{"id":90248,"date":"1997-10-21T00:00:00","date_gmt":"1997-10-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sudhir-samanna-vs-state-of-west-bengal-another-on-21-october-1997"},"modified":"2015-08-30T19:13:27","modified_gmt":"2015-08-30T13:43:27","slug":"sudhir-samanna-vs-state-of-west-bengal-another-on-21-october-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sudhir-samanna-vs-state-of-west-bengal-another-on-21-october-1997","title":{"rendered":"Sudhir Samanna vs State Of West Bengal &amp; Another on 21 October, 1997"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Sudhir Samanna vs State Of West Bengal &amp; Another on 21 October, 1997<\/div>\n<div class=\"doc_bench\">Bench: G.T. Nanavati, M. Jaganndha Rao<\/div>\n<pre>           PETITIONER:\nSUDHIR SAMANNA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF WEST BENGAL &amp; ANOTHER\n\nDATE OF JUDGMENT:\t21\/10\/1997\n\nBENCH:\nG.T. NANAVATI, M. JAGANNDHA RAO\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n<p>\t\t\t    WITH<br \/>\n\t  (CRIMINAL APPEAL NOS. 297 &amp; 298 OF 1987)<br \/>\n\t\t      J U D G M E N T<br \/>\nM. JAGANNADHA RAO. J<br \/>\n     These three  Appeals arise\t out of the Judgment  of the<br \/>\nHigh Court  of Calcutta\t in Criminal  appeal No. 159 of 1982<br \/>\ndate  21.2.1986.   BY  that  judgment,\tthe  conviction\t and<br \/>\nsentence of  eight accused,  has been  confirmed.  Aggrieved<br \/>\nthereby Suchir\tSamanta (accused  No.4) has  filed  Criminal<br \/>\nAppeal No.  296 of  1987 S.K.  Ejahar  alias  Asgar  Hussain<br \/>\n(accused No.  9) has  filed Criminal Appeal No. 298 of 1987,<br \/>\nSix others, namely, Supriya Parial (accused No. 1), Gajendra<br \/>\nNath Mondal (accused No. 2), Biswanath Bhowmick (accused No.\n<\/p>\n<p>3) Kalachand  Bharat (accused No. 5), Nemai Das (accused No.\n<\/p>\n<p>7) and Jagannath Mondal (accused No. 8), filed Special Leave<br \/>\napplication No.\t 1656 of  1986 and in that petition by order<br \/>\ndated  13.7.1987,  leave  was  refused\tfor  Nemai  Das\t and<br \/>\nBiswanath Bhommick (Accused No. 7 and 3 respectively). Leave<br \/>\ngranted to  other and  the appeal  has\tbeen  registered  as<br \/>\nCriminal appeal\t No. 297  of  1997,  leaving  Supriya  Paris<br \/>\n(accused No.  1), Gajendra  Nath  Mondal  (accused  No.\t 2),<br \/>\nKalachand  Ghoral  (accused  No.  5)  and  Jagannath  Mondal<br \/>\n(accused No.  8) as appellants in Criminal Appeal No. 297 of<br \/>\n1986. We may also state that there was one more accused, (in<br \/>\nall nine  initially) before  the Session  Court, namely S.K.<br \/>\nEshak (accused)\t No. 6)\t but he\t died during the pendency of<br \/>\nthe case  before the  Session Court.  The Sessions Court and<br \/>\nthe High  Court, therefore,  convicted\tand  sentenced\tonly<br \/>\neight accused.\tWe have\t before us  six\t accused,  in  there<br \/>\nappeals,  namely,   A4,\t A9,  A5  whose\t cases\twere  argued<br \/>\nseparately and\tA1, A2,\t A8, whose  cases stand\t on somewhat<br \/>\ndifferent footing.\n<\/p>\n<p>     Before the\t Session  Court,  Midnapore,  all  the\tnine<br \/>\naccused stood  charged\twith  commission  of  offence  under<br \/>\nsection 148  I.P.C   section 304  (Part-I) I.P.C.  read with<br \/>\nsection 149  I.P.C and\tsection 323 I.P.C  read with section\n<\/p>\n<p>149. By\t his judgment  dated 6.5.1982,\tthe learned Sessions<br \/>\nJudge convicted\t the accused  under all the above counts. He<br \/>\nsentenced them to suffer rigorous imprisonment for two years<br \/>\nfor  the   offence  under   section  148   I.P.C.;  rigorous<br \/>\nimprisonment for  seven years  and  fine  of  Rs.  1000\t (in<br \/>\ndefault, rigorous  imprisonment for  one year  more) for the<br \/>\noffence under Section 304 Part-I I.P.C read with Section 149<br \/>\nI.P.C.; and rigorous imprisonment for one year under section<br \/>\n323 I.P.C.  read with  section 149 I.P.C. The sentences were<br \/>\nto run concurrently.\n<\/p>\n<p>     It is  the prosecution  case  that\t in  incident  dated<br \/>\n28.11.1979 Gurudas Mondal (PW 1) suffered injuries while his<br \/>\nson Chittaranjan Mondal died.\n<\/p>\n<p>     The prosection  case is  that one\tlady Anange Manjari,<br \/>\nwidow of  lat Bhutnath Mondal (granduncle of Gurudas Mondal,<br \/>\nPW 1)  executed a  deed\t on  14.9.1975\tin  respect  of\t the<br \/>\nproperty in  question to  a deity  and\tappointed  PW  1  as<br \/>\nShebait and put him in possession of land including plot no.