Ishan Chandra Das, J.All the 5 appellants of the 4 Appeals, noted above, assailed the judgment and order of conviction dated 08.06.2007 and 11.06.2007 respectively, recorded by learned Additional & Sessions Judge, Fast Track (1st) Court, Howrah in S.T. No. 83/2006, for alleged commission of the offence punishable under Sections 302 /34 I.P.C.

2. The facts of this case, in a nutshell, as it has been crystalized from the written complaint dated 20.10.2005 (Exhibit-1), is that in the fateful night of 19.10.2005 at about 10-15 P.M. the de facto complainant, one Dipak Chatterjee (PW-1) went to Dharsa Manshatala Maganga Mistanna Bhandar (P.S. Jagacha, Howrah) where he found the appellants Amit Koley @ Apa, (appellant in CRA 431/2007), Joy Mukherjee (the victim), appellants Arup Roy; (appellant in CRA 497/2007) Asit Dhar @ Manu (appellant in CRA 576/2007). Kanu Choudhury @ chotka (another appellant in CRA 497/2007), nearby the market, engaged in an altercation among themselves. All on a sudden he heard a sound of cracker in the midst of a hue and cry at the place of such occurrence, found victim Joy Mukherjee lying on the ground. He also noticed that appellant Arup Roy with the help of a broken brick gave a blow on the victims head & all the persons including Manu, Arup, Chotka & Apa, assembled there, hurriedly left the place.

3. The de facto complainant in his written complaint (Exhibit-1) also stated that some local people and the policemen of the local police station were informed about the incident. In the meantime, the policemen came to the spot, took the victim to Howrah General Hospital where he was declared brought dead. While requesting for effective investigation of the crime, the de facto complainant stated the probable reasons for such murder, committed there due to previous quarrel, enmity etc. in between the appellants and the victim.

4. On the basis of such written complainant, the police of Jagacha Police Station (Dist. Howrah) started Jagacha P.S. Case No. 207/2005 dated 20.10.2005 under Sections 302 /34 of the Indian Penal Code, 25(1)(a) /27 of the Arms Act, submitted Charge-Sheet in the said case and subsequently it was committed to the Court of Sessions & Learned Sessions Judge during trial recorded the evidence of 23 witnesses including the de facto complainant and other ocular witnesses to the incident, post occurrence witnesses, the doctor holding Post-Mortem Examination, the Forensic Experts, the maker inquest report and the investigating officer of the case and after conclusion of trial he found these appellants guilty of the offence punishable under Sections 302 /34 of the Indian Penal Code, convicted and sentenced them to suffer Rigorous Imprisonment for life and to pay fine of Rs. 2000/- each, in default to suffer Rigorous Imprisonment for two years more.

5. The appellants herein questioned the appropriateness and justification of their conviction and sentence, passed by ld. trial Court, in the present appeals before us.

6. Now, the only point left for consideration before us is - whether Ld. Trial Court was justified in convicting these appellants, for the offence, allegedly committed by them.

