{"id":24012,"date":"2007-02-27T00:00:00","date_gmt":"2007-02-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/probodh-purkait-vs-state-of-west-bengal-ors-on-27-february-2007"},"modified":"2019-02-27T15:29:23","modified_gmt":"2019-02-27T09:59:23","slug":"probodh-purkait-vs-state-of-west-bengal-ors-on-27-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/probodh-purkait-vs-state-of-west-bengal-ors-on-27-february-2007","title":{"rendered":"Probodh Purkait vs State Of West Bengal & Ors on 27 February, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Probodh Purkait vs State Of West Bengal & Ors on 27 February, 2007<\/div>\n
Author: A Kabir<\/div>\n
Bench: B.N. Agrawal, P.P. Naolekar, Altamas Kabir<\/div>\n
           CASE NO.:\nAppeal (crl.)  1077 of 2005\n\nPETITIONER:\nProbodh Purkait\n\nRESPONDENT:\nState of West Bengal & Ors\n\nDATE OF JUDGMENT: 27\/02\/2007\n\nBENCH:\nB.N. Agrawal, P.P. Naolekar & Altamas Kabir\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nWITH
\nCRIMINAL  APPEAL NO. 30  OF 2006,
\nCRIMINAL APPEAL No. 13 OF 2006
\nAND
\nCRIMINAL APPEAL No. 438 of 2006<\/p>\n
ALTAMAS KABIR,J.\n<\/p>\n
\tAll these four appeals arise out of the judgment dated
\n20th July, 2005 passed by the Division Bench of the Calcutta
\nHigh Court in respect of the judgment delivered by the
\nAdditional Sessions Judge, Alipore, 24 Parganas (South), in
\nSessions Trial No. 3(5) of 1993.\n<\/p>\n
The said trial involves a double murder committed at
\nRadhaballavpur under Kultali Police Station on 15th January,
\n1985.  In all 109 persons were shown as accused in the
\ncharge-sheet in connection with Kultali P.S. case 4(1) of 1985
\ndated 16th January, 1985.  Out of the said 109 accused, 98
\nwere committed to the Sessions Court.  Out of the said 98
\naccused, 58 stood acquitted under Section 232 Cr.P.C. and
\none Yunus Laskar could not be tried as he was found to be
\ninsane.  Ultimately, 39 persons faced the trial before the
\nAdditional Session Judge-cum-Judge, Special Court (EC Act)
\nAlipore, 24 Parganas (South).\n<\/p>\n
The prosecution case is that  one  Shah Alam Molla (PW-\n<\/p>\n
2) lodged a written complaint at  Kultali Police Station, South
\n24 Parganas, at about 1730 hours. on  16th January, 1985,
\nstating  that on 15th January, 1985 at about 8 a.m. about 157
\npersons, as named in the complaint, along with 400 to 500
\npersons formed  an unlawful assembly  armed with deadly
\nweapons such as lathi, tangi, ballam etc. under the leadership
\nof   one  Probodh   Purkait  and    proceeded towards
\nRadhaballavpur.  First they  attacked the house of one  Payed
\nAli Laskar (PW-3).  The members of the unlawful assembly
\nlooted the house  of Payed Ali, assaulted the members of his
\nfamily and also committed rape on his sister.
