JUDGMENT
Pranab Kumar Deb, J.
1. The two appeals being C.R.A. 475 of 1989 and C.R.A. 35 of 1990 have been directed against the Judgment and order dated 15.12.1989 passed by the learned Additional Sessions Judge, 1st Court, Krishnanagar in connection with Sessions Trial No. 3 of March 1989.
2. The grueling incident resulting in the murder of a person, infliction of grievous hurt to some others and maiming of a remaining one occurred on 22/03/1983 at about 08-00 hrs., at Dharapara, Anchal No. 2, P.S. Tehatta. The prosecution came, out with positive allegation that the appellants along with other miscreants armed and equipped with deadly weapons stormed into the house of Dwijendra Nath Biswas where Joydeb Mondal, Laxmi Joardar, Santu Mondal, Ajit Mondal and Kama Mondal had taken shelter. Perturbed and terrified by the menacing advance of the miscreants, Joydeb Mondal moved into the adjacent room of Mirmadan Biswas. Instigated by Ramen Mondal, the appellants namely Joydeb Mondal, Baidyanath Mondal, Ranjit Mondal and Asta Mondal entered into the room of Mirmadan Biswas by breaking upon his door and thereafter brutally hacked Joydeb Mondal to death, using ‘Fala’, ‘Kirich’ and ‘Gun’ for effecting their object. The other miscreants also did not lag behind. They went after Ajit Mondal, Santu Mondal, Laxmi Joardar, Durgabala Biswas, Mantu Mondal, Provat Mondal, Madhai Mondal, Tinkari Mondal and some other persons and brutally assaulted them with ‘Ramda, Tangi and other instruments’. The persons receiving serious injuries were hospitalized. Joydeb Mondal, who received gun shot injury as well as slab injury, died on the spot before any medical assistance could be provided for him.
3. Following the lodging of the FIR by Dwijendra Nath Biswas, a case under Sections 147/148/149/448/323/324/326/307/302/427 IPC and under Section 27 Arms Act were registered by Tehatta Police Station against as many as forty named accused persons. With the registration of the case, the police officer entrusted with the investigation of the case conducted inquest over the dead body of the deceased. It was followed by sending the dead body to the morgue for post mortem examination. Efforts were made to apprehend the persons involved in the incident. Incriminating articles including blood stained earth, wearing apparels, broken tiles and bricks were seized. The Investigation Officer prepared a sketch map of the place of occurrence with index. The investigation went on with the examination of the available witnesses. Eventually, on examination of the witnesses, seizure of the articles, collection of medical papers including post mortem report, chargesheet was submitted.
4. Charges under Sections 148/302/149 IPC and 27 Arms Act were framed following commitment of the case to the Court of Session. All the thirty-nine persons who faced the trial pleaded innocence. Accordingly, the prosecution was called upon to produce its witnesses. The prosecution did it by examining twenty-nine witnesses including the informant, the witnesses of the occurrence, the witnesses of the seizure, the doctor conducting the post mortem examination, the medical officer examining some of the injured persons, the officer incharge recording the case and the police officer investigating the matter.
5. On scanning the entire evidence, oral and documentary, pinning reliance on the statements of the eye witnesses and the corroborative medical papers, the learned Additional Sessions Judge was pleased to convict the appellant Baidyanath Mondal, Asta Mondal, Ranjit Mondal and Joydeb Mondal for commission of offence under Section 302/34 IPC. All of them were sentenced to imprisonment for life and fine of Rs. 1,000/- each, in default, to rigorous imprisonment for two months.
6. Appellant Baidyanath Mondal was sentenced to rigorous imprisonment for three years for commission of offence under Section 27 Arms Act.
7. Appellant Asta Mondal was sentenced to rigorous imprisonment for three years for commission of offence under Section 148 IPC and rigorous imprisonment for three years for commission of offence under Section 324/149 IPC.
8. Appellant Sudeb Mondal, Khagen Mondal and Mirmadan were sentenced to rigorous imprisonment for six months each for commission of offence under Section 143 IPC and rigorous imprisonment for three years each for commission of offence under Section 324 IPC.
9. Accused Ghentu Mondal, Anil Mondal, Probir Mondal, Dhulo Mondal and Chantu Mondal were sentenced to rigorous imprisonment for three years each for commission of offence under Section 148 IPC and rigorous imprisonment for three years each for commission of offence under Section 324/149 IPC.
