West Tripura which was seized by I.O.
on being produced by P.W.4 (Exbt.P/2). The said letter is a
carbon copy where there is receipt seal of the Bishalgarh Police
Station and the execution and the contents of the documents
of the said Exbt.P/2 has been proved by P.W.4 as he has
stated in his evidence that he knows the handwriting and
signature of Parimal Saha and this complaint was written by
the deceased MLA Parimal Saha. The said Exbt.P/2 also
contains the signature of P.W.4 which also has been identified
by him and marked as Exbt.P-2/1. Though this letter may not
have a direct bearing to prove the charge of criminal
Page 153 of 216conspiracy against the accused persons still it throws a light
that the life of Parimal Saha was always under a threat and he
also had allegations against the particular political party
namely CPI(M) that he may be murdered its henchman and
had urged the police to arrange adequate security for him.
Most importantly, in the said letter dated 25.12.1978
(Exbt.P/2), deceased Parimal Saha had particularly named
Duldul Sengupta, Pradul Sengupta, Pradul alias Abu
Sengupta,Mrinal Sengupta, Abhoy Kanti Bhusan, being
members of „killing gang‟ along with others. Curious enough,
the said persons also are included as accused persons in the
instant case.
266. The third episode in this regard, we may gather
from the evidence of P.W.28 itself that he has stated in course
of trial that he received a letter from CPI(M) MLA, Bhanulal
Saha on 07.04.1983 at about 10:00 am, the fact of which he
entered in the General Diary Book. Most importantly, the
contents of the said letter of Bhanulal Saha also was
reproduced in the seizure list which has been proved and
marked as Exbt.P/17. The said seizure list has been proved by
P.W.45, Bhaskar Chakraborty who happened to be the son of
prime Investigating Officer of the case, Lt. Ram Narayan
Chakraborty who retired as Dy.SP and expired on 28.01.2006.
He has stated that being eldest son he knows the hand writing
of his father both in Bengali and English and also numerical
Page 154 of 216both in Bengali and English. The said witness has stated that
on 07.04.1983 his father was posted as Inspector of Police at
CID. P.W.45 has further stated that he also is a police
personnel and is well acquainted how to write and read a CD.
Then his attention was drawn to the CD of the case starting
from 07.04.1983. After seeing the case diary, the witness has
confirmed that in the CD there is entry made by his father
under his handwriting and seal that he started investigation on
that date. Attention of the said witness was drawn to a seizure
list dated 10.04.1983 where a witness has proved his signature
as Exbt.P/17. He has identified the said seizure list prepared by
his father on his own handwriting and signature. On
identification the handwriting and signature of the I.O. R.N.
Chakraborty, the seizure list was marked as Exbt. 17/1. The
said seizure list is reproduced here-in-below, for reference and
convenience:
"Seizure list
Ref: Bishalgarh P.S. Case No.8(4)83 u/S
148/149/302/326/307/120 B IPC and 3/5 of E.S. Act.In c/w the above noted case, I seized the
following document on production by O/C, BLG PS in
presence of witnesses on 10.4.83 at 20-45 hrs.
Names of witnesses:1. Sri B. Datta Choudhury, S.I. of Police (Sd/- illegible,
10/4/83)[Exbt.P-17, ST 17(WT/A)83, dt.16.07.87]2. Sri A.K.Das, S.I. of Police, BLG P.S.(Sd/- illegible)
One letter of M.L.A. Bhanulal Saha addressed to
O.C., Bishagarh P.S. on 7.4.83 in M.L.A.'s Pad
requesting O.C. P.S. for arranging Police protection at
places in between Block to Bazar within 10.15 hrs as
exhibit.Seized by me, Sd/- illegible, Inspector of Police,
CID,10.4.83.[Exbt.17/1]‖
Page 155 of 216267. P.W.45, as son of the then I.O. has categorically
stated that this is the seizure list which was written by his
father in his own handwriting which also bore his signature.
268. The fourth episode in regard to conspiracy, we find
from the evidence of P.W.5 who has stated that while he was
taking tea in his cousin sister‟s house, Pradul Sengupta, i.e. the
elder brother of Pranab Sengupta came home and told his
mother that there was going to be a disturbance in the Office
Tilla within a short while when his sister asked him to wait and
accordingly the said witness waited there for about 10/12
minutes. P.W.5 has further stated that he went back to his
shop in his bicycle through Office Tilla at about 10:30 am and
at that time he saw Dula Sengupta and Shasthi Chakraborty
were sitting in front of Bapan Stores. Most significantly, the
said witness categorically stated that he saw a truck bearing
No. TRL 529 was standing at a distance of about 4/5 cubits
from the house of the owner called Bapan Stores. It was
standing on the road to Laxmibill and when he was
approaching south by Udaipur-Agartala road then he saw
20/25 people were going towards north from south by the
same road. He knew 5(five) of them and they were Satya Das,
Bijoy Das, Tapan Das and two sons of a sweeper whose names
he does not know. All of them were identified by P.W.5 in the
Court. P.W.5 has further stated that when he was in front of
Page 156 of 216the petrol pump of Bishalgarh, Parimal Saha and others were
going towards north in jeep by Udaipur-Agartala road.
269. As we said earlier, criminal conspiracy is not easy to
prove, the existence of the conspiracy has to be inferred or
deduced from the manner the offender invariably deliberate,
plan and act in secret over a period of time. It is not necessary
that each one of them must have actively participated in the
commission of the offence or was involved in it from start to
finish. What is important is that they were involved in the
conspiracy or in other words there is a combination of
agreement, which may be expressed or implied or in part
implied. Conspiracy arises and the offence committed as soon
as the agreement is made and offence continues to be
committed so long as the combination persists, i.e. until
conspiratorially agreement is terminated by completion of its
performance or by abandonment or frustration. The court has
to be satisfied that there is a reasonable ground to believe the
existence of the conspiracy and that is a matter for judicial
inference from proved facts and circumstances. Once the
existence of conspiracy is proved or held to exist, no doubt on
relevant evidence, every act, declaration and writing of any
one of the conspirators referable to the common intention will
be relevant. Hearsay is not excluded if it could be brought
within the parameters of Section 10 of the Evidence Act.
Page 157 of 216270. P.W.18 has stated in his evidence that on
07.04.1983 he saw some burnt papers with smell of gun
powder, some half burnt jute thread with the smell of gun
powder, some blood stained earth, some cut hair, a bag made
of rexine, a few letters, one of which was a letter written by
Rajendra Kumari Bajpai to Parimal, a letter of the meeting of
B.D.C., a black rexine bag with zip fastener and a few other
things at the crossing of Agartala-Bishalgarh road and the road
leading to Laxmibill to the east.
271. P.W.18 has further stated that he also saw a jeep
bearing No. of DED 4279. The police seized all those things in
his presence and he put his signature in the seizure list as a
witness which was marked as Exbt. P.7. Thereafter, while he
proceeded further towards south for a distance of about 5/7
cubits, he saw a locket with the picture of Anandamayee Ma,
some blood stained earth, a piece of bone, a piece of small
wood having blood stains. He has stated that those articles
were seized after preparing a seizure list, the said witness has
identified his signature in the seizure list and the seizure list
has been exhibited and marked as Exbt. P.8. He has further
stated that they came back to Bishalgarh where police seized
the blood stained shirt of Mati Lal Saha, at a medicine shop, at
about 5 pm and Darogababu also prepared a seizure list on
which he signed as witness and being identified his signature
Page 158 of 216was marked as Exbt. P.9. He identified the seized jeep placed
in front of the Court which was marked as Exbt. M.O.1.
272. In the present case, refusal of Ranjit Dasgupta, A-
18 to accompany deceased MLA, Parimal Saha despite
repeated requests, the letter dated 25.12.1978 written by
Parimal Saha which also was received by the O.C. of Bishalgarh
P.S., letter dated 07.04.1983 of Bhanulal Saha, the MLA, the
material description of the surroundings of Office Tilla and
identification of some of the accused persons in an around the
place of occurrence, the completion of the purpose of their
conspiracy by way of causing the murder of Parimal Saha and
subsequent seizure of articles and material objects have
reasonably proved that the accused persons were the
conspirators behind the agreement which was hatched secretly.
If for a moment we question ourselves why MLA, Bhanu Lal
Saha had written a letter at 10:00 am on the date of crime
itself i.e. 07.04.1983 to increase vigilance on the Udaipur-
Agartala road between Bishalgarh bazar to Office Tilla, then,
we may come to a reasonable conclusion that after having
some smells of conspiracy and commission of offence, he
without loss of time informed the police to take appropriate
action only with the intention to save the life of Parimal Saha.
The fact that Parimal Saha would be murdered on that date
was also known to Ranjit Dasgupta, A-18 and it was the only
reason for his refusal to go to BDO Office with Parimal Saha.
Page 159 of 216273. P.W.28, Kshitish Ch. Deb, the then O.C., Bishalgarh
P.S. has also stated in his evidence that a disciplinary
proceeding was also initiated against Ranjit Dasgupta, A-18 for
failure to discharge his official duties. According to us, these
are the important and significant aspects of the case based on
which we may reasonably infer to a conclusion that all the
accused persons had hatched a conspiracy only with the
intention and specific motive to kill Parimal Saha and the
murder of Parimal Saha was the result of a pre-planned and
well orchestrated act of the accused persons. The learned trial
Court has correctly relied on the decision of Firozuddin
Basheeruddin and Ors. Vrs. State of Kerala,
MANU/SC/0471/2001 : (2001) 7 SCC 596 wherein the
Apex Court has held in Para 23,24,25,26,27,28 and 29 as
follows:
―23. Like most crimes, conspiracy requires an act
(actus reus) and an accompanying mental state (mens
rea). The agreement constitutes the act, and the
intention to achieve the unlawful objective of that
agreement constitutes the required mental state. In the
face of modern organised crime, complex business
arrangements in restraint of trade, and subversive
political activity, conspiracy law has witnessed expansion
in many forms. Conspiracy criminalizes an agreement to
commit a crime. All conspirators are liable for crimes
committed in furtherance of the conspiracy by any
member of the group, regardless of whether liability
would be established by the law of complicity. To put it
differently, the law punishes conduct that threatens to
produce the harm, as well as conduct that has actually
produced it. Contrary to the usual rule that an attempt
to commit a crime merges with the completed offense,
conspirators may be tried and punished for both the
conspiracy and the completed crime. The rationale of
conspiracy is that the required objective manifestation of
disposition to criminality is provided by the act of
Page 160 of 216agreement. Conspiracy is a clandestine activity. Persons
generally do not form illegal covenants openly. In the
interests of security, a person may carry out his part of a
conspiracy without even being informed of the identity of
his co-conspirators. Since an agreement of this kind can
rarely be shown by direct proof, it must be inferred from
circumstantial evidence of co-operation between the
accused. What people do is, of course, evidence of what
lies in their minds. To convict a person of conspiracy, the
prosecution must show that he agreed with others that
together they would accomplish the unlawful object of
the conspiracy.24. Another major problem which arises in connection
with the requirement of an agreement is that of
determining the scope of a conspiracy-who are the
parties and what are their objectives. The determination
is critical, since it defines the potential liability of each
accused. The law has developed several different models
with which to approach the question of scope. One such
model is that of a chain, where each party performs a
role that aids succeeding parties in accomplishing the
criminal objectives of the conspiracy. No matter how
diverse the goals of a large criminal organisation, there
is but one objective: to promote the furtherance of the
enterprise. So far as the mental state is concerned, two
elements required by conspiracy are the intent to agree
and the intent to promote the unlawful objective of the
conspiracy. It is the intention to promote a crime that
lends conspiracy its criminal cast.25. Conspiracy is not only a substantive crime. It also
serves as a basis for holding one person liable for the
crimes of others in cases where application of the usual
doctrines of complicity would not render that person
liable. Thus, one who enters into a conspiratorial
relationship is liable for every reasonably foreseeable
crime committed by every other member of the
conspiracy in furtherance of its objectives, whether or
not he knew of the crimes or aided in their commission.
The rationale is that criminal acts done in furtherance of
a conspiracy may be sufficiently dependent upon the
encouragement and support of the group as a whole to
warrant treating each member as a causal agent to each
act. Under this view, which of the conspirators
committed the substantive offence would be less
significant in determining the defendants liability than
the fact that the crime was performed as a part of a
larger division of labor to which the accused had also
contributed his efforts.26. Regarding admissibility of evidence, loosened
standards prevail in a conspiracy trial. Contrary to the
usual rule, in conspiracy prosecutions any declaration by
one conspirator, made in furtherance of a conspiracy and
Page 161 of 216during its pendency, is admissible against each co-
conspirator. Despite the unreliability of hearsay
evidence, it is admissible in conspiracy prosecutions.
