Joymalya Bagchi, J.
1. I am informed by the learned Senior Counsel appearing for the appellants that appellant no. 1, Kasem Molla has expired in the meantime. Hence, the appeal has abated so far as he is concerned.
2. The appeal is directed against the order dated 30.09.2013/06.11.2013 passed by the learned Additional Sessions Judge, 6th Court, Barasat, North 24- Parganas in Sessions Trial No. 01(12) of 2000 corresponding to Sessions Case No. 2(03) of 2000 convicting the appellants for commission of offence punishable under Sections 302/149/325/323 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/, in default to suffer further rigorous imprisonment for one year more for the offence punishable under Section 302/149 of the Indian Penal Code, to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5,000/-; in default to suffer further rigorous imprisonment for six months more for commission of offence punishable under Section 325 of the Indian Penal Code and to suffer rigorous imprisonment for one year more and to pay Rs. 1,000/-; in default to suffer further rigorous imprisonment for six months more for the offence punishable under Section 323 of the Indian Penal Code. All the sentences to run concurrently.
3. The prosecution case, as alleged, against the appellants is to the effect that on 30.11.1997 at about 8 hours, Kasem, since deceased, and others were carrying paddy on bullock cart over the paddy of Rahamat Molla (one of the victims). Over such issue an altercation ensued. Rahamat opposed Kasem and others from taking their bullock cart over his paddy and all the appellants assaulted him with lathi and he fell down on the ground. The appellants danced over his body. Seeing this, Sarifan Bibi (P.W. 2), Mujibar Molla (P.W. 3) and the sons of Rahamatulla viz. Nur Nabi Molla (P.W. 4) and Noor Jaman Molla came to his assistance. Thereupon they were also assaulted mercilessly. As a result, Noor Jaman Molla suffered serious injuries. Rahamat Ali Molla and Nurjaman Molla were shifted to NRS hospital for treatment and Mujibar was admitted to Kachua hospital. Sarifan Bibi and Nur Nabi Mollah were given first aid. One Azijar Rahamat Molla, (P.W 1) (son of Mujibar) lodged FIR against the appellants resulting in registration of Habra P.S. Case No. 356 of 1997 dated 30.11.1997 under Sections 147/148/149/325 of the Indian Penal Code. Subsequently Rahamat Ali Molla died at about 16.50 hours on that day and Noorjaman Molla died on 01.12.1997 at about 6.30 a.m. and accordingly Sections 302 and 307 of the Indian Penal Code were added to the FIR. In conclusion of investigation charge-sheet was filed and the case was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, 6th Court, Barasat, North 24-Parganas for trial and disposal.
4. Charges were framed under sections 302/149 of IPC (for the deaths of Rahamat and Noor Jaman), under section 323 IPC (for the assault of P.W 2 Sarifan Bibi and P.W 4 Noor Nabi Molla) and under sections 325/149 IPC (for the assault on P.W 3 Mujibar Molla). All the appellants pleaded guilty and claimed to be tried. It was their specific case that there was a free fight and they had been assaulted. Due to such assault some of the appellants namely Jahangir Molla and Mahabub Molla had suffered injuries and had been hospitalized. It was also the claim of one of the appellants Mahatab Molla that he was a juvenile at the time of occurrence.
5. In course of trial, prosecution examined 15 witnesses and exhibited a number of documents.
6. On the other hand the defence examined three witnesses and also exhibited injury report of appellant Jahangir and the transfer certificate issued by the school where Mahatab Molla was studying to support his plea of juvenility.
7. Mr. Basu, learned senior Counsel for the appellants argued that prosecution case suffers from various inconsistencies and contradictions. A counter case was registered over the assault on the appellants. Injury of Jahangir and Mahabub had been explained away by the prosecution and hence the genesis of the incident as proposed by the prosecution witnesses cannot be said to be true. Hence, his clients are entitled to an order of acquittal. He further submitted that the ownership of the passage through which the bullock cart was being driven has been proved. Civil suit is pending by and between the parties. It also appears from the medical reports exhibited in the instant case that all the appellants were named as assailants and they were subsequently implicated due to enmity. He relied on various authorities in support of his submissions and prayed for acquittal.