7. Mr. Kallol Mandal, ld. Counsel for the appellant Rajib Dutta @ Raju (appellant of CRA 386/2007) at the outset, while assailing the impugned judgment pointed out, with reference to a question, put to his client during his examination under Section 313 Cr.P.C., and submitted that learned trial Court was biased and motivated from the initial stage as he asked this appellant that he was present at the place of occurrence at the material time, as per statement of the PW-1, the F.I.R maker, though in fact no such statement regarding presence or involvement of appellant Rajib Dutta @ Raju was given by the PW-1, neither in exam-in-chief nor in the written complainant. Drawing our attention to the statement in para 7 of witness Panchanan Mukherjee (PW-5), the father of the victim, he pointed out that the father of the victim was a Home Guard by profession and he never witnessed appellant Raju at his place of residence or with his son (Victim Joy) loitering with his client Rajib Dutta (@ Raju). He also submitted that the name of appellant Rajib Dutta neither found place in the statement of de facto complainant (PW-1) nor his name was coming out in the body of the F.I.R (Exhibit-1). With all fairness, he submitted that the witness Dipak Biswas (PW-2) uttered his name as one of the miscreants, responsible for committing the murder of the victim (Joy Mukherjee) but non-appearance of his name in the F.I.R as well as in the evidence of the PW-1 proved that his client was brought in the charge-sheet with some ulterior motive. To fortify his argument, learned Counsel for appellant Rajib Dutta relied on a decision of the Honble Supreme Court in Hare Krishna Singh and Others Vs. State of Bihar, and further drawing our attention to a decision of the Honble Apex Court in Ramashish Yadav and Others Vs. State of Bihar, , he also urged that, if for the sake of argument, the presence of appellant Rajib Dutta was there at the place of occurrence but no evidence has been led to establish the joint liability in the doing of a criminal act, the very essence of common intention in committing the crime. Further pointing out the statement of witness Adyanath Chatterjee (PW-6), a local kerosene oil sub-dealer, he submitted that this witness was never an ocular witness of the incident rather he gave some confusing statements before the Court regarding involvement of the appellants including his client (Rajib Dutta).

8. Mr. Sekhar Kumar Bose, Ld. Senior Counsel appearing on behalf of the appellant Amit Koley @ Apa, in course of his argument pointed out that his client was not involved in the commission of the crime. He further pointed out with reference to the statement of one Hira Mohan Saha (PW-3), a local witness that he paid visit to the place of occurrence and called the de facto complainant Dipak Chatterjee (PW-1) and other local inhabitants by shouting and he found the policemen at the spot of such incident while he reached there. Drawing our further attention to the oral testimony of the PWS 1 & 2, he also confidently urged that both of them could not be the ocular witnesses of such incident though they claimed themselves to be so. He also submitted that their statements were not consistent with each other and no reliance could be placed upon the evidence regarding involvement of the appellants in commission of the crime. He also drew our attention to the statements of Dr. Sudipta Kr. Maity, Medical Officer of Emergency ward of Howrah District Hospital (PW-13), the inquest report (Exhibit-3) and pointed out the dead body of an unidentified person was brought to the hospital and inquest report of such unidentified body was prepared at the Hospital Morgue though such body was identified later on. With reference to the statement of PW-7, Somnath Chatterjee, another local inhabitant, he pointed that the statement of Dipak Chatterjee (PW-1) with regard to his witnessing the occurrence standing beside the spot (i.e. in front of the sweet-meat shop) was a myth, since this witness (PW-7) was informed by him (PW-1) about the killing of an unknown man by firing and opined that such a witness (like PW-1) should not be relied on. With reference to a decision of the Honble Apex Court, in Dharam Pal and Others Vs. State of Haryana, , he urged that none of the culprits should be held liable for vicarious liability of the others, unless there is proof or clear evidence of common intention. Further clarifying the provision of Section 34 of the Indian Penal Code he also urged, relying on a decision of the Honble Supreme Court in Daya Shankar Vs. State of M.P., , that the mere fact that an accused was a companion of other accused persons was not sufficient to warrant presumption of common intention.

9. Mr. S. Pachal, Ld. Advocate appearing for the appellant Kanu Choudhury @ Chotka, one of the appellants in CRA 497/2007 and appellant Asit Dhar (in CRA 576/2008) virtually accepted the arguments advanced by Mr. Sekhar kumar Bose, ld. Senior Counsel and submitted that his clients were innocent and opined that both the appeals should favourably be disposed of.

