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
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
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 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
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
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
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.