10. Remaining twenty-seven accused persons, who also faced the trial, were, however, acquitted of all the charges.
11. Aggrieved by and dissatisfied with the conviction and sentence, the appellants namely Baidyanath Mondal, Asta Mondal, Ranjit Mondal and Joydeb Mondal preferred an appeal, while the other eight persons filed the separate appeal against their respective convictions and sentences. The two appeals being C.R.A. 479 of 1989 and C.R.A. 35 of 1990 were thus heard analogously.
12. Describing the alleged incident as in absurd one, Mr. Y.Z. Dastoor, learned Counsel, has submitted that it is unbelievable that the accused persons without any purpose went on assaulting the prosecution witnesses. What was the motive behind causing murder and grievous hurt has not been divulged. In view of the simmering dispute between two political groups, the death of a person and injuries of others were well capitalized to implicate the political adversaries. The recording of the FIR long after alleged incident provided ample scope to deliberate and prepare a false case.
13. Terming the FIR as antedated and antetimed, Mr. Dastoor submits that the prosecution deliberately suppressed and withheld the document containing the first information regarding commission of murder and grievous hut. To substantiate his view that original FIR has been withheld, Mr. Dastoor has referred to the seizure list (Ext. 2) which was prepared on 22.3.1983 at 13-15 hrs. in connection with Tehatta Police Station case No. 18 dated 22.3.1983. Mr. Dastoor contends that it is unbelievable that seizure list could be prepared before the registration of the case at 19-15 hrs. The timing noted in the seizure list thus provides ample proof that the original FIR was replaced by another one. This has also been substantiated by the statements of the officer-in-charge of Tehatta Police Station. The said officer reached the spot on receiving information as to commission of murder. He received a written FIR on spot and forwarded to the police station. His own conduct suggests that he acted on the earlier information regarding commission of murder. The earlier information disclosing the commission of cognizable offence having been withheld, the Trial Court should not have been accepted the subsequent written complaint as an FIR.
14. Commenting on the conviction and sentence of the appellants Joydeb Mondal, Baidyanath Mondal, Ranjit Mondal and Asta Mondal, Mr. Dastoor has submitted that the learned Trial Judge accepted the prosecution version that the four appellants had committed murder of Joydeb Mondal after breaking open the door of Mirmadan Biswas. Had the door of Mirmadan Biswas been broken open with force, there would have been some remnants of the broken door and latch. There would have been also trail of destruction. The Investigating Officer, however, did not find any such broken objects. Non seizure of any such broken objects falsifies the claim of the prosecution that the miscreants had broken open the door and thereafter committed murder of Joydeb Mondal well inside the room of Mirmadan Biswas. Taking a cue from the observation of Dr. A.K. Mahapatra that the injured must have suffered profused bleeding, Mr. Dastoor contends that non collection of blood marks from the room of Mirmadan Biswas gives a clear indication that the alleged incident of murder had taken place somewhere else and certainly not inside the room of Mirmadan Biswas. The place of occurrence not having been fixed and finalized, there should not have been conviction and sentence under Section 302 IPC against the four appellants.
15. Referring to the time of the incident, as noted down in the FIR, Mr. Dastoor has argued that the post mortem report has given a clear indication that the alleged murder had taken place long before the morning of 23rd March, 1983. On examination of the dead body, the doctor found absence of rigor mortise. Dr. Mahapatra has observed that the rigor mortise or rigidity persists for about 48 hrs. The post mortem examination was conducted on 23/03/1983 at 2-15 P.M. At the time of examination of the dead body the doctor found absence of rigor mortise. Such disclosure by the doctor falsifies the claim of the prosecution that Joydeb Mondal was murdered on 22/03/1983 at 08-15 hours.
16. Calling the statements of the prosecution witnesses as inconsistent, unreliable and unsatisfactory, Mr. Dastoor has submitted that the Trial Court has failed to appreciate the fact that deviating from the original stand, the prosecution witnesses sought to present a divergent version of the entire incident. In trying to develop a new case, efforts were made to salvage its position at every stage. What was claimed and stated during the trial was not mentioned at the time of trial. P.W.I, for instance, did not state before the Investigating Officer that Joydeb Mondal had been found lying on the room of Mirmadan Biswas. He did not also state during investigation that the deceased was found lying on a Macha with piercing injuries on his person.