\nIt was  further alleged that the mob failed to find Abdur
\nRahaman Laskar  in Payed Ali  Laskar’s house  but on coming
\nto know that  he had gone to the house  of one Dr. Srinibas
\nRoy (PW-7), the members of  the unlawful assembly  under the
\nleadership of  Prabodh Purkait and others proceeded to the
\nhouse of  Dr. Srinibas Roy.  On reaching there, some of the
\nmembers of the unlawful assembly entered into the house of
\nDr. Srinibas Roy and dragged out Abdul Rahaman Laskar and
\nalso  Abdur Molla along with Dr. Srinibas Roy and his  son
\nAurobinda Roy (PW-6).  The members of the unlawful
\nassembly  then assaulted Abdur Rahaman  Laskar and Abdur
\nMolla with lathi, tangi, ballam etc.  resulting in their death on
\nthe spot.  The members of the unlawful assembly also
\nassaulted Dr. Srinibas  Roy and his son Aurobinda and one
\nSudarshan and looted their  household articles.\n<\/p>\n
It was also  disclosed that  the incident was a  sequel to
\nan incident which had taken place on  14th January, 1985,
\nwhen there was a  quarrel between the members of the
\nCongress Party and the Socialist  Unity  Centre  of India over
\nthe  snatching of a microphone by Abdur Rahaman  Laskar
\nand consequently, Probodh Purkait and other leaders of the
\nS.U.C.I. party engineered the assault and murder of Abdur
\nRahaman Laskar and Abdur Molla.\n<\/p>\n
By his judgment dated 12th November, 1997, the
\nSessions Judge convicted Yusuf Gayen, Ismail Laskar,
\nSrikanta Halder, Kartick Naskar, Khudiram Naskar and
\nKauser Baidya under Sections 148, 302\/149, 323\/149 Indian
\nPenal Code and sentenced them to suffer rigorous
\nimprisonment for three years and to pay a fine of Rs.1000\/-
\neach, in default, to suffer rigorous imprisonment for one year
\nunder Section 148 Indian Penal Code, to suffer rigorous
\nimprisonment for life and to pay a fine of Rs.100\/-, in default,
\nto suffer rigorous imprisonment for one year each under
\nSection 302\/149 Indian Penal Code and also to suffer rigorous
\nimprisonment for six months each and to pay a fine of
\nRs.5000\/-, in default, to suffer rigorous imprisonment for
\nthree months each under Section 323\/149 Indian Penal Code.
\nThe trial court acquitted the other 33 accused, including
\nProbodh Purkait, the appellant in Criminal Appeal No. 1077 of
\n2005.\n<\/p>\n
While the convicted persons preferred  Criminal Appeal 4
\nof 1998 before the Calcutta High Court, the State filed an
\nappeal, being No. 17 of 1999, against the order of acquittal
\nmade in respect of the other 33 accused.\n<\/p>\n
The Division Bench of the Calcutta High Court while
\nconfirming the conviction and sentence of Yusuf Gayen  and
\nthe other five accused convicted by the Sessions Judge,
\nallowed the Government’s appeal in part by convicting
\nProbodh Purkait, Harisadhan Mali,  Iran Molla, Anirudha
\nHaldar and Basinath Gayen under section 148 IPC and
\nSection 302\/149 IPC and sentenced them to suffer rigorous
\nimprisonment for life under Section 302\/149 IPC and to pay a
\nfine of Rs. 5,000\/-, in default, to suffer rigorous imprisonment
\nfor three months each.  No separate sentence was awarded to
\nthe convicted persons under Section 148 Indian Penal Code.
\nThe order of acquittal as far as the remaining accused are
\nconcerned, was not interfered with.\n<\/p>\n
Criminal Appeal No. 1077 of 2005 in this Court has been
\nfiled by Probodh Purkait against his conviction by the Calcutta
\nHigh Court.  Criminal Appeal No.13 of 2006 has been filed by
\nthe six accused persons who were initially convicted by the
\nSessions Court.  Criminal Appeal No. 30 of 2006 has been filed
\nby four of the  five accused who were convicted by the Calcutta
\nHigh Court along with Probodh Purkait.   Criminal Appeal No.
