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Judgment
Girish Chandra Gupta, J.—This appeal is directed against a judgment and order dated 4th January, 1991 passed by the learned Additional Sessions Judge, 5th Court, Midnapore in Sessions Trial No. XIV of March, 1987 arising out of Gopiballavpur P.S. Case No. 3 dated 9th October, 1983 (G.R. Case No. 645 of 1983) convicting the accused Hari Ram Mondal, Satis Mondal, Manick Mondal, Golok Mondal, Amar Mondal, Mihir Patra and Ganeswar Shyamal of the offences punishable under Sections 148, 324 read with Section 149 and Section 364 read with Section 149 of the Indian Penal Code and sentencing them to rigorous imprisonment for ten years as also to pay a fine of Rs. 1,000/ - in default, to suffer further rigorous imprisonment for a period of six months in respect of the offence punishable under Sections 364/149; further sentencing them to rigorous imprisonment for a period of one year each for the offence punishable u/s 148 of the Indian Penal Code; still further sentencing them to rigorous imprisonment for one year each for the offence punishable under sections 324/149 IPC and acquitting them of the charge u/s 302 read with Section 149 of the Indian Penal Code.
Thirty-four accused persons were there. Out of them only the seven appellants were convicted and sentenced as indicated above and the rest of the accused persons were acquitted of all the charges.
The facts and circumstances of the case briefly stated are as follows:
The victim Satyaban and the victim Murali were the supporters of C.P.M. The accused persons were supporters of C.P.I.(ML). There is evidence of previous enmity between the parties.
On 9th October, 1983 in the morning between 9 A.M. and 10 A.M. the cattle of the accused Hari Ram Mondal damaged the Kundri plantation of the P.W. 2 Jitobahan, father of the victim Satyaban. Satyaban drove away the cattle. This enraged Manik, son of the accused Hari Ram. He retaliated with a bow and arrows in his hand. Satyaban filed to his house. At about 2 O'' clock in the afternoon when Satyaban and Murali were talking in the dwelling house of the former, large number of persons armed with deadly weapons raided the house of Satyaban. He was attacked. Murali tried to intervene. His attempt was foiled by dealing an injury on his right eye with the help of a tangi, a sharp cutting weapon. Murali fled for life. Satyaban was assaulted and thereafter taken to the house of the accused Golok Mandal. Satyaban was thereafter never found either alive or dead.
P.W. 8, Monoranjan, who is an eyewitness of this incident, also fled away and took shelter in the house of his brother-in-law in the village Satma. He reached there around 3 O'' clock. There he came across Ardhendu Satpati to whom the incident was narrated. Ardhendu Satpati straightaway from the village Satma rushed to the Police Station by his motor bike. The police station was at a distance of 44 kilometers from the place of occurrence. He lodged a written complaint. The police it appears was not equipped to reach the place of occurrence. They had to requisition a vehicle and members of police force and ultimately reached the place of occurrence at about 5 A.M. in the morning on the next day.
The P.W. 10, a Sub-Inspector of Police, searched for the accused persons but they were not found. He searched the house of the accused Golok Mondal and seized a large number of blood stained articles evidenced by seizure lists prepared at 8 hours on 10th October, 1983 which are Exhibits 6 and 6A. Bloodstained cement plaster was also recovered from the house of Rakhal Mondal, brother of Golok Mondal which is evidenced by a seizure list marked Exhibit 6B. The seized articles were sent to Forensic Science Laboratory which reported that blood was detected in each of the aforesaid items. The report has been marked Exhibit 7.
P.W. 4, Murali, was sent by the P.W. 10 to Gopiballavpur Primary Health Centre where he was treated as an indoor patient. He was discharged on a risk bond on 16th October, 1983. The injury report goes to show that the P.W. 4 disclosed to the doctor that he was assaulted by Manick Mondal with the help of a tangi.