17. P.W.2 also did not state during investigation that Joydeb Mondal had taken shelter in the house of Mirmadan Biswas.
18. P.W.4 did not allege during the stage of investigation that he had been assaulted in a place which was 16 cubits away from Joydeb’s Khamar.
19. P.W.5 also did not claim that he saw the appellants marching ahead with ‘Fala, Kirich, Tangi’ etc. He also did not disclose at that time that the appellant Achal made an attempt to strike a blow on his neck with a ‘Dao’.
20. P.W.6, who claimed himself to be an eye witness, also did not state before the Investigating Officer that the appellants Baidyanath Mondal, Joydeb Mondal, Ranjit Mondal and Asta Mondal had caused murder of deceased Joydeb Mondal. He stated during the investigation that he was struck on the head. Giving a new twist to the incident, the witness came up with the new allegation that the appellant Sudeb had struck him on a right shoulder with a ‘Tangi’.
21. The other injured person namely P.W.8 Santu Mondal never claimed during investigation that the appellant Probir assaulted him with a ‘Kirich’. What he stated earlier was that Probir dealt a blow by means of a ‘Dao’. Giving a new twist and turns to the entire incident, another version of the incident was sought to be projected during the trial. Mr. Dastoor contends that in view of another version of the incident coming up before the Court, absolute reliance should not have been placed on the distorted statements made during the trial. Referring to the case of Namdeo Daulata Dhayagude and Anr. v. State of Maharashtra it is contendent that when contradictions not on mere matters of detail, but on vital points, it would not be safe to rely on the evidence. Mr. Dastoor has also referred to the case of State of Haryana v. Gurdial Singh and Anr. , to substantiate his contention that where the prosecution witnesses have come out with inconsistent versions of the occurrence – One version is contained in the evidence of the witnesses in Court, while the other version is contained in their statements made before the police – Conviction of the accused persons cannot be sustained on such contradictory version.
22. Strongly defending the conviction and sentence against the appellants, Mr. J.N. Ram has strenuously contended that in view of the eye witnesses explaining in detail as to how the murder and grievous hurt had been executed, the Trial Court had every reason to pin reliance on their statements. The incident having occurred long way back, minor deviations were inevitable. They were some minor discrepancy in the statements of the witnesses. This minor discrepancies however, do not go to the root of the case. The essence of the crime and the involvement of the appellants in the commission of such crime are well established from the statements of the eye witnesses. Furthermore, what the witnesses stated about causing injuries do get substantial corroboration from the medical papers and post mortem report. Added to it, was the seizure of some incriminating articles. The direct evidence has thus been well supplemented by corroborative evidence. In view of such overwhelming materials on record, the conviction and sentence of the appellants under different heads were quite justified, as urged by Mr. Ram.
23. Amongst the twelve appellants, four of them were convicted for commission of offence under Sections 143, 302/34 IPC. Appellant Baidyanath Mondal was also convicted and sentenced for commission of offence under Section 324/149 IPC. The other eight accused persons were convicted under different heads. To substantiate the charges, the prosecution examined quite a large number of eye witnesses. Some of them were also said to have received injuries following onslaught launched by the miscreants.
24. P.W. 1 Dwijendra Nath Biswas, who lodged the FIR, deposed during the trial that a strong mob of 50-60 person surrounded his house. In the midst of such gathering, one Ramen Mondal instructed his associates to find out Joydeb Mondal. Having traced out Joydeb Moodal, S/o, Sudhir Mondal, the appellant Joydeb Mondal, S/o, Avibhushan Mondal, pricked at the victim from outside through the window. Instigated by Ramen Mondal to break open the door and to murder Joydeb Mondal, the appellants Asta Mondal, Ranjit Mondal, Baidyanath Mondal and Joydeb Mondal forcibly entered into the room of Mirmadan Biswas by breaking open the door. The witness also claimed to have heard sound of firing. His earnest request to spare the life of Joydeb Mondal fell on deaf ears. They went on executing their job. As testified to by P.W.I Dwijendra Nath Biswas, the appellants Asta Mondal, Ranjit Mondal, Joydeb Mondal and Baidyanath Mondal came out of the room and boldly proclaimed that Joydeb Mondal had been finished off.
