Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. Likewise, the Sessions Judge also discarded the evidence of PWs 3 and 4, Payed Laskar and Kalipada Monda!, as being unconvincing. Regarding the evidence of PW 3 as to the involvement of Probodh Purkait in damaging H his house and looting the household articles, the Sessions Judge has observed .71 lo ., – PROBODH PURKAlh. STATE OF WEST BENGAL [ALT AMAS KABIR, .II 3 59 that there is no iota of evidence. Referring to certain discrepancies in the A evidence of PW 3 regarding the assau It on the deceased- Abdur Rahaman Laskar and Abdur Molla, and the place where they were said to have been killed, the evidence of PW-3 was disbelieved by the Court on the basis of spot inspection made by the Sessions Judge. Mr. Sushi! Kumar, pointed out that the evidence of PW-4, Kalipada Monda!, was also discarded for the same B reason.
12. Mr. Sushi! Kumar submitted that the Sessions Judge did not also place reliance on the evidence of PW-8, Sudarshan Roy, who is alleged to be an injured eye-witness, as he did not get himself examined by a doctor.
13. The evidence of PW-9, Md. Sahabuddin Molla, was also not accepted as regards the looting of Payed Laskar's house. His testimony as an eye- witness to the murder of Abdur Rahman Laskar and Abdur Molla was contradicted by the Investigating Officer and was also disbelieved. c
14. Dealing with the evidence of PW-5, Kalpana Roy, her son PW-6, D Aurobinda Roy and her husband, PW-7, Srinibas Roy who were all said to be eye-witnesses to the incident in their house and later on in the field to the south of their house, the Sessions Judge found certain discrepancies in the evidence of PW-5 and her statement before the Investigating Officer as to the manner in which the incident is alleged to have occurred in her house. On such basis, the Sessions Judge found her evidence to be discredited, leaving E only the evidence of PWs 6 and 7 to prove the prosecution case that the deceased were dragged out of the house of PW-7 by the accused at the instant of Probodh Purkait and thereafter murdered.
15. Mr. Sushi! Kumar submitted that the Sessions Judge had accepted F the evidence of PWs 6 and 7 regarding the assault on PW-7 by accused, Kauser Baidya with a lathi and the fact that PWs 6 and 7 had an opportunity of seeing the assailants of Abdur Molla when he was dragged to the field, since he had also been brought there. The trial court found that the evidence of PWs 6 and 7 to be mutually corroborative. However, their evidence regarding the involvement of Probodh Purkait, Basinath and Basudeb in the murder of G Abdur Molla and assault on them was not believed.
16. Mr. Sushi! Kumar submitted that on the basis of the evidence of PWs 6 and 7 and the medical evidence, the Sessions Judge came to the conclusion that accused Yusuf Ga yen, Srikanti Halder, Kartick Nasker, Ismail H Lasker and Khudiram Nasker and others had trespassed into the house of A Srinibas Roy (PW-7) on 15th January, 1985, at about 8/8.30 a.m. at Radhaballavpur and that they along with Kauser Baidya assaulted Abdur Molla, Srinibas and Aurobinda by lathi in the field to the south of the house of Srinibas and caused simple injuries to Srinibas and Aurobinda and murdered Abdur Molla at Chowdhury Chak near Sardarpara Road at Radhaballavpur, B P.S. Kultali.
17. The further finding was that Abdur Rahaman Laskar was also murdered at that place on that date, but his assailants are not known.
18. The Sessions Judge accordingly convicted YusufGayen and the five C others accused under Sections 148, 302/149,323/149 Indian Penal Code and sentenced them in the manner indicated hereinbefore and acquitted all the other accused, including Probodh Purkait, Hari Sadhan Mali, Iran Molla, Anirudha Haldar and Basinath Gayen who were subsequently convicted by the High Court under Section 148 and 3021149 Indian Penal Code.
