PETITIONER: THE SUPERINTENDENT AND REMEMBRANCEROF LEGAL AFFAIRS, WEST B Vs. RESPONDENT: MANGAL PATHAK & ORS. DATE OF JUDGMENT09/12/1994 BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PUNCHHI, M.M. CITATION: 1995 SCC Supl. (1) 239 JT 1995 (1) 227 1994 SCALE (5)206 ACT: HEADNOTE: JUDGMENT:
1. This appeal by the State of West Bengal is directed
against the judgment of the Division Bench of the Calcutta
High Court. There are nine respondents namely original
accused nos. 1 to 9. They were tried for offences
punishable under Sections 148, 302/149 and 326/34. The
trial court convicted and sentenced each of them to undergo
imprisonment for life for the offence punishable under
Sections 302/ 149 and lesser terms of imprisonment for minor
offences. On an appeal the High Court by the impugned
judgment set aside the judgment of the trial court and
acquit-
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ted all of them of all the charges. Hence the present
appeal.
2. All the accused and the deceased Brahmananda Pathak,
his brother P.W. 12 the injured witness and his son P.W.1,
Amalendu Pathak belong to Village Surulia in Purulia
District. There were disputes between the deceased and his
men on one side and the accused and the other villagers on
the other side in respect of fishing towards the end of
month of Kartik. Thus there were two parties and each was
inimical towards the other. About 4 or 5 years before the
present incident there was a dacoity in the house of the
deceased and in that criminal case A-2 and A-8 were
convicted and sentenced to eight years’ R.1. They preferred
an appeal and were released on bail pending appeal. On
14.11.79 some of these accused alongwith 12 other
,criminally trespassed into the house of the deceased and
took away a gun and threatened the deceased. As a counter
blast the accused also instituted a case against the
deceased, P.Ws. 1 and 12 and others. In that case the
deceased and P.W. 1 were granted bail with a condition that
they should remain outside the District and subsequently it
was relaxed and they were allowed to visit their house on
Wednesday and sunday and this order was in force. The
deceased had an old mother. Two or three days before the
present incident she feel ill and she expressed a desire to
see the deceased. On 23rd July, 1980 it was a Wednesday.
The deceased and his son P.W. 1 were in their rice godown in
Purulia Town. Towards evening P.W. 12, brother of the
deceased came there and informed the deceased about the
deteriorating condition of his mother and her desire to see
him. Thereafter the deceased and P.Ws 1 and 12 started
together to their house to see the old lady, P.W. 1 had a
bicycle with him and a three-cell torch and a bag containing
some papers. On the way to their house they had a grocery
shop. They dropped in there for some time and at about 8.45
P.M. they were proceeding to a place called Rakhabari, and
there they noted 7 or 8 persons coming towards from them
from the opposite direction. P.W. 1 flashed the torch and
saw accused nos. 2,3,4,8 and 9 and some others and they were
carrying various weapons. A-8 was armed with a table, A-2
and A-3 were armed with swords and A-4 and A-9 were armed
with tangis. P.W. 1 apprehending danger gave his cycle to
the deceased and asked him to leave immediately. While the
deceased was ready to ride on the cycle, A-8 Aswini Pathak
reached there and assaulted the deceased on his neck with
the tabla with the result that the deceased fell down on the
ground. P.W. 1 immediately ran from the place raising an
alarm. While running he looked back and saw his uncle P.W.
12 also being assaulted by A-8 and others. P.W.1 reached a
locality called Hanchuk Para and raised an alarm. Hearing
this P.Ws. 2,3,6, and 7 came out followed by others from
their houses. P.W. 1 immediately reported the incident to
them and also mentioned the names of accused nos. 2,3,4,8
and 9 as the, assailants.
3. After P.W. 1 had run away from the place as stated
above, P.W. 12 seeing that his brother deceased had fallen,
went to save him and caught hold of A-8. Both of them fell
down. At that time A-2 and A-3 attacked him with swords and
inflicted injuries on his neck and back. As P.W.12 tried to
resist the attack on him by raising his hands he sustained
bleeding injuries on his hands and his right little finger
got severed and his wrist watch also fell down.
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At that time the deceased got up and was trying to run away
but he was- chased and was assaulted by the assailants.
P.W. 12 in the meantime managed to get up and walk upto
Hanchuk Para. At the time of the incident there was
moonlight and little thereafter there was a shower to rain.