25. P.W.3 Durgadari Biswas, the mother of the informant, has also testified that Joydeb Mondal had taken shelter in the room of Mirmadan Biswas and bolted it from within. The appellants Baidyanath Mondal, Joydeb Mondal, Haru Biswas, Kharu Mondal, Asta Mondal, Probir Mondal, Basu Mondal and Ramen Mondal followed him right up to the room of Mirmadan Biswas. Thereafter the appellant Baidyanath Mondal fired on Joydeb Mondal through the window.
26. P.W.5 Mantu Kr. Mondal also confirmed that Joydeb Mondal had taken shelter in the room of Mirmadan Biswas in a bid to save himself.
27. P.W.7 Basanti Biswas disclosed during trial that amongst the miscreants, she recognized Baidyanath Mondal, Joydeb Mondal, Khagen Mondal and Ramen Mondal as the persons breaking the doors and tiles of the room of Dwijendra Nath Biswas and Mirmadan Biswas, she also heard sounds or firing. Entering the room of Mirmadan Biswas, she found the injured Joydeb Mondal lying dead on the ‘Macha’. She noticed few other injuries on his person as well.
28. P.W.8 Santu Mondal during his examination in the trial disclosed that he found Joydeb Mondal and Kama Mondal running towards the house of Dwijendra Nath Biswas out of sheer fear of their lives. Despite taking shelter in the room or Mirmadan Biswas, the person in distress could not escape the wrath of the rampaging mob. The witness saw the appellant Baidyanath Mondal firing on Mirmadan’s room through the window. The other appellant namely Joydeb Mondal, S/o, Avibhushan Mondal, also pricked the deceased Joydeb Mondal with ‘Ballam’. He also noticed the appellants Ranjit Mondal and Asta Mondal entering into the room by breaking open the door. After a while, the appellants Ranjit Mondal, Asta Mondal came out with blood stained weapons and proclaimed that Joydeb Mondal had been finished.
29. P.W.9 Ajit Mondal, who also sustained injury, claimed to have recognized the appellants Baidyanath Mondal, Joydeb Mondal, Ranjit Mondal and few others in the mob. The armed mob chased Joydeb Mondal, Santu Mondal, Mantu Mondal and Ajit Mondal, who in desperation, took shelter in the house of Dwijendra Nath Biswas.
30. P.W. 11 Ranjit Biswas, a relation of the informant, alleged that the armed miscreants had stormed into their house to find out Joydeb Mondal who had taken shelter in the room of his Mirmadan Biswas. Despite his fervent appeal for to spare them, the miscreants went berserk. Some of them went far ahead. As told by P.W. 11, appellant Asta Mondal, Ranjit Mondal and 2/3 others entered into the room by breaking the door of Mirmadan Biswas. The witness also heard the sound of firing. On entering the room of Mirmadan Biswas, he found his mother Durgadasi lying on the room with pallet injury on her person. He also noticed Joydeb Mondal lying dead on a ‘Macha’ with multiple injuries on his person.
31. The four appellants namely Joydeb Mondal, Ranjit Mondal, Asta Mondal and Baidyanath Mondal were convicted and sentenced for commission of offence under Section 302/34 IPC. They were earlier seen by the eye witnesses with the mob which went berserk, rampaging every obstruction that came their way. The four appellants had more positive role to play. They made Joydeb Mondal. their target. Despite the victim taken shelter in the room of Mirmadan Biswas, the appellants went after him. It transpires from the statements of P.W.3 Durgadasi Biswas and P.W.8 Santu Mondal that Baidyanath Mondal fired from his gun through the window of Mirmadan Biswas. P.W.I Dwijendra Nath Biswas, P.W.7 Basanati Biswas and P.W. 11 Ranjit Biswas also heard the sounds of firing. P.W. 1 Dwijendra Nath Biswas further disclosed that the appellants Asta Mondal, Ranjit Mondal, Baidyanath Mondal and Joydeb Mondal came out of the room of Mirmadan Biswas and thereafter boldly proclaimed that the victim Joydeb Mondal had been finished off. P.W. 1 Dwijendra Nath Biswas and P.W.8 Santu Mondal also saw the appellant Joydeb Mondal pricking the deceased Joydeb Mondal with ‘ballam’. P.W.8 Santu Mondal also saw the appellants Ranjit Mondal and Asta Mondal entering into the room of Mirmadan Biswas by breaking open the door. After a while, both of them came out with blood stained instruments and proclaimed that Joydeb Mondal had been finished. P.W. 11 Ranjit Biswas also recognized the appellants Ranjit Mondal and Asta Mondal as the persons entering into the room of Mirmadan Bismas by breaking open the door. Afterwards he found the victim Joydeb Mondal lying dead on a ‘Macha’ with multiple injuries on his person.