8. On the other hand, learned Public Prosecutor with Mr. Banerjee appearing for the State submitted that a number of eye witnesses including injured witnesses have implicated the appellants as the assailants of Rahamat Ali and Nur Jaman resulting in their deaths. Defence evidence is credulous as it does appear from the evidence of the defence witnesses including medical certificate (Ext. B) that Jahangir or Mahabur were assaulted by any of the family members of Rahamat Ali or that he suffered the injury in course of the incident. Evidence of the prosecution witnesses is corroborated by medical evidence, hence, the prosecution has been able to prove its case beyond reasonable doubt. He, accordingly, prayed for dismissal of the appeal.
9. P.W 1, Ajizar Rahamn Mollah is the son of P.W 3 Mujibar Mollah and the de facto complainant in the instant case. He deposed that on the date of the incident the appellants hit on the heads of Rahamat Ali Mollah and his youngest son Nurjaman Mollah with rod. They suffered bleeding injuries. The appellants had also assaulted other witnesses. His father Mujibar and wife Sarifan Bibi and Noor Nabi Mollah were also injured in the course of the said incident. They shifted Rahamat Ali and Noor Jaman to Ashoke Nagar hospital and therefrom to NRS Medical College and Hospital. He lodged complaint (Ext. 1) and he proved his signature there on (Ext. 2).
10. P.W 2, Sarifan Bibi is an injured witness. She deposed that on the date of incident Kasem Molla and others were carrying paddy on a bullock cart over the paddy of Rahamat Ali Molla. There was an altercation. Rahamat Ali opposed. Thereupon the appellants assaulted on his head with a rod. Noorjaman was also assaulted with lathi. She and her husband, Mujibar Molla tried to rescue the victims and sustained injuries. Nur Nabi was also assaulted and sustained injury. They were taken to Kachua hospital and she was discharged from Kachua hospital but her husband was admitted there. Other injured persons namely Rahamat and Noorjaman were taken to hospital at Kolkata where they died.
11. P.W 3 Mujibar Mollah has corroborated the evidence of P.W 2 in material particulars. He deposed as to specific roles of Sajahan Molla hitting Rahamatulla with a rod and Kasem Molla similarly hitting Noorjaman on the head with a rod. Both the victims fell down and sustained bleeding injuries. They were taken to Kachua hospital where he was admitted, Noor Jaman and Rahamat Ali Molla were sent to NRS hospital. Rahamat Ali and Noor Jaman died later.
12. P.W 4 Noor Nabi Mollah is the injured son of Rahamat Ali Mollah. He deposed that an altercation occurred on 30.11.1997 at about 7.30 to 8 a.m over the driving of bullock cart containing paddy of Kasem Molla causing damage to their paddy. In the course of quarrel accused persons assaulted Rahamat Ali on the head and he fell down. The accused persons jumped on the body of Rahamat Ali. His brother was also assaulted on the head. He, Mujibar and Sarifan Bibi intervened and were attacked. They were taken to Kachua hospital. Mujibar and Sarifan Bibi were discharged. He along with his father and brother were shifted to hospital at Calcutta. He did go to hospital at Calcutta but was examined at Barasat hospital. His brother and father died at hospital at Kolkata.
13. P.W 5 Md. Kalu Gazi has corroborated the evidence of P.W 1 to 4. In cross examination, he stated that courtyard was owned by Rahamat although he cannot say the Dag and Khatian no. of the plot. He could say whether the courtyard is owned by Kasem Molla.
14. P.W 6 Mst. Khadija Bibi corroborated the evidence of P.W 1 to 4. She deposed that over an altercation Kasem Molla started assaulting Rahamat Molla. Rahamat fell down on the field. Thereafter, the accused persons jumped on the body of Rahamat Ali. They also assaulted Nurjaman, Nur Nabi, Mujibar and the wife of Mujibar with lathi, sabal and rod as a result Rahamat and Nurjaman died.
