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CASE NO.: Appeal (crl.)  1077 of 2005

PETITIONER: Probodh Purkait

RESPONDENT: State of West Bengal & Ors

DATE OF JUDGMENT: 27/02/2007

BENCH: B.N. Agrawal, P.P. Naolekar & Altamas Kabir

JUDGMENT: J U D G M E N T WITH CRIMINAL  APPEAL NO. 30  OF 2006, CRIMINAL APPEAL No. 13 OF 2006 AND CRIMINAL APPEAL No. 438 of 2006

ALTAMAS KABIR,J.

       All these four appeals arise out of the judgment dated  20th July, 2005 passed by the Division Bench of the Calcutta  High Court in respect of the judgment delivered by the  Additional Sessions Judge, Alipore, 24 Parganas (South), in    Sessions Trial No. 3(5) of 1993. The said trial involves a double murder committed at  Radhaballavpur under Kultali Police Station on 15th January,  1985.  In all 109 persons were shown as accused in the  charge-sheet in connection with Kultali P.S. case 4(1) of 1985  dated 16th January, 1985.  Out of the said 109 accused, 98  were committed to the Sessions Court.  Out of the said 98  accused, 58 stood acquitted under Section 232 Cr.P.C. and  one Yunus Laskar could not be tried as he was found to be  insane.  Ultimately, 39 persons faced the trial before the  Additional Session Judge-cum-Judge, Special Court (EC Act)  Alipore, 24 Parganas (South). The prosecution case is that  one  Shah Alam Molla (PW- 2) lodged a written complaint at  Kultali Police Station, South  24 Parganas, at about 1730 hours. on  16th January, 1985,  stating  that on 15th January, 1985 at about 8 a.m. about 157  persons, as named in the complaint, along with 400 to 500  persons formed  an unlawful assembly  armed with deadly  weapons such as lathi, tangi, ballam etc. under the leadership  of   one  Probodh   Purkait  and    proceeded towards  Radhaballavpur.  First they  attacked the house of one  Payed  Ali Laskar (PW-3).  The members of the unlawful assembly   looted the house  of Payed Ali, assaulted the members of his   family and also committed rape on his sister. It was  further alleged that the mob failed to find Abdur  Rahaman Laskar  in Payed Ali  Laskar’s house  but on coming  to know that  he had gone to the house  of one Dr. Srinibas  Roy (PW-7), the members of  the unlawful assembly  under the  leadership of  Prabodh Purkait and others proceeded to the  house of  Dr. Srinibas Roy.  On reaching there, some of the  members of the unlawful assembly entered into the house of  Dr. Srinibas Roy and dragged out Abdul Rahaman Laskar and  also  Abdur Molla along with Dr. Srinibas Roy and his  son  Aurobinda Roy (PW-6).  The members of the unlawful  assembly  then assaulted Abdur Rahaman  Laskar and Abdur

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Molla with lathi, tangi, ballam etc.  resulting in their death on  the spot.  The members of the unlawful assembly also  assaulted Dr. Srinibas  Roy and his son Aurobinda and one   Sudarshan and looted their  household articles.