10. Mr. Jayanta Narayan Chatterjee, ld. Counsel appearing on behalf of the appellant Arup Roy categorically urged with a confident tune that the charges levelled against the appellants including his client were based on certain unfounded allegations since no eye-witness of the alleged incident was present there at the material time. He also urged that no eye-witness could be possible due to the fact that the alleged incident took place in the dark, there was heavy shower of rain, and no witness was present there at the material time. Criticizing the claim of the prosecution, he pointed out that the case of the prosecution was based on the statements of 3 witnesses (PWS - 1, 2 & 3) who gave inconsistent statements to each other. He also submitted that the PW-1 claimed that he was present at the place of occurrence, at the material time which did not find corroboration in the statement of PW-2 stating none was present at the place of occurrence and the PW-3 stating that he informed about the incident to the PWS - 1 & 2 in the fateful night. Laying emphasis on the description given in the statement of Tara Pada Hazra, an employee of the said sweet-meat shop (PW-8), he pointed out that it was raining cats & dogs in the fateful night (i.e. on 19.10.2005 at 10-00/10-30 PM). He also criticized the conduct of the Investigating Officer of the case with regard to starting of a case against appellant Arup Roy & Asit Dhar @ Manu under the explosives Act and in fine, he submitted that the appeal should be allowed in the given facts & circumstances of the case and appellant Arup Roy and other appellants deserve an order of acquittal by way of allowing their respective appeals.

11. Learned Public Prosecutor appearing for the state, on the other hand advanced a comprehensive argument with regard to the offence, committed on the fateful night. He drew our attention to the concluding part of the written complaint dated 20.10.2005 (Exhibit-1) and pointed out that the factum of the occurrence was established beyond doubt that the victim Joy Mukherjee lost his life over the incident and he was killed by those miscreants whose names are referred to in the earlier part of the said written complaint. He also submitted with reference to the oral testimony of the PWS - 1 & 2, Dipak Chatterjee (de facto complainant) & Dipak Biswas (a local rickshaw puller respectively) and urged that both the witnesses claimed themselves to be the ocular witnesses of the incident and both of them narrated the occurrence in almost identical manner and thereby corroborated the statements of each other, with regard to place and time of occurrence. With reference to the statement of Adyanath Chatterjee (PW-6), he also pointed out that this witness, a kerosene oil sub-dealer as well as a Mohurer of Howrah District Court, saw appellant Manu with a revolver in hand and after 10/12 steps he found other appellants Kanu Choudhury @ Chotka, Rajiv Dutta @ Raju and Amit Koley @ Apa to flee away from the place of occurrence hurriedly followed by appellants Asit Dhar @ Manu and Arup Roy by a bi-cycle. Drawing our further attention to the statement of the PW-6, Ld. Public Prosecutor also urged that the victims body was noticed by the said witness at the place of occurrence immediately thereafter and it was learnt from one Somnath Chattterjee (PW-7) who reported said witness (PW-6) that victim Joy Mukherjee was gunned down by those above noted miscreants who wanted to eliminate the victim from their way of business rivalry. Pointing out the statement of the Medical Officer (PW-13), he urged that Dr. Sudipta Maity (PW-13) corroborated the statement of the Investing Officer with regard to instant death of the victim, which was also reflected in the Post Mortem Report (Exhibit-6) as well.

12. From a careful and critical appreciation of the evidence adduced on behalf of the prosecution, it is revealed that the allegation of murder of the victim Joy Mukherjee was based on the evidence of two ocular witnesses named one Dipak Chatterjee, the FIR maker as well as the PW-1 and one Dipak Biswas (PW-2) a local rickshaw puller, despite the fact that there were minor contradictors in the statements of these two witnesses (PWS - 1 & 2). The factum of place, date & time of occurrence is not at all disputed rather it is clearly established that on 19.10.2005 at about 10-00/10-30 PM at Dharsa Manshatala near the fish market, the alleged incident took place and it was visible in the street light and it was slightly raining at the material time. The Post-Mortem Report (Ext - 6) also revealed the nature of injuries noted therein, sustained by the victim, causing his instant death and the victims body was removed to Howrah Dist. Hospital where the Emergency Medical Officer attending the victim declared him brought dead.