15. P.W 9 Khadeja Bibi is the wife of Rhamat Ali Molla. She deposed that in the course of altercation the accused persons had assaulted her husband, two sons, Mujibar and his wife Sarifa Bibi. As a result her husband received bleeding injuries and fell down. They were moved to hospital where her husband and one of her sons died.
16. P.W 7 held inquest over the dead body of Rahamat Ali Molla and Nurjaman Molla at NRS hospital. He proved the inquest report (Ext. 2 and Ext. 2/1)
17. P.W 8 Asraf Ali Molla is a neighbour. He corroborated the evidence of the prosecution witness. He deposed that he took the victims to Ashoknagar hospital and thereafter Rahamat Molla, Nur Nabi and Nurjaman Molla were referred to Barasat hospital for treatment. Nur Nabi was treated at Barasat Hospital while Rahamat and Nurjaman were taken to NRS hospital at Calcutta. On the same day Rahamat died. On the next day Nurjaman expired in the hospital.
18. P.W 10, Ajit Kr. Singha Roy is the police officer who was attached to Habra P.S and received a written complaint from P.W 1 and drew up the formal FIR (Ext. 3).
19. P.W 11, Pranab Dutta was the officer in charge of Habra PS. He deposed that he endorsed S. Das to investigate the case which was registered by P.W 1. On that day a counter case was stated against the case which was lodged by P.W 1 earlier. In cross examination, he stated that a final report was submitted in the counter case.
20. P.W 12, Binapani Baral was a doctor attached to Barasat Sadar hospital. He examined Nur Nabi Molla and recorded history of assault in the medical report (Ext 4). He also examined Nur Jaman Molla and recorded history of assault of the said patient. The patient was referred from Ashoknagar hospital to Barasat Sadar Hospital. He proved the injury report (Ext. 5). He also examined Rahamat Ali Molla. He referred the patient to the said hospital in Calcutta. He proved the report (Ext. 6).
21. P.W.13, Dr. Bhupal Chandra Majumder conducted post mortem over the dead body of Nur Jaman Molla and found the following injuries:
1. One abrasion with red scab " X " over the lateral angle of the left eye.
2. One abrasion with red scab " X " over the left side of the forehead.
3. One abrasion with red scab " X " over the left lateral shoulder.
One dissection - deep bruise, dark red 6" X 2" over the right side of vault of the skull.
He opined that the death was due to the effect of head injury antemortem and homicidal in nature.
In cross-examination, he stated that such type of injury may be caused due to fall on any hard substance.
22. P.W.14, Dr. Suddhodhan Batabyal conducted post mortem over the dead body of the victim Rahamat Ali Molla. He found the following injuries:-
1. One stitched up wound, placed obliquely over frontal region back and of its mid part measuring 4" in length. On removal of stitches, it was found lacerated in character having 4" X " X muscle deep.
2. One diffused bruise 2" X 2" over back of right forearm.
3. Another diffused bruise 5" X 3" over back on left forearm.
4) one elongated depressed commuted fracture measuring 3" X 2" placed obliquely on mid part of the frontal region.
5) One fissure fracture measuring 2" in length placed over right parietal bone.
6) Subdural haemotoma of both cerebral hemisphere.
He opined that the death was due to the effect of injuries as ante-mortem and homicidal in nature.
23. P.W.15, Samatul Das, is the investigating officer in the instant case. He deposed that he visited the place of occurrence, drew up rough sketch map with index. He examined witnesses. During investigation, two injured persons expired at N.R.S Hospital. He added Section 302 and Section 307 of the IPC to the first information report. He collected the injury reports of Rahamat Ali Molla, Nur Jaman Molla and Sarifan Bibi. He collected the discharge certificates and death certificates. He collected the post mortem reports of Nur Jaman Molla and Rahamat Ali Molla. He collected the inquest reports and submitted charge sheet in the instant case. In course of investigation, he was also entrusted to investigate another case being Habra P.S. Case no. 357 dated 30.11.1997. Abul Kasem Molla was the complainant in the said case. He investigated the said case and submitted final report as mistake of fact in the said case.