\n438 of 2006 has been filed by the State of West Bengal against
\nthe acquittal of the remaining accused.\n<\/p>\n
Mr. Sushil Kumar, learned senior counsel appearing for
\nProbodh Purkait and the other four accused, whose acquittal
\nwas reversed by the Calcutta High Court,  submitted that the
\njudgment of the Calcutta High Court as far as the said five
\nappellants are concerned, is not supported by the evidence
\nadduced by the prosecution.   He pointed out that on a careful
\nappraisal of the evidence of PWs 1 to 9, the Sessions Judge
\nhad discarded the evidence of PW 2,  Shah Alam Molla, who
\nhad lodged the First Information Report. It was urged that the
\nSessions Judge had very rightly pointed out that there was no
\nexplanation for the delay of 33 hours in lodging the First
\nInformation Report and the explanation given for the same
\nwas weak and feeble. The Sessions Judge also observed that
\nPW2 was a chance witness who according to the prosecution
\nhad come to Radhaballavpur  to buy sweets and subsequently
\nis alleged to have followed the prosecution from
\nthe Madrasa School to the house of Payed Laskar.   The
\nSessions Judge also disbelieved the evidence of  Kartick
\nMondal  PW1  as his evidence was at material points contrary
\nto the prosecution case.\n<\/p>\n
Likewise, the Sessions Judge also discarded the evidence
\nof PWs 3 and 4,  Payed Laskar and Kalipada Mondal, as being
\nunconvincing.  Regarding  the evidence of PW 3 as to the
\ninvolvement of Probodh Purkait  in damaging his house and
\nlooting the household articles, the Sessions  Judge has
\nobserved that there is no iota of evidence.   Referring to certain
\ndiscrepancies in the evidence of PW 3 regarding the assault on
\nthe deceased- Abdur Rahaman Laskar and Abdur Molla, and
\nthe place where they were said to have been killed, the
\nevidence of PW-3  was disbelieved by the Court on the basis of
\nspot inspection made by the Sessions  Judge.  Mr. Sushil
\nKumar, pointed out that the evidence of PW-4, Kalipada
\nMondal, was also discarded for the same reason.
\nMr. Sushil Kumar  submitted that  the Sessions Judge
\ndid not also  place reliance  on the   evidence of PW-8,
\nSudarshan Roy, who is  alleged to be an injured eye-witness,
\nas he did not get  himself examined by a doctor.
\nThe evidence of PW-9, Md. Sahabuddin Molla, was also
\nnot accepted as regards the looting of  Payed Laskar’s house.
\nHis  testimony   as an eye-witness to the murder of Abdur
\nRahman Laskar and Abdur Molla was  contradicted  by the
\nInvestigating Officer and  was also  disbelieved.
\nDealing with the  evidence of PW-5,  Kalpana Roy,  her
\nson PW-6, Aurobinda Roy and her husband, PW-7, Srinibas
\nRoy who were all said to be eye-witnesses to the incident  in
\ntheir house and later on in the field to the south of their
\nhouse, the Sessions Judge found certain  discrepancies in the
\nevidence of PW-5  and  her statement before the Investigating
\nOfficer as to the  manner in which the incident is alleged to
\nhave occurred  in her house.  On such basis, the Sessions
\nJudge found her evidence to be  discredited, leaving only the
\nevidence of PWs 6 and 7 to prove the prosecution  case that
\nthe  deceased  were dragged out of the house of PW-7 by the
\naccused at the instant of Probodh Purkait and  thereafter
\nmurdered.\n<\/p>\n
Mr. Sushil Kumar submitted that the  Sessions Judge
\nhad accepted the evidence of PWs 6 and 7 regarding the
\nassault on PW-7 by accused, Kauser Baidya with a lathi and
\nthe fact that PWs 6 and 7 had an opportunity  of seeing  the
\nassailants  of Abdur  Molla  when he was dragged to the field,
\nsince he had also been brought there.  The trial court found
\nthat the evidence of PWs 6 and 7 to be mutually corroborative.