It was also  disclosed that  the incident was a  sequel to  an incident which had taken place on  14th January, 1985,  when there was a  quarrel between the members of the  Congress Party and the Socialist  Unity  Centre  of India over  the  snatching of a microphone by Abdur Rahaman  Laskar  and consequently, Probodh Purkait and other leaders of the  S.U.C.I. party engineered the assault and murder of Abdur  Rahaman Laskar and Abdur Molla. By his judgment dated 12th November, 1997, the   Sessions Judge convicted Yusuf Gayen, Ismail Laskar,  Srikanta Halder, Kartick Naskar, Khudiram Naskar and  Kauser Baidya under Sections 148, 302/149, 323/149 Indian  Penal Code and sentenced them to suffer rigorous  imprisonment for three years and to pay a fine of Rs.1000/-  each, in default, to suffer rigorous imprisonment for one year  under Section 148 Indian Penal Code, to suffer rigorous  imprisonment for life and to pay a fine of Rs.100/-, in default,  to suffer rigorous imprisonment for one year each under  Section 302/149 Indian Penal Code and also to suffer rigorous  imprisonment for six months each and to pay a fine of  Rs.5000/-, in default, to suffer rigorous imprisonment for  three months each under Section 323/149 Indian Penal Code.   The trial court acquitted the other 33 accused, including  Probodh Purkait, the appellant in Criminal Appeal No. 1077 of  2005. While the convicted persons preferred  Criminal Appeal 4  of 1998 before the Calcutta High Court, the State filed an  appeal, being No. 17 of 1999, against the order of acquittal  made in respect of the other 33 accused. The Division Bench of the Calcutta High Court while  confirming the conviction and sentence of Yusuf Gayen  and  the other five accused convicted by the Sessions Judge,  allowed the Government’s appeal in part by convicting   Probodh Purkait, Harisadhan Mali,  Iran Molla, Anirudha  Haldar and Basinath Gayen under section 148 IPC and  Section 302/149 IPC and sentenced them to suffer rigorous  imprisonment for life under Section 302/149 IPC and to pay a  fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment  for three months each.  No separate sentence was awarded to  the convicted persons under Section 148 Indian Penal Code.   The order of acquittal as far as the remaining accused are  concerned, was not interfered with. Criminal Appeal No. 1077 of 2005 in this Court has been  filed by Probodh Purkait against his conviction by the Calcutta  High Court.  Criminal Appeal No.13 of 2006 has been filed by  the six accused persons who were initially convicted by the  Sessions Court.  Criminal Appeal No. 30 of 2006 has been filed  by four of the  five accused who were convicted by the Calcutta  High Court along with Probodh Purkait.   Criminal Appeal No.  438 of 2006 has been filed by the State of West Bengal against  the acquittal of the remaining accused. Mr. Sushil Kumar, learned senior counsel appearing for  Probodh Purkait and the other four accused, whose acquittal  was reversed by the Calcutta High Court,  submitted that the  judgment of the Calcutta High Court as far as the said five  appellants are concerned, is not supported by the evidence  adduced by the prosecution.   He pointed out that on a careful  appraisal of the evidence of PWs 1 to 9, the Sessions Judge  had discarded the evidence of PW 2,  Shah Alam Molla, who  had lodged the First Information Report. It was urged that the