P.W. 9, Dr. Bepari, found upon examination 11/2" x 1/4" sharp cut wound over right eye and 11/2" x 1/4" sharp cut wound below the right eye. The injury report has been marked Exhibit 3. The injured Murali was given first aid by Dr. Puspa Ranjan Ghosh. He, however, was not examined but the P.W.9, Dr. Bepari, deposed in his cross-examination that he found Murali in a bandaged condition.
P.W. 1, the de facto complainant, had lodged the FIR on the basis of information supplied to him by the P. W. 8 and he, therefore, was not an eye-witness.
P.W. 2, father of the victim, Satyaban, deposed as follows:
...About 61/2" years ago on 22nd Aswin (Sunday) at about 2/2.30 p.m. my son Satyaban was murdered. On the date of occurrence my son Satyaban was present at home at about 10 a.m. Myself, my wife and my son Monoranjan were present at that time at home. Satyaban went backside of my house and drove out the cattle which came into my house. At that time Manik Mondal who was armed with a bow and arrow suddenly shouted saying that he will kill Satyaban. Immediately Satyaban came inside the house. On that date at about noon time accused Hariram, Manik, Amar, Golok Mondal, Satish Mondal, Natabar, Kartick, Nagen, Murali Mondal, Nalin Patar, Satinath Patar. Mihir Patar, Harel Dolai, Ganeswar Shyamal, Gokul Mohanti, Babu Lenka, Krishna Lenka, Sudhir Dolai, Kangali Senapati, Gouranga Senapati and others formed an unlawful assembly being armed with bows, arrows, lathis etc., in the house of accused Golok Mondal. The distance between my house and the house of accused Golok Mondal is 25/30 cubits. I saw the accused persons from my house as there was nothing in between. At about 1-30 p.m. on that date Murali Kuila came to my house. When my son Satyaban was talking to Murali, the accused persons suddenly came over there and surrounded Murali and Satyaban. The accused persons had bows and arrows, lathis, tangis in their hands. At that time accused Manik Mondal hit my son Satyaban with a tangi. When both my son and Murali wanted justice, accused Manik hit Murali with a tangi on the forehead above the left eye and below the left eye. On getting the hit Murali immediately fled away. The accused persons named and others surrounded my son and Murali. The accused persons then bodily lifted my son Satyaban and took him to the house of accused Golok Mondal. Satyaban was murdered in the house of Golok and I could understand it by hearing his shouting. The accused persons I named are all present in Court (identifies on dock). Accused Manik was found shouting from the top of accused Golok''s house saying that they have already murdered Satyaban and whoever will come there will also be murdered. My other son Monoranjan fled away after the assault took place in my house.
The dead body of my son Satyaban was packed up in a gunny-bag and was lifted by the accused persons with the help of a bamboo pole and taken towards Manichberia.
On the following day at about 4 a.m. Daroga Babu came to my house and I narrated him everything. I also told everything to P.W. 1 Ardhendu Satpathy. Despite search, we did not get the dead body of Satyaban.
My wife Khiroda is almost mad after the demise of our son Satyaban.
There is no significant cross-examination in the sense that nothing adverse has been elicited during his cross-examination.
P.W. 3 is the mother of the victim Satyaban. She corroborated the evidence of the P.W. 2. She, however, by the time she came to give evidence had become blind and was not in a position to identify the accused persons on the dock.
P.W. 4, Murali, is the injured witness himself. He deposed as follows:
I knew Satyaban Mondal who has been murdered about 61/2" years ago on 22nd Aswin. The distance between my house and the house of Satyaban is about 15 bighas of land.
