1969 P Cr (PLP)

The witnesses of occurrence are, so far as the house of P. W. Radha Charan and his brothers is concerned, P. Ws. 1, 2, 3 and 4, all of whom are inmates of the house. The witnesses of occurrence so far as the house of deceased Ganesh Chandra is concerned are P. Ws. 5, 6 and 7, all the three being the inmates of this house. The evidence of all these witnesses of occurrence clearly show that shortly after midnight on the date of occurrence, certain invaders tried to force entry into the two houses which are almost adjacent to each other but for a very narrow strip of land called an alley. The alamats recovered by the police namely, broken Jhapdoor and the evidence of the neighbours who arrived cat the scene of occurrence shortly fully support the prosecution case that some persons invaded the houses for the purpose of committing theft in course of which they had used force and caused hurt. There is evidence to show that P. Ws. Radhacharan and his brothers are men of substantial means owning substantial quantity of lands. The evidence shows that Ganesh Chandra boas also a man of substance who could afford to keep a student lodger at his place, namely, P. W. Bhim Chandra. Considering these facts and keeping in view the time and manner of the invasion it is reasonable to infer that the intruders wanted to commit theft but they failed in their objective because of the fact that the inmates of the two houses woke up in time and failed the purpose of the invasion. There is no evidence to show that any one of the witnesses of occurrence mentioned above has had any reason whatsoever to falsely implicate the three prisoners. Each and every one of these witnesses has denied suggestions of enmity and ill-feeling between him and any one of the three prisoners. The defence case that a party faction in the village headed on one side by P. Ws. Jatindra Nath Sarkar and Tafiluddin Sarkar, and on the other side by one Azimuddin and that there was trouble between the two factions over the removal of the materials of a Primary School to the site of a High School has been denied by all the witnesses to whom they have been put. Only one witness appeared to have admitted that the removal of the materials of the Primary School to the High School was not looked with favour by P. Ws. Jatindra and Tafiluddin. The witnesses however, proceeded that they never protested to the dismantling of the house. Be that as it may, there is no material on record upon the basis of which it can be reasonably inferred that there in fact existed such bad blood between the witnesses of occurrence and the three prisoners as to induce the witnesses to falsely implicate the prisoners to the exclusion of the real culprits, for it is inconceivable that the witnesses would omit to mention the real culprits and instead mention falsely the prisoners to feed fat the grudge if any. The evidence has clearly proved that whoever were invaders they came in very close contact with the witnesses of recognition two of whom, namely, P. Ws. Raicharan and Sadhucharan had been injured by them and they had therefore, enough time and opportunity to recognize then assailants particularly when they are known persons. There is also sufficient and reliable evidence that there was a burning hurricane in the house of P. W. Radhacharan as well as in the house of Ganesh Chandra (deceased) in the light of which the witnesses were able to recognise the invaders. The witnesses of recognition have been amply supported and corroborated by several witnesses who arrived at the scene of occurrence on hearing the hue and cry. Among these witnesses are P. W. 8 Tafiluddin Sarkar, P. W. 9, Sankar Kamal Sarkar, P. W. Ahmad Ali Pramanik, P. W. 11 Jatindra Nath Sarkar, P. W. 12 Haramba Nath Sarkar, P. W. 16 Sudhir Chandra Pramanik, P. W. 17 Dharani Kanta Pramanik and P. W. Shebak Chandra Sarkar. All these witnesses appear to be independent and disinterested, and some among them belong to the Muslim community. We have found no reason whatsoever to disbelieve them. So far as P. W. 11 Jatindra bath Sarkar is concerned, he too has denied the existence of any party faction in the village over the affair's of a primary school. The witness has admitted that a case under section 411 of the Pakistan Penal Code was started against him for alleged theft of school records falsely. Evidently, however, this case was brought during the pendency of the present case. This witness was merely tendered and we have found no reason to disbelieve the statements he made in course of his cross -examination. On a consideration of the evidence in the case we are satisfied that the prosecution has succeeded in proving beyond any reasonable doubt the occurrence of the offence under section 394 of the Pakistan Penal Code, namely, attempting to commit robbery in course of which hurt was caused to the inmates of the houses wherein the invaders attempted to commit robbery. The evidence has proved that the two occurrences in the houses of Radha Charan and Ganesh Chandra took place almost simultaneously and almost at the same place for the two houses were separated only by a very narrow strip of land called an alley. The action of the invaders also disclosed that they were acting