\nHowever, their evidence regarding the  involvement of Probodh
\nPurkait,  Basinath and Basudeb in the murder of  Abdur Molla
\nand assault on them was not believed.\n<\/p>\n
Mr. Sushil Kumar submitted that  on the basis of the
\nevidence of PWs 6 and 7 and the medical evidence, the
\nSessions Judge came to the conclusion that  accused Yusuf
\nGayen, Srikanti Halder, Kartick Nasker, Ismail Lasker and
\nKhudiram Nasker and others had trespassed into the house of
\nSrinibas Roy (PW-7) on 15th January, 1985, at about 8\/8.30
\na.m. at Radhaballavpur and that they along with  Kauser
\nBaidya assaulted Abdur  Molla, Srinibas and Aurobinda by
\nlathi in the field to the  south of the house of Srinibas and
\ncaused simple injuries  to Srinibas and  Aurobinda and
\nmurdered  Abdur Molla at  Chowdhury Chak near Sardarpara
\nRoad at Radhaballavpur, P.S. Kultali.\n<\/p>\n
The further finding was that Abdur Rahaman  Laskar
\nwas also  murdered at that place on that date, but his
\nassailants are not known.\n<\/p>\n
The Sessions Judge accordingly convicted Yusuf Gayen
\nand the  five others  accused under Sections 148,
\n302\/149,323\/149 Indian Penal Code and sentenced them   in
\nthe manner  indicated  hereinbefore and acquitted all the
\nother accused, including Probodh Purkait, Hari Sadhan Mali,
\nIran Molla, Anirudha Haldar and Basinath Gayen who were
\nsubsequently convicted by the High Court under Section 148
\nand 302\/149 Indian Penal Code.\n<\/p>\n
Mr. Sushil Kumar  submitted that in appeal, the High
\nCourt on a re-appraisal of the evidence accepted the evidence
\nof PWs 3,5,6,7,8, and 9 and  observed that  all the said
\nwitnesses had  seen the occurrence from different  angles and
\ndifferent  places.  The High Court also held  that since all the
\nprosecution  witnesses had mentioned  that Probodh Purkait
\nwas a member of the unlawful assembly and, in fact,  led the
\nunlawful assembly, he could not be  absolved of  the
\ncomplicity of sharing the common object of the unlawful
\nassembly though there was no evidence  to indicate that
\nProbodh Purkait had himself inflicted  any injury.
\nOn the basis of the above the High Court also convicted
\nProbodh Purkait,  Hari Sadhan Mali, Iran Molla, Anirudha
\nHaldar  and Basinath Gayen under Sections 148, 302\/149
\nIndian Penal Code and sentenced them to suffer  rigorous
\nimprisonment  for life under  Sections 302\/149 and to pay a
\nfine of Rs.5,000\/-, in default  to undergo rigorous
\nimprisonment for  three months each.\n<\/p>\n
Mr. Sushil Kumar urged that the High Court had erred in
\nrelying  on the  unreliable evidence of PWs 3, 5, 8  and 9,
\nwhich had  been  discarded  by the Sessions Judge for good
\nreasons.  Mr. Kumar  submitted that the High Court had not
\neven  considered the evidence  of PW-2,  Shah Alam Molla,
\nwho lodged the  First Information Report about 33 hours after
\nthe incident.\n<\/p>\n
Mr. Kumar submitted that  on the state of the  evidence
\nthe involvement of Probodh Purkait was not established.  It
\nwas urged  that from the evidence  it would be clear  that the
\nplace where Probodh Purkait  was alleged to have been
\nstanding had not been definitely  fixed, and, on the other
\nhand,  even from the evidence of PWs 6 and 7 it would appear
\nthat Probodh Purkait  was standing at a distance of 2
\nkilometres from the house of PW-7 across a  field.
