Swapan Gachi And Ors vs State Of Tripura

Five convicts have preferred the instant appeal questioning the sustainability of the judgment and order dated 07.12.2016, in Case No. ST (T-1) 07 of 2014, whereby the learned Additional Sessions Judge, Khowai, West Tripura, has convicted and sentenced them to suffer rigorous imprisonment for 5(five) years and to pay a fine of `1,000/- (Rupees one thousand) for committing offence under Section 450 of IPC with default stipulation and further to suffer R.I. for 9(nine) years, for the offence under Section 304 Part II of IPC. It was directed that both the sentences shall run concurrently.

Briefly stated, prosecution case was set in motion on the basis of a complaint lodged by one Jitendra Debbarma, inter alia, stating that the accused-appellants on the issue of verbal abuses involving his daughter had entered into their house on 19.03.2013 A.D. at around 5:30/6:00 pm and started assaulting him, his parents and his wife at random with sticks. When they shouted the accused persons fled away. However, due to such assaults, all of them sustained bleeding injuries. His father, namely, Arjun Debbarma, aged about 80 years, sustained severe bleeding injuries on his head and being referred to G.B. Hospital, he expired there. The complainant claimed that the assaults inflicted by the appellants had resulted the death of his father.

Based on this complaint, the Officer-in-Charge, Khowai Police Station had registered FIR No.37/2013, dated 21.03.2013. Being endorsed, the investigating officer had commenced the investigation. All the five accused persons were arrested. After conclusion of investigation, the investigating officer submitted charge-sheet for offences under Sections 148/149/340/323/302 of IPC against the appellants. The concerned Magistrate committed the case to the Court of learned Sessions Judge, Khowai for trial.

Learned Additional Sessions Judge had framed charges against the accused persons for committing offence punishable under Sections 148/302/450 of IPC read with Section 149 of IPC.

The prosecution altogether had examined 14 witnesses to substantiate the charges framed against the accused persons and a few documents were introduced.

After recording of prosecution evidence, all the accused persons were put to examination under Section 313, CrPC to which they denied the allegation brought out against them and pleaded their innocence. They also declined to adduce any defence evidence.

After hearing the arguments advanced by the parties, the learned Addl. Sessions Judge held that all the accused-appellants had formed an unlawful assembly and being armed with lathies (sticks); entered into the house of the complainant; assaulted the members resulting the death of the father of the complainant whereas other members suffered injuries. Accordingly, all the five assailants were convicted and sentenced as aforestated.

Being aggrieved, the accused persons have preferred the instant appeal.

Heard Mr. A. Basak, learned counsel for the appellants as well as Mr. R. Datta, learned Public Prosecutor for the State-respondent. I have perused the findings returned by the learned Addl. Sessions Judge.

It is pertinent to make a short survey of the evidence and materials on record before I advent to judge the legality and propriety of the judgment in question.

PW-1, Jitendra Debbarma, the informant, deposed that his daughter was used to be annoyed or eve teased by Dipu Sabar and Swarajit Gachi. They protested. One day in the evening Swapan Gachi, Laxman Gachi, Rajesh Gachi, Kajal Gachi and Swarajit Gachi having armed with lathi and piece of wooden file entered into their house and assaulted him, his wife and his parents. Though all of them received injuries but the injuries which suffered by his father Arjun Debbarma appeared to be serious. He was shifted to G.B. Hospital from Khowai hospital and on the following day his father succumbed to his injuries at G.B. Hospital. Later on, he lodged the ejahar. He identified his signature on the said ejahar [Exbt.1]. The police seized one blood stained bamboo lathi measuring approximately 48 inch in length and one wooden file measuring 30 inch length [Exbt. MO-1] by preparing a seizure list. He identified his signature [Exbt.2] on the said seizure list. He also identified the seized articles, which were marked Exbt.MO-1.

Nothing material was elicited from his cross-examination.