Explaining this rule, Judge Hand said:―Such declarations are admitted upon no doctrine of
the law of evidence, but of the substantive law of
crime. When men enter into an agreement for an
unlawful end, they become ad hoc agents for one
another, and have made a partnership in crime.
What one does pursuant to their common purpose,
all do, and as declarations may be such acts, they
are competent against all. (Van Riper v. United
States 13 F.2d 961, 967 (2d Cir.1926).‖27. Thus conspirators are liable on an agency theory for
statements of co-conspirators, just as they are for the
overt acts and crimes committed by their confreres.28. Interpreting the provisions in Sections
120A and 120B of the IPC, this Court in the case of Yash
Pal Mittal v. State of Punjab MANU /SC/0169/1977: 1978
CriLJ 189, made the following observations:
―The offence of criminal conspiracy under Section 120-
A is a distinct offence introduced for the first time in
1913 in Chapter V-A of the Penal Code. The very
agreement, concert or league is the ingredient of the
offence. It is not necessary that all the conspirators must
know each and every detail of the conspiracy as long as
they are co-conspirators in the main object of the
conspiracy. There may be so many devices and
techniques adopted to achieve the common goal of the
conspiracy and there may be division of performances in
the chain of actions with one object to achieve the real
end of which every collaborator must be aware and in
which each one of them must be interested. There must
be unity of object or purpose but there may be plurality
of means sometimes even unknown to one another,
amongst the conspirators. In achieving the goal several
offences may be committed by some of the conspirators
even unknown to the others. The only relevant factor is
that all means adopted and illegal acts done must be and
purported to be in furtherance of the object of the
conspiracy even though there may be sometimes misfire
or overshooting by some of the conspirators. Even if
some steps are resorted to by one or two of the
conspirators without the knowledge of the others it will
not affect the culpability of those others when they are
associated with the object of the conspiracy. The
significance of criminal conspiracy under Section 120-
A is brought out pithily by this Court in Major E. G.
Barsay v. State of Bombay MANU/SC/0123/1961 : 1961
CriLJ 828 thus:Page 162 of 216
―The gist of the offence is an agreement to break
the law. The parties to such an agreement will be
guilty of criminal conspiracy, though the illegal act
agreed to be done has not been done. So too, it is
not an ingredient of the offence that all the parties
should agree to do a single illegal act. It may
comprise the commission of a number of acts.Under Section 43 of the Indian Penal Code, an act
would be illegal if it is an offence or if it is
prohibited by law. Under the first charge the
accused are charged with having conspired to do
three categories of illegal acts, and the mere fact
that all of them could not be convicted separately in
respect of each of the offences has no relevancy in
considering the question whether the offence of
conspiracy has been committed. They are all guilty
of the offence of conspiracy to do illegal acts,
though for individual offences all of them may not
be liable.‖
We are in respectful agreement with the above
observations with regard to the offence of criminal
conspiracy.29. In the case of Kehar Singh and Others v. State
(Delhi Administration, MANU/SC/0241/1988: 1989
CriLJ 1, a bench of three learned Judges in paras 271 to
276 held :―Before considering the other matters against Balbir
Singh, it will be useful to consider the concept of criminal
conspiracy under Sections 120-A and 120-B of IPC.
These provisions have brought the Law of Conspiracy in
India in line with the English law by making the overt act
unessential when the conspiracy is to commit any
punishable offence. The English law on this matter is well
settled. The following passage from Russel on Crime
(12th edn., Vol.I, p.202) may be usefully noted :
The gist of the offence of conspiracy then lies, not in
doing the act, or effecting the purpose for which the
conspiracy is formed, nor in attempting to do them, nor
in inciting others to the parties. Agreement is essential.
Mere knowledge, or even discussion, of the plan is not,
per se, enough.Glanville Williams in the Criminal Law (2nd edn. p.382)
explains the proposition with an illustration :
The question arose in an low case, but it was discussed
in terms of conspiracy rather than of accessory ship. D,
who had a grievance against P, told E that if he would
whip P someone would pay his fine, E replied that he did
not want anyone to pay his fine, that he had a grievance
of his own against P and that he would whip him at the
first opportunity. E whipped P. E was acquitted of
conspiracy because there was no agreement for ―concert
of action‖, no agreement to ―co-operate‖.
Page 163 of 216Coleridge,J., while summing up the case to jury in
Regina v. Murphy (173 ER 508) pertinently states :
I am bound to tell you, that although the common design
is the root of the charge, it is not necessary to prove that
these two parties came together and actually agreed in
terms to have this common design and to pursue it by
common means, and so to carry it into execution. This is
not necessary, because in many cases of the most
clearly established conspiracies there are no means of
proving any such thing, and neither law nor common
sense requires that it should be proved. If you find that
these two persons pursued by their acts the same
object, often by the same means, one performing one
part of an act, so as to complete it, with a view to the
attainment of the object which they were pursuing, you
will be at liberty to draw the conclusion that they have
been engaged in a conspiracy to effect that object. The
question you have to ask yourselves is, ―Had they this
common design, and did they pursue it by these
common means-- the design being unlawful?‖
It will be thus seen that the most important ingredient of
the offence of conspiracy is the agreement between two
or more persons to do an illegal act. The illegal act may
or may not be done in pursuance of agreement, but the
very agreement is an offence and is punishable.
Reference to Sections 120A and 120B IPC would make
these aspects clear beyond doubt. Entering into an
agreement by two or more persons to do an illegal act or
legal act by illegal means is the very quintessence of the
offence of conspiracy.Generally, a conspiracy is hatched in secrecy and it may
be difficult to adduce direct evidence of the same. The
prosecution will often rely on evidence of acts of various
parties to infer that they were done in reference to their
common intention. The prosecution will also more often
rely upon circumstantial evidence. The conspiracy can be
undoubtedly proved by such evidence direct or
circumstantial. But the court must enquire whether the
two persons are independently pursuing the same end or
they have come together in the pursuit of the unlawful
object. The former does not render them conspirators,
but the latter does. It is, however, essential that the
offence of conspiracy requires some kind of physical
manifestation of agreement. The express agreement,
however, need not be proved. Nor actual meeting of two
persons is necessary. Nor it is necessary to prove the
actual words of communication. The evidence as to
transmission of thoughts sharing the unlawful design
may be sufficient.Gerald Orchard of University of Canterbury, New Zealand
explains the limited nature of this proposition:
Although it is not in doubt that the offence requires some
physical manifestation of agreement, it is important to
Page 164 of 216note the limited nature of this proposition. The law does
not require that the act of agreement take any particular
form and the fact of agreement may be communicated
by words or conduct. Thus, it has been said that it is
unnecessary to prove that the parties ―actually came
together and agreed in terms‖ to pursue the unlawful
object: there need never have been an express verbal
agreement, it being sufficient that there was a ―tacit
understanding between conspirators as to what should
be done.‖
I share this opinion, but hasten to add that the relative
acts or conduct of the parties must be conscientious and
clear to mark their concurrence as to what should be
done. The concurrence cannot be inferred by a group if
irrelevant facts artfully arranged so as to give an
appearance of coherence. The innocuous, innocent or
inadvertent events and incidents should not enter the
judicial verdict. We must thus be strictly on our guard.‖274. While deciding the case of Firozuddin (supra), in
Para 32, the Supreme Court has also made reference to the
case of State through Superintendent of Police, CBI/SIT
etc. vs. Nalini Ors. etc. MANU/SC/0945/1999: 1999
CriLJ 3124, discussing the principles governing the law of
conspiracy in the case under Section 120A, 120B and 302 of
IPC, Wadhwa, J., summarized the principle in Para 583 as
follows:-
―32. Some of the broad principles governing the
law of conspiracy may be summarized though, as the
name implies, a summary cannot be exhaustive of the
principles.1.Under Section 120A IPC offence of criminal
conspiracy is committed when two or more persons
agree to do or cause to be done an illegal act or legal act
by illegal means. When it is a legal act by illegal means
overt act is necessary. Offence of criminal conspiracy is
an exception to the general law where intent alone does
not constitute crime. It is intention to commit crime and
joining hands with persons having same intention. Not
only the intention but there has to be agreement to carry
out the object of the intention, which is an offence. The
question for consideration in a case is did all the accused
have the intention and did they agree that the crime be
Page 165 of 216committed. It would not be enough for the offence of
conspiracy when some of the accused merely entertained
a wish, howsoever horrendous it may be, that offence be
committed.2. Acts subsequent to the achieving of the object
of conspiracy may tend to prove that a particular
accused was party to the conspiracy. Once the object of
conspiracy has been achieved, any subsequent act,
which may be unlawful, would not make the accused a
part of the conspiracy like giving shelter to an
absconder.3. Conspiracy is hatched in private or in secrecy.
It is rarely possible to establish a conspiracy by direct
evidence. Usually, both the existence of the conspiracy
and its objects have to be inferred from the
circumstances and the conduct of the accused.4. Conspirators may for example, be enrolled in
a chain- A enrolling B, B enrolling C, and so on; and all
will be members of a single conspiracy if they so intend
and agree, even though each member knows only the
person who enrolled him and the person whom he
enrolls. There may be a kind of umbrella-spoke
enrolment, where a single person at the centre does the
enrolling and all the other members are unknown to
each other, though they know that there are to be other
members. These are theories and in practice it may be
difficult to tell which conspiracy in a particular case falls
into which category. It may however, even overlap. But
then there has to be present mutual interest. Persons
may be members of single conspiracy even though each
is ignorant of the identity of many others who may have
diverse roles to play. It is not a part of the crime of
conspiracy that all the conspirators need to agree to play
the same or an active role.5. When two or more persons agree to commit a
crime of conspiracy, then regardless of making or
considering any plans for its commission, and despite the
fact that no step is taken by any such person to carry
out their common purpose, a crime is committed by each
and every one who joins in the agreement. There has
thus to be two conspirators and there may be more than
that. To prove the charge of conspiracy it is not
necessary that intended crime was committed or not. If
committed it may further help prosecution to prove the
charge of conspiracy.6. It is not necessary that all conspirators should
agree to the common purpose at the same time. They
may join with other conspirators at any time before the
consummation of the intended objective, and all are
equally responsible. What part each conspirator is to
play may not be known to everyone or the fact as to
when a conspirator joined the conspiracy and when he
left.Page 166 of 216
7. A charge of conspiracy may prejudice the
accused because it forces them into a joint trial and the
court may consider the entire mass of evidence against
every accused. Prosecution has to produce evidence not
only to show that each of the accused has knowledge of
the object of conspiracy but also of the agreement. In
the charge of conspiracy the court has to guard itself
against the danger of unfairness to the accused.
Introduction of evidence against some may result in the
conviction of all, which is to be avoided. By means of
evidence in conspiracy, which is otherwise inadmissible
in the trial of any other substantive offence prosecution
tries to implicate the accused not only in the conspiracy
itself but also in the substantive crime of the alleged
conspirators. There is always difficulty in tracing the
precise contribution of each member of the conspiracy
but then there has to be cogent and convincing evidence
against each one of the accused charged with the
offence of conspiracy. As observed by Judge Learned
Hand this distinction is important today when many
prosecutors seek to sweep within the dragnet of
conspiracy all those who have been associated in any
degree whatever with the main offenders.8. As stated above it is the unlawful agreement
and not its accomplishment, which is the gist or essence
of the crime of conspiracy. Offence of criminal conspiracy
is complete even though there is no agreement as to the
means by which the purpose is to be accomplished. It is
the unlawful agreement which is the gravamen of the
crime of conspiracy. The unlawful agreement which
amounts to a conspiracy need not be formal or express,
but may be inherent in and inferred from the
circumstances, especially declarations, acts and conduct
of the conspirators. The agreement need not be entered
into by all the parties to it at the same time, but may be
reached by successive actions evidencing their joining of
the conspiracy.9. It has been said that a criminal conspiracy is a
partnership in crime, and that there is in each conspiracy
a joint or mutual agency for the prosecution of a
common plan. Thus, if two or more persons enter into a
conspiracy, any act done by any of them pursuant to the
agreement is, in contemplation of law, the act of each of
them and they are jointly responsible therefore. This
means that everything said, written or done by any of
the conspirators in execution or furtherance of the
common purpose is deemed to have been said, done or
written by each of them. And this joint responsibility
extends not only to what is done by any of the
conspirators pursuant to the original agreement but also
to collateral acts incidental to and growing out of the
original purpose. A conspirator is not responsible,
however, for acts done by a co- conspirator after
Page 167 of 216termination of the conspiracy. The joinder of a
conspiracy by a new member does not create a new
conspiracy nor does it change the status of the other
conspirators, and the mere fact that conspirators
individually or in groups perform different tasks to a
common end does not split up a conspiracy into several
different conspiracies.10. A man may join a conspiracy by word or by
deed. However, criminal responsibility for a conspiracy
requires more than a merely passive attitude towards an
existing conspiracy. One who commits an overt act with
knowledge of the conspiracy is guilty. And one who
tacitly consents to the object of a conspiracy and goes
along with other conspirators, actually standing by while
the others put the conspiracy into effect, is guilty though
he intends to take no active part in the crime.‖275. In the instant case, undoubtedly, the accused
persons had entered into an agreement secretly, the fact of
which was well-known to Ranjit Dasgupta (A-18). The seizure
list Ext.17/1 clearly proves that MLA Bhanulal Saha somehow
had gathered that information and for that reason only he
made a written request at about 10.00 a.m. to the police to
arrange all precautionary measures "at places in between Block
to Bazar within 10.15 hrs". Curious enough, the place of
occurrence being the tri-junction of Bishalgarh-Agartala and
Laxmibill is exactly situated in between Block and Bazar.