24. In cross-examination, he was confronted with the injury reports. He admitted that it is stated in the forwarding report (Ext. A) that Mahabub Molla had suffered injury.
25. D.W.1, Sekendar Molla deposed that there was a dispute over the carriage of bullock cart loaded with paddy along with the pathway leading to the house of Kasem. The Mosque is situated on the other end of the pathway. The aforesaid path is used by people for attending Mosque. He took Jahangir to Kachua hospital where he was treated. Thereafter he was transferred to Medical Hospital.
26. In cross-examination, he stated that he had seen the incident with his own eyes.
27. D.W.2, Rafiqul Mondal deposed that on 30th November, 1997 at about 8 A.M. he heard hue and cry and rushed to the house of Jahangir Molla. On arrival at the spot, he found Jahangir Molla lying on the ejmali pathway which runs towards his house. He along with other persons lifted Jahangir and brought him in front of the house of Islam. Jahangir had suffered head injury which was treated at Kachua Hospital. Jahangir was transferred to the Medical College at Calcutta. Jahangir was admitted in the Medical College. He did know as to how Jahangir sustained his injuries.
28. D.W.3, Dr. Syed Mohammad Naser treated Jahangir Molla at Ashoknagar State General Hospital. He proved the injury report (Ext.B).
29. In the course of enquiry under Section 7A of the Juvenile Justice, 2000 Md. Aktarujjam was examined as D.W.1 on behalf of the appellant Mahatab Molla. He deposed that he was the head of Institution of Bhurkund Emdadia Senior Madrasha. He proved the admission register for the year 1993-94 wherein the date of birth of Md. Mohatab Molla was written as 10.11.1982 against Entry no.15. From the said entry, it appears that he was admitted on the said school on 6.5.1993 on the basis of transfer certificate from Magurkhali Junior Basic School.
30. From the aforesaid evidence on record, it is clear that on 30.11.1997 at around 7.30 A.M. to 8 A.M. there was an altercation between the Kasem Molla and his son Mahatab Molla and Sahajan and Jahangir sons of Jayer Molla (another brother of Kasem Molla) on one hand and Rahamat Molla on the other hand over the issue of Kasem driving his bullock cart over the paddy belonging to Rahamat Molla. In the course of such altercation, it is alleged that the appellants had assaulted Rahamat on the head. He suffered bleeding injury and fell down. It is also claimed that the appellants danced on his body. In order to resist such assault his son Nur Nabi, P.W.4 and Nur Jaman Molla intervened. They were also assaulted. P.W. 3, Mujibar Molla another brother of Kasem and his wife Sarifan Bibi, P.W.2 also intervened. They were also assaulted by the appellants. As a result of such assault, they suffered injuries. Sarifan Bibi, P.W 2 and Mujibar Mollah, P.W.3 Nur Nabi, P.W.4 and the victims were initially treated at Ashokenagar Hospital. Thereafter the victims were referred to N.R.S. Hospital at Calcutta. Rahamat died on that day and Nur Jaman died on the next day. Relying on the evidence of the injured eyewitnesses and other evidence the prosecution has sought to fix the responsibility of the death of Rahamat and Nur Jaman upon the appellants.
