AKBAR SHEIKH & ORS. v. STATE OF WEST BENGAL

Citation: [2009] 7 S.C.R. 518

Court: Supreme Court of India

Bench: S.B. SINHA, RAJENDRA MAL LODHA

Case summary

AKBAR SHEIKH & ORS. v. STATE OF WEST BENGAL.pdf

Judgment text

[2009] 7 S. C. R. 518 AKBAR SHEIKH & ORS. v. STATE OF WEST BENGAL Criminal Appeal No. 2040 of 2008 MAY 5, 2009 (S. B. SINHA AND R. M. LODHA, JJ. ) .. Penal Code, 1860: Sections 141, 142, 143, 149- Unlawful assembly- Some of the accused not committing any overt act - Whether they must also be held to be a part of the unlawful assembly, or shared common object with the main accused - Held: It depends on various factors principal amongst them being a common object formed by the members thereof to commit an offence specified in s. 141 - If such a common object is formed constructive liability could be fastened on them. In these appeals, the core question that arose for consideration is as to whether some of the accused who had not committed any overt act must be held to be a part of the unlawful assembly or shared the common- object with the main accused. Allowing Crl. Appeal Nos. 2040 and 2041 of 2008 and dismissing Crl. Appeal Nos. 2042 of 2008 and 28 of 2009, the Court HELD: 1.

Whether an assembly is unlawful one or not, would depend on various factors, the principal amongst them being a common object formed by the members thereof to commit an offence specified in one or the other clauses contained in Section 141 of the Indian Penal Code. Constructive liability on a person on the ground of being a member of unlawful assembly can be fastened for an act of offence created by one or more members of that assembly if they had formed a common AKBAR SHEIKH & ORS. V. STATE OF WEST BENGAL 519 } object. The distinction between a common object and common intention is well-known. The prosecution in a case of this nature was required to establish (i) whether the appellants were present; and (ii) whether they shared a common object. [Paras 14, 26] [529-G-H; 530-A, 538-D-E] Shankaraya Naik & Ors. v. State of Karnataka 2008 (12) SCALE 742 and Maranadu and Anr v State By Inspector of Police, Tamil Nadu 2008 (12) SCALE 420 - held applicable. '.

'- Munna Chanda v State of Assam (2006) 3 SCC 752; Saladin & Others v. State of UttarPradesh AIR 1956 SC 181; Masalti v State of UP (1964) 8 SCR 133; Sherey and Others v. State of U. P. 1991 Supp (2) SCC 437; Musa Khan and Others v State of Maharashtra (1977) 1 SCC 733; Nagarjit Ahir v. State of Bihar (2005) 10 SCC 369; Hori Lal and Another v State of UP (2006) 13 SCC 79 and State of UP v Dan Singh and Ors. (1997) 3 SCC 747 - referred to. " 2. It is unfortunate that for one reason or the other the trial was not completed for a period of twenty years. Pendency of a criminal case for a long time, as is evident from the fact noticed hereinbefore, is extremely hazardous. But, then omission on the part of a prosecution witness to name and identify an accused in the dock cannot be held to be wholly insignificant so as to record a judgment -t of conviction. Presence of an accused while the offence was committed is a sine qua non to find him guilty of being a member of unlawful assembly.

If his presence is doubted, question of finding him guilty does not arise. [Para 30] [539-F-H; 540-A] 3. In a case of this nature, the rule of. prudence should be applied. Something more than their being cited as an accused in a witness box would be necessary. The court .. must have before it some materials to form an opinion that they had shared a common object. It has not been denied or disputed that whereas five brothers were implicated as one brother had deposed against PW-9 and sons had also been implicated because a father had 1 deposed against them. Whereas PW-1 in his deposition denied that the accused deposed in the case in which a son was found to be guilty of murder of Doi Gobinda Acharya (ex-Pradhan), PW-9 admitted that he committed the said murder in broad daylight. The defence that there were other reasons for their false implication cannot also be ruled out. There exists absence of any clinching evidence as against the seven appellants in Criminal • Appeal No.

2040 of 2008, particularly when three of them had not been named at all by PW-1 and four of them had not been named by PW-9. This Court is not unmindful that Akbar and Kanku have been named by both the witnesses but even against them no overt act has been attributed. [Paras 31, 32] [540-B-E] 4. Doubts legitimately arise as regards their presence and/ or sharing of common object. While saying so, this Court is not oblivious of the fact that the incident had taken place at the dead of night. Enmity between two groups in the village is admitted. But, one cannot also lose sight of the fact that a person should not suffer rigorous imprisonment for life although he might have just been a bystander without anything more. [Para 33] [540-F-G] 5. It is possible that PW-1 because of lapse of time . has made cer;tain statements which go beyond the record, viz. , holding of inquest before the FIR was recorded.