276. On the circumstances, keeping in mind the ratio laid
down in the aforesaid authorities, if we take note of the factual
aspects of the case in hand as conceptualized above,
completes the chain of circumstances and in our considered
view, the prosecution has been able to concretize the case
Page 168 of 216relating to the criminal conspiracy to eliminate Parimal Saha,
the deceased MLA out of political enmity.
Discussion and findings on unlawful assembly:
277. Now, the question remains as to whether, there was
any unlawful assembly on 07.04.1983 at Office Tilla tri-junction
at 10.45 a.m. to 11.00 a.m., if so, who were the
participants/members of such unlawful assembly and whether
they had committed any overt act to fulfill their common
object, i.e. to eliminate Parimal Saha and his associates out of
the conspiracy as we already have discussed herein-above.
278. Already we have discussed in the preceding
paragraphs, the eye-witnesses of the case - PWs 1, 2 3 in
their vivid descriptions about the acts and commissions of the
accused persons at the place of occurrence, almost in a similar
tune have stated that while they were proceeding towards the
Block Development Officer, a Q-Dodge Truck stopped the
movement of the jeep and simultaneously bombs were hurled
and as soon as they got down from the jeep, the accused
persons had attacked them and inflicted injuries on their
persons. PWs 12 suffered cut injuries on their persons and
PW2 apart from cut injuries also suffered injuries from
explosion of bomb. PW3 Banu Miah has specifically identified
Chinmoy ghosh who threw the bomb at him, the splinter of
Page 169 of 216which caused severe injuries on his person and his left eye was
totally damaged being hit by the splinter of the said bomb.
PWs 1, 2 3 have specifically named the persons who
attacked upon them and PW1, Mati Saha, in his ejahar has
specifically stated that he knew some of the persons by name
and could recognize others by face.
279. Mr. Kabir, elaborating his submissions, has
emphasized that PWs 1, 2 3 being the eye witnesses of the
incident, who disclosed the names of the assailants and
subsequent identification of some of the accused persons
through TI parade was the result of afterthought and in that
way, the eyewitnesses had improved and exaggerated the
actual state of facts falsely implicating some of the accused
persons.
280. This criticism of the learned counsel for the accused
persons is not well-founded for the reason that in the ejahar
itself PW1 had stated that he could recognize some of the
accused persons whose names were not known to him but he
could identify those persons if they were produced before him.
Thus, we find foundation of the subsequent identification of the
accused persons who participated in the said unlawful
assembly by means of TI parade.
Page 170 of 216
281. Learned cousnels appearing on behalf of the
accused persons has strenuously argued that there is
procedural defects in conducting the TI parade because the
accused persons were brought to court openly before
conducting the TI Parade but after perusal of the order sheets
we find that their identification were adequately protected and
they were under masks. So in TI parade all the three eye
witnesses were able to identify the accused persons as
members of that unlawful assembly and those who actively
participated in the attack causing injuries on their persons only
with the common object to kill Parimal Saha and his associates
out of political enmity.
282. The main intention of that unlawful assembly would
be evident from the evidence of PW1 when he has stated that
Bijoy Das inflicted the cut injury with a Dao on his back side
below his neck, but, he was able to make substantial advance
than that of his elder brother, Parimal, and while he was
running he saw Bijoy Das was chasing him along with other
accused persons but afterwards he could see that Bijoy Das
was also chasing Parimal along with other accused persons. In
the context of the case, we find no abnormality in the
statements of PW1 for the reason that it is very natural that
while he made substantial advance, he would look behind to
see the position of his associate, more particularly, when such
associate is his full blooded brother. Further, such statement
Page 171 of 216amply proves that Parimal Saha was the main target and the
sole object of that unlawful assembly was to eliminate him.
Banu Miah on foot was able to reach the PHC which is also
situated in Office Tilla, but the assailants i.e. the accused
persons did not chase him but chased Parimal Saha.
283. The gravity and magnitude of attack, and the
brutality of the commission of the crime which are evinced
from the injuries of Parimal Saha aptly proves that the main
object of that unlawful assembly was to murder MLA Parimal
Saha.
284. The injury marks as are found in the post mortem
reports of Parimal Saha and Jiten Saha shows that in both the
bodies neck was almost severed; deep cut injuries in the
cranial region of the body; fingers were cut off; the hands were
also almost cut off. Jiten Saha, a close associate of Parimal
Saha, has also suffered similar injuries. The right hand has
been dissected. In the post-mortem reports, Doctor opined
that the injuries have been caused by an external violence with
a sharp and heavy weapon.
Effect of bamboo fencing:
285. We reiterate that the learned counsels appearing for
the accused persons did not deny that Parimal Saha and Jiten
Saha were found murdered at the place of occurrence, but,
Page 172 of 216their only question is that who caused the murder. Learned
counsels have tried to create a cloud in the mind of this Court
by submitting that some of the prosecution witnesses have
stated that bombs were hurled from behind the bamboo
fencing found to the erected in the surrounding houses of the
place of occurrence. Mr. Kabir, learned counsel has also shown
us the photographs which were brought on record as evidence.
He questioned that if the accused persons had hurled bombs
from behind the bamboo fence, how could PWs 1, 2 3 be
able to identify and recognize the accused persons?
286. This Court cannot loose its sight to the important
fact surfaced from the witnesses that hurling of bombs is not
the only one circumstance of the chain of events where other
circumstances being appreciated, clearly manifest that as soon
as they got down from the jeep, the accused persons had
attacked upon them and started to inflict injuries; not a single
witness had stated that bombs were hurled from the cover of
bamboo fencing ; PW1 was also being chased in the murderous
assault; the evidence of PW5, Nitya Gopal Saha providing
substantial information about the pre-occurrence position of
the accused persons in and around the place of occurrence and
the presence of some of the accused persons therein. Thus,
culmination of the evidence as a whole the presence of the
accused persons behind committing the overt act where
Parimal Saha and Jiten Saha were brutally murdered and other
Page 173 of 216associates of Parimal Saha including his younger brother Mati
Lal Saha (PW1) being inflicted with injuries are sufficient to
establish that it is the accused persons who have committed
the heinous crime where Parimal Saha and Jiten Saha were
eliminated.
Impact of Bomb explosion:
287. Mr. Kabir, learned counsel has tried to persuade this
Court that some of the witnesses have stated that there was
smoke due to bomb blasts at the place of occurrence and some
of those witnesses were also declared hostile. For a moment,
and for argument sake, we may agree with the learned counsel
that there was dense smoke due to the bomb bursts, but, how
and to what extent this story of dense smoke would discard the
direct evidence about the involvement of the accused persons
who had hit PWs 1, 2, 3 from a very close proximity.
Interestingly, by assailing this point, defence has virtually
admitted the presence of explovise substance, vis a vis bombs
as one of the weapons of offence used in perpetrating the
attack. If this is the stand of the defence that due to heavy
smoke it was impossible to recognize and identify the accused
persons, then why the defence did not lay any evidence to
substantiate this plea? Also not a single question or suggestion
has been put to the explosive expert, Shri Prakash
Ch.Shrivasta-PW.33, whether the explosive substances
detected after chemical examination could produce smoke at
Page 174 of 216all. The intensity, power and strength of the bomb also has not
been questioned by the defence in this case so they cannot
take the advantage of non explanation of scientific expert in
this regard though the avenue was open to them.
288. Moreso, the incident had occurred in a broad
daylight and that also in open space on a main road.
Considering the nature of the bombs and the surroundings of
the place of occurrence, in our considered view, in no time
such smoke would have disappeared. Having said so, we have
no other alternative but to repel the arguments of the learned
counsel for the accused persons-appellants as well as accused-
-respondents that due to dense smoke none of the accused
persons could have been recognized or identified.
289. For the sake of argument, even if there are some
discrepancies, then, what the law says in this regard? The Apex
Court in Mrityunjoy Biswas Vs. Pranab, (2013) 12 SCC
796 has held as under:
"28. As is evincible, the High Court has also taken
note of certain omissions and discrepancies treating
them to be material omissions and irreconcilable
discrepancies. It is worthy to note that the High Court
has referred to the some discrepancies which we find
are absolutely in the realm of minor discrepancies. It
is well settled in law that the minor discrepancies are
not to be given undue emphasis and the evidence is
to be considered from the point of view of
trustworthiness. The test is whether the same
inspires confidence in the mind of the court. If the
evidence is incredible and cannot be accepted by the
Page 175 of 216test of prudence, then it may create a dent in the
prosecution version. If an omission or discrepancy
goes to the root of the matter and ushers in
incongruities, the defence can take advantage of such
inconsistencies. It needs no special emphasis to state
that every omission cannot take place of a material
omission and, therefore, minor contradictions,
inconsistencies or insignificant embellishments do
not affect the core of the prosecution case and should
not be taken to be a ground to reject the prosecution
evidence. The omission should create a serious doubt
about the truthfulness or creditworthiness of a
witness. It is only the serious contradictions and
omissions which materially affect the case of the
prosecution but not every contradiction or omission
(See Leela Ram (dead) through Duli Chand v. State of
Haryana and another [JT 1999 (8) SC 274 : 1999 (9)
SCC 525], Rammi alias Rameshwar v. State of M.P.[JT 1999 (7) SC 247 : 1999 (8) SCC 649] and
Shyamal Ghosh v. State of West Bengal [JT 2012 (6)
SC 404 : 2012 (7) SCC 646].29. It is noticeable that the High Court in its
appreciation of evidence has really given unnecessary
and undue emphasis to certain contradictions which
really do not affect the prosecution case. The
testimonies of PWs-1, 2, 3, 7 and 8 are credible and
there is no reason to treat their testimony as
untrustworthy. We have arrived at such a conclusion
as we find that PW-8, the husband of the deceased
has clearly deposed about seeing the accused in the
light of the lamp to have fired at the back of his wife
and PW-1, the nephew of the deceased, has stood by
his earlier version. Nothing has been elicitated in the
cross-examination to discard their testimony. On the
contrary, they are the most natural witnesses and
there is no earthly reason that they would falsely
implicate the accused leaving the real culprit solely
because some quarrel had earlier taken place. Be it
noted, the other two witnesses have deposed about
the accused running away from the place of
occurrence immediately. That apart, the accused had
absconded from the village. We are absolutely
conscious that mere abscondence cannot from the
fulcrum of a guilty mind but it is a relevant piece of
evidence to be considered along with other evidence
Page 176 of 216and its value would always depend the circumstances
of each case as has been laid down in Matru Alias
Girish Chandra v. State of Uttar Pradesh [1971 (2)
SCC 75], State of M.P. Through C.B.I. and Others v.
Paltan Mallah and Others [JT 2005 (1) SC 531 : 2005
(3) SCC 169] and Bipin Kumar Mondal v. State of
West Bengal [JT 2010 (7) SC 379 : 2010 (12) SCC
91]. In the instance case, if the evidence of the
witnesses are read in a cumulative manner, the
abscondence of the accused gains significance."290. We have not lost sight of the fact that PW1, Mati Lal
Saha just after arriving at Bishalgarh PS from the place of
occurrence, had sought for active assistance and help of the
police after reporting that the life of his brother Parimal was in
danger, and while coming out of the PS had immediately
disclosed the names of the accused persons to PW4 and
others. So, the names of the accused persons were disclosed
immediately after the occurrence and in regard to the same
transactions which is admissible following the doctrine of res
gestae under Section 6 of the Evidence Act.
That apart, the accused persons were large in numbers
armed with sharp weapons like dao, ballam, etc., and inflicted
fatal injuries to Parimal and Jiten. In such an attack and
situation, it is not necessary to say that all of them have taken
part in the actual assault since the accused had the common
object to murder the MLA, Parimal and others which is well
governed by Second Part of Section 149 IPC.