32. The post mortem of the victim Joydeb Mondal was conducted by P.W.I A.K. Mahapatra. On examination, he found multiple incise injuries and one penetrating injury from back to front. The doctor opined their multiple incise injuries were caused by sharp cutting instruments, whereas penetrating injury was caused by gun shot. There was another penetrating incise injury on the left side of the chest wall. There was evidence of bullet entering into the chest wall. Third and forth ribs were found fractured. There were ruptures of the left lung and pleura. In addition to those injuries, there were also minor injuries on his person as well.
33. The doctor conducting the post mortem viewed that the bullet injuries on vital parts were sufficient to cause the dealt in ordinary course. It is evident from the observation of the doctor conducting the post mortem examination that the victim suffered incise injuries caused by sharp cutting instruments and also bullet injuries on vital parts. What the eye witnesses stated about the victim Joydeb Mondal sustaining incise injury by sharp cutting instruments and receiving bullet injuries found due support from the post mortem report also. These aspects were taken due note of by the Trial Court. It is on record that the four appellants headed towards the house of P.W. 1 Dwijendra Nath Biswas in a belligerent mood. They were equipped with arms. Two eye witnesses saw the appellants Asta Mondal and Ranjit Mondal emerging from the room of Mirmadan Biswas and proclaiming that Joydeb Mondal had been finished. The informant saw all those four persons emerging from the room. They proclaimed that the deceased Joydeb Mondal had been finished. Appellant Joydeb Mondal was seen pricking the victim with ‘ballam’, while Baidyanath Modal was seen firing from his gun. The request of the inmates of the house to spare the life of Joydeb Mondal had no effect on them. All of them worked in tandem with the clear intention of murdering Joydeb Mondal. Each of them had also some overt act play. It is quite evident that they executed their pre-arranged plan of murdering Joydeb Mondal. In view of such overwhelming materials against the four appellants namely Joydeb Mondal. Asta Mondal, Ranjit Moodal and Baidyanath Mondal, the learned Trial Judge was quite justified in convicting and sentencing them for commission of offence under Section 302/34 IPC.
34. It has been disclosed by the Investigating Officer that he did find marks of blood in the room of Mirmadan Biswas. The blood marks were stamped with foot marks. In view of foot marks being found over the blood, such blood marks could not be sent for F.S.L. report. The witnesses with one accord testified that execution of murder of Joydeb Mondal was done in the room of Mirmadan Biswas after breaking the door of the room. As disclosed by P.W.29 S.I. Monoranjan Das, broken tiles and doors of the different rooms were found. He also found the dead body of Joydeb Mondal with multiple injuries lying in the room of Mirmadan Biswas. All these facts do suggest that the execution of murder of Joydeb Mondal was done in the room of Mirmadan Biswas and not elsewhere.
35. As disclosed by P.W. 29 Monoranjan Das, Sri J.N. Dutta Officer in-Charge of Police Station forwarded the complaint to thana through a constable with a direction on him to investigate the matter. There was just an earlier information about commission of murder. The cryptic information as to commission of crime does not contain all the ingredients of the FIR. As duty bound, police officers headed towards the place of disturbance. The law was actually set in motion on receipt of the first information report at the spot. We are afraid we cannot subscribe to the view that withholding the earlier information, a distorted FIR was introduced to facilitate the prosecution case.
36. The incident of murder had taken place in the warm area of Krishnanagar in the month of March. The- post mortem was conducted nearly thirty hours after the incident of murder. There is nothing on record to show that the dead body was properly preserved during the long gap. Absence of rigor mortis after such long hours under these circumstances cannot be called unnatural. From the mere absence of rigor mortise, it cannot be deducted that the incident had occurred long before 08-00 hrs. on 23/03/83. Some of the prosecution witnesses were also injured. They had given a fair indication as to what time the incident had occurred. There is no logic in disbelieving their statements regarding the time of execution of murder of Joydeb Mondal and assault on others.