19. Mr. Sushi! Kumar submitted that in appeal, the High Court on a re- appraisal of the evidence accepted the evidence of PWs 3,5,6, 7,8, and 9 and observed that all the said witnesses had seen the occurrence from different angles and different places. The High Court also held that since all the prosecution witnesses had mentioned that Probodh Purkait was a member of E the unlawful assembly and, in fact, led the unlawful assembly, he could not be absolved of the complicity of sharing the common object of the unlawful assembly though there was no evidence to indicate that Probodh Purkait had himself inflicted any injury.
20. On the basis of the above the High Court also convicted Probodh F Purkait, Hari Sadhan Mali, Iran Molla, Anirudha Haldar and Basinath Gayen under Sections 148, 302/149 Indian Penal Code and sentenced them to suffer rigorous imprisonment for life under Sections 302/149 and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for three months each.
21. Mr. Sushi! Kumar urged that the High Court had erred in relying on G the unreliable evidence of PWs 3, 5, 8 and 9, which had been discarded by the Sessions Judge for good reasons. Mr. Kumar submitted that the High Court had not even considered the evidence of PW-2, Shah Alam Molla, who lodged the First Information Report about 33 hours after the incident.
22. Mr. Kumar submitted that on the state of the evidence the involvement PROBODH PURKAIT r. STATE OF WEST BENGAL [AL TAMAS KABIR..!] of Probodh Purkait was not established. It was urged that from the evidence A it would be clear that the place where Probodh Purkait was alleged to have been standing had not been definitely fixed, and, on the other hand, even from the evidence of PWs 6 and 7 it would appear that Probodh Purkait was standing at a distance of2 kilometres from the house of PW-7 across a field.
23. Mr. Sushi! Kumar submitted that the High Court had committed a grave error of judgment in convicting Probodh Purkait, Hari Sadhan Mali, Iran Molla, Anirudha Haldar and Basinath Gayen under Sections 148, 302/149 on the basis of the evidence of PWs 3, 5, 6, 7, 8 and9 and such conviction and sentence was liable to be set aside. c
24. Mr. Ranjit Kumar, senior counsel for the appellants Yusuf Gayen, Ismail Naskar, Srikanta Haldar,Kartick Naskar, Khudiram Naskar and Kauser Baidya, who had been initially convicted by the Sessions Judge, repeated Mr. Sushi! Kumar's submissions that on a painstaking appraisal of the evidence led by the prosecution the Sessions Judge had for good reasons given by him discarded the evidence of PWs I, 2, 3, 4, 5, 8 and 9. Once the evidence D of PW-2. who had lodged the First Information Report, was disbelieved, the main pillar of the prosecution case stood demolished. ·-,._
25. Mr. Ranjit Kumar submitted that there were serious discrepancies in the version of the different prosecution witnesses which discredited the entire E prosecution story and made the same highly improbable. Mr. Ranjit Kumar contended that the injuries on the body of Abdur Molla clearly belied the prosecution evidence that he had been dragged from the house of Dr. Srinibas Roy (PW-7) to the field to the south of the house for a distance of about two kilometers where Probodh Purkait was alleged to be standing. He also emphasized the fact that the body of the other deceased, Abdur Rahaman F Laskar, was found at some distance from the body of Abdur Molla, which again falsified the prosecution case that the deceased had been dragged from the house of Dr.Srinibas Roy and killed by the members of the unlawful assembly before Probodh Purkait.
26. Mr. Ranjit Kumar submitted that one of the appellants, Khudiram G Naskar, had not been identified by PWs 6 and 7 as having been a member of the unlawful assembly which attacked the house of PW-7 and dragged out PWs 6 and 7 therefrom. r.
27. Mr. Ranjit Kumar submitted that the entire incident was the result H [2007) 3 S.C.R. A of political rivalry between the supporters of the Congress Party and those of the S.U.C.I. and Probodh Purkait as the elected Member of the Legislative Assembly of the S.U.C.I. party and his supporters had been falsely implicated in the case. Mr. Kumar submitted that the same would also re evident from the fact that despite the evidence on record no one was convicted for the B murder of Abdur Rahaman Laskar.