Page 177 of 216291. At this juncture, for convenience, in extenso, we
may take note of Section 149 of the IPC which is reproduced
hereunder:
"149. Every member of unlawful assembly guilty of
offence committed in prosecution of common
object.--If an offence is committed by any member of
an unlawful assembly in prosecution of the common
object of that assembly, or such as the members of
that assembly knew to be likely to be committed in
prosecution of that object, every person who, at the
time of the committing of that offence, is a member
of the same assembly, is guilty of that offence."292. The provisions of Section 149 have been explained
by the Apex Curt in Mijaji Vs. State of U.P.,
MANU/SC/0040/1958 : AIR 1959 SC 372 and in the case
of Masalti Vs. State of UP, MANU/SC/0074/1964 :
(1964) 8 SCR 133 [by a four-judge Bench].
293. Two elements are crucial to the above definition: (i)
the offence must be committed by a member of an unlawful
assembly; (ii) the offence must be committed in prosecution of
the common object of that assembly or must be such as the
members of that assembly knew to be likely to be committed
in prosecution of the common object. Once a common object of
an unlawful assembly is established, it is not necessary that all
persons who form the unlawful assembly must be
demonstrated to have committed the overt act. The common
object is ascertained from considering the acts of its members
and on the basis of all surrounding circumstances.
Page 178 of 216294. In Sikandar Singh Vs. State of Bihar
MANU/SC/0642/2010 : (2010) 7 SCC 477, the Apex Court
held thus:
"17. A "common object" does not require a prior
concert and a common meeting of minds before the
attack. It is enough if each member of the unlawful
assembly has the same object in view and their
number is five or more and that they act as an
assembly to achieve that object. The "common
object" of an assembly is to be ascertained from the
acts and language of the members composing it, and
from a consideration of all the surrounding
circumstances. It may be gathered from the course of
conduct adopted by the members of the assembly.
For determination of the common object of the
unlawful assembly, the conduct of each of the
members of the unlawful assembly, before and at the
time of attack and thereafter, the motive for the
crime, are some of the relevant considerations. What
the common object of the unlawful assembly is at a
particular stage of the incident is essentially a
question of fact to be determined, keeping in view
the nature of the assembly, the arms carried by the
members, and the behavior of the members at or
near the scene of the incident. It is not necessary
under law that in all cases of unlawful assembly, with
an unlawful common object, the same must be
translated into action or be successful."295. In Sanjeev Kumar Gupta Vs. State of Uttar
Pradesh MANU/SC/0581/2015 : (2015) 11 SCC 69, the
Apex Court held that a common object does not always require
prior concert and it may form even on the spur of the moment.
In taking this view, the Apex Court relied on the earlier
decision in Ramachandran Vs. State of Kerala
MANU/SC/1019/2011 : (2011) 9 SCC 257 and held thus:
Page 179 of 216"32. In this case all the Accused were very well
known to the witnesses. So their identification, etc.
has not been in issue. As their participation being
governed by the second part of Section 149 Indian
Penal Code, overt act of an individual lost
significance."In the present case, applying the same rationale, we
are of the view that the common object within the
meaning of Section 149 is evident from the genesis of
the incident, the manner in which the accused
returned after the initial altercation armed with lethal
weapons and the nature of the injuries which were
inflicted in the concert.296. In a most recent decision, the Apex Court in
Mahendran Vs. State of T.N., (2019) 5 SCC 67 while
dealing with the nature of proof in regard to commission of an
offence with a "common object" has laid down the following
ratio:
"51. In Gangadhar Behera's case, while considering
the Section 141 of IPC, it was held that common
object is not common intention as the mere presence
in an unlawful assembly cannot render a person liable
unless there was a common object and he was
actuated by that common object.Common object does not require a prior concert and a
common meeting of minds before the attack. It is
enough if each has the same object in view if the five
or more act as an assembly to achieve that object.
The "common object" of an assembly is to be
ascertained from the acts and language of the
members composing it, and from a consideration of
all the surrounding circumstances. The Court while
considering the plea that definite roles ascribed to
the accused and therefore Section 149 is not
applicable was not accepted. It is held as under:
"25. The other plea that definite roles have not been
ascribed to the accused and therefore Section 149 is
not applicable, is untenable. A four-Judge Bench of
this Court in Masalti case observed as follows: (AIR p.210, para 15)
Page 180 of 216"15. Then it is urged that the evidence given by the
witnesses conforms to the same uniform pattern and
since no specific part is assigned to all the assailants,
that evidence should not have been accepted. This
criticism again is not well founded. Where a crowd of
assailants who are members of an unlawful assembly
proceeds to commit an offence of murder in
pursuance of the common object of the unlawful
assembly, it is often not possible for witnesses to
describe accurately the part played by each one of
the assailants. Besides, if a large crowd of persons
armed with weapons assaults the intended victims, it
may not be necessary that all of them have to take
part in the actual assault.In the present case, for instance, several weapons
were carried by different members of the unlawful
assembly, but it appears that the guns were used and
that was enough to kill 5 persons. In such a case, it
would be unreasonable to contend that because the
other weapons carried by the members of the
unlawful assembly were not used, the story in regard
to the said weapons itself should be rejected.
Appreciation of evidence in such a complex case is no
doubt a difficult task; but criminal courts have to do
their best in dealing with such cases and it is their
duty to sift the evidence carefully and decide which
part of it is true and which is not."26. To similar effect is the observation in Lalji v. State
of U.P. It was observed that: (SCC p. 441, para 8)
"8. ........ Common object of the unlawful assembly
can be gathered from the nature of the assembly,
arms used by them and the behaviour of the
assembly at or before the scene of occurrence. It is
an inference to be deduced from the facts and
circumstances of each case."27. In State of U.P. v. Dan Singh 20 it was observed
that it is not necessary for the prosecution to prove
which of the members of the unlawful assembly did
which or what act. Reference was made to Lalji case
wherein it was observed that: (SCC p. 442, para 9)
"9. ........... While overt act and active participation
may indicate common intention of the person
perpetrating the crime, the mere presence in the
unlawful assembly may fasten vicariously criminal
liability under Section 149."Page 181 of 216
28. Above being the position, we find no substance in
the plea that evidence of eyewitnesses is not
sufficient to fasten guilt by application of Section149. So far as the observations made in Kamaksha
Rai case are concerned, it is to be noted that the
decision in the said case was rendered in a different
factual scenario altogether. There is always peril in
treating the words of a judgment as though they are
words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the
setting of the facts of a particular case.
Circumstantial flexibility, one additional or different
fact may make a world of difference between
conclusions in two cases (see Padma Sundara Rao v.
State of T.N.). It is more so in a case where
conclusions relate to appreciation of evidence in a
criminal trial, as was observed in Krishna Mochi
case."297. The learned defence counsels also, in their
submissions, have pointed out that if there was raining of
bombs, which were being hurled by the accused persons, then
why there is no mark of injury out of bomb explosion on the
persons of Parimal Saha, Jiten Saha and the eye witnesses, i.e.
PWs 1, 2 3. In this regard, we reiterate that the capacity and
strength of the bombs which were exploded at the place of
occurrence have not been questioned during trial of in the
instant case. It is also not established about the distance
where the bombs were exploded and the position of the
victims. If a bomb is of lesser strength and power, even if
blasted, the range of those bombs and their impact would be
very less, and in furtherance thereof, if it fails to cover a
particular radius no injury would be caused to anyone whose
Page 182 of 216position would be outside the radius of the bomb and no
damage could be expected beyond that distance.
298. In the instant case, the bombs being hurled,
according to the explosive expert, were crude home made
bombs with uncertain performance. We reiterate that in the
instant case, one of the witnesses, Banu Miah PW3 has
sustained severe injury in his left eye due to a bomb thrown on
him by one of the accused, Chinmoy Ghosh. That apart, after
close scrutiny of the evidence of the witnesses, it becomes
apparent that at a certain point of time throwing of bombs
were stopped, which manifests that bombs were used in the
attack only with the common object to terrorise the victims and
the people in and around the place of occurrence and to stop
the vehicle of Parimal forcing them to get out of the vehicle
(the jeep).
299. Here we may gainfully take note of a decision of the
High Court of Allahabad wherein a Two-Judge Bench of the said
Court in Jaibir Ors. Vs. State, MANU/UP/0602/1986
had held thus:
"20. It was further contended on behalf of the
Appellants that if the witnesses had actually been
present at the spot, they were also expected to have
received the injuries of gun-shots as well as from the
bomb which is said to have exploded near the place
of occurrence. It is correct that Hukum Singh PW 4
was talking to Bhopal at that time and both of them
were walking slightly ahead of the Buggi. The
statement of Hukum Singh, however, shows that
Page 183 of 216when the shots were fired, he went inside the
sugarcane crop of Sakhwat on account of fear and it
was then that the bomb exploded. It is also
noteworthy that the shots had not been fired from a
great distance but had been fired from a short
distance of about 6 to 10 feet so that it was nothing
surprising if Hukum Singh did not receive any injury.
The other witnesses were farther off and hence there
was no question of their receiving any injury. As
regards the bomb which had exploded it does not
appear that it was a powerful bomb which could have
devastating effect but it was a weak type of bomb
like thing which exploded on being thrown and had
produced smoke. Even the deceased did not receive
any injury from the explosion of this bomb.
Consequently if the witnesses did not receive any
injury due to the explosion of this bomb-like thing, it
does not mean that they were not there or that they
had not seen the occurrence. We do not find any
improbability in the prosecution version."300. In the present case, what we have seen on close
scrutiny of the evidence is that none of the witnesses except
PW3, Banu Miah has deposed that bombs were being directly
thrown at them. It is only PW3 who has stated that one of the
accused persons, namely, Chinmoy Ghosh being a part and
parcel of the unlawful assembly had thrown a bomb at him
which having exploded, had hit his eyes, consequent to which
his left eye was completely damaged. His injury has been
supported by the medical evidence.
301. In regard to the dense smoke, we may easily come
to the finding, keeping in mind the aforesaid discussion that
the bombs were hurled at the place of occurrence and the
smoke emerged out from such explosion, according to us, was
Page 184 of 216not so dense that such smoke would make it impossible to
recognize and identify the assailants. That apart, a careful
analysis of the evidence of PWs 1, 2 3 aptly has established
that the victims had sustained injuires by sharp weapons from
a very close range/proximity, which fact is also supported by
medical evidence. Moreso, the defense despite having full
opportunity did not put any question to PW12, PW17 and PW38
who were declared hostile as to how long such dense smoke
existed. But they did not utilize that opportunity. In absence of
such question and clarification thereof, the convict-appellants
and the respondents-accused persons cannot claim any
advantage in regard to smoke.
302. In furtherance thereof, from the evidence of
explosive expert it is clearly established that the articles seized
from the place of occurrence proves that seized articles
contained the elements of bombs like Chlorate of Potassium,
Sulpher of Arsenic , (Exbt. P-3(1), P-3(2). Cumulative effect of
those circumstances as critically discussed here-in-above
coupled with direct evidence of PW3 establish the prosecution
case beyond any doubt that bombs were hurled, the magnitude
and intensity of which has not been questioned.
303. In the present case, most importantly, after close
scrutiny of the evidence it is established beyond any shadow of
doubt that all the accused persons were members of the
Page 185 of 216unlawful assembly at Office Tilla in and around the place of
occurrence, who hatched the criminal conspiracy to attack
Parimal Saha on his way to reach BDO office to participate in
the BDC election for the post of Chairman as a Congress (I)
candidate against the CPI(M) candidate; they were waiting in
and around the place of occurrence which was known to the
personal guard of Parimal , namely Ranjit Dasgupta (A-18) and
as soon as Parimal Saha and his associates had reached the
tri-junction of Laxmibill road the assailants attacked upon them
with the common object of eliminating Parimal Saha and in the
process of murdering Parimal Saha they also killed Jiten Saha,
one of the close associates of Parimal Saha and injured other
victims who managed to flee away from the place of
occurrence having noticed the accused persons. Some of the
accused persons were known to the eyewitnesses by name and
some others whom the eyewitness did not know by name were
identified by face through T.I. Parade.
304. Mr. Kabir, learned counsel for the accused persons
made a submission before this Court that the injured eye
witnesses, PWs 1, 2 3 did not disclose to the doctors the
names of the assailants immediately after the occurrence. It is
settled that there is no requirement of law that the injured
witnesses have to disclose the names of the assailants to the
doctor who treated them. There is neither any reference in the
report nor in their evidence that Doctors who treated PWs 1, 2
Page 186 of 2163 had ever put any question to them to disclose names of
the assailants. In this regard, we may gainfully refer to the
decision of Sukhchain Singh Vs. State of Haryana, (2002)
5 SCC 100 wherein the Apex Court has held thus:
"11. As in the medico-legal report Ext.PE, name of
PW1 was found not mentioned, the High Court
presumed that he had not accompanied the injured.