PW-2 is the mother of that girl, who was used to be eve teased by the accused-appellants. She deposed that on way to school, her daughter was subjected to be eve teased by the accused persons. They raised protest against their activities. One day they all having equipped with lathi entered into their house and assaulted them. Her father-in-law succumbed to his injuries due to the assault by the accused persons. She identified her signature in the seizure list. She also identified Exbt.MO-1.

PW-3 is the daughter of PWs 1 and 2. She deposed that she used to be annoyed and teased by the appellants on her way to school. When the matter was reported to her parents, they advised the accused persons not to disturb her. She further deposed that one day the appellants entered into their house and assaulted them including her grandfather. Her grandfather succumbed to the injuries due to severe blows he suffered during that assault by the accused persons.

Nothing material contradiction appeared in her cross-examination.

PW-5, Dr. Pranab Chowdhury was posted as Assistant Professor of the Department of Forensic Medicine and Toxicology, AGMC & GBP Hospital, Agartala. He conducted the postmortem examination. He found the following ante mortem injuries which are as under:-

"1.Stitched wound present on the left side frontal region, situated 6.5 cm above the right eye row and 1.5 cm width to midline.

After calling the stitches lacerated injury 5.6 cm X 4 cm X bone deep On reflection of scalp there is diffuse of extravasated blood all over frontal, right and left side and part of parietal bone. Left side frontal and part of parietal is fractured correspond to the injury. It is linear fracture. Manisgese were intact. Extradural haemorrhage present all over the frontal and part of both parietal lobes and subdural haemorrhage present on both side frontal and parietal region. Injury No.1 mentioned above are ante mortem injury caused by impact of some hard and blunt object and the of injury is 01-02 days.

According to my opinion the case of death is coma due to head injury by impact of some hard and blunt object. The age of injury is 01-02 days. This is my report in final form marked as Exhibit-3. This is my signature in the report marked as Exhibit 3/1."

Nothing material was elicited from his cross-examination.

PW-6 is the Teacher-in-Charge of Baijalbari XII School (Primary Section) where the daughter of PWs 1 and 2 used to study. He issued a school certificate to substantiate the date of birth of Dipu Sabar.

PW-7, Sri Bipin Debbarma is one of the vital witnesses to the instant case. He deposed that on the fateful date and time while he was inside his house he saw that the accused persons entered into their house and started assaulting his elder brother Jitendra Debbarma and his wife by means of bamboo lathi. He further deposed that seeing this he himself and his father Arjun Debbarma came out and tried to resist those persons from attacking his brother. At that time Swarajit Gachi attacked his father by bamboo lathi on his head. Other persons also assaulted his father by the bamboo lathi. Thereafter they left the place. His father fell down and they shifted him to Khowai hospital wherefrom he was shifted to G.B. Hospital. He succumbed to his injuries at G.B. Hospital. He further deposed that on the date of incident at morning time his brother Jitendra i.e. the informant of the case asked the accused persons as to why they eve-teased his daughter and that he also requested the accused persons not to do such things with his daughter.

In his cross-examination he denied the suggestion put forth by the defence side that his father did not sustain any injury on his head due to assault by the accused Swarajit Gachi.

PW-8 is not a material witness.

PW-9 Rathindra Debbarma was one of the younger brothers of PW-1. He deposed that after hearing hue and cry, he went to his homestead and noticed that the accused persons were assaulting his brother and his wife with bamboo made lathi. His father also came out from his room and tried to resist those persons. He further deposed that accused Swarajit Gachi assaulted his father by a bamboo lathi on the head of his father. Thereafter they fled away. His father subsequently died at hospital.

PW-10, Smt. Jharna Debbarma is the wife of Rathindra Debbarma. She deposed that on 19th March, 2013 at about 5/5:30 pm while she was in her house at that time the accused persons started assaulting her brother-in-law (PW-1) and his wife (PW-2) by bamboo made lathi. She herself along with her husband (PW-9) and other brother-in-law (PW-7) Bipin and her father-in-law came forward to save PW-1, but ,at that time, Swarajit Gachi, one of the assailants gave a blow on the head of her father-in-law by a bamboo lathi. After assaulting they fled away. Her father-in-law was taken to the Khowai hospital subsequently he succumbed to injuries.