37. The eye witnesses of the murder have given a fair account as to what happened before their eyes. They viewed the entire incident from close range. What they stated during the investigation was more or less reiterated during the trial. Too much importance cannot be given to minor contradictions and omissions. There was hardly any significant deviation of their narration of the incident of murder. As indicated in the case of Namdeo Daulata Dhayagude and Anr. v. State of Maharashtra (supra), when the main substance of the story narrated by the eye witnesses remains unshaken in cross examination, the Court would be right in relying on the evidence of the eye witnesses for reaching the conclusion as to the involvement of the accused persons in the commission of the crime. Here the role of the four appellants namely Joydeb Mondal, Ranjit mondal, Asta Mondal and Baidyanath Mondal being prominent and discernible, the Trial Court did the right thing by convicting, and sentencing them for their direct role in the commission of murder of one Joydeb Mondal in furtherance of their common intention.
38. All the appellants were convicted for causing grievous hurt as well as for causing rioting.
39. All the appellants were charged with having committed rioting with deadly weapons like fire arms ammunition, Ram Daos, Falas, Kiriches, Hasuas, Bows and Arrows, Lathies, Brickbats, Tangles etc. They were also charged with having caused grievous hurt to Ajit Mondal, Anil Mondal, Mantu Mondal, Provat Mondal, Tinkari Mondal, Durgabala Biswas, Kama Mondal and Santu Mondal with such weapons. Appellant Baidyanath Mondal was also accused of committing offence under Section 27 of the Arms Act. The statements as to the incident made during trial substantially differed from what was stated in the FIR. It was claimed in the FIR, that forty named accused persons along with 60/70 persons armed with ‘Fala, Kirich, Ramdao and Tangi had assaulted Kama Mondal, Ajit Mondal, Santu Mondal, Laxmi Joardar, Durgabala Biswas, Mantu Mondal, Provat Mondal, Madhai Mondal, Tinkari Mondal and many others. There was no consistency and uniformity in the statements regarding assault on some of the prosecution witnesses. The informant found Ajit Mondal and Santu Modal lying unconscious behind the room of one Anil. He also found the person called Kama Mondal with injuries on his person in the house of Sukumar Mondal. As told by P.W.2 Ajit Mondal, he was knocked down after being struck with lathi. He further alleged that Khagen Mondal struck him on his chest with a ‘Fala’. The ‘Fala’ also pierced his palm while he tried to resist the assault on him. P.W.3 Durgabala Das deposed to the effect that something was thrown into her eyes, causing burning sensation. She did not divulge as to who did the mischief. The other persons who were said to have received injury also deposed during the trial. P.W.4 Laxmi Joardar testified that Joydeb Mondal, Baidyanath Mondal, Kharu Biswas, Santu Mondal, Asta Mondal, Sachin Mondal, Ghentu Biswas, Ramen Mondal, Khagen Mondal alongwith others numbering about 16/17 armed with “Tangi, Fala, Ramdao, Kirich, lathi and other instruments came to the spot where they were standing. The witness alleged that Kharu delivered a blow on his head by something, while Santu Mondal dealt another blow on his head by something else. P.W.6 Kama Monal was another person who was also reported to have received grievous injury. The witness stated that Sudeb Mondal first struck him with a Tangi’ and thereafter he dragged him out by his hair. Another blow with Tangi’ was delivered after he had been dragged out. The witness further alleged that Khagen Mondal delivered blow on his left shoulder with a ‘Kirich’. One Mera struck him on his left leg with a ‘Lathi’. As narrated by P.W.8, Santu Mondal, Baidyanath Mondal, Asta Modal, Dhelu Mondal, Probir Mondal, Jhentu Mondal, Ghentu Mondal, Gandhi Mondal and Joydeb Mondal chased him right up to the house of Anil Biswas. He was dragged out of the room and thereafter Anil Biswas and Ghentu assaulted him with ‘Lathi’. Dhulo dealt a blow on his back with a ‘Kirich’, while Probir also dealt another blow on his head by ‘Kirich’. The other appellants delivered blow on his head with ‘Ramdao’. P.W. 11 Ranjit Biswas found her mother Durgabala Das lying in front of the door of Mirmadan Biswas with pallet injury on her forehead. The witnesses also noticed Ajit Mondal and Mantu Mondal wailing in pain. The witness Provat Mondal and P.W. 15 Tinkari had different incidents to tell. As stated by P.W. 15 Bifal Mondal, Gandhi Mondal and Mira Biswas assaulted him on his head and Sadin Mondal struck him on his right arm with a ‘Kirich’. P.W. 15 Tinkari Mondal claimed that Mahadeb Mondal delivered a blow with a Tangi’, while Achal struck him on his right hand with a ‘Kirich’. P.W. 16 Sukumar Mondal found Sudeb Mondal dragging Kama Mondal by his hair. He also witnessed the assault on Kama Mondal by Sudeb and others. He claimed that different weapons were used by assailants.