On the date of occurrence at about 1-30/2 p.m. I went to the house of Satyaban. When I came to his house I saw both Satyaban and his brother Monoranjan present in front of the house. I started talking to Satyaban. At that time the accused persons namely Satish Mondal, Hariram, Amar, Manik, Kartick, Natabar, Nagen, Murali, Sachi, Mihir, Haren, Kailash, Gokul, Ganeswar Shyamal, Sudhir Dolai (identifies on dock) and many others came from the house of accused Golok and surrounded me and Satyaban. They were armed with bows and arrows, ballam, tangi, lathi etc. At that time accused Manik told Satyaban "SALA LEADER HOYECHEY TO MAKE DEKHACHHI". 1 intervened to say that the matter could be settled amicably. The accused persons then said "AMRA BICHAR SHES KOREY DICHHI". Thereafter accused Manik attacked and assaulted Satyaban with tangi. Accused Manik then struck me with a tangi hitting above and below my right eye. I sustained bleeding injury. After being assaulted, I fled away from the place of occurrence. Thereafter I saw that the accused persons were taking Satyaban towards the house of accused Golok while beating him. After that I became senseless and fell down in front of the house of Surendra Ghosh.
After I regained senses I went to Baharagora in the chamber of Dr. Puspa Ghosh in a bi-cycle of Abani Patra. I was treated by Dr. Puspa Ghosh. Baharagora Hospital is at a distance of 4/5 kilometers from my place. Gopiballavpur Hospital is at a distance of 30/35 kilometers from my house.
On the next day i.e. on 23rd Aswin the police came in the morning to our village and interrogated me. I narrated the incident to P.W. 1 Ardhendu Satpathy.
I was sent by the police to Gopiballavpur Hospital for treatment. stayed there for 6/7 days for treatment.
He was suggested on behalf of the defence during the cross-examination that he had sustained the injury by falling on some hard substance.
P.W. 5 is a co-villager. He witnessed the incident after the victim Satyaban was abducted from his house to the house of Golok Mondal. He deposed, inter alia, as follows:
On that date at about 4/4-30 p.m. I was sitting on an ''ail''. At that time I found that accused Sudhir Dolai and Gokul Maity (identifies on dock) were carrying the dead body of Satyaban in a gunny bag duly packed up with the help of a bamboo pole.
Many other persons were following the said accused. Accused Haren, Kailash, Mihir (identifies on dock) and many others were the said followers. They were armed with various weapons. They were proceeding towards Manichberia via Chitreswar. Accused Sudhir Dolai then uttered that they were carrying the dead body of Satyaban.
He also witnessed the seizure and subscribed his signature to the seizure list prepared by the police. He also deposed as regards bloodstained articles recovered from the house of Golak Mondal and his brother Rakhal Mondal.
During his cross-examination he deposed as follows:
I told the police that afterwards I heard that the people belonging to C.P.I.(ML) committed the murder of Satyaban and carried his dead body.
The learned Trial Judge did not rely on the evidence of P.W. 5 because he was of the opinion that his evidence is based on hear-say which is not be a correct inference to draw because the witness has said, we already have noticed, that he found two of the accused persons carrying the dead body of the victim Satyaban. What he deposed in his cross-examination noticed above may have been heard by him subsequently but that does not detract from the fact that he had seen the dead body of the victim Satyaban being carried by two of the accused persons.
P.W. 6 also is an eye-witness but he turned hostile.
P.W. 7 another eye-witness also turned hostile although he supported the case of the prosecution during the cross-examination made by the Public Prosecutor with the leave of Court. But during cross-examination on behalf of the defence he washed his hands by deposing that his evidence was based on what he had heard.
P.W. 8 is a full brother of the victim Satyaban. He supported the case of the prosecution.
P.W. 9 is Dr. Bepari who had treated the victim, P.W. 4.
P. W. 10 is the investigating officer.
The learned Trial Judge in acquitting the seven accused persons advanced the following reasoning:
Needless to mention that in the instant case accused persons numbering as many as 35 are facing the trial for several offences mentioned above. Out of them the names of seven accused persons namely accused Satish Mandal, Hariram Mandal, Manik Mandal, Amar Mandal, Mihir Patra, Ganeswar Shyamal and Golok Mandal have been specifically mentioned in the written complaint (Ext. 1) which was lodged with the concerned P.S. on the date of occurrence itself namely, after about four hours from the time of occurrence. All the seven F.I.R. named accused persons have again been named specifically and also identified by three of the eye-witnesses in particular, namely, P.Ws. 2, 4 and 8 since the other eye-witness P.W. 3 could not identify any of the five accused persons named by her. I consider that it will be risky to act on the basis of her evidence regarding the involvement of the five accused persons named by her. Besides naming the seven F.I.R. named accused persons, the eye-witnesses namely P.Ws. 2, 4 and 8 named many of the other accused persons also as the perpetrators of the crime. But in the facts and circumstances of the case like this I consider that it will be only fair to accept their evidence about the involvement of the seven F.I.R. named accused persons mentioned by them and not others.