PW-11, Smt. Hemlata Debbarma was the Assistant Sub-Inspector of police posted at G.B. TOP. She prepared the inquest report and dead body challan. PW-12, Durga Kr. Hrangkhwal was the second investigating officer who was entrusted with the investigation at the last part as the previous I.O. already completed the investigation. However, he submitted charge-sheet against the accused-appellants after observing all formalities.

PW-13, S.I. Ajit Debbarma was the first investigating officer. He deposed that after being endorsed the case he visited the place of occurrence, prepared the site map, seized one bamboo lathi and one wooden file under a seizure list in presence of witnesses. He recorded the statements of the available witnesses under Section 161 of CrPC.

PW-14 was Dr. Dipankar Prakas Bhowmik. On examination of PW-1 and PW-2, he found the following injuries:-

"On examination of the patient Jitendra Debbarma I found laceration size 2 cm. X 0.5 cm and X 0.5 cm on the right side of forehead. This injury was simple in nature and caused by blunt object. I also found another laceration size 3 cm X 5 cm X 0.8 cm on the right arm of upper lateral aspect. This injury was also simple in nature and caused by blunt object. On examination of Suravi Debbarma I found one laceration injury size 3 cm X 0.5 cm X 1 cm. on the parietal region of scalp. This injury was also simple in nature and caused by blunt object."

He further deposed that both PW-1 and PW-2 were discharged after rendering treatment. According to him the injuries as suffered by PW-1 and PW-2 were of simple in nature as caused by blunt object.

On close scrutiny of the aforesaid evidence, it has come to the fore that all the appellants had trespassed to the house of the complainant (PW-1). When the investigating officer visited the place of occurrence, he seized one bamboo made lathi (stick) and another piece of wooden file which is measured about 30 inch. From the depositions of PW-1, PW-2 and PW-3 it is transpired that all the accused persons had formed an unlawful assembly, trespassed to the house and assaulted PW-1 and PW-2, the parents of PW-3. From their injury reports as deposed by PW-14, the injuries they suffered appeared to be simple in nature.

At this juncture, I have given my conscious thought to the deposition of PW-7, PW-9 and PW-10. All these three witnesses were very categorical to their statements that accused Swarajit assaulted their father i.e. Arjun Debbarma by a bamboo lathi on his head. Pursuant to this specific assertion, I am of the opinion that it was the accused, Swarajit Gachi, who caused the fatal blow to the deceased, Arjun Debbarma. Therefore, it would not be appropriate for this Court to come to the conclusion that all the accused persons should be held to be equally responsible to cause death of Arjun Debbarma. The learned Additional Sessions Judge convicted the accused persons under Section 304-II of IPC on consideration of all the materials put up before him during trial. From this, it is aptly clear that the learned trial Judge did not find any incriminating evidence to attract the ingredients of Section 302 of IPC. The findings of the learned trial Court further indicates that there was no preparation or pre-meditation with clear intendment of the accused persons to cause murder to the deceased Arjun Debbarma. Further, the evidence as laid down by the prosecution revealed that the murder of the deceased was itself not the common object of the accused persons who entered upon an unlawful assembly. In furtherance thereof, it is noticed that the act of Swarajit Gachi, appellant no.5 was sudden and knowledge of the likelihood of the same could not be attributed to the other accused persons i.e. the appellants No. 1, 2, 3 and 4.

In my opinion, the learned trial Judge has not committed any error to hold that the blow on the head of the deceased was at the spur of moment and without any intention to kill the deceased.

Now the question calls for determination whether the death of Arjun Debbarma had arisen out of common object being shared by other accused persons in the commission of the offence under Section 304-II of IPC when there is clear evidence that it was the blow inflicted by the appellant No.5, Swarajit Gachi upon the deceased. In my opinion, the prosecution has failed to bring home the circumstance that all the accused persons had trespassed the house of PW-1 with a common object to kill the deceased Arjun Debbarma. In other words, whether all the assailants of that assembly knew that the offence under Section 302 or Section 304 Part II of IPC was likely to be committed in prosecution of such common object. According to me, this circumstance has to be proved beyond reasonable doubt to punish all the assailants under the same offence which was caused by only one assailant out of that assembly. No doubt, it will depend on the facts and circumstances of each case.