Such an assumption is not referable to any legal or
factual presumption. It is in evidence that Sukhchain
Singh, accompanied by his cousin Jai Karan and other
relatives had taken the injured to the Hospital. In the
report Ext.PE in the column "Name of relatives and
friends", the name of Sukhdev Singh is mentioned by
the Doctor. Omission to mention the names of other
relatives in the said certificate cannot be attributed to
any of the prosecution witnesses. No question is
shown to have been put to PW1 as to his presence or
alleged absence at the time of preparation of medico-
legal report Ext.PE. It is neither the requirement of
law nor usually expected that names of all the
relatives of the injured should be mentioned in the
medico-legal report prepared by the Doctor in his
discretion. The mention of the injured having been
beaten by somebody in the Doctor's intimation to the
police station has been used to hold that in fact by
that time the witness did not know the name of any
of the assailants and that the case was a blind
murder case. The intimation given by the Doctor was
regarding the admission of the patient in unconscious
position requesting the police to take necessary
action. Mentioning of the names or holding the
inquiry regarding the occurrence was neither the
duty of the Doctor nor usually expected from him.
The High Court further held that when Bhullan Singh,
Assistant Sub-Inspector (PW5) reached the Hospital
at 7.40 a.m., he could not find PWs1 and 2, it should
be presumed that they had not come with the injured
in the hospital and thus were not eye-witnesses. Such
an assumption by the High Court is also not referable
to any legal evidence. No question was put to PW1 as
to where he was at 7.40 a.m. when Assistant Sub-Inspector Bhullan Singh had come in the police
Page 187 of 216station. It was not unusual for a brother to search for
some good doctor or be busy in arranging better
treatment for his injured brother. Jai Karan (PW2)
had very specifically stated "We reached in the Civil
Hospital Panipat at about 6.15 a.m.. From 6.15 a.m.
to 8.30 a.m. I remained in the Hospital but during
this period I had also gone for my blood testing in the
Hospital itself as it was required by the Doctor".
After admission of the patient in the Hospital if his
relations who were none else than brothers and
cousin were not found standing by the side of the
injured, it cannot be imagined, by any stretch of
imagination, that they actually had not come to the
hospital and were telling lies. Non reporting and non-
mentioning the names of the accused at the police
station before 8.30 a.m. is stated to be a reason to
hold that the witnesses had not seen the occurrence.
Such a finding, apparently, appears to be perverse as
it is in the evidence that the doctor had reported to
the police about the admission of the injured in the
hospital in the presence of the witnesses which
justified them to pay more attention for the
treatment of the injured and wait for the police to
come. The investigating officer had categorically
stated that he did not feel the necessity of seizing the
tractor trolley or the chaff as the same was not
considered to be material evidence in the case. Be
that as it may, the failure of the investigating agency
to take steps which may have been required in
strengthening to prove the guilt, beyond doubt,
cannot be made a basis to reject the prosecution
version or the statements of the eye- witnesses.
Similarly, the High Court was not justified in holding
that there did not exist any room where the chaff was
to be stacked. Shri Balak Ram, Draftsman (PW4) in
his deposition in the Court had stated that he had
prepared the site plan Ext.PJ wherein, in addition to
one room shown in Ext.PJ he had seen two more
rooms at Point "X" and "X1" marked in the said
Exhibit. What persuaded the court to hold that the
complainant had no room to stack the chaff is not
borne out from the record."Page 188 of 216
305. The defence argument that none of the
eyewitnesses i.e. PWs 1, 2 3 actually saw who inflicted the
injuries upon Parimal Saha and Jiten Saha does not carry any
credence for the reason that PW1, Mati Lal Saha has deposed
that he had seen Bijoy Das, Sasthi Chakraborty, Satya Das,
Dulal Sengupta, Dudul Sengupta, Abhoy Bhushan, Kajal
Sutradhar and Biswajit Saha chasing Parimal Saha with sharp
cutting weapons like Dao, Ballam etc. Here it would be
apposite to refer the case of Lalji Ors Vs. State of UP,
(1989) 1 SCC 437 wherein the Apex Court held that there are
two essential ingredients of Section 149 Viz. (1) commission of
an offence by any member of an unlawful assembly and (2)
such offence must have been committed in prosecution of the
common object of that assembly or must be such as the
members of that assembly knew to be likely to be committed.
Once the court finds that these two ingredients are fulfilled,
every person who at the time of committing of that offence
was a member of the assembly is to be held guilty of that
offence. After such a finding it would not be open to the court
to see as to who actually did the offensive act or require the
prosecution to prove which of the members did which of the
offensive acts. The prosecution would have no obligation to
prove it. The relevant paragraphs may be reproduced here-in-
below, for convenience:
"7. The precise question to be decided in this appeal,
therefore, is whether in view of death caused to
Girdhari and Siddhu by the unlawful assembly which
Page 189 of 216is punishable under section 302 with the aid
of Section 149 I.P.C. the corroboration as to
participation of each individual member of the
assembly would be necessary, and if so, whether in
the instant case there is such corroboration.8. Section 149 IPC provides that if an offence is
committed by any member of an unlawful assembly in
prosecution of the common object of that assembly,
or such as the members of the assembly knew to be
likely to be committed in prosecution of that object,
every person, who at the time of committing of that
offence is a member of the same assembly, is guilty
of that offence. As has been defined in Section
141, I.P.C., an assembly of five or more persons is
designated an 'Unlawful Assembly', if the common
object of the persons composing that assembly is to
do any act or acts stated in clauses 'First', 'Second',
'Third', 'Fourth', and 'Fifth' of that section. An
assembly, as the explanation to the section says,
which was not unlawful when it assembled, may
subsequently become an unlawful assembly. Whoever
being aware of facts which render any assembly an
unlawful assembly intentionally joins that assembly,
or continues in it, is said to be a member of an
unlawful assembly. Thus, whenever so many as five
or more persons meet together to support each other,
even against opposition, in carrying out the common
object which is likely to involve violence or to
produce in the minds of rational and firm men any
reasonable apprehension of violence, then even
though they ultimately depart without doing anything
whatever towards carrying out their common object,
the mere fact of their having thus met will constitute
an offence. Of course, the alarm must not be merely
such as would frighten any foolish or timid person,
but must be such as would alarm person of
reasonable firmness and courage. The two essentials
of the section are the commission of an offence by
any member of an unlawful assembly and that such
offence must have been committed in prosecution of
the common object of that assembly or must be such
as the members of that assembly knew to be likely to
be committed. Not every person is necessarily guilty
but only those who share in the common object. The
Page 190 of 216common object of the assembly must be one of the
five objects mentioned in Section 141 I.P.C. Common
object of the unlawful assembly can be gathered from
the nature of the assembly, arms used by them and
the behaviour of the assembly at or before scene of
occurrence. It is an inference to be deduced from the
facts and circumstances of each case.9. Section 149 makes every member of an unlawful
assembly at the time of committing of the offence
guilty of that offence. Thus this section created a
specific and distinct offence. In other words, it
created a constructive or vicar- ious liability of the
members of the unlawful assembly for the unlawful
acts committed pursuant to the common object by
any other member of that assembly. However, the
vicarious liability of the members of the unlawful
assembly extends only to the acts done in pursuance
of the common object of the unlawful assembly, or to
such offences as the members of the unlawful
assembly knew to be likely to be committed in
prosecution of that object. Once the case of a person
falls within the ingredients of the section the
question that he did nothing with his own hands
would be immaterial. He cannot put forward the
defence that he did not with his own hands commit
the offence committed in prosecution of the common
object of the unlawful assembly or such as the mem-
bers of the assembly knew to be likely to be
committed in prosecution of that object. Everyone
must be taken to have intended the probable and
natural results of the combination of the acts in
which he joined. It is not necessary that all the
persons forming an unlawful assembly must do some
overt act. When the accused persons assembled
together, armed with lathis, and were parties to the
assault on the complainant party, the prosecution is
not obliged to prove which specific overt act was
done by which of the accused. This section makes a
member of the unlawful assembly responsible as a
principal for the acts of each, and all, merely because
he is a member of an unlawful assembly. While overt
act and active participation may indicate common
intention of the person perpetrating the crime, the
mere presence in the unlawful assembly may fasten
Page 191 of 216vicariously criminal liability under section 149. It
must be noted that the basis of the constructive guilt
under section 149 is mere membership of the
unlawful assembly, with the requisite common object
or knowledge.10. Thus, once the Court holds that certain accused
persons formed in unlawful assembly and an offence
is committed by any member of that assembly in
prosecution of the common object of that assembly,
or such as the members of the assembly knew to be
likely to be committed in prosecution of that object,
every person who at the time of committing of that
offence was a member of the same assembly is to be
held guilty of that offence. After such a finding it
would not be open to the Court to see as to who
actually did the offensive act or require the
prosecution to prove which of the members did which
of the offensive acts. The prosecution would have no
obligation to prove it."306. In Sudha Renukaiah Ors. Vs. State of Andhra
Pradesh, (2017) 13 SCC 81 while dealing with a case of
group rivalry leading to murder, the Apex Court had held thus:
"38. The learned counsel for the appellants has also
placed reliance on the judgment of this Court in
Eknath Ganpat Aher Vs. State of Maharashtra, (2010)
6 SCC 519. In support of the case it is mentioned that
in the case of group rivalries and enmities, there is a
general tendency to rope in as many persons as
possible as having participated in the assault. There
cannot be any dispute to the above proposition laid
down in para 26 of the judgment which is quoted
below: (SCC p.525)
"26. It is an accepted proposition that in the case of
group rivalries and enmities, there is a general
tendency to rope in as many persons as possible as
having participated in the assault. In such situations,
the courts are called upon to be very cautious and sift
the evidence with care. Where after a close scrutiny
of the evidence, a reasonable doubt arises in the
mind of the court with regard to the participation of
Page 192 of 216any of those who have been roped in, the court would
be obliged to give the benefit of doubt to them."39. However, when there are eyewitnesses including
injured witnesses who fully support the prosecution
case and proved the roles of different accused,
prosecution case cannot be negated only on the
ground that it was a case of group rivalry. Group
rivalry is double-edged sword."307. According to us, keeping in view the rationale laid
down by the aforesaid authorities, it is immaterial to trace out
direct evidence as to who inflicted the fatal injuries on the
persons of Parimal and Jiten. Once it is proved that all the
accused persons in Crl. A(J) 35/2016 [Sasthi Chakraborty
Ors. Vs State of Tripura] were the members of that unlawful
assembly being armed with sharp cutting weapons, then
burden is shifted to the defense to establish that they were not
members of that unlawful assembly. In this regard, the law is
well settled that membership of unlawful assembly is sufficient
to hold every such member as vicariously liable. Here, it would
be apposite to refer the case of State of Maharashtra Vs.
Ramlal Devappa Rathod Ors, (2015) 15 SCC 77 wherein
the Apex Court has held as under:
"22. We may at this stage consider the law of
vicarious liability as stipulated in Section 149
IPC. The key expression in Section 149 IPC
are:(a) If an offence is committed by any member
of an unlawful assembly;(b) In prosecution of common objection of
that assembly;which the members of that
assembly kenw to be likely tobe committed in
prosecution of that object;Page 193 of 216
(c) Every person who is a member of the same
assembly is guilty of the offence.This section makes both the categories of
persons, those who committed the offence as
also those who were members of the same
assembly liable for the offences under Section
149 IPC, if other requirements of the section
are satisfied. That is to say, if an offence is
committed by any person of an unlawful
assembly, which the members of that
assembly knew to be likely to be committed,
every members of that assembly is guilty of
the offence. The law is clear that membership
of unlawful assembly is sufficient to hold such
members vicariously liable.23. It would be useful to refer to certain
decisions of this Court. In State of U.P. Vs.