\n Mr. Sushil Kumar submitted that the High Court had
\ncommitted a grave error of  judgment in convicting  Probodh
\nPurkait, Hari Sadhan Mali, Iran Molla, Anirudha Haldar and
\nBasinath Gayen under Sections 148, 302\/149 on the basis of
\nthe evidence  of PWs 3, 5, 6, 7, 8 and9 and such  conviction
\nand sentence was liable to be set aside.\n<\/p>\n
Mr. Ranjit Kumar, senior counsel for the appellants
\nYusuf Gayen, Ismail Naskar, Srikanta Haldar,Kartick Naskar,
\nKhudiram Naskar and  Kauser Baidya, who had been  initially
\nconvicted by the Sessions Judge, repeated Mr. Sushil Kumar’s
\nsubmissions  that on a  painstaking  appraisal  of the evidence
\nled by the prosecution  the Sessions Judge had for good
\nreasons given by him discarded the evidence of PWs 1, 2, 3, 4,
\n5, 8 and 9.  Once the evidence of PW-2,  who  had lodged the
\nFirst Information Report, was disbelieved, the  main pillar of
\nthe prosecution case stood demolished.\n<\/p>\n
Mr. Ranjit Kumar submitted that there were serious
\ndiscrepancies in the   version of the  different prosecution
\nwitnesses which  discredited the entire  prosecution story and
\nmade the  same  highly  improbable.  Mr. Ranjit Kumar
\ncontended  that the injuries on the body of Abdur Molla clearly
\nbelied the prosecution  evidence  that he had been dragged
\nfrom the house of Dr. Srinibas Roy (PW-7) to the field to the
\nsouth of the house  for a distance   of about two  kilometers
\nwhere  Probodh Purkait was  alleged to be standing.  He also
\nemphasized  the fact that the  body of the other deceased,
\nAbdur Rahaman Laskar, was found at some distance  from the
\nbody of Abdur Molla, which again falsified  the prosecution
\ncase that the  deceased had been dragged  from the house of
\nDr.Srinibas Roy  and killed by the members of the unlawful
\nassembly before  Probodh Purkait.\n<\/p>\n
Mr. Ranjit Kumar submitted that  one of the appellants,
\nKhudiram Naskar,  had not been  identified by  PWs 6 and 7
\nas having  been a member of the unlawful assembly  which
\nattacked  the house  of  PW-7 and dragged  out PWs 6 and 7
\ntherefrom.\n<\/p>\n
Mr. Ranjit Kumar  submitted that the entire incident
\nwas the result  of political rivalry  between the supporters of
\nthe Congress  Party  and those of the S.U.C.I. and Probodh
\nPurkait as the elected Member of the Legislative Assembly  of
\nthe S.U.C.I. party and  his supporters had been falsely
\nimplicated  in the case. Mr. Kumar submitted that the same
\nwould also be  evident from the fact that despite the evidence
\non record no one was  convicted for the murder of Abdur
\nRahaman Laskar.\n<\/p>\n
Appearing for the State, Mr. Altaf Ahmed submitted that
\nthe Sessions Judge had  erroneously  discarded the evidence
\nof PWs 2, 3, 4, 5, 8 and 9 and that the reasons  given in doing
\nso were not acceptable.  It was submitted that the evidence of
\nthe prosecution witnesses was   consistent as to the  incident
\nand the manner  in which it had occurred.  A few
\ndiscrepancies  with regard to the identification of the
\nassailants  and whether the murders were  committed near
\nthe house of Srinibas Roy or  some distance away could not
\ndetract  from the veracity of the evidence  as a whole.
\nMr. Ahmed submitted that all the witnesses had
\ndescribed  the incident  involving  the attack  on the house of
\nDr. Srinibas Roy by the unlawful assembly  and the role
\nplayed by some of the members of the  unlawful assembly  in
\nentering the house of Dr. Srinibas Roy  and dragging out
\nAbdur Rahaman Laskar and Abdur Molla therefrom  and
\nthereafter assaulting them  with lathis, tangis, ballams etc.
\nThe said witnesses also described  the role of  Probodh Purkait
\nin leading the  unlawful assembly to the  house  of  Payed Ali
\nand then Dr. Srinibas Roy.\n<\/p>\n
Mr. Ahmed submitted that by erroneously discarding the
\nevidence  of PWs 2, 3, 4, 5, 8 and 9, the Sessions Judge     had
\nerred in  convicting  only  six of the  thirty nine accused and
\nacquitting  the others.  Relying  on the  evidence of the
\naforesaid prosecution witnesses, as also PWs  6 and 7, the
\nHigh Court   rightly confirmed the conviction of the said six
\naccused and convicted  Probodh Purkait  and four others
\nalso under Sections 148 and 302\/149 Indian Penal Code and
\nno interference was called for in respect thereof.
