Back
2010 Supreme(Cal) 700
High Court of Judicature at Calcutta
ASHIM KUMAR BANERJEE & KALIDAS MUKHERJEE
Samsul Haque & Others
Versus
The State of West Bengal & Others
CRA. Nos. 119, 313, 138, 233 OF 2000
Decided On : 29-06-2010
For the Petitioner:Swapan Mallick, Ms. Minoti Gomes, Jaymalya Bagchi, Somopriyo Chowdhury, Amal Krishna Pramanik, Sudip Ghosh Chowdhury, Advocates.
For the Respondent:Ranjit Kumar Ghosal, Advocate.
Section 34 IPC is applicable when several persons act in furtherance of a common intention and one of them commits an offence in prosecution of that intention.
Headnote:
MURDER - [SECTION 302/34 IPC] - Common intention - Assembly of accused - Attack on police - Death of police officer - Applicability of Section 34 IPC.
Fact of the Case:
The appellants were convicted for the murder of a police officer who was shot and killed during an encounter with the accused. The prosecution alleged that the accused had assembled at a place near a railway track with the intention of committing dacoity. When the police arrived, the accused hurled bombs and opened fire on the police personnel. The police retaliated and in the ensuing exchange of fire, the police officer was killed. The accused were arrested and charged with murder under Section 302/34 IPC.
Finding of the Court:
The court found that the accused had formed an assembly and attacked the police personnel. The court held that the accused were all present at the spot and because of their pre-arranged plan they assembled there and when challenged by the police they hurled bombs and opened fire causing the death of the police officer. The court further held that there was overt act and they acted in furtherance of the common intention of all. Under such circumstances Section 34 I.P.C. is squarely applicable and the learned Trial Judge was justified in convicting the appellants and passing sentence under the impugned judgment.
Issues: 1. Whether the accused had formed an assembly with the intention of committing dacoity? 2. Whether the accused had attacked the police personnel and caused the death of a police officer? 3. Whether Section 34 IPC was applicable in the circumstances of the case?
Ratio Decidendi: 1. The court held that the accused had formed an assembly with the intention of committing dacoity based on the evidence of the police witnesses and the recovery of arms from the accused. 2. The court held that the accused had attacked the police personnel and caused the death of a police officer based on the evidence of the police witnesses and the medical evidence. 3. The court held that Section 34 IPC was applicable in the circumstances of the case as the accused had acted in furtherance of the common intention of all.
Final Decision: The court dismissed the appeals and affirmed the impugned judgment convicting the appellants under Section 302/34 IPC.
KALIDAS MUKHERJEE, J.
1. These are the four appeals directed against the common judgment passed by learned Additional Sessions Judge, 5th Court, Alipore in Sessions Trial No. 6 (12) of 1997 sentencing the appellants to suffer imprisonment for life and a fine of Rs.5000/-each in default to suffer imprisonment for one year under Section 302/34 I.P.C.
2. The prosecution case, in short, is that the case was registered being Jaynagar P.S. case No. 37 dated 1.4.1997 on the basis of a complaint lodged by Ali Ahmed Khandekar, Sub-inspector of Police attached to Jaynagar P.S. on 01.4.1997 at 19.45 hours. It has been stated in the F.I.R. that on the basis of a credible information as to the assembly of some absconding criminals, namely, Samsul Haque Mollah, Babar Ali Mondal @ Hatkata Babu, Nur Islam @ Jamai, Kabley and others in the Orchard area near the Railway track at Durgapur Hatpara area, the police personnel after making entry in the G.D. left the P.S. for the spot. It has been alleged that the informant being the P.W. 1 himself along with ASI Ashok Banerjee, constable Milan Sewa, constable Manick Samajdar, constable Rabindra Nath Patra were in one group and in the other group led by the O.C. S. K. Biswas there were other police personnel, namely, Sub-inspector S. N. Pramanick, Sub-inspector L.C. Saha, constable Bhairab Chowdhury, NVF Adbur Rouf Sk., constable Milan Bose, constable Dukha Ranjan Majhi. The G.D. entry was made bearing No. 41 dated 1.4.1997.
3. The informant (P.W. 1) with the other police personnel proceeded along the railway track and met one Sajamal Gayen (P.W. 2) near the railway track who confirmed the prior information of the assembly of the accused persons. Sajamal took the police party to the place of assembly of the accused persons. Reaching there the informant found that some persons were sitting there suspiciously and P.W. 1 challenged them. Soon thereafter those miscreants started hurling bombs and firing from their firearms. The informant along with the members of the force opened fire. P.W. 1 fired one round from his service revolver which could not hit the target. On being directed by P.W. 1, A.S.I. Ashok Banerjee fired from his service revolver, but, Ashok Banerjee thereafter sustained one gun shot injury fired by those miscreants. Thereafter, the other constable Rabindra Nath Patra as per order of P.W. 1 fired two rounds from his service revolver causing injury to the accused Babar Ali @ Hatkata Babu. Other miscreants managed to escape. The injured Babar Ali was apprehended on the spot. From the statement of Babar Ali it transpired that the other accused persons were in the gang planning for committing dacoity in the area. It has been alleged in the F.I.R. that accused Babar Ali confessed that he along with his associates, namely, Shamsul Haque Mollah, Nur Islam @ Jamai, Kabley, Gopey @ Nasim Ali were responsible for the dacoity at Baharu, Uttarpara on the previous night of 31.3.1997. He has also confessed that they hurled bombs and fired upon the police party from their firearms with the intent to kill police personnel at the spot.
4. The accused Hatkata Babu was shifted to Nimpit Hospital and the injured A.S.I. Ashok Banerjee was shifted to Dr. Jalil’s Nursing Home and thereafter to hospital in Calcutta in precarious condition. A.S.I. Ashok Banerjee expired in the P.G. Hospital on the same night at about 10.00 P.M.
5. On the basis of the written complaint, A.S.I. Sanjay Kumar Bala (P.W. 39) drew up the formal F.I.R. and the O.C. himself took up investigation of the case. From the place of occurrence, recovery was made in respect of .303 bore revolver, a cartridge, one empty cartridge of .303 bore revolver. Recovery was also made in respect of the one barrel gun with wooden butt from beneath the pillow of the accused Shamsul Haque and one pouch containing .303 cartridges, one improvised country made shot gun from the room of accused Kabley. After completion of investigation the charge she