28. Appearing for the State, Mr. Altaf Ahmed submitted that the Sessions Judge had erroneously discarded the evidence of PWs 2, 3, 4, 5, 8 and 9 and that the reasons given in doing so were not acceptable. It was submitted that the evidence of the prosecution witnesses was consistent as to the incident C and the manner in which it had occurred. A few discrepancies with regard to the identification of the assailants and whether the murders were committed near the house of Srinibas Roy or some distance away could not detract from the veracity of the evidence as a whole.
29. Mr. Ahmed submitted that all the witnesses had described the D incident involving the attack on the house of Dr. Srinibas Roy by the unlawful assembly and the role played by some of the members of the unlawful assembly in entering the house of Dr. Srinibas Roy and dragging out Abdur Rahaman Laskar and Abdur Molla therefrom and thereafter assaulting them with lathis, tangis, ballams etc. The said witnesses also described the role of E Probodh Purkait in leading the unlawful assembly to the house of Payed Ali and then Dr. Srinibas Roy.
30. Mr. Ahmed submitted that by erroneously discarding the evidence of PWs 2, 3, 4, 5, 8 and 9, the Sessions Judge had erred in convicting only six of the thirty nine accused and acquitting the others. Relying on the F evidence of the aforesaid prosecution witnesses, as also PWs 6 and 7, the High Court rightly confirmed the conviction of the said six accused and convicted Probodh Purkait and four others also under Sections 148 and 302/ 149 Indian Penal Code and no interference was called for in respect thereof.
31. We have carefully considered the submissions made on behalf of the G appellants in the first three appeals and those made on behalf of the State and we find ourselves unable to differ with the decision of the High Court.
32. The evidence of PWs 6 and 7, which has been relied upon by the Sessions Judge and the High Court establishes that an unlawful mob assembled H at the house of Dr. Srinibas Roy and some of the members of the unlawful PROBODH PURKAIT r. SlATEOF WEST BENGAL [AL TAMAS KAIJIR. J.] assembly, who were identified, entered into the house and dragged out Abdur A Rahaman Laskar and Abdur MoUa. PWs 2,3,5, 8 and 9 corroborate the evidence of PWs 6 and 7. We are unable to accept the reasoning of the Sessions Judge in disbelieving the evidence of PW-2. His evidence has been discarded on the ground that he had named as many as 157 persons to be part of the unlawful assembly which assembled in front of the house of PW-7. According B to the Sessions Judge it was impossible for him to have remembered the names of so many persons present. The Sessions Judge also doubted his testimony on the ground that the mob would not have allowed him to witness the incident and leave him untouched so that he could be an eye-witness against them.
33. Similarly, the evidence of PWs 3,4, and 5 have been discarded by the Sessions Judge for reasons which are difficult to sustain. c
34. PWs 6 and 7 have deposed as to how they were taken by the members of the unlawful assembly, along with Adbur MoUa, to where Probodh Purkait was standing and on the instructions of Probodh Purkait who told D them to act according to plan (Je Katha shei kaaj) the said persons, who were identified by PWs 5, 6 and 7, murdered Abdur Molla. The entreaties of PW 7, who was related to Probodh Purkait, also went in vain and he was assaulted on the head by Kauser Baidya with a lathi.
35. The evidence of PWs 6 and 7 establishes the presence of Probodh E Purkait and the other convicted persons at the place of occurrence and their involvement in the murder of Abdur Molla and assault on PWs 6 and 7 and they have been rightly convicted. Even Khudiram Naskar who according to Mr. Ranjit Kumar had not been initially named by PWs 6 and 7, has been named by PW-5 as being part of the unlawful assembly outside her father- in-law's house. Significantly, she is Probodh Purkait's niece and had no reason to implicate him and the others falsely.
36. The appeals filed by Probodh Purkait (Crl. Appeal No. I 077 of 2005), Basinath Gayen and three others (Crl. Appeal No.30 of2006) and Yusuf Gayen and five others (Crl. Appeal No.13 of2006) therefore fail and are accordingly G dismissed. Crl. Appeal No.438 of 2006 filed by the State of West Bengal is also dismissed and the order of acquittal both by the Sessions Judge and the High Court as fa; as Bansari Gayen and the 27 other accused are concerned, is confirmed. A.K.T. Appeals dismissed. H