Kishanpal, (2008) 16 SCC 73 it was observed:
"47. ........ It is well settled 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. In other words, mere
membership of the unlawfuyl assembly is
sufficient and every member of an
unlawful assembly is vicariously liable for
the acts done by others either in the
prosecution of the commom object of the
unlawful assembly or such which the
members of the unlawful assembly knew
were likely to be committed."Further, in Amerika Rai V. State of Bihar,
(2011) 4 SCC 677, it was observed as under:"13. The law of vicarious liability under
Section 149 IPC is crystal clear that even
the presence in the unlawful assembly, but
with an active mind, to achieve the
common object makes such a person
Page 194 of 216vicariously liable for the acts of the
unlawful assembly."308. So far the charge U/S 307 IPC is concerned, this
Court in the case of Madhumita Debnath Vs State of
Tripura and others (Crl.Petn.16/2018) authored by one of
us (A.Lodh.J.) relying upon the decision of Prakash Chandra
Yadav v. State of Bihar, (2007) 13 SCC 134 held that
nature of injury is inconsequential so far charge U/S 307 IPC is
concerned. In the aforesaid Judgment Hon‟ble Apex Court held:
―10. To say the least, the judgment of the High Court is
wholly unsatisfactory. The High Court nowhere arrived
at the finding that the prosecution witnesses
contradicted themselves in material particulars so as to
render their testimonies untrustworthy. It did not
arrive at a finding that the findings of the trial Judge
were either unsatisfactory or contrary to the legal
principles. The High Court opined that as no injury had
been caused to the informant and PW 7, a case under
Section 307 IPC is not made out. The said finding, in
our opinion, is not legally sound.11. Section 307 of the Penal Code reads as under:
―307. Attempt to murder.--Whoever does any act with
such intention or knowledge, and under such
circumstances that, if he by that act caused death, he
would be guilty of murder, shall be punished with
imprisonment of either description for a term which
may extend to ten years, and shall also be liable to
fine; and if hurt is caused to any person by such act,
the offender shall be liable either to imprisonment for
life, or to such punishment as is hereinbefore
mentioned.‖12. From a bare perusal of the said provision, it is
evident that the first part thereof does not contemplate
that receipt of any injury on the part of the victim is a
prerequisite for convicting an accused thereunder. In
the event injuries are received, the second part of
Section 307 would be attracted. The necessary
ingredient for attracting the first part of Section 307 of
the Penal Code is intention or knowledge. The legal
position would be evident from Illustration (c)
appended to the said provision which reads as under:
―(c) A, intending to murder Z, buys a gun and loads it.
A has not committed the offence. A fires the gun at Z.
He has committed the offence defined in this section,
and, if by such firing he wounds Z, he is liable to the
punishment provided by the latter part of the first
paragraph of this section.‖
Page 195 of 21613. Mr V. Shekhar, learned Senior Counsel appearing on
behalf of the respondent has drawn our attention to a
decision of this Court in Parsuram Pandey v. State of
Bihar1 wherein, inter alia, it was held: (SCC p. 196,
para 15)
―15. To constitute an offence under Section 307 two
ingredients of the offence must be present:(a) an intention of or knowledge relating to
commission of murder; and(b) the doing of an act towards it.
For the purpose of Section 307 what is material is the
intention or the knowledge and not the consequence of
the actual act done for the purpose of carrying out the
intention. The section clearly contemplates an act
which is done with intention of causing death but
which fails to bring about the intended consequence on
account of intervening circumstances. The intention or
knowledge of the accused must be such as is necessary
to constitute murder. In the absence of intention or
knowledge which is the necessary ingredient of Section
307, there can be no offence ‗of attempt to murder'.
Intent which is a state of mind cannot be proved by
precise direct evidence, as a fact it can only be
detected or inferred from other factors. Some of the
relevant considerations may be the nature of the
weapon used, the place where injuries were inflicted,
the nature of the injuries and the circumstances in
which the incident took place.‖
The said decision, therefore, itself is an authority for
the proposition that intention of or knowledge relating
to the commission of murder and the doing of an act
towards it are the two ingredients of the offence under
Section 307 of the Penal Code.14. The High Court's judgment, therefore, cannot be
sustained. It is set aside accordingly. The matter is
remitted to the High Court for consideration of the
matter afresh. We, however, make it clear that we have
not gone into the merit of the matter. The High Court is
requested to hear and dispose of the criminal appeal
expeditiously. The appeal is allowed with the
aforementioned directions.‖309. In view of the ratio of law as laid in the aforesaid
decision, the argument of the defence that PW-1 and 2
received simple injuries to their persons has lost its
significance as from the nature of attack and weapons used, it
is abundantly clear that the assailants had the clear intention
of murdering the MLA Parimal Saha and his associates.
Page 196 of 216310. In our considered view, keeping in mind the entire
chain of circumstances and direct ocular testimony of PWs 1, 2
3 and having regard to the pre-occurrence episode, the
episode at the place of occurrence where the victims were
attacked as second sequence of events, and based on the post-
-occurrence incidents; the statement of PWs 4, 5, 6, 28
corroborrated by the medical evidence and the evidence of the
explosive expert, all the charges levelled against the accused
persons have been proved beyond any shadow of doubt and
we find no reason to interfere with the judgment and order of
conviction and sentence passed by the trial court against the
accused-appellants.
311. Visiting and revisting the entire evidence and case
record we gainfully remember the 1882 play by Henrik Ibsen
titled "An Enemy of the People‖. The accused persons not
only orchestrated and executed the gruesome murder of MLA
Parimal Saha and his associate, but they also killed the hopes
and aspirations of the thirty thousand(plus) voters who
bestowed their trust and faith upon their elected member of
Legilative Assembly.
312. Consequently, we have no hesitation to hold that
the accused persons, namely, 1) Sasthi Chakraborty, 2) Kajal
Roy @ Kajal Kumar Roy @ Kajal Sutradhar, 3)Abhoy Kanta
Bhushan @ Abhoy Bhushan, 4) Uttam Saha, 5) Sukhendu Das,
Page 197 of 2166) Babul Das, 7) Chinmoy Ghosh, 8) Hiranmoy Ghosh, 9)
Mrinal Sengupta, 10) Pradul Sengupta, 11) Sajal Sarkar, and
12) Bijoy Kumar Das, who are the appellants in Crl. A(J)
35/2016 [Sasthi Chakraborty Ors. Vs State of Tripura]
had committed the murder of Parimal Saha and Jiten Saha and
caused grievous injuries to PW3, Banu Miah and simple injuries
to PWs 1 and 2. Consequently, Crl A. (J) 35 of 2016 being
bereft of merit is hereby dismissed.
Findings on Criminal Appeal (J) 29/2016
313. While considering the appeal preferred by the
victim-informant Mati Lal Saha, it is found that the learned trial
Court without assigning any reason or discussion at Para 39 of
its judgment came to the conclusion that the prosecution had
failed to prove the charge against them in the manner as
follows:-
―39. But the prosecution has failed to prove the charge under
Section 147/148/149/326/307/302 and 120B of IPC and
Section 3 of Explosive Substance Act as against accused
persons namely, (1) Tapan Das, (2) Chand Miah, (3) Uttam
Kumar Saha, (4) Satya Das and (5) Arun Saha beyond all
reasonable doubt hence, they deserve an order of acquittal on
the benefit of such doubt. Accordingly they are acquitted and
set at liberty at once. Their sureties are also discharged from
the liability of bail bonds.‖314. Surprising enough, how the learned trial Court came
to this finding? Any Court may convict or acquit any of the
accused person(s) in a criminal case from the charge levelled
against him/them, but, it is the duty and obligation of the
Courts to discuss the evidence and should come to a definite
Page 198 of 216finding that the charge levelled against him/them has not been
proved beyond reasonable doubt. This is not expected from a
Court and more particularly, if it is the fact finding Court and
conducts trial. However, we are not inclined to remand the
matter for the simple reason that the incident was occurred in
the month of April, 1983 and now we are in the end part of
2019. This brings us to again revisit the records and the
evidence therein adduced by the prosecution witnesses against
the said 5(five) accused persons, the respondents no. 2, 3, 4,
5 6, whether they deserve acquittal.
315. Before adverting to the merit, we may take note of
some of the recent authorities where the Apex Court has
enunciated the law about the duty casts upon the appellate
Court against the order of acquittal.
316. In Munishamappa Ors. Vrs. State of
Karnataka, (2019) 3 SCC 393, the Apex Court at Para 10
has observed thus:
"10. The High Court, in the course of its judgment,
adverted to the principles which it was required to follow in an
appeal against acquittal, formulating them in the following
terms:"1. In an appeal against acquittal, the Appellate Court
would be slow in reversing the judgment of the Trial court
unless miscarriage of justice has thereby ensued.2. The Appellate Court would not interfere with the
order of acquittal even if, based on the evidence on record
two views are possible and the view taken by the Trial court is
equally plausible.3. If the Appellate Court finds that the appreciation of
evidence by the Trial court is without evidence or capricious
or against the interest of justice, then only the Appellate
Court would venture to reverse the order of acquittal.4. If after appreciation of the evidence, the Appellate
Court independently finds that order of acquittal is not in
Page 199 of 216accordance with law and the conclusion arrived at by the trial
court are not based on the correct appreciation of the
evidence on record, and the incident cannot be explained
except with the guilt of the accused and is totally inconsistent
with the innocence of the accused, in such cases only the
Appellate Court would reverse the order of acquittal."317. Again, we may gainfully refer the extract of the
decision of the Apex Court in Vijay Mohan Singh Vrs. State
of Karnataka, (2019) 5 SCC 436, wherein the Apex Court
has held thus:
―21.Now so far as the submission on behalf the appellant that
while quashing and setting aside the order of acquittal, the
High Court failed to examine the reasons on which the order
of acquittal was passed and therefore the High Court
exceeded in exercise of its jurisdiction, while sitting as an
appellate Court against the judgment and order of acquittal is
concerned, the learned counsel appearing on behalf of the
respondent State has submitted that merely on the aforesaid
ground and if otherwise on re-appreciation of evidence by this
Court, it is found that the learned trial Court was not justified
in recording the acquittal of the accused and that the
evaluation of the evidence made by the trial Court was
manifestly erroneous and even otherwise on merits the
ultimate conclusion of the High Court in convicting the
accused is found to be correct, solely on the aforesaid ground
that the High Court did not consider/examine the reasons on
which the order of acquittal was passed, the conviction of the
accused is not required to be set aside. In support of above
submissions, learned counsel appearing on behalf of the
respondent - State has heavily relied upon the following
decisions of this Court in Atley v. State of Uttar Pradesh AIR
1955 SC 807; Aher Raja Khima v. The State of
Saurashtra (1955) 2 SCR 1285; Umedbhai Jadavbhai v. State
of Gujarat (1978) 1 SCC 228; K.Gopal Reddy v. State of
Andhra Pradesh (1979) 1 SCC 355; Sambasivan v. State of
Kerala (1998) 5 SCC 412; K. Ramakrishnan Unnithan v. State
of Kerala (1999) 3 SCC 309.‖―30. In the light of the above findings recorded by us, it is
required to be considered, whether solely on the ground that
the High Court has not examined the reasons on which the
order of acquittal was passed and convicted the accused by
interfering with the order of acquittal passed by the learned
trial Court, the same is further required to be interfered with
by this Court?31. An identical question came to be considered before this
Court in Umedbhai Jadavbhai (supra). In the case before this
Court, the High Court interfered with the orderof acquittal
passed by the learned trial Court on re-appreciation of the
entire evidence on record. However, the High Court, while
reversing the acquittal, did not consider the reasons given by
the learned trial Court while acquitting the accused.Page 200 of 216
Confirming the judgment of the High Court, this Court
observed and held in para 10 as under:―10. Once the appeal was rightly entertained against the
order of acquittal, the High Court was entitled to re
appreciate the entire evidence independently and come
to its own conclusion. Ordinarily, the High Court would
give due importance to the opinion of the Sessions Judge
if the same were arrived at after proper appreciation of
the evidence. This rule will not be applicable in the
present case where the Sessions Judge has made an
absolutely wrong assumption of a very material and
clinching aspect in the peculiar circumstances of the
case.‖31.1 In Sambasivan (supra), the High Court reversed the
order of acquittal passed by the learned trial Court and held
the accused guilty on re-appreciation of the entire evidence
on record, however, the High Court did not record its
conclusion on the question whether the approach of the trial
Court in dealing with the evidence was patently illegal or the
conclusions arrived at by it were wholly untenable. Confirming
the order passed by the High Court convicting the accused
on reversal of the acquittal passed by the learned trial Court,
after being satisfied that the order of acquittal passed by the
learned trial Court was perverse and suffered from infirmities,
this Court declined to interfere with the order of conviction
passed by the High Court. While confirming the order of
conviction passed by the High Court, this Court observed in
paragraph 8 as under:―8. We have perused the judgment under appeal to
ascertain whether the High Court has conformed to the
aforementioned principles. We find that the High Court
has not strictly proceeded in the manner laid down by
this Court in Doshi case (1996) 9 SCC 225 viz. first
recording its conclusion on the question whether the
approach of the trial court in dealing with the evidence
was patently illegal or the conclusions arrived at by it
were wholly untenable, which alone will justify
interference in an order of acquittal though the High
Court has rendered a well considered judgment duly
meeting all the contentions raised before it. But then will
this noncompliance per se justify setting aside the
judgment under appeal? We think, not. In our view, in
such a case, the approach of the court which is
considering the validity of the judgment of an appellate
court which has reversed the order of acquittal passed
by the trial court, should be to satisfy itself if the
approach of the trial court in dealing with the evidence
was patently illegal or conclusions arrived at by it are
demonstrably unsustainable and whether the judgment