13. It is also revealed from the statement of the PW-1 (Dipak Chatterjee) that he saw the incident from a close distance standing before the Ma Ganga Mistanna Bhandar "where from the scene of occurrence was clearly visible and he could identify all the miscreants named by him in the written complaint (Ext-1) as well as in his oral testimony as PW-1. Similar statement with regard to involvement of all the appellants in committing the crime was coming out from the statement of Dipak Biswas (PW-2), a rickshaw puller as he was returning from Ramrajatala Railway Station at the material time and saw the incident in the street light (as stated by PW-2 one bulb was burning in a light post of the locality, near Bus/Rickshaw stand, 5/6 cubits away from the place of occurrence (i.e. Manshatala Bazar) and it was slightly raining at the material time. In this context we may refer to the injuries inflicted on the body of the victim as noted in the Post-Mortem Report (Ext-6), proved by Medical Officer Dr. Arup Banerjee who held Post-Mortem Examination over the dead body of the victim:-

(1) Perforating gunshot wound in the occipital region;

(2) Exit wound large and gaping frontal bones with bone and part of brain missing;

(3) Face is bashed in with nasal bone most of the teeth both of maxillae and Rt. Mandible fractured in multiple places;

(4) Right parietal bone multiple fractures;

(5) Scalp and facial skin torn and lacerated.

14. The Medical Officer (PW-11) opined that the severe injuries were due to homicidal gunshot wound and bashing of head with heavy object, the aforesaid wounds are ante-mortem in nature and manner of causing injury is homicidal.

15. The report & opinion of Dr. Arup Banerjee (PW-11), who held Post Mortem Examination over the dead body of the victim, clearly supported the statement of both the local witnesses particularly the PW-2, Dipak Biswas who claimed that he knew all the miscreants as he was a local rickshaw puller. It is also evident that said witness saw the appellant Asit Dhar @ Manu to cause fire in the back portion of the head of the victim and another blow was given by appellant Arup Roy with a broken brick (a hard substance) on his face and that caused the death of the victim over the incident.

16. From the oral testimony of PW-5, Panchanan Mukherjee, the father of the victim, it transpired that in the fateful evening at about 7-00 PM while his son (victim) was watching the TV programme, appellant Amit Koley @ Apa came to his house, called his son Joy and after a conversation between themselves outside the gate, the victim left his house being properly dressed. Such a statement of the father of the victim as a preparatory background of committing the alleged offence cannot be thrown away in the given facts and circumstances of the case.

17. From the above noted circumstances it is evident that in the fateful evening the victim was called on by appellant Amit Koley @ Apa and caused his death due to gunshot, at the instance of appellant Ashit Dhar @ Manu and appellant Arup Roy gave another blow on his head and those blows ultimately claimed his life. From the oral testimony of the witness including the ocular witness (PWS - 1 & 2) all other appellants were present at the place of occurrence at the material time. Frankly speaking presence of appellant Rajib Dutta @ Raju was not noticed by the de facto complainant (PW-1) and his name was not incorporated in the F.I.R. though the PW-2 Dipak Biswas found said appellant Rajib Dutta at the scene of such occurrence and another witness Adyanath Chatterjee (PW-6) found said appellant (Rajib) to flee away from the place of occurrence along with some other appellants herein.