The evidence of the eye-witnesses P.W. 2 Jitbahan Mandal. P.W. 4 Muralidhar Kuila and P.W. 8 Manoranjan Mandal demonstrated overwhelmingly that on the date of occurrence (9.10.83) at about 1.30 or 2 p.m., accused Satish Mandal, Hariram Mandal, Manik Mandal, Golok Mandal, Amar Mandal, Mihir Patra and Ganeswar Shyamal and many others came over to the house of P.W. 2 Jitbahan Mandal from the house of accused Golok Mandal being armed with lathis, tangis, bows, arrows etc. and surrounded. Satyaban Mandal and P.W. 4 Muralidhar Kuila. It was again proved by the evidence of P. W. 4 Muralidhar Kuila and P.W. 8 Manoranjan Mandal and the surrounding circumstances that at that time on the said day, accused Manik Mandal threatened Satyaban with dire consequences. The utterances of the words by accused Manik Mandal on the date of occurrence aiming at Satyaban, viz. "SALA LEADER HOYECHEY, TO MAKE DEKHACHHI" AND "AMRA BICHAR SES KORE DICHHI" as deposed to by P.W. 4 Muralidhar Kuila and also the further utterances of accused Manik aiming at Satyaban like "AAJ SALAKE MERE FELBO" and "SALA LEADER DEKHACI-IHO, AAJ TO MAKE MAJA DEKHACHHI" as deposed to by P.W. 8 Manoranjan Mandal amply prove beyond any shadow of doubt that, the intention of the unlawful assembly of which the seven accused persons viz. Satish Mandal, Hariram Mandal, Manik Mandal, Golok Mandal, Amar Mandal, Mihir Patra and Ganeswar Shyamal were members was to murder Satyaban Mandal, a political rival, after his abduction. It was clear that such intention sparked off from a small incident of damage caused to the ''kundri'' plants of the house of P.W. Jitbahan Mandal by the cattle belonging to accused Hariram. Again the evidence of P.W. 4 Muralidhar Kuila that he sustained injuries on being assaulted by accused Manik Mandal with a tangi as stands duly corroborated by the evidence of the independent witness Dr. Bepari (P.W. 9) and the medical document (Ext. 3) established beyond all reasonable doubt that the intention of the unlawful assembly of which accused Satish Mandal, Hariram Mandal, Manik Mandal, Amar Mandal, Ganeswar Shyamal, Golok Mandal and Mihir Patra were members was also to assault the said Muralidhar Kuila for his siding with Satyaban on the date of occurrence. It was again amply proved by the evidence of P.W. 2 Jitbahan Mandal, P.W. 4 Muralidhar Kuila and P.W. 8 Manor:anjan Mandal that on the date of occurrence at about 1-30 or 2 p.m. the said seven accused persons and many others abducted Satyaban Mandal from the house of P.W.2 Jitbahan Mandal and forcibly took him to the house of accused Golok Mandal while assaulting him, obviously for murdering; him.