40. No concrete idea can be formed as to how assault on the injured persons had been executed. There were divergent statements as to who caused the injuries. There were also conflicting statements as to what sort of instruments and weapons were used for assault. Some of the injured persons namely Ajit Mondal, Laxmi Joardar, Mantu Mondal, Santu Mondal, Kama Mondal, Tinkari Mondal and Durgabala were examined and treated in the hospital for injuries sustained by them. The injury report, as disclosed by P.W.2 Dr. P.S. Chanda, was written on 03/04/1983, although the patients were examined way back on 22/03/1983. The history of assault was not noted. The names of the assailants were not recorded either. Deviating from the original stand as reproduced in FIR, the witnesses made divergent statements about the appellants and other miscreants committing rioting and causing grievous hurt. Such conflicting and inconsistent statements hardly inspired any confidence. Unruly members of the mob moved in different directions. There were inconsistent statements as to who really formed the assembly for the purpose of committing rioting. In view of divergent statements being made at the trial, it is quite difficult to ascertain who amongst the members of the mob caused grievous hurt. There being disjointed, inconsistent and contradictory statements regarding formation of unlawful assembly for rioting and causing grievous hurt, the charges under Sections 148 and 326/149 IPC cannot stand.
41. Appellant Baidyanath Mondal was convicted and sentenced for commission of offence under Section 27 of the Arms Act. No sanction, whatsoever, was obtained for launching prosecution under Section 27 of the Arms Act. In the absence of such sanction, the conviction and sentence under Section 27 of the Arms Act cannot be justified.
42. There are overwhelming materials indicating the involvement of the appellants namely Baidyanath Mondal, Asta Mondal, Joydeb Mondal and Ranjit Mondal for commission of offence under Section 302/34 IPC. They executed the murder of the victim Joydeb Mondal in furtherance of their common intention. The learned Trial Judge was absolutely right in convicting and sentencing them for commission of offence under Section 302/34 IPC. In view of lack of evidence, the other charges cannot stand.
43. In the result. Criminal Appeal being C.R.A. 475 of 1990 is allowed in part and the Criminal Appeal being C.R.A. 35 of 1990 preferred by eight other appellants is allowed in full. While upholding the conviction and sentence of the appellants namely Baidyanath Mondal, Joydeb Mondal, Ranjit Mondal and Asta Mondal under Section 302/34 IPC, we hereby set aside the conviction and sentence of the other eight appellants of all the charges. Appellant Baidyanath Mondal is exonerated of the charge under Section 27 of the Arms Act and Asta Mondal is also exonerated of the charge under Sections 148 and 324/149 IPC.
44. The four appellants namely Ranjit Mondal. Joydeb Mondal, Asta Mondal and Baidyanath Mondal, now on bail, are to surrender before the Trial Court within 15 days of passing of this order to serve out the sentence under Section 302/34 IPC, failing which the Trial Court shall take all steps to secure their arrest and detention in custody. The bail bounds of Joydeb Mondal, Ranjit Mondal, Asta Mondal and Baidyanath Mondal stand cancelled. The other eight appellants namely Chentu Mondal, Anil Mondal, Probir Mondal, Dhulo Mondal, Chentu Mondal, Sudeb Mondal, Khagen Mondal and Mirmadan Mondal, now on bail, are discharged from their respective bail bonds.
45. Send the LCR along with a copy of the Judgment to the Trial Court for information and with the intimation that steps are to be taken against the appellants namely Baidyanath Mondal, Asta Mondal, Ranjit Mondal and Joydeb Mondal to secure their arrest and detention in the event of the four appellants not surrendering within 15 days or passing of this order. The learned Trial Judge shall also issue modified jail warrant on the basis of our Judgment.
Urgent xerox certified copy of this Judgment be made available to the parties on their making proper application for the same and after complying with all formalities.
Alok Kumar Basu, J.
46. I agree.