conjointly and their purpose was the same. So far as the recognition of the persons responsible for the offence is concerned, prisoners Mokbul Pramanink and his brother Abul Pramanik have been identified by the three inmates of the house of P. W. Radha Charan, P. Ws. 2, 3 and 4, and all these three witnesses have been amply corroborated by the neighbours who immediately rushed to the scene of occurrence and heard the names of the assailants from them. Among these witnesses of recognition P. Ws. 2 and 4 were injured by the invaders P. W. 2 was struck by prisoner Mokbul Pramanik with a dagger on his right hand and P. W. 4 Sadhucharan was struck with a lathi by prisoners Abul Pramanik. The Assistant Sub- Inspector of Police P. W. 19 Lutfur Rahman has corroborated P. Ws. 2 and 4 and has stated that he saw the injuries on the persons of Sadhucharan and Raicharan when he went to their house to take preliminary steps on 29‑10‑67 P. W. 14 Md. Akram Hussain, Medical Officer of Dupchanchia Charitable Dispensary, examined P. Ws. 2 and 4 on 30‑10‑67 and found the following injuries on them. On the person of P. W. Raicharan the medical officer found one simple incised wound on the medial side of the right forearm caused by some heavy sharp cutting weapon like a dagger. On the person of P. W. Sadhucharan the medical officer found multiple simple bruises on the different parts of the back caused by blunt and hard substance and also one simple abrosion on the upper lip caused by some blunt and hard substance. We thus find that the medical evidence also fully supports the evidence of P. Ws. 2 and

4. We, therefore, find that the complicity of prisoners Mokbul Pramanik and his brother Abut Pramanik in the aforesaid offence in course of which both of them caused hurt to the victims have been sufficient proved. As regards the recognition of the condemned‑prisoner Abut Mondal he, too, has been sufficiently and reliably identified by P. Ws. 5 and 6 Bhim Chandra and Anil Chandra and both of them have been corroborated by P. W. 7 Kiron Bala, wife of deceased Ganesh and their neighbours who immediately came to the house of Ganesh. The complicity of this prisoner in the attempted robbery under section 394 of the Pakistan Penal Code in course of which he caused hurt to Ganesh (deceased), therefore, also stands well proved. Mr. Farid Ahmed has next contended that upon the evidence the condemned‑prisoner Abut Mondal cannot be held responsible for or be convicted of the offence of murder. This contention is based on two grounds, namely, (1) that the prosecution has failed to prove the occurrence of dacoity; and (2) Oat the identity of the assailant of Ganesh Chandra (deceased) has not been proved beyond any reasonable doubt. As regards the first ground we have already held that what the prosecution has succeeded in proving beyond any reasonable doubt is the occurrence of attempted robbery and not that of dacoity. That being so, the conviction of the condemned prisoner and the other two prisoners under section 396 of the Pakistan Penal Code cannot be sustained. The question, there fore, is what offence if any has been committed by the condemned prisoner if his identity as an assailant of Ganesh Chandra (deceased) be established. This brings us to the consideration of the second ground. The death of Ganesh as a result of the injuries which he sustained on the date of occurrence has not been disputed. Mr. Farid Ahmad has, however, contended that the nature of the injuries found upon the body of Ganesh Chandra by P. W. 22, the Assistant Civil Surgeon who held the autopsy on the body do not fit in with the nature of the weapon, namely, a dagger. The Assistant Civil Surgeon found the following injuries upon the body of Ganesh Chandra Pramanik:‑ "(1) One incised wound longitudinally from central part of the forehead to volt of skull 5 x " x skull deep. On incision infiltration of blood was found underneath the wound. The frontal and volt of skull were cut including the meninges underneath; (2) One incise wound obliquely on the occipital region 3 " x ' x. bone deep. On incision infiltration of blood seen underneath the wound in the soft tissue. The bone and meninges cut underneath the wound; (3) One transverse gaping wound 3" x 2 " muscle deep on the back of the neck along the base of the occipital bone. On incision, infiltration blood seen in the muscle tissue; (4) One gaping wound 5" x 1 " x bone deep on the left shoulder transversly. On incision infiltration of blood seen in muscle tissue and spine of scapula was near the acromio clavicular joint ; and (5) Two abrasions 2" x " each on the left side of the chest. On incision subcutaneous infiltration of blood seen." In the opinion of the doctor death was due to a shock as a result of the above‑mentioned injuries which were ante mortem and homicidal in nature. The doctor was also of the opinion that the injuries might be caused with sharp cutting weapon like dagger. The defence declined to cross‑examine the doctor. In the first information report in Bengali the word " . . . ." *[Word in Bengali script left over] (knife) has been used. ". . . ." *[Word in Bengali script left over] has been translated as a dagger in the first information report (translation) Exh.