Considering the facts and circumstances of the case and having regard to the entire materials on record, I am therefore constrained to hold that the accused Satish Mandal, Hariram Mandal, Manik Mandal, Golok Mandal, Amar Mandal, Mihir Patra, Ganeswar Shyamal and many others formed an unlawful assembly at Karnataka and came to the house of P.W. 2 Jitbahan Mandal on 09.10.83 at about 1-30 or 2 p.m. being armed with lathis, tangis, bows, arrows etc., with the common object of assaulting Satyaban Mandal and P.W. 4 Muralidhar Kuila and abducting Satyaban ''Mandal with intent to murder Satyaban and thereby committed an offence of rioting with deadly weapons as punishable u/s 148 of the Indian Penal Code. Considering the materials on record and having regard to the surrounding circumstances of the case, I also hold that on the date of occurrence at about 1-30 or 2 p.m. accused Satish Mandal, Hariram Mandal, Golok Mandal, Amar Mandal, Mihir Patra and Ganeswar Shyamal and many others abducted Satya ban Mandal from the house of his father P.W. 2 Jitbahan Mandal with the deliberate intention of murdering him and thus committed an offence punishable u/s 364/149 I.P.C.
As regards the charge under Sections 307/149 I.P.C. I find from the evidence on record that P.W. 4 Muralidhar Kuila sustained only simple injury above and below his right eye on being voluntarily hit by accused Manik Mandal with a tangi sharp-cutting weapon on the date of occurrence. Accordingly the charge u/s 307/149 I.P.C. as framed is unsustainable as the seven accused persons as above committed only an offence u/s 324/149 I.P.C. Hence, I hold the seven accused persons namely, Satish Mandal, Hariram Mandal, Manik Mandal, Golok Mandal, Amar Mandal, Mihir Patra and Ganeswar Shyamal and many others did not commit any offence u/s 307/149 I.P.C. but that they committed a lesser offence as punishable u/s 324/149 I.P.C.
Mr. Bagchi, the learned Advocate appearing in support of the appeal submitted that P.W. 8 during his cross-examination deposed as follows:
I reached my brother-in-law''s place at Satma at 3 p.m. P.W. 1 Ardhendu came to that place of my brother in law at 3-15 p.m.
Whereas the P.W. 1 deposed as follows:
From Satma village I went straight to the P.S. At about 3 p.m. I started for the P.S. from Satma village by motorcycle. It takes about 11/2 hours for reaching the Gopiballavpur P.S. from Satma village.
Mr. Bagchi contended that according to P.W. 1 he had started from the village Satma for the police station at 3.00 P.M. whereas according to the P.W. 8, the information was conveyed to the P.W. 1 at 3.15 P.M. There is therefore contradiction between the evidence of .P.W. 1 and P.W. 8 which renders the evidence of P.W. 8 highly suspicious. We are unable to accept this submission. Because both the witnesses namely P.W. 1 and the P.W. 8 referred to time by way approximation. On the basis of this type of deviation, it is difficult to disbelieve the witnesses.
The second submission advanced by Mr. Bagchi was that P.W. 10, Investigating Officer, in his cross-examination admitted that the P. W. 1 in his examination u/s 161 of the Code of Criminal Procedure did not mention the names of the accused Mihir and Ganeswar as the assailants of Satyaban.
It would appear from the written complaint marked Exhibit I that both these two persons have been named therein who are stated to have assaulted both Satyaban and Murali. The Statement made by the P.W. 1 on 9th October, 1983 within four hours from the incident is preferable to that of the statement, if any, made by him during his examination u/s 161. In any event, the evidence of the P.W. 1 is that written complaint was lodged by him on the basis of information which he got from P.W. 8. He is not an eyewitness. Therefore, on the basis of his evidence no one can be convicted. The point raised by Mr. Bagchi, in our opinion, is really a tempest in a cup of tea which does not deserve much attention.
The third submission advanced by Mr. Bagchi was that P.W. 4 Murali deposed that after being assaulted with a tangi he took to his heels. He also deposed that thereafter he saw Satyaban being taken towards the house of Golok. Mr. Bagchi submitted that: P.W. 4 who was running for life could not have noticed what was happening behind his back. This submission has not also impressed us. P.W. 4, it is true, was running for life. He had already been injured. He naturally was interested in seeing the likelihood of his being overtaken by his enemies. He would naturally look back and keep on doing so out of his concern for his own safety. In the process he might have seen what was happening at the place of occurrence. We are, therefore, unable to attach any importance to this submission of Mr. Bagchi.