31. I have perused the evidence on record. All the witnesses have stated that in the course of altercation the appellants assaulted the victims causing injuries which ultimately led to their death. On the other hand, senior counsel appearing for the appellants argued that the manner and course of the prosecution case as narrated by the said witnesses ought to be believed as the prosecution has explained the injury of Jahangir and Mahabub which occurred in the course of the incident. It is also his submission that there are patent embellishments in the evidence of the prosecution witnesses as in the injury report of Nur Nabi, P.W.4 and that of the deceased Nurjaman and Rahamat. Ext.5 and Ext.6 respectively names of the appellants Mujibar Molla, Mahabub Molla & Jahangir Molla do appear. Medical evidence does support the allegation that the appellants danced over the victim, Rahamatullah. Hence, it is clear that the prosecution witnesses have intentionally made out a false case to implicate all the family members of Kasem Molla and another brother, Jager Molla over previous enmity between the parties. He has also argued that it is unclear as to whether the pathway was exclusively owned by Rahamat Molla or not. From the evidence on record it is unclear whether the pathway where the incident occurred was owned by Rahamat or not. No document in support of such claim has been proved in the instant case. On the other hand, P.W.5 in cross-examination was unable to specify the dag number of the pathway which he claimed belonged to Rahamat. Evidence of D.W. 1 showed that the pathway was used by the villagers to go to the Mosque. Hence, I am of the opinion that the prosecution has been able to prove that the incident occurred on the land exclusively owned by the Rahamat. On the other hand, it appears that the pathway was used by all and an altercation over driving of bullock cart through the same by Kasem caused damage to the paddy of Rahamat which had triggered the incident. In the course of the incident, it is claimed that the appellants assaulted the victims Rahamatullah and Nurjaman resulting in their deaths and also injured P.W 2, 3 and 4. The question is who were the assailants of the victims? While the prosecution witnesses have parroted in unison the names of all the appellants, I note that from the injury reports of Nur Nabi (Ext. 4), and that of the victims' (Ext. 5 and 6) recorded by P.W.12 only Kasem (since deceased) and Sajahan are named as the assailants. No injury report of Sarifan Bibi (P.W 2) or Mujibar (P.W 3) has been proved in this case. There is no whisper of the roles of the other appellants in the assault of the victims in the injury reports which were recorded by P.W 12 at around 8 A.M. prior to the registration of the first information report. Injury reports also show that the victims were conscious and in cross examination, P.W.12 stated that the patient made the statement to him.
32. It appears that as an afterthought in the first information report which was recorded around 10.30 a.m. roles of the other appellants, namely, Mahabub Molla and Jahangir Molla transpire. Hence, it is clear that at the earliest opportunity before the doctor (P.W. 12) only names of Kasem Molla and Sahajan Molla were stated as the assailants of the victims and the other appellants were implicated subsequently in the FIR. No doubt that there is enmity between the family members of Kasem and Rahamat. An altercation had also ensued between the family members over the driving of a bullockcart by Kasem damaging the paddy belonging to Rahamat. In this backdrop it is likely that the prosecution witnesses exaggerated their versions and had sought to implicate all the male members in the family of Rahamat and Jager(another brother supporting Kasem) for the deaths of Rahamat Ali Molla and Nur Jaman Molla. It is trite law that while appreciating the evidence of relation witnesses who are embroiled in dispute with one another,the court is required to examine their evidence with greater caution and circumspection. It is true some of them are injured witnesses. However, in view of the fact that the injury reports recorded by P.W. 12 at the time when the patients were conscious and has disclosed only the names of Kasem and Sahajahan as their assailants, I am inclined to hold that the implication of the other appellants at the subsequent stage is an improvement in the prosecution case. Accordingly, I propose to extend the benefit of doubt to the said appellants. I am also in agreement with the senior counsel that the allegation of the appellants dancing over the body of Rahamat is supported by the evidence of Post Mortem doctor (P.W 14) as no grievous injuries on the other parts of the body (except head) was noticed during Post Mortem examination. With regard to the plea that injuries suffered by Jahangir, and Mahabub in the course of the incident had been explained, I have considered the defense evidence including Ext A and Ext. B. I find that neither the defence evidence nor Ext A (forwarding report of Mahabub) or Ext- B (injury report of Jahangir) establish identity of their assailants or that the appellants suffered injuries in the course of this incident. Furthermore, the counter case had ended in a final report as mistake of fact. Hence, I am of the opinion that failure to explain away the injuries on Mahabub and Jahangir does militate against the truthfulness of the prosecution case and the prosecution case cannot thrown out lock, stock and barrel on such score alone.
33. In this factual backdrop, the authorities relied on behalf of the appellants [Mohar Rai v. State of Bihar (AIR 1968 SC 1281) and Lakshmi Singh and Ors. v. State of Bihar (AIR 1976 SC 2263)] are clearly factually distinguishable and are of no help to the appellants.