1. Mr. Farid Ahmed has argued that a dagger can only cause stabbing or punctured in injuries. All the witnesses have stated that Ganesh Chandra was injured with a dagger by the condemned‑prisoner. In the evidence before the committing Court the weapon has been described as a, knife. It is, therefore, evident that the identity of weapon has been described as a knife. It is, therefore, evident that the identity of weapon as described in the evidence before the Court of Session has suffered from its translation. Be that as it may, the evidence has proved that the injuries were caused by a sharp weapon presumably of the cutting variety like ". . . "*[Word in Bengali script left over] (a knife). As has been noticed already the Assistant Civil Surgeon who described the injuries of Ganesh Chandra was not at all cross‑examined. It will not be out of place to mention here that the learned Sessions Judge Mr. Muhammad Muhibbul Haque, who held the trial and has translated into English the evidence given in Bengali suffers from inaccuracy of language as the word vestiges for alamats shows. We, therefore, do not find any sub stance in this contention. As we have not relied upon the alleged confession of prisoner Mokbul Pramanik we have not considered it necessary to refer to the contention of Mr. Farid Ahmad as to the admissibility or value of such confession. P. W. 5 Bhim Chandra saw the assailant of Ganesh Chandra from very close quarters and he has identified the condemned -prisoner Abul Mondal as the person who attacked aril caused injuries to Ganesh Chandra on the date of occurrence. This witness has been amply corroborated by the witnesses who immediately came to the scene of occurrence. The witnesses of corroboration have said that P. W. Bhim Chandra mentioned the name of the condemned‑prisoner as the assailant of Ganesh Chandra. P. W. 6 Anil Chandra is the son of deceased Ganesh Chandra and was another inmate of the house who saw the occurrence from close quarters and he too has identified the condemned‑prisoner as the assailant of Ganesh Chandra. It is true that this witness has not been mentioned in the first infor mation report as a person who recognised the assailant of Ganesh. The witness however cannot be held responsible for this omission. P. W. 6 has been sufficiently corroborated by other evidence that he had in fact recognised the assailant of Ganesh and mentioned the name to the witnesses who arrived at Ganesh's house on the date of occurrence. In our opinion the evidence has fully proved that the condemned‑prisoner Abul Mondal caused the injuries upon the person of Ganesh Chandra in the manner stated by the prosecution and which caused the death of Ganesh. We, therefore, find that the evidence has fully proved beyond any reasonable doubt that the condemned‑prisoner committed the murder of Ganesh Chandra. It, however, appears from the medical evidence of P. W. 22 that there were two abrasions 2" x " on the left side of the chest of Ganesh and on incision subcutaneous infiltration of blood was seen. These abrasions apparently were not caused by either a dagger or a knife. The possibility, therefore, of these injuries having been caused by another person and or in some other manner cannot be excluded. The doctor has, however, opined that death of Ganesh was due to the cumulative effect of the injuries that he found on the dead body. The only inference that we can arrive at in the facts and circumstances of the case is that the condemned- prisoner is guilty of the offence of murder constructively under section 302/34 of the Pakistan Penal Code. In arriving at this conclusion we have not been unmindful of the fact that the condemned‑prisoner should not suffer from any prejudice. The charge framed under section 396 of the Pakistan Penal Code has sufficiently given notice to the condemned‑prisoner that it was he who was being held responsible for the murder of Ganesh Chandra. We accordingly hold that the conviction of the con demned‑prisoner under section 302/34 of the Pakistan Penal Code has not in any way prejudiced him. We do not find any substance in Mr. Farid Ahmad's conten tion that inasmuch as P. W. 20 Khowajuddin Ahmad has stated that nobody talked about the recognition of the assailant in the presence of the witnesses showed that nobody till then had recognised the assailant of Ganesh P. W. 20 visited the house of Ganesh Chandra several hours after the occurrence and it appears from the evidence that he was much too engrossed in the grave condition of his patient. Ganesh Chandra having been found on the point of death it was not likely that anybody would think of disturbing the doctor by talking such extraneous matters as the recognition of the assailant of Ganesh Chandra. The neighbours who rushed to the scene of occurrence long before P. W. 20 arrived at the house of Ganesh Chandra have all consistently supported the prosecution case that the name of the assailant of Ganesh Chandra was mentioned before them. Having regard to the facts and circumstances of the case we do not find there was any delay in lodging the first information report. We also do not find any substance in Mr. Farid Ahmed's contention that the complainant was not a competent person to lodge the first information report. According to Mr. Farid Ahmad it should have been the son of Ganesh who should have lodged the first information report. There remains the question of the sentence of death passed upon the condemned‑prisoner. We have already found that the possibility of some other person participating in the assault upon Ganesh Chandra cannot be excluded. The prosecution has failed to explain how the two abrasions on the chest of Ganesh were caused. It also does not appear from the evidence as to what could be the motive of the condemned‑prisoner in killing Genesh Chandra. Upon the evidence the only legitimate inference that can be drawn is that the murder was not preplanned and pre‑meditated but that it was the result of an instinct of self preservation and was committed at the spur of the moment as soon as the condemned realised that not only his identity had been discovered but it was loudly proclaimed by Ganesh (the deceased). These are circumstances which weigh in favour of the condemned‑prisoner in the matter of reduction of his sen tence. We therefore, think that in the facts and circumstances of the case the sentence of death should be commuted to one of transportation for life. We accordingly alter the conviction of the three prisoners from one under section 396 of the Pakistan Penal Code to one under section 394 of the Pakistan Penal Code and reduce their sentences to a period of rigorous imprisonment for eight years each. We further convict the condemned‑prisoner Abul Mondal under section 302/34 of the Pakistan Penal Code and commute the sentence of death passed on him to transportation for life. The two sentences passed on prisoner Abul Mondal shall, however, run concurrently. In the result the Reference is rejected, and the appeal of the three prisoners is partly allowed in the manner stated above. T. H. KHAN, J.‑I agree. Appeal partly accepted.