The fourth submission advanced by Mr. Bagchi was that P.W. 8, Monoranjan an eyewitness, was examined by the police on 26th October, 1983 whereas the incident happened on 9th October, 1983. He submitted that the long delay of about seventeen days in examining the P.W. 8 u/s 161 would naturally render the evidence of the P.W. 8 suspicious because he had enough time to make deliberation and to concoct a case.
The submission of Mr. Bagchi does not appear plausible to us because-
(a) the incident disclosing the names of the assailants had already been informed to the police station within four hours.
(b) The incriminating articles including bloodstained articles had already been recovered from the house of the accused Golok Mondal and his brother Rakhal.
(c) Satyaban dead or alive was not found.
(d) The accused persons or most of them were absconding.
Moreover mere delay in examining an eyewitness u/s 161 Criminal Procedure Code by the Investigating Officer in the absence of anything to show any unfair practice does not render the evidence of the eyewitness untrustworthy. Reference in this regard may be made to the judgment in the case of Ranbir and Others Vs. State of Punjab, wherein Their Lordships expressed the following view:
The appellants'' counsel also faintly contended that Tota Ram P.W. 7 was examined by the police after considerable delay, the suggestion being that his evidence must be looked at with suspicion. We are not impressed by this submission. The fact of delayed examination of Tota Ram should, in our opinion, have been put to the Investigating Officer so as to enable him to explain the undue delay, if any, in examining Tota Ram. The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case. It is, therefore, essential that the Investigating Officer should be asked specifically about the delay and the reasons therefore.
Reference may also be made to the judgment in the case of Dr. Krishna Pal and another Vs. State of U.P., wherein Their Lordships opined as follows:
In the instant case, no explanation has been given by the prosecution as to why eyewitnesses had not been examined shortly after the incident and from the materials on record it appears that there had been inordinate delay in examining the eyewitnesses. But simply on that account, the convincing and reliable evidence adduced in this case should not be discarded. The Investigating Officer in his deposition has also admitted that through mistake he omitted to mention the Crime No. in the inquest report. It appears to us that the Investigating Officer had not been diligent enough but for that reason we do not feel that reliable and clinching evidence adduced in this case by the eyewitnesses particularly by Dr. Rajveer Singh should be discarded. In this connection, we may refer to a recent decision of this Court in Karnel Singh vs. State of M. P. (1995)6 JT (SC) 437 : (AIR 1995 SCW 3644). In the said decision, it has been indicated by this Court that in case of defective investigation, it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer.
The fifth submission advanced by Mr. Bagchi was that Dr. P. R. Ghosh, who is stated to have provided first aid to the P.W. 4 Murali is a co-victim, was not examined in this case. He suggested that he was withheld with some ulterior motive. This point has been dealt with by the learned Trial Judge in his judgment in these words.
It is elicited in his cross-examination by defence that his injuries were stitched and bandaged by Dr. Puspa Ghosh. Learned lawyer for defence Mr. Akbar urged upon this Court for rejecting the testimony of P.W. 4 as above on the ground of non-examination of Dr. Puspa Ghosh in this case. True, Dr. Puspa Ghosh has not been examined in this case and according, to the I.O. (P.W. 10) Dr. Ghosh declined to make any statement u/s 161 of the Cr. P.C. on 29.01.84 when the I.O. approached the doctor for the purpose. In that context the I.O. (P.W. 10) stated in his evidence in cross-examination that he did not seize the Patient Register, Injury Register etc. from the chamber of Dr. Puspa Ghosh regarding the treatment of P.W. 4 Muralidhar. This again spoke a volume about the perfunctory manner of investigation of the case by the I.O. (P.W. 10). The other doctor, viz., Dr. Tapan Kumar Bepari has of course been examined by the prosecution in this case. Dr. Bepari was the Block Medical Officer of Gopiballavpur P.H.C. at the relevant time. It is in his evidence that on 10.10.83, viz., on the date immediately following the date of occurrence he examined one Muralidhar Kuila at the Health Centre at 8-40 p.m. and on such examination he found the following injuries:
(1) one sharp-cutting wound 11/2" x 1/4" over right eye brow;
(2) one sharp-cutting wound 1/2" x 1/4" below the right eye.