34. Alternatively it has been argued that the appellants did have intention to murder the victim. Incident occurred in the course of a free fight and some of the appellants were also injured. As discussed earlier, I note that there is no evidence showing that the injuries on the appellants, Mahabub and Jahangir were caused in the course of the incident. There is nothing on record to show that the victims were armed or that there was a free fight. Although there was an altercation between the parties, I find that the appellants were the aggressors and the victim Rahamatulla had merely objected to Kashem driving his bullock curt over his paddy. Hence, there was no grave and sudden provocation or a free fight so as to scale down the charge in the instant case to one of culpable homicide amounting to murder. On the other hand, Kasem and Sajahan dealt severe blows on the heads of the victims. Severity of the injuries caused on a vital part of the bodies of the victims by Kasem and Sajahan resulting in death of the victims clearly portray an intention of the said appellants to cause death and I am unable to accept the contention on behalf of the appellants that the case falls within the exceptions of section 300 of the I.P.C. so as to bring down the charge to culpable homicide amounting to murder.
35. In view of the fact that I have extended the benefit of doubt to the appellant, Mahatab Molla, I chose to express any opinion as to the plea of juvenility. However, it appears that the evidence led by him on such score does relate to school records where he was initially admitted so as to treat it as admissible evidence under Rules framed under the Juvenile Justice Act 2000.
36. With regard to the charge of Sections 323 and 325 of Indian Penal Code, I find no medical reports were exhibited in respect of assault on Sarifan Bibi (P.W. 2) and Mujibar Molla (P.W. 3). Hence, I hold that the charges with regard to the assaults on the said witnesses have been proved beyond doubt. However, I find that the medical report with regard to assault on P.W. 4 Noor Nabi Molla has been proved
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as exbt. 4. From the medical report it appears that he was assaulted by Kasem and Sahajahan. 37. Accordingly, I hold that the charge of murder of Rahamat and Noorjaman Molla has been proved beyond reasonable doubt against Kasem (since deceased) and Sahajan, appellant no. 5 herein. Charge under Section 323 IPC has also been proved against Kasem and Sahajan so far as assault on Nurnabi is concerned but the charge under Section 323 IPC so far as assault on Sarifan Bibi and charge under Section 325 IPC so far as assault on Mujibar Molla have been proved against them. Other appellants, namely, Mahabub Molla, Mahatab Molla, Jahangir Molla are held guilty of all the charges levelled against them. 38. In view of the aforesaid discussion, I modify the conviction and sentence imposed on the appellants in the following manner:- (a) Conviction against Kasem Molla (since deceased) and Sajahan Molla under sections 302/34 of the I.P.C. for murder of the victims, Rahamat Ali Molla and Noor Jaman Molla is upheld and they are sentenced to suffer rigorous imprisonment for life each and to pay a fine of Rs. 10,000/- each, in default to suffer further rigorous imprisonment for one year each. (b) Conviction of the appellants, namely, Kasem Molla and Sajahan Molla is recorded under sections 323/34 of the I.P.C. for assault on Noor Nani Molla (P.W. 4) is also upheld and they are sentenced to suffer rigorous imprisonment for one year each and also to pay a fine of Rs. 1000/- each, in default to suffer further rigorous imprisonment for six months. (c) The appellants, namely, Kasem Molla and Sajahan Molla are acquitted of the charge under section 325 of the I.P.C. (for the assault on Mujibar Molla (P.W. 3) (d) Other appellants, namely, Mahabub Molla, Mahatab Molla and Jahangir Molla are acquitted of all the charges levelled against them. (e) All the sentences imposed upon appellant no.5, Sajahan Molla shall run concurrently. (f) Period of detention suffered by the appellant no.5, Sajahan Molla during investigation, enquiry and/or trial shall be set off against the substantive sentence under section 428 of the Cr.P.C. (g) The appellant nos.2, Mahabub Molla @ Mahabul, 3, Mahatab Molla and 4, Jahangir Molla @ Jahanggir shall be discharged from their bail bonds after 6 months in terms of Section 437A of the Cr.P.C. 39. The appeal is partly allowed. 40. Copy of this judgment along with the lower court records be sent down to the trial court at once. 41. Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties expeditiously. 42. I agree.