\nWe have carefully  considered the submissions made on
\nbehalf of the appellants in the first three appeals and those
\nmade on behalf of the  State and  we find ourselves unable to
\ndiffer with the decision of the High Court.
\nThe  evidence of PWs 6 and 7, which has been relied
\nupon by the Sessions Judge and the High Court establishes
\nthat an unlawful mob  assembled at the house of  Dr. Srinibas
\nRoy and  some of the members  of the unlawful assembly, who
\nwere identified ,  entered into the house and dragged out
\nAbdur Rahaman Laskar and Abdur Molla.  PWs 2,3,5, 8 and 9
\ncorroborate the evidence of PWs   6 and 7.  We are unable to
\naccept the reasoning of the Sessions Judge in disbelieving the
\nevidence of PW-2.  His evidence has been  discarded on the
\nground  that  he had named as many as 157 persons to be
\npart of the  unlawful assembly  which assembled in front of
\nthe house of PW-7.  According to the Sessions Judge it was
\nimpossible for him  to have remembered the  names  of so
\nmany  persons present.  The Sessions Judge also doubted his
\ntestimony on the ground that the mob would not have  allowed
\nhim to witness the incident and  leave him untouched   so that
\nhe could be an eye-witness against them.\n<\/p>\n
Similarly, the evidence  of  PWs 3,4, and 5 have been
\ndiscarded by the Sessions Judge for reasons which  are
\ndifficult to  sustain.\n<\/p>\n
PWs 6 and 7 have  deposed as to how they were taken by
\nthe members  of the unlawful assembly,  along with Adbur
\nMolla, to where Probodh Purkait  was standing and on the
\ninstructions  of Probodh Purkait  who told them to act
\naccording to plan (Je Katha shei kaaj )  the said persons,  who
\nwere identified  by PWs 5, 6 and 7, murdered Abdur Molla.
\nThe entreaties of PW 7, who was related to Probodh Purkait,
\nalso went in  vain  and he was  assaulted on the head by
\nKauser Baidya with a lathi.\n<\/p>\n
The evidence of PWs 6 and 7 establishes  the presence of
\nProbodh Purkait  and the other  convicted persons at the
\nplace of occurrence and their involvement in the murder of
\nAbdur Molla  and assault  on PWs 6 and 7 and they have been
\nrightly convicted.  Even   Khudiram   Naskar  who according to
\nMr. Ranjit Kumar had  not been initially  named by PWs 6 and
\n7,  has been named by PW-5 as being  part of the unlawful
\nassembly outside her father-in-law’s house.  Significantly,  she
\nis  Probodh Purkait’s niece and  had no reason to implicate
\nhim and the others falsely.\n<\/p>\n
The appeals filed by  Probodh Purkait  (Crl. Appeal
\nNo.1077 of 2005),  Basinath Gayen and three others (Crl.
\nAppeal No.30 of 2006) and Yusuf Gayen and five others (Crl.
\nAppeal No.13 of 2006) therefore fail and  are accordingly
\ndismissed.  Crl. Appeal No.438 of 2006 filed by the State of
\nWest Bengal is also dismissed and the order of  acquittal both <\/p>\n
by the Sessions Judge and the High Court  as far as  Bansari
\nGayen  and the 27 other accused are  concerned, is confirmed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Probodh Purkait vs State Of West Bengal & Ors on 27 February, 2007 Author: A Kabir Bench: B.N. Agrawal, P.P. Naolekar, Altamas Kabir 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-24012","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nProbodh Purkait vs State Of West Bengal & Ors on 27 February, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/probodh-purkait-vs-state-of-west-bengal-ors-on-27-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Probodh Purkait vs State Of West Bengal & Ors on 27 February, 2007 - 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