I had an occasion to visit the three-Judge Bench decision of the Supreme Court in Shambhunath Singh & Ors. V. State of Bihar [AIR 1980 SC 725] wherein their Lordships held as under: SCC.pp 727-728, para 6 to 15).

Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But "members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly." Jahiruddin v. Queen Empress, ILR 22 Cal 306.

Therefore a conviction for an offence under Section 326 read with Section 149 of the Indian Penal Code may be recorded against the members of an unlawful assembly, even if it be established that an offence of murder was committed by a member of that assembly. The offence under Section 326 of the Indian Penal Code is in its relation to the offence of murder a minor offence and the language used in Section 149 of the Indian Penal Code does not prevent the court from convicting for that minor offence merely because an aggravated offence is committed. Counsel for the accused however sought to place reliance upon certain authorities in support of his contention. We may briefly deal with those authorities.

In Queen v. Sabid Ali, 20 Suth WR Cr 5 (FB), it was held, "Where a certain number of persons, members of an unlawful assembly Party A attacked another party B who were in occupation of land, with the view to drive them off the land by force, and one of the members in party A fired a gun at and killed one of the persons in party B, it was held (Ainslie, J., dissenting) on a consideration of the evidence that the persons composing party. A other than the person who fired the gun could not be convicted of murder under Section 149 Penal Code. The conviction was altered under the circumstances to one of rioting armed with a deadly weapon under Section 148 of the Indian Penal Code." But in that case, the unlawful assembly in prosecution of which the offence was committed was to take forcibly the possession of the land in dispute, and the court on evidence found that the murder committed by one of the members of the unlawful assembly was not an offence such as the members of the unlawful assembly knew to be likely to be committed in prosecution of the object of the unlawful assembly. This case does not assist the appellants.

In Ram Prasad Singh v. King Emperor, ILR 1 Pat 753 : (AIR 1923 Pat 50), the head note is as follows;

"Where the principal offender in a case of rioting is convicted of an offence the others cannot be held to have committed constructively an offence different from the offence found to have been committed by the principal offender.

Therefore, where the principal offender was convicted under Section 302, held, that the others could not be convicted under Section 304 read with Section 149."

Mr. justice Coutts delivering the judgment of the court observed at page 757 as follows :

"In the present case Ram Prasad has been found guilty under Section 302. The learned Sessions Judge has found that the rest of the appellants cannot be held to be constructively guilty under Section 302 but he has found that they are constructively guilty under Section 304. I can find no authority, however, for convicting the principal offender of one offence and the rest of the members of the unlawful assembly of another offence, nor has the learned Assistant Government Advocate been able to refer us to any such case, and it seems to me clear from the section itself that if a member of an unlawful assembly is to be found constructively guilty of an offence under Section 149, it must be the same offence of which the principal is guilty and not some other offence. If the members of an unlawful assembly are not guilty of the same offence as the principal, the only reason why they are not guilty is because they do not come within the terms of Section 149."

We are unable to agree with the view so expressed.

The statement of the law in Ram Prasad Singh's case, ILR 1 Pat 753 : (AIR 1923 Pat 50) (supra) was considered in Bhagwat Singh v. Emperor, AIR 1936 Pat 481. In that case, the court observed that in construing Section 149, a member of an assembly is not guilty necessarily of the same offence as the principal offender nor of the offence the member must have known to be likely to be committed. The court, in that case expressed its dissent from the decision in Ram Prasad Singh's case, ILR 1 Pat 753 : (AIR 1923 Pat 50).

In Sidhu Gope v. Emperor, AIR 1946 Pat 84, it was held, that:

"the members of an unlawful assembly are not necessarily guilty of the same offence as the principal offender. It has to be determined with reference to the facts of the case, what offence the members must have known to be likely to be committed; if such offence is a minor offence, then they should be convicted accordingly."