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Sessions Judge had very rightly pointed out that there was no  explanation for the delay of 33 hours in lodging the First  Information Report and the explanation given for the same  was weak and feeble. The Sessions Judge also observed that  PW2 was a chance witness who according to the prosecution  had come to Radhaballavpur  to buy sweets and subsequently    is alleged to have followed the prosecution from                                                                                                                        the Madrasa School to the house of Payed Laskar.   The  Sessions Judge also disbelieved the evidence of  Kartick  Mondal \026 PW1  as his evidence was at material points contrary  to the prosecution case. Likewise, the Sessions Judge also discarded the evidence  of PWs 3 and 4,  Payed Laskar and Kalipada Mondal, as being  unconvincing.  Regarding  the evidence of PW 3 as to the  involvement of Probodh Purkait  in damaging his house and  looting the household articles, the Sessions  Judge has  observed that there is no iota of evidence.   Referring to certain  discrepancies in the evidence of PW 3 regarding the assault on  the deceased- Abdur Rahaman Laskar and Abdur Molla, and  the place where they were said to have been killed, the  evidence of PW-3  was disbelieved by the Court on the basis of  spot inspection made by the Sessions  Judge.  Mr. Sushil  Kumar, pointed out that the evidence of PW-4, Kalipada  Mondal, was also discarded for the same reason.  Mr. Sushil Kumar  submitted that  the Sessions Judge  did not also  place reliance  on the   evidence of PW-8,  Sudarshan Roy, who is  alleged to be an injured eye-witness,  as he did not get  himself examined by a doctor. The evidence of PW-9, Md. Sahabuddin Molla, was also  not accepted as regards the looting of  Payed Laskar’s house.   His  testimony   as an eye-witness to the murder of Abdur  Rahman Laskar and Abdur Molla was  contradicted  by the  Investigating Officer and  was also  disbelieved. Dealing with the  evidence of PW-5,  Kalpana Roy,  her  son PW-6, Aurobinda Roy and her husband, PW-7, Srinibas  Roy who were all said to be eye-witnesses to the incident  in  their house and later on in the field to the south of their  house, the Sessions Judge found certain  discrepancies in the  evidence of PW-5  and  her statement before the Investigating  Officer as to the  manner in which the incident is alleged to  have occurred  in her house.  On such basis, the Sessions  Judge found her evidence to be  discredited, leaving only the  evidence of PWs 6 and 7 to prove the prosecution  case that  the  deceased  were dragged out of the house of PW-7 by the  accused at the instant of Probodh Purkait and  thereafter   murdered. Mr. Sushil Kumar submitted that the  Sessions Judge  had accepted the evidence of PWs 6 and 7 regarding the  assault on PW-7 by accused, Kauser Baidya with a lathi and   the fact that PWs 6 and 7 had an opportunity  of seeing  the  assailants  of Abdur  Molla  when he was dragged to the field,  since he had also been brought there.  The trial court found  that the evidence of PWs 6 and 7 to be mutually corroborative.   However, their evidence regarding the  involvement of Probodh  Purkait,  Basinath and Basudeb in the murder of  Abdur Molla  and assault on them was not believed. Mr. Sushil Kumar submitted that  on the basis of the   evidence of PWs 6 and 7 and the medical evidence, the  Sessions Judge came to the conclusion that  accused Yusuf  Gayen, Srikanti Halder, Kartick Nasker, Ismail Lasker and   Khudiram Nasker and others had trespassed into the house of  Srinibas Roy (PW-7) on 15th January, 1985, at about 8/8.30  a.m. at Radhaballavpur and that they along with  Kauser  Baidya assaulted Abdur  Molla, Srinibas and Aurobinda by