P.W. 9 deposed to say that the said injuries could be caused by a tangi. This witness further deposed to say that the patient told him that he was hit by a tangi by one Manik Mondal on 9.10.83 at 1-30 p.m. According to the doctor, the patient was admitted in their Health Centre but he left the Health Centre on 15.10.83 of his own. The injury report and the admission register have been marked as Exts. 3 and 4 respectively in this case. In his cross-examination, the doctor stated that Gopiballavpur P.H.C. is a recognized Government Hospital and that as far as he remembered, the patient came to him in a bandaged condition. This was significant inasmuch as this corroborated the version of P.W. 4 Muralidhar Kuila that his injuries were bandaged by Dr. Puspa Ghosh. Accordingly, the contention of learned lawyer for defence that the evidence of P.W. 4 Muralidhar Kuila should not be given any credence for non-examination of Dr. Puspa Ghosh cannot be sustained.
Not a word was spent by Mr. Bagchi in criticizing the aforesaid finding of the learned Trial Judge who held that omission to examine Dr. P. R. Ghosh was adequately explained. We need not add to the reasons already given by the learned. Trial Judge.
Lastly, it was submitted by Mr. Bagchi that the case of the defence is that the injury was sustained by the P.W. 4 by falling on some sharp substance and it is possible that he was nowhere near the place of occurrence when the incident took place. We have not been impressed by this submission because there is nothing to probabilise the suggestion given to the P.W. 4. Moreover the presence of the P.W. 4 at the place of occurrence was admitted on behalf of the defence when the P.W. 4 was suggested during his cross-examination as follows:
Not a fact that I came to the house of Satyaban on the date of occurrence at 9/10 a.m.
No other and further submission was advanced by Mr. Bagchi.
Mr. Goswami, the learned Public Prosecutor, submitted that the learned Trial Judge has without reason acquitted the accused persons of the charge u/s 302 read with Section 149 of the Indian Penal Code which according to him was duly proved. The lesser offences for which the accused persons have been convicted were also proved beyond any doubt. He submitted that there is no scope for any interference with the judgment and order under challenge.
The learned Trial Judge in acquitting the accused persons of the charge u/s 302/149 opined as follows:
According to the prosecution case, the victim Satyaban Mandal was murdered in the house of accused Golok Mandal by the accused persons on the date of occurrence but the dead body of Satyaban Mandal was not found out despite vigorous searches. It is, therefore, a case of un-traceability of the corpus delicti.
Mr. Goswami drew our attention to the judgment in the case of AIR 2001 2842 (SC) wherein it was held that it is not: always necessary for conviction in the case of murder that the corpus delicti must be found.
There may be some substance in this submission but in the absence of any appeal by the State, this is a mere academic exercise.
We already have discussed the evidence on record and we are firmly of the view that there is no scope for any interference. The case of the prosecution has been proved beyond any reasonable doubt.
In the result, the appeal fails and the same is dismissed.
The appellants, it appears, were released on bail by an order dated 15th January, 1991.
We are told that five out of seven appellants have already been arrested and two of them have already died. We are further told that Hari Ram died in jail very recently. As regards the death of the accused Hari Ram and two others we express no opinion. The learned Trial Court shall hold an enquiry into the matter and take appropriate steps in accordance with law.
The surviving accused-appellants are directed to serve out the sentence inflicted by the learned Trial Court in connection with Sessions Trial No. XIV of March 1987 arising out of Gopiballavpur P.S. Case No. 3 dated 9th October, 1983. The learned Trial Judge and the Chief Judicial Magistrate, Midnapore, are directed to take necessary steps.
Criminal Section is directed to communicate this judgment along with the lower court records to the concerned learned Trial Court forthwith for information and necessary action.
Let Xerox certified copy of this judgment, if applied for by the parties, be delivered to them upon compliance of all formalities.
Kishore Kumar Prasad, J.
I agree.