But in the same volume, there is another case at page 242 of AIR 1946 Pat.; Ram Charan Rai v. Emperor, where preference is indicated for the view expressed in Ram Prasad Singh's case, ILR 1 Pat 753 : (AIR 1923 Pat 50).

By Sec.149 the vicarious liability of the members for offence committed in prosecution of the common object or for offences which were known to be likely to be committed by the members of the unlawful assembly is declared. The offence of murder being in its nature an aggravated form of the offence of grievous hurt, we are unable to hold that because no offender was proved to have caused grievous hurt to the victims, the conviction of accused Nos. 2 to 8 and 14 for an offence under Section 326 read with Section 149 of the Indian Penal Code is illegal.

The common object of the unlawful assembly was in this case as found by the courts below to cause grievous hurt; and death was caused by one of the members of the assembly. For causing the death, it is found that the other members of the unlawful assembly arc not responsible. But the conviction for the offence of causing grievous hurt in prosecution of the common object of the unlawful assembly is maintainable. Conviction of accused Nos. 2 to 8 and 14 for offences under Section 326 read with Section 149 of the Indian Penal Code was therefore properly recorded."

The same principle has been reiterated by another three- Judge Bench of the Supreme Court recently in Bal Mukund Sharma v. State of Bihar (2019) 5 SCC 459, placing reliance upon its earlier decision in Dharampal v. State of U.P. (1975) 2 SCC 596, and has observed that -

"It is well settled that to determine whether an accused, being a member of an unlawful assembly is liable for a given offence, it needs to be seen whether such act was committed in prosecution of the common object of the assembly, and alternatively whether the members of the assembly knew that the offence was likely to be committed in prosecution of such common object. This, in turn, has to be determined from the facts and circumstances of each case."

In the instant case, true it is, that the appellants, who had formed an unlawful assembly trespassed into the house of the complainant (PW-1) but from their acts it can easily be said that the murder of the deceased was not caused out of the common object of the unlawful assembly. Furthermore, it is observed that the blow inflicted by Swarajit Gachi upon the deceased Arjun Debbarma was made suddenly without any knowledge of the other appellants that the blow inflicted by Swarajit would likely to cause death of the deceased.

Mr. Ratan Datta, learned Public Prosecutor has tried to persuade this Court that from the evidence it is revealed that all the appellants had assaulted the deceased and due to such assault the father of the complainant died at hospital. I am unable to agree with the submission of learned Public Prosecutor for the reason that in the instant case there is specific statement made by PWs 7, 9 and 10 that the blows inflicted by Swarajit on the head of the deceased appeared to be fatal to the deceased.

On the other hand, I find force in the submission of Mr. A. Basak, learned counsel for the appellants that all the appellants cannot be held responsible for the death of the deceased though they were the members of that unlawful assembly.

On overall assessment of the evidence and materials on record and keeping in view the authoritative pronouncement of the Apex court in Shambhunath (supra) and Bal Mukund Sharma (supra) as aforestated, I am of the view that the appellants did not form the unlawful assembly with the common object and intention to kill the deceased or any of the members of the family of PW-1. In the backdrop of specific evidence that the cause of death of the deceased was due to the blows on his head which was inflicted by the appellant No.5, Surojit Gachi and that too in the spur of moment without any premeditation, the other appellants namely, Swapan Gachi, Laxman Gachi, Rajesh Gachi, Kajal Gachi i.e. the appellants No. 1, 2, 3 and 4 respectively, should not be held to be responsible for the death of the deceased and therefore, their conviction and sentence under Section 304 Part II of IPC cannot sustain.

