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High Court Of Calcutta
Ashim Kumar Banerjee, Kishore Kumar Prasad, JJ.
Dalim Sekh : Appellant
Versus
State Of West Bengal : Respondent
C.R.A. No.479 of 2006
Decided On : Apr 19, 2010
CRIMINAL APPEAL - MURDER - SECTION 302/149 - GRIEVOUS HURT - SECTION 307/149 IPC - UNLAWFUL ASSEMBLY - COMMON INTENTION - CONSTRUCTIVE LIABILITY - SPUR OF THE MOMENT - UNNATURALITY - ANOMALY - FRAMING OF CHARGE - PREJUDICE.
Fact of the Case:
The victims, belonging to the Congress Party, were attacked by the accused, who belonged to the C.P.I.(M) Party, due to political rivalry. The victim, Yeasin Mondal, was killed, and Abdul Bari was grievously injured in the attack.
Finding of the Court:
The trial court found the accused guilty of murder under Section 302/149 IPC and grievous hurt under Section 307/149 IPC and sentenced them to life imprisonment and five years of imprisonment, respectively.
Issues: 1. Whether the accused had the common intention to attack the victims due to political rivalry? 2. Whether the accused were liable for constructive liability under Section 149 IPC despite not committing any overt act? 3. Whether the incident occurred on the spur of the moment, negating the intention to cause death? 4. Whether the conduct of the eyewitnesses in not taking the injured to the hospital immediately raised doubts about the unnaturality of the incident? 5. Whether the anomaly in the evidence of the prosecution witnesses prejudiced the accused? 6. Whether the mistake in framing the charge caused any prejudice to the accused?
Ratio Decidendi: 1. The court held that the accused shared a common intention to attack the victims due to political rivalry, as evidenced by their presence at the scene of the crime and their actions in hiding behind a culvert to cause injury to the victims. 2. The court relied on the principles of constructive liability under Section 149 IPC, holding that the accused were equally responsible for the commission of the crime despite not committing any overt act, as they shared the common object of causing injury to the victims. 3. The court rejected the defense that the incident occurred on the spur of the moment, finding that the accused had the intention to cause injury to the victims, as evidenced by their hiding behind the culvert and Hafijuddin's order to finish the victims. 4. The court found no unnaturality in the conduct of the eyewitnesses in not taking the injured to the hospital immediately, as the victims were attacked in a remote area and the eyewitnesses had to first report the incident to the police. 5. The court held that the anomaly in the evidence of the prosecution witnesses did not prejudice the accused, as the witnesses were consistent in their testimony regarding the main facts of the case. 6. The court held that the mistake in framing the charge did not cause any prejudice to the accused, as they understood the charge, pleaded innocence, and faced trial without any hindrance.
Final Decision: The court dismissed the appeal, upholding the conviction and sentence of the accused.
ASHIM KUMAR BANERJEE, J.
1. THE victim group belonged to Congress Party whereas the accused group belonged to C.P.I.(M) Party. As per the complaint, the victim Yeasin Mondal left the village Bagirapara in view of threatening given by the other group. On September 5, 1991 Yeasin went to the burial ground at Sahpara Village under the Police Station Nabagram with his nephew Abdul Bari to attend a funeral of one of his relatives. At about 5 p.m. the complainant Dost Mohammad went to the Bhagirapara Bus Stop. At about 5:30 p.m. Yeasin and Abdul were returning back to Bagirapara by bicycle. Abdul was accompanying Yeasin by walking and talking to him. Dost started following them in a close distance. Yeasin and Abdul, after crossing the bus stand, found someone from their village near the culvert. Some persons were hiding there including the appellants. THEy could identify Dalim Sekh, Atibur Sekh, Sadekul Sekh, Hafijuddin Sekh, Diyantulla, Amanulla Sekh and two or three others whom they could not identify. At that moment Yeasin and Abdul reached near them. Hafijuddin ordered his companions to finish them. All of them started striking Yeasin and Abdul with knife in different parts of their bodies. Yeasin fell down on the spot. Abdul ran up to the culvert when he fell down in the water of Nayanjuli (waste water ditch). At that time, on hearing the hue and cry from Abdul as well as Dost people started gathering there and the accused fled from the place of occurrence. Abdul received multiple injuries in his body whereas Yeasin died on the spot having several multiple injuries caused by knife. Abdul was taken to the Panchgram Health Centre where after giving fast aid the doctor referred him to Berhampore Hospital. Dost made a written complaint in the Nabagram Police Station by giving a brief details of the incident with a rider that his father would give further more details if he survived. Ultimately, Abdul survived. Police arrested all the accused and charged them under Section 302 coupled with Section 149 of the Indian Penal Code for committing murder of Yeasin Mondal. THE accused were also charged under Section 307/149 as against the accused for causing grievous hurt to Abdul.
2. ALL the accused pleaded innocence and faced trial. The evidence reveals as follows :- Dost Mohammad (P.W.1): Dost almost corroborated what he had stated in his written complaint. While elaborating the incident he deposed that in the north side of Kuli-Morgram road there was a bridge and to some distance away to the north of that bridge there was a culvert. Yeasin was murdered just little after the culvert. He saw Yeasin and Abdul coming towards the bridge. They got down from the cycle and were walking along the road. Dost was following them. As soon as they reached near the culvert the accused attacked them after Hafijuddin shouted. Yeasin collapsed on the ground. Abdul started shouting crying for help. He started running and fell down in the wayside ditch. Dost helped his father to stand up. He was taken to Panchgram Gram Health Centre for treatment wherefrom he was referred to Berhampur General Hospital. During the cross-examination he could not be shaken. He gave a detailed description as to the situation of the culvert. He admitted to be supporter of Congress whereas Hafijuddin was the member of the local Panchayat.
Nehar Bibi (P.W.2): She was the widow of Yeasin Mondal. She was a post occurrence witness. According to her, the murder took place near the culvert of the village Rasulpur. The incident occurred at 5/5:30 P.M. when Yeasin was returning from the relations house along with Abdul. According to her, Hafijuddin and his associates murdered Yeasin at the place mentioned above. She also named the other accused being the appellants above along with one Amanulla who died during the trial. She also deposed that Yeasin was a member of Congress. The place of occurrence was about 7/8 minutes walking from her house.
3. ABDUL Basir (P.W. 3): ABDUL Basir
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