18. It is also established from the above noted facts and circumstances of the case, the victim Joy Mukherjee, the son of PW-5, Panchanan Mukherjee met an unfortunate death and the medical evidence, as produced by the prosecution in course of trial, proved that the victim suffered gunshot injury on his head and his head was smashed by some hard substance like brick-bat etc. The local witnesses like PWS-1 & 2 who claimed to be the ocular witnesses stated on solemn affirmation that they saw the incident from a close proximity and all the appellants took active role in committing the offence as alleged. Here one ocular witness (PW-2, Dipak Biswas) is a rickshaw puller and his presence at the place of occurrence and to watch the scene of such occurrence can hardly be doubted rather from a close scrutiny of his (PW-2) oral testimony it appears that this witness vividly described the proceedings of the alleged incident at the material time while he was returning from Ramrajatala Railway Station. His statement was confirmed in his cross-examination when he stated that as a local rickshaw puller, he knew all the appellants. The trend of cross-examination of this witness suggested that this witness (PW-2) was not an eye-witness of the occurrence in question or he was deposing and giving false statement being tortured by the prosecuting agency with a view to teaching a lesson to these appellants out of previous grudge or some other extraneous reasons, rather his clinching oral evidence did not outweigh his credibility and it can be said that the evidence of this witness convincingly established the guilt of the appellants beyond doubt. Almost similar statement to that of the PW-2 (Dipak Biswas) was given by another eye-witness Dipak Chatterjee (PW-1). Being the author of the F.I.R. he could explain the role of almost all the appellants [except appellant Rajib Dutta @ Raju (of C.R.A. 386/07)].

19. Mr. Sekhar Kumar Basu, learned Senior Counsel appearing on behalf of the appellant Amit Koley @ Apa (of C.R.A.431/07) after scanning the oral testimony of the local witnesses, urged that none of the eye-witnesses could incriminate his client by stating his role in the commission of the crime. With all fairness he submitted with reference to the oral testimony of the father of the victim (i.e. PW-5 Panchanan Mukherjee) that the victim was called by his client Amit Koley in the fateful evening but from a mere calling it cannot be inferred that this appellant (Amit Koley @ Apa) indulged in any overt or covert act, basing on which any inference of common intention could be drawn. Clarifying the Provisions of Section 34 of the I.P.C., he opined that Section 34 can be regarded as a rule of evidence and does not create a substantive offence. He pointed out that in terms of Section 34 , the common intention must be to commit the particular crime, although the actual crime may be committed by any one sharing the common intention. Drawing our attention to a decision of the Honble Apex Court in Arun Vs. State by Inspector of Police, Tamil Nadu, reported in (2009) 3 SCC (Cri) 1097 , he confidently opined and urged that his client should be held guilty as a part of sharing common intention, far to speak of his direct involvement. To further his argument he also submitted with reference to a decision of the Honble Supreme Court in Dharam Pal and Others Vs. State of Haryana, and urged that "vicarious liability must satisfy itself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former." In the background he opined that his client cannot be even vicariously liable for the act committed by some other. To fortify his argument he relied on another decision of the Honble Apex Court in Daya Shankar Vs. State of M.P., and clarified that his client though evidently in the company of the other accused persons who were armed or took active role in committing the crime, even then his clients mere presence in the company of the other accused with arms would not be sufficient to attract section 34 of the I.P.C.

20. We have already observed earlier that the unfortunate death of the victim was caused due to brutal murder and the medical evidence as produced by the prosecution during trial clearly indicated that Gunshot wound and bashing of head with heavy object were the vital causes of such death. The Medical Officer (PW-11), holding Post Mortem Examination of the dead body of the victim, clearly opined that those injuries were ante-mortem in nature and the mode of causing such injuries were homicidal. The factum of incident as revealed from the oral testimony of the PWS-1 & 2 clearly pointed out that after an altercation, appellant Asit Dhar @ Manu caused a gunshot injury over the occipital region of the victim and appellant Arup Roy bashed his dead with a broken piece of brick bat. The evidence of both the witnesses (PWS 1 & 2) clearly established involvement of these appellants. The materials on record revealed that the victim was involved in a business of Iron dust and he had business rivalry with the appellants herein. The father of the victim (Panchanan Mukherjee, PW-5) stated that his son Joy Mukherjee (the victim) was called from his residence by appellant Amit Koley @ Apa in the fateful evening and his presence at the place of occurrence, proved by both the ocular witnesses, proves proximate connection between his (victim) calling and killing. Witnesses Dipak Biswas (PW-2) and Dipak Chatterjee (PW-1) also corroborated the involvement of appellant Kanu Choudhury @ Chotka (one of the appellant in CRA 497/07) and both of them claimed that this appellant took active role in making hot altercation with the victim and there are reasons to believe that his presence at the place of occurrence was not for some other reasons but for committing the alleged offence of murder as a part of and in furtherance of common intention of all of them.