At the request of P.W. 1 some of the residents of Hanchuk
Para went to inform the police over the phone and some other
made arrangement for carrying P.W. 12 to Purulia Hospital
for treatment. P.W. 1 was informed that his father had
expired. On the information received at about 1 1. 1 5 P.M.
the police arrived. On their way they saw P.W. 12 being
carried. P.W. 16, Police Sub Inspector then recorded the
statement, Ex.P.1 of P.W.1 and sent it to the police station
for registering the case. P.W. 16 took up the
investigation, went to the place of occurrence and held
inquest next day morning and sent the dead body for
postmortem. He recorded statements of several persons
including that of P.W.12. P.W. 11, the Doctor, who conducted
the postmortem, found as many as six incised injuries all
over the body. The Doctor also found one gun shot injury
over the right lumber region which injured the kidney and
other parts. He recovered pellets from the body. He opined
that the death was due to shock and hemorrhage and the
incised injuries could have been caused by cutting weapons
like tabla, sword and tangi and the last injury could have
been caused by a fire-arm. P.W. 12 also was examined by
another Doctor, P. W. IS and he found as many as six sharp
cutting wounds on the hands and other parts of the body of
P.W. 12 and also found his right little finger missing. He
opined that these injuries could have been caused by Tabla
and with sharp-edged weapons. After completion of the
investigation, the charge-sheet was filed.
4. The prosecution relied mainly on the evidence of P.Ws.
1 and 12, the eyewitnesses and also on the evidence of P.Ws.
2,3 and others who came out after hearing the cries of P.W.
1 and narrated the incident. The accused, when examined
under Section 313 Cr. P.C., denied the offence and pleaded
not guilty. The plea set up by the defence was that they
have been falsely roped in and that the earliest report
given by P.W. 1 was a fabricated one and the identification
of the assailants by P.Ws. 1 and 12 should not be accepted
because it was dark.
5. The trial court after an elaborate discussion of the
evidence of P.Ws. 1 and 12 accepted their testimony. He did
not find any serious infirmity in their evidence. The trial
court held that Ex.P. 1 amply corroborated the evidence of
P.Ws. 1 and P.W 12, being an injured witness, his evidence
has to be accepted. Coming to the other witnesses the trial
court found that P.W. 2 turned hostile. P.W.3, however,
supported the prosecution case and his evidence was
accepted. P.W. 5 deposed that on hearing the alarm of P.W.
1 he came out and also saw P.W.12 with bleeding injuries who
came there and thereafter they went to inform the police and
for sending ambulance and subsequently P.W. 12 was removed
to the hospital. The trial court held that the evidence of
P.W. 5 could not be discredited on any ground. P.W. 6 who
also came out on hearing the cries of P.W. 1 supported the
evidence of P.W. 1. Likewise P.W.7’s evidence also, which is
to the same effect, was accepted by the trial court. Thus
it can be seen that the prosecution case an spoken to by
P.Ws. 1 and 12 and corroborated by the evidence of P.Ws. 3
to 7 was
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accepted by the trial court. However, the other four
accused whose names were not mentioned in the earliest
report were mentioned subsequently and the case against them
was also accepted by the trial court as spoken to by P.Ws. 1
and 12.
6. While so, the High Court in the appeal without any
discussion on the evidence whatsoever simply held that P.W.
12, who knew and recognised the assailants, did not mention
the names to the doctor who examined him and therefore it
would be unsafe to account his evidence. Coming to the
evidence of P.W. 1 the High Court pointed out that the
conduct of P.W. 1 in not asking any of the villagers to go
the rescue of his father is unnatural and against normal
human behavior and it would be risky to sustain the
conviction of the accused on the basis of his testimony.
These are the only main reasons given for discarding the
evidence of P.Ws. 1 and 12. It is needless to say that the
High Court has not examined the evidence of P.Ws. 1 and 12
in the proper perspective and on the basis of some vague
grounds their evidence has been rejected and the few reasons
given do not stand judicial scrutiny at all. We have
carefully examined the evidence of P.Ws. 1 and 12 alongwith
the evidence of P.Ws. 3 to 7. The evidence of P.W.5 clearly
shows that P.W. 12 who was seriously injured was immediately
taken to the hospital and we fail to see as to why P.W. 12
should tell the names of the assailants to the who was
examining him for his injuries. P.W.1 at the earliest
moment has given the earliest report Ex.P. 1 to the Police.
In that report he has mentioned the place and time of
occurrence and as to how he alongwith the deceased and
P.W.12 were going to their house to see the. old lady.Then
he mentioned the names of accused nos. 2,3,4,8 and 9 as some
of the assailants armed with deadly weapons and he also
stated that apprehending danger he gave the cycle to his
father and asked him to go away. AT that juncture A-8 hit
his father on the neck with the tabla and immediately
accused nos. 2,3,4 and 9 surrounded and were ready for
assault and he saw his uncle P.W. 12 also being assaulted
but somehow he managed to escape and then raised an alarm.
Before that he also heard the sound of a bomb explosion. On
reaching Name Surulia he saw P.Ws. 2,3 and others coming out
hearing his cries and he told them about the incident.