The number of accused persons in the First Information Report might have also been put by the investigating officer at a later point of time. The fact that the post mortem examination had been held on 16. 05. 1982 itself goes a long way to establish the genesis of the occurrence. While saying so, this Court is not unmindful of the fact that the First Information Report was sent to the Magistrate after 24 hours. But then, in a case of this nature such a delay may not, by itself, be held to be fatal. [Para 34] [540-G-H; 541-A-B] AKBAR SHEIKH & ORS. V STATE OF WEST BENGAL 521 · /' t 6. It cannot be said that Kab. ir was a juvenile on the date of occurrence. No such question had ever been raised. Even where a similar question was raised by five other accused, no such plea was raised even before the • High Court. Reliance inter alia has been placed on the statement of Kabir under Section 313 of the Code of Criminal Procedure wherein he stated his age to be 33 years in 2001.

Such a statement, is not decisive. Reliance ~ has also been placed on a voters' list. The said voters' list had been prepared long after the incident occurred. The same is again not decisive. In the facts and circumstance of this case and particularly having regard to the specific role attributed to him, viz. , he was one of the four persons who had taken away Akramul with Buddik, Ruli and Sadek and the said evidence brought on record by the prosecution having been relied upon by both the courts 0 below, there is no reason to interfere therewith. [Paras 35, 36] [541-C-F] 7. Similarly, not only in the First Information Report but also the prosecution witnesses, viz. , PWs 1 and 9, specifically attributed role of Kazem. Kazem took a specific. defence of alibi. It was for him to prove the same. The Trial Judge, has for good reasons disbelieved the certificate given by Dr. Dulal Chowdhury.

If the appellant could not establish his plea of alibi, on the face of the records, no case has been made out to interfere with the judgment of Trial Court/ High Court. [Paras 36,38] [541-F-G; 542-E-F] Case Law Reference . (2006) 3 sec 752 referred to Para 15 AIR 1956 SC 181 referred to Para 16 (1964) 8 SCR 133 referred to Para 16 1991 Supp (2) SCC 437 referred to Para 18 (1977) 1 sec 733 referred to Para 19 (2oos) 1o sec 369 referred to Para 20. (2006) 13 sec 79 referred to Para 21 2008 (12) SCALE 742 held applicable Para 22 2008 (12) SCALE 420 held applicable Para 23 (1997) 3 SCC 747 referred to Para 24 CRIMINAL APPELLATE JURISDUCTOIN : Criminal Appeal No. 2040 of 2008 From the Judgement and Order dated 16. 05. 2008 of the Hon'ble High Court of Calcutta in C. R. A. No. 147 of 2002 WITH Criminal Appeal No. 2041 of 2008 Criminal Appeal No. 2042 of 2008 Criminal Appeal No. 28 of 2009 Pardip K. Ghosh, Rauf Rahim, Yadunandan Bansal, Seshadri Sekhar Ray (A. C. ), for the Appellant.

Avijit Bhattacharjee, Saumya Kundu, Subrata Biswas, for the Respondent. The Judgement of the Court was delivered by S. B. SINHA, J. 1. Sajaedar Rahman (Complainant- PW-1) was a resident of small village Bujung situated within the Police Station of Nalhati, in the district of Birbhum (West Bengal). He had a twostoreyed house made of mud with a tin shed. It had a verandah on the ground floor as also on the upper floor. It consisted of four rooms; two on the ground floor and two on the upper floor. There was another house in the same compound. ! twas thatched with straw. It was also a two-storeyed one. 2. The deceased Akramul Sheikh and Samsul Haque were his sons. Ashraful (PW-9) and Nasir were his two other sons. ~ His wife is Latifa Bibi (PW-6) and Ahmuda Khatun (PW-7) is his daughter. Kazem (Accused No.. 8) is his nephew. Ali Mohammed alias Kalu (PW-5) is his another brother. 3. On the fateful day, i. e. , 16. 05. 1982 in the mid night, the complainant was sleeping inside his room.

On the verandah _n by the learned Sessions Judge as also the High Court in arriving at their conclusion, the defence side of the story should also not be ignored. While saying so, we are not oblivious of the dicta that enmity is a two-edged weapon. Whereas it is possible as was the case in Masalti;J,supra) that the accused-had formed common object, the chances of some 'of the accused having . been falsely implicated for extraneous reasons also cannot be rul~out. 29. The discrepancies in the statements of PWs 1 and 9 with regard to the presence of some of the appellants have been noticed by us hereinbefore. Akhtar, appellant in Criminal Appeal No. 2041 of 2008 had not been named by any of those witnesses. On what basis, a jud1:1ment of conviction could be I I recorded against him is· beyond ourcomprehension. Similarly, three others had not been named by PW-1 at all. In _the court, _- PW-1 identified 19 persons. Three were abse_nt. He, therefore, did not identify the others.

According to him, he did not remember the names of other persons. 30. Mr. Bhattacharjee would contend that whereas PW-1 was examined ten years after the occurrE)n. ce, ·PW-9 had been examined C! ,ft_er twenty years after the occurrence. This may be so. It is unfortunate that for one reason or the other the trial was not completed for a period of twenty years. Pendency of criminal case for a long time, as is evident from the fact noticed hereinbefore, is extremely hazardous. But, then omission on the part of a prosecution witness to name and identify an accused in the dock cannot be held to be wholly insignificant so as to record a judgment of conviction. - Presence of an accused while r the offence was committed is a sine qua non to find him guirty of being a member of unlawful assembly. If his pres~nce is doubted, question of finding him guilty does not arise. 31. In a case of this nature, the rule of prudence should be applied.