of the appellate court is free from those infirmities; if so
to hold that the trial court judgment warranted
interference. In such a case, there is obviously no reason
why the appellate court's judgment should be disturbed.But if on the other hand the court comes to the
conclusion that the judgment of the trial court does not
suffer from any infirmity, it cannot but be held that the
interference by the appellate court in the order of
acquittal was not justified; then in such a case the
judgment of the appellate court has to be set aside as of
Page 201 of 216the two reasonable views, the one in support of the
acquittal alone has to stand. Having regard to the above
discussion, we shall proceed to examine the judgment of
the trial court in this case.‖31.2 In K.Ramakrishnan Unnjithan (supra), after observing
that though there is some substance in the grievance of the
learned counsel appearing on behalf of the accused that the
High Court has not adverted to all the reasons given by the
trial Judge for according an order of acquittal, this Court
refused to set aside the order of conviction passed by the
High Court after having found that the approach of the
Sessions Judge in recording the order of acquittal was not
proper and the conclusion arrived at by the learned Sessions
Judge on several aspects was unsustainable. This Court
further observed that as the Sessions Judge was not justified
in discarding the relevant/material evidence while acquitting
the accused, the High Court, therefore, was fully entitled to
re-appreciate the evidence and record its own conclusion. This
Court scrutinised the evidence of the eyewitnesses and opined
that reasons adduced by the trial Court for discarding the
testimony of the eyewitnesses were not at all sound. This
Court also observed that as the evaluation of the evidence
made by the trial court was manifestly erroneous and
therefore it was the duty of the High Court to interfere with
an order of acquittal passed by the learned Sessions Judge.31.3 In Atley (supra), in paragraph 5, this Court observed and
held as under:―5. It has been argued by the learned counsel for the
appellant that the judgment of the trial court being one
of acquittal, the High Court should not have set it aside
on mere appreciation of the evidence led on behalf of the
prosecution unless it came to the conclusion that the
judgment of the trial Judge was perverse. In Our
opinion, it is not correct to say that unless the appellate
court in an appeal under Section 417, Cr. P. C. came to
the conclusion that the judgment of acquittal under
appeal was perverse it could not set aside that order.It has been laid down by this Court that it is
open to the High Court on an appeal against an order of
acquittal to review the entire evidence and to come to its
own conclusion, of course, keeping in view the well
established rule that the presumption of innocence of the
accused is not weakened but strengthened by the
judgment of acquittal passed by the trial court which had
the advantage of observing the demeanour of witnesses
whose evidence have been recorded in its presence.It is also well settled that the court of appeal has
as wide powers of appreciation of evidence in an appeal
against an order of acquittal as in the case of an appeal
against an order of conviction, subject to the riders that
the presumption of innocence with which the accused
person starts in the trial court continues even up to the
appellate stage and that the appellate court should
attach due weight to the opinion of the trial court which
recorded the order of acquittal.If the appellate court reviews the evidence,
keeping those principles in mind, and comes to a
contrary conclusion, the judgment cannot be said to
have been vitiated. (See in this connection the very
Page 202 of 216cases cited at the Bar, namely, Surajpal Singh v. The
State 1952 CriLJ331; Wilayat Khan v. State of Uttar
Pradesh, AIR 1953 SC 122. In our opinion, there is no
substance in the contention raised on behalf of the
appellant that the High Court was not justified in
reviewing the entire evidence and coming to its own
conclusions.‖31.4 In K.Gopal Reddy(supra), this Court has observed that
where the trial Court allows itself to be beset with fanciful
doubts, rejects creditworthy evidence for slender reasons and
takes a view of the evidence which is but barely possible, it is
the obvious duty of the High Court to interfere in the interest
of justice, lest the administration of justice be brought to
redicule.32. Considering the aforesaid decisions, it emerges that even
in the case where the High Court in an appeal against the
order of acquittal interfered with the order of acquittal without
specifically considering the reasons arrived at by the
learned trial court and without specifically observing that the
reasons are perverse, this Court can still maintain the order of
conviction passed by the High Court, if this Court is satisfied
itself that the approach of the trial court in dealing with the
evidence was patently illegal or the conclusions arrived at by
it are demonstrably unsustainable and the judgment of the
appellate court is free from those infirmities. It also emerges
that the High Court is entitled to reappreciate the entire
evidence independently and come to its own conclusion,
however, the High Court would not be justified in interfering
with the order of acquittal solely on the ground on re-
appreciation of the entire evidence that two views are
possible.33. On re-appreciation of the entire evidence on record and
the findings recorded by the learned trial court while
acquitting the accused, we are of the opinion that the
approach of the trial court was patently erroneous and the
conclusions arrived at by it were wholly untenable. We find
that it is not a case where two reasonable views on
examination of the evidence are possible and so the one
which supports the accused should be adopted. The view
taken by the trial court can hardly be said to be a view on
proper consideration of evidence, much less a reasonable
view. The learned trial court, as observed hereinabove,
committed a patent error in discarding the dying declaration
and the other material evidence, discussed hereinabove.
Therefore, the interference by the High Court in the appeal
against the acquittal of the appellant and recording the finding
of his conviction for the offence under Section 302 of the IPC,
on consideration of the evidence, is justified. The judgment
under appeal does not warrant any interference.‖318. Further, we may have a look at the decision of the
Apex Court in Motiram Padu Joshi Ors. Vrs. State of
Page 203 of 216Maharashtra, (2018) 9 SCC 429, wherein the Apex Court
has held thus:
―22. It is fairly well-settled that in an appeal against the order
of acquittal, the appellate court would be slow to disturb the
findings of the trial court which had the opportunity of seeing
and hearing the witnesses. In an appeal against the order of
acquittal, there is no embargo for re-appreciating the
evidence and to take a different view; but there must be
strong circumstances to reverse the order of acquittal. In the
appeal against order of acquittal, the paramount consideration
of the appellate court should be to avoid miscarriage of
justice.23. While considering the scope of power of the appellate
court in an appeal against the order of acquittal, after
referring to various judgments, in Chandrappa v. State of
Karnataka, (2007) 4 SCC 415, this Court summarised the
principle as under:-―42. From the above decisions, in our considered view,
the following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:(1) An appellate court has full power to review, re-
appreciate and reconsider the evidence upon which the
order of acquittal is founded.(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law.(3) Various expressions, such as, ―substantial and
compelling reasons‖, ―good and sufficient grounds‖,
―very strong circumstances‖, ―distorted conclusions‖,
―glaring mistakes‖, etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of ―flourishes of language‖ to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to review
the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that
in case of acquittal, there is double presumption in
favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental
principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and
strengthened by the trial court.(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court.‖24. In Kallu v. State of M.P., (2006) 10 SCC 313, this Court
held as under:-―8. While deciding an appeal against acquittal, the power
of the appellate court is no less than the power exercised
Page 204 of 216while hearing appeals against conviction. In both types
of appeals, the power exists to review the entire
evidence. However, one significant difference is that an
order of acquittal will not be interfered with, by an
appellate court, where the judgment of the trial court is
based on evidence and the view taken is reasonable and
plausible. It will not reverse the decision of the trial court
merely because a different view is possible. The
appellate court will also bear in mind that there is a
presumption of innocence in favour of the accused and
the accused is entitled to get the benefit of any doubt.
Further, if it decides to interfere, it should assign reasons
for differing with the decision of the trial court.‖25. In the present case, as held by the High Court, the trial
court has not properly appreciated the evidence and its
findings are perverse. When the approach of the trial court is
perverse, in an appeal against the order of acquittal, a duty is
cast upon the High Court to reappreciate the evidence.26. The deceased had sustained as many as twenty-six
injuries. PWs 1 to 3 have consistently spoken about the
incident and that the appellants were armed with deadly
weapons and the overt acts of the appellants which is
corroborated by the medical evidence and also by recovery of
weapons from the appellants/accused. As observed by the
High Court, the trial court gave importance to insignificant
aspects like ―smearing of the thighs and legs of the body with
mud‖ and the conduct of the witnesses as to why they have
not reacted in a particular manner and while doing so, the
trial court failed to appreciate the substratum of the
prosecution case. The High Court on being satisfied that the
conclusion reached by the trial court was erroneous reversed
the order of acquittal recorded by the trial court. We do not
find any good ground to interfere with the judgment of the
High Court.27. In the result, the conviction of the appellants
under Section 302 IPC read with Section 149 IPC is confirmed
and the sentence of life imprisonment imposed upon each of
them is confirmed and this appeal is dismissed.‖319. Again, it would be apposite to refer the decision of
the Apex Court in Khurshid Ahmed Vrs. State of Jammu
Kashmir, (2018) 7 SCC 429, wherein the Apex Court has
discussed the issue in dispute of the present appeal against
acquittal in the manner as follows:-
"6. At the trial, in its endeavour to prove the guilt of the
accused, prosecution had examined as many as 14 witnesses,
whereas the accused in his defence has examined one
witness. The trial Court after a full fledged trial, came to the
conclusion that the prosecution has failed to prove motive and
the statement of sole eyewitness (father of the deceased)
stood uncorroborated with the other witnesses, as the
Page 205 of 216prosecution has failed to establish the guilt of the accused
beyond reasonable doubt has acquitted the accused from the
alleged offences under Section 302/341, IPC.7. Aggrieved by the order of acquittal passed by the trial
Court, the State of Jammu Kashmir raised appeal before the
High Court. Upon adjudicating the same, the High Court has
come to the contrary conclusion and observed that the
evidence of the sole eyewitness (father of the deceased) was
duly corroborated by oral, documentary and expert evidence
and by improperly rejecting the same, the trial Court has
committed grave miscarriage of justice. Therefore, the High
Court reversed the order of acquittal into conviction for the
charges under Section 302/341, IPC and sentenced the
accused--appellant as stated hereinabove. That is how the
accused is in appeal before this Court.‖―17. Time and again this Court has illustrated that the first
information report is not an encyclopaedia. It is not necessary
that it should contain each and every detail concerning the
offence at the time of lodging of FIR. Here in the present
case, the informant who had received a severe head injury
and accompanied by his father (PW9), went to the clinic of
PW3 and later to the police station, would have been under
great tension. Their mental condition in such a situation can
be visualised. In such a state of mind, failure on their part to
disclose the entire sequence of events in the first information
report is neither unnatural nor fatal to the case of the
prosecution. The trial Court has misconstrued the two
statements of the deceased, one given at the police station
immediately after the occurrence and the other, at the
hospital while his condition was deteriorating. We are of the
view that the subsequent statement of the deceased at the
hospital as recorded by the I.O. is duly corroborated by the
evidence of PW9 and absolutely there is no reason to
disbelieve the same and the contention in this regard is
meritless.‖―28. In view of the above discussion, we are of the considered
view that the direct oral evidence available on record coupled
with the medical evidence, points at the guilt of the accused
and not proving the motive for commission of the offence lost
its significance in the facts of the case.‖―36. The learned counsel strenuously submitted that in an
appeal against acquittal, the scope of interference by the
appellate Court is very narrow and the High Court erred in
interfering with the well considered judgment of acquittal. It
is appropriate to refer Padam Singh v. State of U.P., (2000) 1
SCC 621, in which while explaining the duty of the appellate
court, this Court has expressed thus:―2..It is the duty of an appellate Court to look into the
evidence adduced in the case and arrive at an
independent conclusion as to whether the said evidence
can be relied upon or not and even if it can be relied
upon, then whether the prosecution can be said to have
been proved beyond reasonable doubt on the said
evidence. The credibility of a witness has to be adjudged
by the appellate court in drawing inference from proved
and admitted facts. It must be remembered that the
appellate court, like the trial court, has to be satisfied
Page 206 of 216affirmatively that the prosecution case is substantially
true and the guilt of the accused has been proved
beyond all reasonable doubt as the presumption of
innocence with which the accused starts, continues right
through until he is held guilty by the final Court of
Appeal and that presumption is neither strengthened by
an acquittal nor weakened by a conviction in the trial
court.‖―37.The power of the appellate Court in an appeal against
acquittal is the same as that of an appeal against conviction.
But, in an appeal against acquittal, the Court has to bear in
mind that the presumption of innocence is in favour of the
accused and it is strengthened by the order of acquittal. At
the same time, appellate Court will not interfere with the
order of acquittal mainly because two views are possible, but
only when the High Court feels that the appreciation of
evidence is based on erroneous considerations and when
there is manifest illegality in the conclusion arrived at by the
trial Court. In the present case, there was manifest
irregularity in the appreciation of evidence by the trial Court.