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lathi in the field to the  south of the house of Srinibas and  caused simple injuries  to Srinibas and  Aurobinda and   murdered  Abdur Molla at  Chowdhury Chak near Sardarpara  Road at Radhaballavpur, P.S. Kultali. The further finding was that Abdur Rahaman  Laskar    was also  murdered at that place on that date, but his  assailants are not known. The Sessions Judge accordingly convicted Yusuf Gayen   and the  five others  accused under Sections 148,  302/149,323/149 Indian Penal Code and sentenced them   in  the manner  indicated  hereinbefore and acquitted all the  other accused, including Probodh Purkait, Hari Sadhan Mali,  Iran Molla, Anirudha Haldar and Basinath Gayen who were  subsequently convicted by the High Court under Section 148  and 302/149 Indian Penal Code. Mr. Sushil Kumar  submitted that in appeal, the High  Court on a re-appraisal of the evidence accepted the evidence   of PWs 3,5,6,7,8, and 9 and  observed that  all the said  witnesses had  seen the occurrence from different  angles and  different  places.  The High Court also held  that since all the  prosecution  witnesses had mentioned  that Probodh Purkait   was a member of the unlawful assembly and, in fact,  led the  unlawful assembly, he could not be  absolved of  the  complicity of sharing the common object of the unlawful  assembly though there was no evidence  to indicate that  Probodh Purkait had himself inflicted  any injury. On the basis of the above the High Court also convicted  Probodh Purkait,  Hari Sadhan Mali, Iran Molla, Anirudha  Haldar  and Basinath Gayen under Sections 148, 302/149  Indian Penal Code and sentenced them to suffer  rigorous  imprisonment  for life under  Sections 302/149 and to pay a  fine of Rs.5,000/-, in default  to undergo rigorous  imprisonment for  three months each. Mr. Sushil Kumar urged that the High Court had erred in  relying  on the  unreliable evidence of PWs 3, 5, 8  and 9,   which had  been  discarded  by the Sessions Judge for good  reasons.  Mr. Kumar  submitted that the High Court had not  even  considered the evidence  of PW-2,  Shah Alam Molla,  who lodged the  First Information Report about 33 hours after  the incident. Mr. Kumar submitted that  on the state of the  evidence  the involvement of Probodh Purkait was not established.  It  was urged  that from the evidence  it would be clear  that the  place where Probodh Purkait  was alleged to have been   standing had not been definitely  fixed, and, on the other  hand,  even from the evidence of PWs 6 and 7 it would appear  that Probodh Purkait  was standing at a distance of 2  kilometres from the house of PW-7 across a  field.  Mr. Sushil Kumar submitted that the High Court had  committed a grave error of  judgment in convicting  Probodh  Purkait, Hari Sadhan Mali, Iran Molla, Anirudha Haldar and  Basinath Gayen under Sections 148, 302/149 on the basis of  the evidence  of PWs 3, 5, 6, 7, 8 and9 and such  conviction  and sentence was liable to be set aside. Mr. Ranjit Kumar, senior counsel for the appellants   Yusuf Gayen, Ismail Naskar, Srikanta Haldar,Kartick Naskar,  Khudiram Naskar and  Kauser Baidya, who had been  initially   convicted by the Sessions Judge, repeated Mr. Sushil Kumar’s  submissions  that on a  painstaking  appraisal  of the evidence  led by the prosecution  the Sessions Judge had for good  reasons given by him discarded the evidence of PWs 1, 2, 3, 4,  5, 8 and 9.  Once the evidence of PW-2,  who  had lodged the  First Information Report, was disbelieved, the  main pillar of  the prosecution case stood demolished. Mr. Ranjit Kumar submitted that there were serious

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discrepancies in the   version of the  different prosecution  witnesses which  discredited the entire  prosecution story and   made the  same  highly  improbable.  Mr. Ranjit Kumar   contended  that the injuries on the body of Abdur Molla clearly   belied the prosecution  evidence  that he had been dragged  from the house of Dr. Srinibas Roy (PW-7) to the field to the  south of the house  for a distance   of about two  kilometers  where  Probodh Purkait was  alleged to be standing.  He also  emphasized  the fact that the  body of the other deceased,  Abdur Rahaman Laskar, was found at some distance  from the  body of Abdur Molla, which again falsified  the prosecution  case that the  deceased had been dragged  from the house of  Dr.Srinibas Roy  and killed by the members of the unlawful  assembly before  Probodh Purkait. Mr. Ranjit Kumar submitted that  one of the appellants,  Khudiram Naskar,  had not been  identified by  PWs 6 and 7  as having  been a member of the unlawful assembly  which  attacked  the house  of  PW-7 and dragged  out PWs 6 and 7  therefrom. Mr. Ranjit Kumar  submitted that the entire incident   was the result  of political rivalry  between the supporters of  the Congress  Party  and those of the S.U.C.I. and Probodh  Purkait as the elected Member of the Legislative Assembly  of  the S.U.C.I. party and  his supporters had been falsely  implicated  in the case. Mr. Kumar submitted that the same  would also be  evident from the fact that despite the evidence   on record no one was  convicted for the murder of Abdur  Rahaman Laskar. Appearing for the State, Mr. Altaf Ahmed submitted that  the Sessions Judge had  erroneously  discarded the evidence  of PWs 2, 3, 4, 5, 8 and 9 and that the reasons  given in doing   so were not acceptable.  It was submitted that the evidence of   the prosecution witnesses was   consistent as to the  incident  and the manner  in which it had occurred.  A few  discrepancies  with regard to the identification of the   assailants  and whether the murders were  committed near  the house of Srinibas Roy or  some distance away could not  detract  from the veracity of the evidence  as a whole. Mr. Ahmed submitted that all the witnesses had  described  the incident  involving  the attack  on the house of  Dr. Srinibas Roy by the unlawful assembly  and the role  played by some of the members of the  unlawful assembly  in  entering the house of Dr. Srinibas Roy  and dragging out   Abdur Rahaman Laskar and Abdur Molla therefrom  and  thereafter assaulting them  with lathis, tangis, ballams etc.  The said witnesses also described  the role of  Probodh Purkait  in leading the  unlawful assembly to the  house  of  Payed Ali  and then Dr. Srinibas Roy. Mr. Ahmed submitted that by erroneously discarding the  evidence  of PWs 2, 3, 4, 5, 8 and 9, the Sessions Judge     had   erred in  convicting  only  six of the  thirty nine accused and   acquitting  the others.  Relying  on the  evidence of the  aforesaid prosecution witnesses, as also PWs  6 and 7, the  High Court   rightly confirmed the conviction of the said six  accused and convicted  Probodh Purkait  and four others    also under Sections 148 and 302/149 Indian Penal Code and  no interference was called for in respect thereof. We have carefully  considered the submissions made on  behalf of the appellants in the first three appeals and those   made on behalf of the  State and  we find ourselves unable to  differ with the decision of the High Court. The  evidence of PWs 6 and 7, which has been relied  upon by the Sessions Judge and the High Court establishes  that an unlawful mob  assembled at the house of  Dr. Srinibas  Roy and  some of the members  of the unlawful assembly, who  