21. So far as, the involvement of appellant Rajib Dutta @ Raju (appellant in CRA 386/07) is concerned, Dipak Biswas (PW-2) one of the ocular witnesses clearly and categorically stated that he saw this appellant at the scene of occurrence and another witness Adyanth Chatterjee (PW-6, another local witness) saw this appellant to flee away from the place of occurrence, The presence of one additional person at the place of occurrence was also corroborated by Dipak Chatterjee (the F.I.R. maker) and he stated that he saw another person (being tall and of fair complexion) at the scene of occurrence. When the presence this appellant is being supported by the PW-2 coupled with the statement of the PW-6, as noted earlier, no different view, save & except his involvement in the crime, can be taken. On the contrary, it can safely be held that appellant Rajib Dutta @ Raju was also involved in the crime and we find no reason to disbelieve said witness (PW-2) who categorically stated that he identified this appellant to be present at the place of occurrence and taking active role in the crime. When presence at the place of occurrence cannot be doubted, his involvement in committing the murder of the victim in furtherance of common intention of all the appellants cannot be doubted as well. The mere fact that the father of the victim (PW-5) never saw his son loitering with appellant Rajib Dutta does not bear any meaning since his involvement in the crime has been proved beyond doubt, and the trend of cross-examination of all these ocular witnesses never suggested that their evidence was otherwise motivated for implication of these appellants. In this context, we cannot overlook the fact that this appellant (Rajib Dutta) was hiding at a place away from the place of occurrence and he was staying with his maternal uncle (PW-18) Somnath Chakraborty, who was residing at Khardaha at his employers house and subsequently he was apprehended by the investigating agency from Panihati Choul Patti, Khardaha. Such incidents coupled with seizure of his wearing apparels were evident from the oral testimony of the said PW-18 Somnath Chakraborty another witness, one Prasanta Bag (PW-17, a local rickshaw puller). All these incidents coupled with the oral testimony of the PW-2 (Dipak Biswas) led ld. Trial Court to come to a conclusion that this appellant took an active role in committing the crime of murder of the victim in the fateful night.

22. On perusal of the impugned judgment passed in S.T. No. 83/06, it is crystal clear that ld. Trial Court in the impugned judgment scanned the oral and documentary evidence of the witnesses, and came to the conclusion that none but these appellants were involved in the crime and on perusal of the judgment impugned, and after analyzing the same we are unable to take a different view but to hold that the ld. Trial Court was justified in coming to the conclusion that these appellants were guilty of committing murder of the victim Joy Mukherjee in the night of 19.10.2005 near fish market of Dharsa Manshatala (P.S. Jagacha, Howrah) and they deserve adequate punishment according to law for committing the offence punishable under Sections 302 /34 I.P.C. We, therefore, hold that ld. Trial Court was fully justified in imposing sentence of imprisonment for life and a fine of Rs. 2000/- in default, to suffer Rigorous Imprisonment for 2 years and we find no reason to interfere with the same. Having regard to the facts and circumstances of the case, we are of firm opinion that the appeals noted above being devoid of merit are liable to be dismissed.

23. Hence, all the four appeals are hereby dismissed. The impugned order of conviction and sentence passed by ld. Additional Sessions Judge, Fast Track (1st.) Court, Howrah in S.T. No. 83/2006 are hereby affirmed.

24. A copy of the judgment & the L.C.R. be sent to learned trial court & a copy of the same be sent to the jail authorities at once.

25. Urgent Photostat certified copy of this judgment, if applied for, shall be supplied to the advocates for the parties upon compliance with all formalities.

Ashim Kumar Roy, J.

I agree.