The High Court based on sound principles of criminal
jurisprudence, has interfered with the judgment of acquittal
passed by the trial Court and convicted the accused as the
prosecution was successful in proving the guilt of the accused
beyond reasonable doubt.‖320. Now, keeping in mind the aforesaid authorities in
regard to extent of the power of the High Court being the
appellate court, we may hold that in a criminal appeal against
order of acquittal, this Court will have the full power to review,
re-appreciate and reconsider the evidence upon which the
order of acquittal is founded and can reach its own conclusion,
both on questions of fact and of law. Further, the appellate
court can reverse the findings of the lower court, if such
findings suffer from perversity. In the instant case, we re-
iterate that no reasons are assigned by the trial court to pass
an order of acquittal against the aforesaid 5(five) accused-
respondents. As such, we have decided to proceed with the
evidence and materials on record of the present case in hand,
Page 207 of 216whether such order of acquittal of the accused-respondents is
legally justified or not.
321. Firstly, we proceed with Satya Das (A-5). A glance
to the ejahar dated 07.04.1983 reveals that the informant
(P.W.1), Mati Lal Saha was able to mention the names of Satya
Das, (A-5), Tapan Das, S/o Jatindra Das (A-3) and Arun Saha,
(A-17) and the informant in his evidence said that he had seen
them along with other FIR named accused persons being
armed with sharp cutting weapons like „dao‟, „ballam‟ etc. in
their hands chasing Parimal Saha. In the ejahar, the witness
also stated that he noticed Satya Das along with other
accused persons "had started hacking blows on the person of
Parimal Saha‖ The said P.W.1 in his evidence has also
specifically stated that when their jeep was stopped he could
recognize Satya Das amongst other accused persons throwing
bombs. The said witness has further stated ―Parimal Saha was
being chased by Shasthi Chakraborty, Kajal Sutradhar, Bijay
Das, Satya Das, Sadhan Karmakar, Dula Sengupta, Pradul
Sengupta, Bishu Saha @ Biswajit Saha and Abhoy Bhushan.
They were armed with dao. I saw Shasthi Chakraborty, Bishu
Saha, and Sadhan Karmakar had dealt blows of Dao on Parimal
Saha who fell upon the ground. He was then surrounded by the
rest of the accused chasing. All the accused persons are
present in court.‖ Thus, PW-1 is very firm about the
participation of Satya Das( A-5) in the entire episode and his
Page 208 of 216role to cause murder to Parimal Saha. The witness also has
duly identified Satya Das in court when he stated that "all
accused persons are present today". PW-2 and PW-3, Dilip
Banik and Banu Mia respectively in their evidence have
categorically stated that they saw Satya Das along with other
accused persons throwing bombs. PW-5, Nitya Gopal Saha
while picturizing the pre-occurrence situation in and around the
P.O. has stated that while he was returning from his sister‟s
house and approaching South through Udaipur-Agartala Road
he saw 20/25 people were going towards north from South by
the same road and he has further stated that he knew five
persons out of them. Out of those 5(five) persons the name of
Satya Das has been revealed in his evidence along with Bijay
Das and other accused persons. Most importantly, the said
witness also identified Satya Das in the dock during his
deposition before the court in course of trial. Over and above,
we find no inconsistency and contradictory evidence in the
cross-examination so as to discredit the said witnesses; and
moreso, the said accused Satya Das (A-5) was properly
identified in the dock of the court by PW-1 as well as PW-5 who
described the pre-occurrence incident and already approved by
this court in the preceding paragraphs.
322. Having appreciated such ocular evidence of the
eyewitnesses in the light aforestated, more particularly, the
clarity in the narration of sequential events as to how Satya
Page 209 of 216Das had chased the deceased Parimal and the detailed
description of the nature of murderous assault and the brutality
evinced from the injuries coupled with the medical evidence we
are left with no doubt that the evidence of PW-1 qua the
evidence of PW-5 and the injured eye-witnesses (PW-2 and
PW-3) would constitute sufficient and cogent materials to
declare conviction and sentence of life imprisonment against
Satya Das, the accused-5 and respondent no.-2 of the present
appeal filed by the informant-victim, Mati Lal Saha. Mere
failure to identify Satya Das by name in the dock by PWs-2 and
3 will not ipso jure throw out the ocular evidence of PW-1 and
PW-5 considering the entire circumstances of the case. We
may fortify our above finding by relying upon a passage from a
decision of the Apex court in Visveswaran V. State,
represented by SDM, (2003) 6 SCC 73 where the following
principle is laid down:-
―11.... the identification of the accused either in test
identification parade or in Court is not a sine qua non in
every case if from the circumstances the guilt is
otherwise established. Many a times, crimes are
committed under the cover of darkness when none is
able to identify the accused. The commission of a crime
can be proved also be circumstantial evidence.‖323. Mere failure or discrepancy in identifying the accused
persons in the dock of the Court by some of the witnesses,
according to us, will not ipso jure prove to be fatal when the
court finds clinching evidence from other set of witnesses and
in such eventuality, the court should not ipso facto draw a
hypothesis about the innocence of such accused person/s,
Page 210 of 216particularly, where there is substantive evidence emanated
from a set of witnesses against the accused.
324. While scrutinizinig the evidence meticulously, we
have noticed that P.W.4, Usha Ranjan Sarkar has stated in his
evidence that while Mati Lal Saha (P.W.1) coming out of police
station, he immediately disclosed the name of Satya Das
amongst other assailants. This statement he made to PW-4
immediately after the occurrence of the incident in presence of
other witnesses is admissible in evidence under sections 6 and
9 of the Evidence Act and there should not be any doubt that
court can rely upon such evidence.
325. For convenience Section 9 may be reproduced here-
in-below:
―9. Facts necessary to explain or introduce relevant
facts. - Facts necessary to explain or introduce a fact in
issue or relevant fact, or which support or rebut an
inference suggested by a fact in issue or relevant fact, or
which establish the identity of anything or person whose
identity is relevant, or fix the time or place at which any
fact in issue or relevant fact happened, or which show
the relation of parties by whom any such fact was
transacted, are relevant in so far as they are necessary
for that purpose.‖326. At the second stage, we may discuss the evidence
against Arun Saha (A-17). PW1, Mati Lal Saha in his ejahar has
mentioned the name of Arun Saha as one of the assailants
amongst other accused persons, but in the ocular evidence he
identified the said accused persons as Arun Das, the name
which the accused person had denied. Arun Das was not
Page 211 of 216subjected to TI Parade. PW2 in his examination also could not
identify Arun Saha as one of the assailants. At one time, the
said witnesses had identified him as Uttam Kr. Saha but later
on stated as Arun Saha. We have given our thoughtful
consideration to the remark of the learned trial judge where he
has stated that "before that the Arun Saha stated his name in
front of the witnesses." PW3 also being an eye witness could
not identify the said accused Arun Saha properly. It is found
that all the three witnesses though named Arun Saha but,
according to us, from the nature of evidence as narrated
against Arun Saha (A-17), it leads us to form two possible
views. Consequently, the benefit will definitely go in favour of
the accused person.
327. Now, we may discuss the evidence against Tapan
Das (A-3). PW1, Mati Lal Saha in his ejahar has mentioned the
name of Tapan Das but thereafter, in course of trial his name
was not transpired by any of the eyewitnesses. It is settled
that FIR is not a substantive piece of evidence and it can only
be used for contradiction and corroboration. As such, we do not
find any incriminating material against the accused Tapan Das,
respondent No.4 in Crl.A.No.29/2016.
328. While scrutinizing the evidence against Uttam
Kumar Saha (A-16) we find that his name was not mentioned
in the ejahar lodged by PW1. Moreover, after meticulous
analysis of the evidence, it is found that though his name is
Page 212 of 216found here and there in the evidence of PWs 1, 2 3, but
according to us, those are of cryptic nature and does not
inspire the confidence of the court. The said accused was not
properly identified by PW2 and PW3. In cross-examination,
PW1 has stated that he knew accused Uttam Kumar Saha by
name from before the occurrence, he being one of his
neighbours. Then, the question naturally arises, if Uttam
Kumar Saha was known to PW1, then why PW1 did not name
him in his ejahar. There is no explanation in this regard also.
As such, the statements which PWs 1, 2 3 have made in their
evidence that they saw Uttam Kumar Saha hurling bombs, do
not inspire confidence of this court. Hence, the said accused
Uttam Kumar Saha is entitled to be acquitted on the benefit of
doubt.
329. Now, we may come to the evidence against Chand
Miah (A-14). PW1 in his ejahar has stated that there were so
many persons and they could be identified if they were
produced before him. So, Chand Miah was subjected to TI
Parade. In the TI Parade PW1 identified this accused as one of
the assailants when he disclosed that his name was Chand
Miah. But surprisingly, we do not find any evidence in course of
trial against him. PWs 1, 2 3 did not state anything in their
evidence about the role played by the said accused in the
offence.
Page 213 of 216
330. The record of TI Parade though is a primary
evidence, but, it is not substantive one. Evidence of
identification of an accused in court by a witness is a
substantive piece of evidence and the disclosure statement in
TI parade can be used only to reassure such evidence in course
of trial by way of corroborration, to further strengthen the
prosecution case, in regard to the involvement of such accused
in an offence. As such, we cannot treat the record of TI Parade
identifying the said accused as evidence in absence of any
direct or substantial evidence against him.
331. In the backdrop of the aforesaid analysis of
evidence in regard to accused-respondent Nos. 3, 4, 5, and 6
the accused-respondents are entitled to get the benefit of
doubt and deserve to be acquitted from the charges levelled
against them. Thus, we affirm the acquittal of Arun Saha,
Tapan Das, Uttam Kumar Saha and Chand Miah from the
charges levelled against them.
332. However, we have already observed that all the
charges levelled against Satya Das, accused-respondent No.2
in Crl. A. No. 29 of 2016 have been proved beyond reasonable
doubt and order of acquittal of the said accused Satya Das
from the charges levelled against him returned by the learned
trial judge is bad both on points of facts and law, which leads
us to set aside the order of acquittal of the said accused Satya
Page 214 of 216Das and to that extent only, the judgment of the trial court
dated 29.04.2016 in Sessions Trial 17(ST/A) 1986 stands
interfered with and the appeal being Crl.A.No.29 of 2016 filed
by the victim appellant is allowed to the extent as indicated
above.
333. Accordingly, we declare the accused Satya Das (A-
5), respondent No.2 in Crl.A.No.29 of 2016 guilty of
committing offence under Section 147/148/149/302/307/
326/120B of IPC and under Section 3 of the Explosive
Substances Act and consequently, sentence him to suffer
Rigorous imprisonment for life with fine of Rs.10,000/-, i.d. of
payment of fine money to suffer SI for a further period of six
months. Accused Satya Das is directed to surrender before the
trial Court within a period of 7(seven) days from today.
334. In the overall analysis, our conclusion is thus, as
under:
CRL.A.(J) NO.35 OF 2016
Sl. Name of Judgment of trial View of the High
No. accused Court Court
Conviction Acquittal Conviction/acquittal
1 Sasthi Convicted -- Conviction upheld
Chakraborty
2 Kajal Roy @ Convicted -- Conviction upheld
Kajal Kumar
Roy @ Kajal
Sutradhar
3 Abhoy Kanta Convicted -- Conviction upheld
Bhushan @
Abhoy
Bhushan
4 Uttam Saha Convicted -- Conviction upheld
5 Sukhendu Das Convicted -- Conviction upheld
6 Babul Das Convicted -- Conviction upheld
7 Chinmoy Convicted -- Conviction upheld
Page 215 of 216Ghosh
8 Hiranmoy Convicted -- Conviction upheld
Ghosh
9 Mrinal Convicted -- Conviction upheld
Sengupta
10 Pradul Convicted -- Conviction upheld
Sengupta
11 Sajal Sarkar Convicted -- Conviction upheld
12 Bijoy Kumar Convicted -- Conviction upheld
DasCRL.A. NO.29 OF 2016
Sl. Name of Judgment of trial View of the High
No. accused Court Court
Conviction Acquittal Conviction/Acquittal
1 Satya Das Acquitted Acquittal set aside.Convicted and
sentenced in terms
of this judgment as
indicated in para
333.2 Arun Saha Acquitted Acquittal affirmed
3 Tapan Das Acquitted Acquittal affirmed
4 Uttam Acquitted Acquittal affirmed
Kumar Saha
5 Chand Miah Acquitted Acquittal affirmed
@ Chanu
Miah335. In the result, Crl. A.(J) 35 of 2016 is hereby
dismissed being devoid of merit and Crl.A. 29 of 2016 stands
partly allowed, to the extent as indicated above. Pending
applications, if any, also stand disposed of.
336. The Trial court shall take all necessary steps, in
accordance with law, to ensure the compliance of this
judgment.
Page 216 of 216
337. Both the appeals stand disposed of in the aforesaid
terms. Pending applications, if any, also stand disposed of.
338. Send down the LCRs with a copy of this judgment to
the trial court forthwith.
(ARINDAM LODH, J) (SANJAY KAROL, CJ)