Something more than their being cited as an accused in a witness box would be necessary. The court must have before it some materials to form an opinion that they had shared a • common object. It has not been denied or disputed that whereas five brothers were implicated as one brother had deposed against PW-9 and sons had also been implicated because a father had deposed against them. Whereas PW-1 in his deposition denied that the accused deposed in the case in which a son was_found to be guilty of murder of Doi Gobinda . Acharya (ex-Pradhan), PW-9 admitted that he committed the said murder in broad daylight. The defence that there were other reasons for their false implication cannot also be ruled out. In our opinion, there exists absence of any clinching evidence as against the seven appellants in Criminal Appeal No. 2040 of 2008, particularly when three. of them had not been named at all by PW-1 and four of them had not been named by PW-9. 32.

We are not unmindful thatAkbar and Kanku have been named by both the witnesses but even against them no overt act has been attributed. .. 33. We, therefore~ are of the opinion that doubts legitimately arise as regards their presence and/ or sharing of common object. While saying so, we are not oblivious of the fact that the inCident had taken place at the dead oLnight. Enmity between two groups in the village is admitted. But, we cannot also lose sight of the fact that a person should not suffer rigorous imprisonment for life although he might have just been a bystander without anything more. • 34. Submission of Mr. Ghosh that the First Information Report is ante-timed cannot be accepted. It is possible that PW- 1 because of lapse of time has made certain statements which go beyond the record, viz. , holding of inquest before the FIR was recorded.

The number of accused persons in the First Information Report might have also been put by the investigating· officer at a later point of time. The fact that the post mortem examination had been held on 16. 05. 1982 itself goes a long way to establish the genesis of the occurrence. While saying so, we are not unmindful of the fact that the First Information Report was sent to ! tie M<! gistrate after 24 hours. But then, in case of this nature such a delay may not, by itself, be held to be • fata( ·· 35. We are also unable to accept the submission of Mr: Rauf Rahim that Kabir was a juvenile on the date of occurrence.. No such question had ever been raised. Even where a similar question was raised by five other accused, viz. , Jahangir, .. Motahar, Masi, Chosi and Habal, no such plea was raised even before the High Court. Reliance inter alia has been placed on the statement of Kabir under Section 313 of the Code of Criminal Procedure wherein he stated his age to be 33 years in 2001. ~'.

· Such a statement, in our opinion, is not decisive. Reliance has also been placed on a voters' list. The said voters' list had been prepared long after the incident occurred. The same is again not decisive. · 36. In the facts and circumstance of this case and particularly having regard to the specific role attributed to him, viz. , he was one of the four persons who had taken away Akramul with Buddik, Ruli and Sadek and the said evidence brought9n _ record by the prosecution having been re~ed upon by both the courts below, we do not see ;;my reason to interfere therewith. Similarly, not only in the First Information Report but also the prosecution witnesses, viz. , PWs 1 and 9, specifically attributed role of Kazem. Kazem took a specific defence of alibi. It was for him to prove the same. • 37. The Trial Court noticed that the certificate issued by Dr. DulaI Chowdhury was issued by him in his private capacity as Medical Practitioner.

The Trial Court noticed: "In cross-examination it transpires that he issued the certificate in the . year 1991 but he cannot recollect the time and date when Kazem Ali was admitted at Suri · Hospital and also cannot say also under what condition he was discharged from Suri Hospital without perusal of the records. " The Trial Court held: "Ext. B and C are the certificates dated 7. 5. 91 and the discharge certificate issued by Dr. DulaI Chowdhury was issued on 7. 5. 91 and Ext. C was issued on 5. 12. 81. It is crystal clear from Ext. C that Kazem Ali was discharged on 5. 12. 81 and on the reverse side of this certificate it is also crystal clear that pt. can resume his usual duty. This shows that on and from 05. 12. 81 the pt. i. e. Kazem Ali -was fit to resume his normal duty. That Kazem Ali was not fit on the date of incident i. e. on 16. 05. 82 does not arise at all. The defence lawyer . has failed to establish the fact that Kazem was under the treatment of Dr.

Chowdhury on the date of occurrence i. e. 16. 05. 82 does not stand at all. Therefore, the contention of the defence is that at the time of the said occurrence, accused Kazem was under the treatment of Dr. Dule Chowdhury has not been established. "· 38. The learned Trial Ju~gE;! , jQ_Qur opinion, has for good reasons disbelieved the certificate given by Dr. Dulal Chowdhury. Ifthe appellant could not establish his plea of alibi, in our opinion, on the face of the records, no case has been made out . to_ . . . . ~ · interfere with the judgment of Trial Court/ High Court. 39. 1. n the result, Criminal Appeal Nos. 2040 and 2041 of . · 2008 are allowed and Criminal Appeal Nos_. 2042 of 2008 and 28 of 2009 are dismissed. G. N. Appeals disposed of.