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were identified ,  entered into the house and dragged out  Abdur Rahaman Laskar and Abdur Molla.  PWs 2,3,5, 8 and 9   corroborate the evidence of PWs   6 and 7.  We are unable to  accept the reasoning of the Sessions Judge in disbelieving the  evidence of PW-2.  His evidence has been  discarded on the  ground  that  he had named as many as 157 persons to be  part of the  unlawful assembly  which assembled in front of  the house of PW-7.  According to the Sessions Judge it was  impossible for him  to have remembered the  names  of so  many  persons present.  The Sessions Judge also doubted his  testimony on the ground that the mob would not have  allowed  him to witness the incident and  leave him untouched   so that   he could be an eye-witness against them. Similarly, the evidence  of  PWs 3,4, and 5 have been  discarded by the Sessions Judge for reasons which  are  difficult to  sustain. PWs 6 and 7 have  deposed as to how they were taken by  the members  of the unlawful assembly,  along with Adbur  Molla, to where Probodh Purkait  was standing and on the   instructions  of Probodh Purkait  who told them to act  according to plan (Je Katha shei kaaj )  the said persons,  who  were identified  by PWs 5, 6 and 7, murdered Abdur Molla.   The entreaties of PW 7, who was related to Probodh Purkait,  also went in  vain  and he was  assaulted on the head by   Kauser Baidya with a lathi. The evidence of PWs 6 and 7 establishes  the presence of  Probodh Purkait  and the other  convicted persons at the    place of occurrence and their involvement in the murder of   Abdur Molla  and assault  on PWs 6 and 7 and they have been  rightly convicted.  Even   Khudiram   Naskar  who according to   Mr. Ranjit Kumar had  not been initially  named by PWs 6 and  7,  has been named by PW-5 as being  part of the unlawful  assembly outside her father-in-law’s house.  Significantly,  she  is  Probodh Purkait’s niece and  had no reason to implicate  him and the others falsely.   The appeals filed by  Probodh Purkait  (Crl. Appeal  No.1077 of 2005),  Basinath Gayen and three others (Crl.  Appeal No.30 of 2006) and Yusuf Gayen and five others (Crl.  Appeal No.13 of 2006) therefore fail and  are accordingly  dismissed.  Crl. Appeal No.438 of 2006 filed by the State of  West Bengal is also dismissed and the order of  acquittal both  

by the Sessions Judge and the High Court  as far as  Bansari  Gayen  and the 27 other accused are  concerned, is confirmed.