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CALCUTTA HIGH COURT
GIRISH CHANDRA GUPTA AND KISHORE KUMAR PRASAD, JJ.
Kazem Sk. alias Kamruzzaman alias Kazeman etc.
v.
State of W.B.
C.R.A. Nos. 132, 147 and 148 of 2002
Decided on : 16 -5 -2008.
In this case, 30 named accused persons along with others raided the house of Sezidur Rahaman. Samsul, son of Sezidur Rahaman who was sleeping in the courtyard was mercilessly murdered. The inmates of the house helplessly were watching the incident. They were chased whereupon they entered into the room and bolted from inside. Bombs were then exploded. House of the de facto complainant was partly thatched by corrugated tin and partly by straw. The house was put on fire. Akramul, another son of the de facto complainant Sezidur Rahaman was sleeping with his wife in one of the rooms. In order to save his life he came out of his room along with his wife. Both of them were severely assaulted. The other inmates of the house also came out of the burning house. Latifa, the wife of the de facto complainant Sezidur, intervened and tried to save her son Akramul whereupon she was also assaulted. Akramul was taken away from the house of the de facto complainant and his dead body was found near a pond in the morning. The wife of the de facto complainant received grievous injury. So did the wife of the victim Akramul. The accused persons were convicted under Sections 148, 302, 436, 326 read with Section 149 of the Indian Penal Code. This appeal is directed against the said conviction and the order passed.
Fact of the Case:
The incident took place during the night of 15th/16th May 1982 at 2.00 hrs. when thirty (30) named accused persons along with others raided the house of Sezidur Rahaman. Samsul, son of Sezidur Rahaman who was sleeping in the courtyard was mercilessly murdered. The inmates of the house helplessly were watching the incident. They were chased whereupon they entered into the room and bolted from inside. Bombs were then exploded. House of the de facto complainant was partly thatched by corrugated tin and partly by straw. The house was put on fire. Akramul, another son of the de facto complainant Sezidur Rahaman was sleeping with his wife in one of the rooms. In order to save his life he came out of his room along with his wife. Both of them were severely assaulted. The other inmates of the house also came out of the burning house. Latifa, the wife of the de facto complainant Sezidur, intervened and tried to save her son Akramul whereupon she was also assaulted. Akramul was taken away from the house of the de facto complainant and his dead body was found near a pond in the morning. The wife of the de facto complainant received grievous injury. So did the wife of the victim Akramul.
Finding of the Court:
The court found that there was an unlawful assembly and that all the accused persons were members of the unlawful assembly. The court also found that the accused persons had the common object of exterminating the sons of the de facto complainant. The court further found that the accused persons had committed the offences of murder, arson, and rioting in prosecution of the common object of the unlawful assembly.
Issues: 1) Was there any unlawful assembly, if so, who were the members thereof ? 2) What individual overt acts, if any, have been proved by the prosecution ? II) Is the prosecution liable to prove individual overt acts as a pre-condition for conviction of the accused persons with the aid of Section 149, IPC.
Ratio Decidendi: 1) An assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of S. 141, is an unlawful assembly. 2) The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by S. 141. 3) While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. 4) Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. 5) Thus this section created a specific and distinct offence. 6) In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly.
Final Decision: The conviction of the appellants under Sections 148, 302 and 436, IPC both with and without the aid of Section 149, IPC is upheld. The conviction under Section 326 of IPC of the appellant Sadek Sheikh alias Sadek Ali is also upheld. The conviction of the rest of the appellants under Section 326 read with section 149 is, however, set aside.
GIRISH CHANDRA GUPTA, J. :- These three appeals are directed against a judgment dated 18th April 2002 passed by the learned Sessions Judge, Suri, Birbhum, in Sessions Trial No. 3/May 1992 arising out of Sessions Case No. 47 of 1984 convicting the appellants under Sections 148, 302, 436, 326 read with Section 149 of the Indian Penal Code and an order passed on the same day by which the accused Buddik Sheikh, Sadek Sheikh, Ruli Sheikh and Kabir Sheikh were convicted and sentenced to suffer life imprisonment as also to pay a fine of Rs. 5000/-, in default to suffer further imprisonment for a year and the rest of the appellants were convicted and sentenced to suffer imprisonment for life as also to pay a fine of Rs. 5000/- in default to suffer imprisonment for one year for the offence punishable under Section 302 read with Section 149 of the IPC. The accused Maddin Seikh was convicted and sentenced to suffer 10 years imprisonment as also to pay a fine of Rs. 1000/-, in default to suffer further imprisonment for three months for the offences punishable under Section 436 simpliciter. The rest of the appellants were however convicted and sentenced to suffer identical punishment for the offence punishable under Section 436 read with Section 149, IPC. The accused Sadek Seikh alias Sadek Ali was convicted and sentenced to suffer three years rigorous imprisonment as also to pay a fine of Rs. 3000/-, in default to suffer imprisonment for further six months for the offence punishable under Section 326, simpliciter.
Rest of the appellants were handed down similar punishment under Section 326 read with Section 149 of the IPC. All the substantive sentences were directed to run concurrently.
2. Briefly stated the facts of the case are as follows :-
In the night of 15th/16th May 1982 at 2.00 hrs. thirty (30) named accused persons along with others are alleged to have raided the house of Sezidur Rahaman. Samsul, son of Sezidur Rahaman who was sleeping in the courtyard was mercilessly murdered. The inmates of the house helplessly were watching the incident. They were chased whereupon they entered into the room and bolted from inside. Bombs were then exploded. House of the de facto complainant was partly thatched by corrugated tin and partly by straw. The house was put on fire. Akramul, another son of the de facto complainant Sezidur Rahaman was sleeping with his wife in one of the rooms. In order to save his life he came out of his room along with his wife. Both of them were severely assaulted. The other inmates of the house also came out of the burning house. Latifa, the wife of the de facto complainant Sezidur, intervened and tried to save her son Akramul whereupon she was also assaulted. Akramul was taken away from the house of the de facto complainant and his dead body was found near a pond in the morning. The wife of the de facto complainant received grievous injury. So did the wife of the victim Akramul. It is not in dispute that Nadira, wife of the victim Akramul, is a sister of the accused Kazem. She had fallen in love with Ashadul. They were married. The accused Kazem was against this marriage. The marriage sparked dispute between the families. Ashadul committed suicide more or less within two months after the marriage. The de facto complainant had to leave the village. He remained outside of the village for more than ten months. He returned to the village about twenty days before the date of the incident. About ten days prior to the date of incident he solemnised the marriage of the said Nadira with his son Akramul against the wishes of Kazem. After the fateful incident on 15th/16th May 1982 Nadira has patched up with her brother Kazem and has been married somewhere else. The de facto complainant and the rest of his family has moved out from the village.
3. Charge-sheet was field by the police against the thirty accused persons. Charge was framed against 29 of them. The trial remained pending for 20 years. For the first time charge
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