Thereafter he came to know that his father was dead. We
have gone through Ex.P. 1 carefully, In the light of the
circumstances we find that it is a most natural and true
report and there are absolutely no indication of any
fabrication. If P.W. 1 has prepared to fabricate a report
after consultations he could have attributed specific overt
acts to many other accused and the version given in Ex.P. 1
has a ring of truth. The names of P.Ws. 2,3 and others who
came out hearing his alarm are also mentioned. All other
necessary details am mentioned. All these facts mentioned
in Ex.P. 1 could not have been incorporated if P.W. 1 was
not a natural witness to the occurrence to the extent he has
witnessed. He also deposed that he had a torch and it was
also a moonlit night. The accused were not strangers to him
and there would not have been any difficulty in identifying
them. In any event there is evidence of P.W. 12 who was
seriously injured and whose presence at the scene of occur-
rence can not be doubted. He must have seen the assailants
at the close quarters and he has also mentioned the parts
played by accused nos. 2,3, and 8. His version is
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in conformity with that of P.W. 1 and the same version is
also mentioned in Ex. P. 1, the earliest report. Their
evidence is further corroborated by the evidence of P.Ws. 3
to 7 as mentioned above and the trial court has given good
and valid reasons for accepting the evidence of these
witnesses.
7. The next question is whether a foolproof case is made
out against all the respondents namely A-1 to A-9. As
stated above there was bitter enmity between the two parties
and they were involved in criminal cases. P.Ws. 1 and 12
arc admittedly interested witnesses and their evidence has
to be scrutinised with great care and caution. Generally in
such a situation their evidence has to be scrutinised in the
light of Ex.P.1, the medical evidence and other surrounding
circumstances and with reference to their earlier
statements. It has to be noted that in Ex. P. 1 only the
names of accused nos. 2,3,4,8 and 9 are mentioned and the
names of other accused were not mentioned. Therefore we
think it may not be safe to convict the other accused whose
names were not mentioned in Ex.P. 1. Then we are left with
the case of accused nos. 2,3,4,8 and 9. In Ex.P.1, P. W. 1
has stated that it was A-8 who first opened the attack and
inflicted a blow on the neck of the deceased. No other
overt acts are mentioned obviously because he did not
witness the entire occurrence. P.W. 12 in his evidence has
attributed over acts to A-2, A-3 and A-8 only. In a case of
this nature we think it is safe to convict only those
accused to whom specific overt acts are attributed. P.W. 12
deposed that in the flash of torch of P.W. 1 he recognised
the nine accused. Then he proceeded to state that A-8 was
the first person to inflict a blow on the neck of the
deceased with a tabla as a result of which he fell down.
Thereafter P.W. 12 caught hold of A-8 and both of them fell
down and A-2 and A-3 inflicted blows with swords on him on
the neck and back. At that time he saw P.W. 1 running away.
He could not give any other details of the occurrence. Thus
it can be seen that though the names of accused nos. 2,3,4,8
and 9 are mentioned in Ex. P. 1 we find from the evidence
of P.Ws. 1 and 12 that the actual overt acts are attributed
only A-1, A-3 and A-8. The medical evidence also
corroborates in respect of overt acts committed by these
three accused. Therefore we think it is absolutely safe to
convict these three accused and give benefit of doubt to
others. But by this way we are not in any manner doubting
the evidence of P.Ws. 1 and 12. By way of abundant caution
having regard to the fact that they are interested witnesses
and, after a careful consideration keeping in view the prin-
ciples regarding the scrutiny of such interested witnesses,
the other accused are given benefit of doubt for the above
stated reasons. However, we have no hesitation to accept
their evidence as against A-2, A3 and A-8 to whom specific
overt acts have been attributed. In our view, the pros-
ecution has established the guilt of these three accused
beyond all reasonable doubt. The view taken by the High
Court in acquitting all the accused, as stated above, is
wholly erroneous.
8. Now coming to the question of applicability of Sections
302/149 I.P.C., taking into consideration all the
circumstances of the cast we are firmly of the view that
more than five persons participated in the occurrence.
Therefore there is no difficulty in convicting A-2, A-3 and
A-8 under Sections 302/149 I.P.C.
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9. Accordingly we set said the judgment of the High Court
so far these three accused arc concerned and convict A-2
Gurupada pathak, A-3 Bidyadhar Pathak and A-8 Ashwini Pathak
under Sections 302/149 I.P.C. and sentence each of them to
undergo imprisonment for life. The conviction for the
offence punishable under Section 148 I.P.C. and sentence of
R.I. for one year and to pay a fine of Rs. 100/- in default
of payment of which to undergo further R.I. for one month
and the conviction of A-2 and A-3 under Sections 326/ 34
I.P.C. and sentence of R.I. for two years and to pay a fine
of Rs. 500/- in default of payment of which to undergo
further R.I. for six months, as awarded by the trial court,
are restored. The other directions given by the trial
court regarding disposal of the articles seized are upheld.
In the result the appeal is allowed as against A2, A-3 and
A-8 and dismissed against other respondents-accused.
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