One noticeable part in the impugned judgment of the learned trial court is that while convicting the accused under Section-304 Part-II of IPC, the learned Judge declared conviction against the appellants under Section-450 of IPC. Here, in my opinion, the learned Judge has committed an error of law. To convict an accused under Section-450 of IPC, following ingredients are necessary to be established viz. (i) house trespass has to be committed (ii) house trespass has to be committed with intention to commit offence punishable with imprisonment for life. But in the instant case, the learned Judge has convicted all the accused-persons under Section-304 Part-II of IPC. For convenience, reference may be made to the relevant provisions which are as under:

"Section-304 IPC:- Punishment for culpable homicide not amounting to murder- Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

"Section 450 IPC:- House-trespass in order to commit offence punishable with imprisonment for life.-Whoever commits house-trespass in order to the committing of any offence punishable with [imprisonment for life], shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine."

"Section 452 IPC:- House-trespass after preparation for hurt, assault or wrongful restraint.-Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

From a plain reading of Section-450 IPC, it is crystal clear that this section shall be applicable against such accused-person(s) who commits house trespass in order to commit any offence punishable with imprisonment for life. In the instant case, the learned Judge convicted the accused-persons under Section-304 Part-II of IPC and sentenced to suffer imprisonment for 9(nine) years. Therefore, while the accused person is convicted under Section-304 Part-II of IPC, then, the said person cannot be convicted under Section-450 of IPC for the reason that he has not been sentenced for life imprisonment. In other words, Section-304 Part-II IPC does not prescribe punishment for imprisonment for life and therefore, Section 450 of IPC will be applicable only when the accused is convicted and sentenced to suffer imprisonment for life. Therefore, the appellant Surojit alias Swarajit Gachi who is convicted under Section-304 Part-II of IPC, is liable to be convicted under Section 452 of IPC.

I have further held that the other accused persons namely Swapan Gachi, Laxman Gachi, Rajesh Gachi, Kajal Gachi have not committed any offence punishable under Section 304 Part II of IPC.

But, their participation in the unlawful assembly and assault, have been proved beyond reasonable doubt.

However, from the evidence on record the assaults appear to be simple in nature. As such, they are liable to be convicted under Sections 323, 149 and Section-452 of IPC. Section-323 prescribes punishment with imprisonment of either description for a term which may extend to one year or with fine which may extend to one thousand rupees or with both. The appellant Nos. 1, 2, 3 and 4 have already suffered imprisonment for more than one year. Section 452 of IPC prescribes punishment with imprisonment which may extend to 7(seven) years and with fine.

In view of above, the appellant Nos. 1, 2, 3 and 4 namely, Swapan Gachi, Laxman Gachi, Rajesh Gachi, Kajal Gachi are convicted and sentenced under Sections 149/323/452 of IPC to suffer imprisonment for the period they have already undergone. The impugned judgment and order dated 07.12.2016, passed by the learned Addl. Sessions Judge imposing punishment upon them to suffer RI for 9 (nine) years under Section 304 Part-II and Section 450 of IPC are set aside and quashed. They are set at liberty. They are also discharged from their bail bond. The sureties are also discharged from their respective liabilities.

The appeal preferred by the appellant No. 5, namely, Surojit alias Swarajit Gachi, is interfered with to the extent that his sentence under Section 450 of IPC is modified and reduced to Section 452 of IPC and under this offence he has been sentenced to suffer R.I. for 5 years.

With such modifications, he has been convicted and sentenced to suffer RI for 9 (nine) years under Section 304 Part-II of IPC read with Section 149 of IPC. The Sentence to suffer RI for 5(five) years under Section 452 of IPC shall run concurrently. His bail bond is hereby cancelled and he is directed to surrender before the learned trial Court within 7(seven) days from today to serve out the remaining period of sentence.

Conclusion:-

(I) The instant appeal stands allowed in part in respect of appellant Nos. 1, 2, 3 and 4, namely, Swapan Gachi, Laxman Gachi, Rajesh Gachi and Kajal Gachi; and

(II) The appeal preferred by the appellant No.5, namely, Surojit alias Swarajit Gachi stands dismissed.

Needless to say, learned trial Court shall take all necessary steps in accordance with law to ensure compliance of this judgment, if the appellant No.5, Surojit alias Swarajit Gachi is not surrender within the aforesaid stipulated period.

The appeal, accordingly, stands disposed.