<br \/>\n1855 of 99 decs, in Santipur in West Bengal. Later she filed<br \/>\na suit\tfor cancellation  of the deed, at the instigation of<br \/>\nGanjendra Mondal  (A2) and  at the  cousins of PW 1. Four of<br \/>\nfive days  prior to  28.11.1979 (the  day of  the incident),<br \/>\nGurudas\t  (PW 1) got information that accused Sudhir Samanta<br \/>\n(A4), Gajendra\tMondal (A2),  Supriya Paria  (A1), Jagannath<br \/>\nMondal (A8)  and one  Gour Dhuiya had conspired together and<br \/>\nwere holding  out threats  to the  effect  that\t they  would<br \/>\nassault\t Gurudas   (PW1)  and\this   son   and\t  thereupon,<br \/>\nChittaranjan Das  (son of  PW 1)  lodged a  G.D.  at  Tamiuk<br \/>\nPolice Station on 25.11.79.\n<\/p>\n<p>     The  further   case  of  the  prosecution\tis  that  on<br \/>\n28.11.1979, at about 10 A.M., Gurudas Mondal (PW 1) with his<br \/>\nsons Chittaranjan  Mondal described  as\t Chitta\t (deceased),<br \/>\nKishore (PW  8), Ashish,  and step  brother Bamandas (PW 10)<br \/>\nand labourers (such as Madan Jaria (PW 9). Sudhir Mondal (PW\n<\/p>\n<p>1), Sahedab  Mondal (PW\t 12) and other went to harvest paddy<br \/>\nin plot No. 1055 measuring 99 decs of Mouza Sartipur (within<br \/>\nTamluk Police  Station), which\twas cultivated\tby  PW1,  as<br \/>\nShebait of the deity in whose favour the said Ananga Manjari<br \/>\n(childless widow  of late  Bhutnath Mondal)  had executed  a<br \/>\ndeed on\t 14.9.1975. It\tis the prosecution case that at that<br \/>\ntime, the accused 1 to 9 came and other in a body armed with<br \/>\nlethal weapons\tlike lathi, ballam, katari etc. and directed<br \/>\nGurudas not  to harvest\t the paddy.  An\t exchange  of  words<br \/>\nfollowed and  Gurudas (PW  1) proceeded\t towards the western<br \/>\nboundary of  the said  plot and\t stood\ton  the\t all  (which<br \/>\ndemarcated this plot from the adjacent plot belonging to one<br \/>\nAbdul Hussain).\t It is\tsaid that there, on the all, Supriya<br \/>\nParia (A1)   delivered\ta blow\twith lathi which hit Gurudas<br \/>\n(PW 1)\ton his\tright ear  causing bleeding  injury. PW1 set<br \/>\ndown but  then accused\tJagannath (A8)\tand Nemai  Das\t(A7)<br \/>\nbegan to assault him with kicks and blows. PW 1 fell down on<br \/>\nthe land  of Andul  Hussain. At\t that time  his\t son  Chirta<br \/>\nrushed to  that place  to  rescue  his\tfather\tbut  accused<br \/>\nBiswanath Bhowmick.  As assaulted him with lathi on his head<br \/>\nas a  result  of  which\t Chista\t fell  down  on\t the  ground<br \/>\nunconscious. Then  accused Nemai  Das  (A7)  also  assaulted<br \/>\nChitta with lathi. At that time PW 2 (Sachin Bhowmick), PW 3<br \/>\nwashed the  wounds of  Chitta with  a napkin  in water\tin a<br \/>\nnearby pond.  The injured  persons were\t removed to  Mecheda<br \/>\nBazar in  a cycle  rickshaw van and from there to the Police<br \/>\nStation, Tamluk,  PW 15\t who was  the Manager of a temporary<br \/>\ncinema hall  of which  Chitta was a partner, accompanied. At<br \/>\nthe Police  Station, PW\t 1 lodged  a complaint\tagainst\t the<br \/>\naccused. Chitta\t succumbed   to the  injuries  and  died  on<br \/>\n29.11.79 at 5.30 P.M.\n<\/p>\n<p>     Thereafter, a  stated earlier,  the nine  accused\twere<br \/>\ncharged under  section 148;  section 304  Part-I  read\twith<br \/>\nsection 149  I.P.C and\tsection 323  read with\tsection\t 149<br \/>\nI.P.C .\t The accused  pleaded not  guilt. The  trend of\t the<br \/>\ncross-examination read\twith the  statements of\t the accused<br \/>\nunder Section 313 Cr. P.C was to the effect that the accused<br \/>\nwere falsely implicated that the alleged incident a few days<br \/>\nbefore 28.11.79\t was false  and so far as the cultivation of<br \/>\nthe land  was concerned\t their case  was that Ananga Manjari<br \/>\nwas in possession and not Gurudas (PW 1).\n<\/p>\n<p>     The learned Session Judge divided the discussion of the<br \/>\nevidence into  several parts.  He first\t held that,  thought<br \/>\nplot no.  1855 was not mentioned in the FIR, the evidence of<br \/>\nPWs, 2,\t 3, 8,\t9, 10  and 11  showed that the incident took<br \/>\nplace in  plot No.  1855 only  where Gurudas (PW 1), his son<br \/>\nChitta and  other went\tto harvest paddy. He next considered<br \/>\nwhether there was convincing evidence on record to show that<br \/>\nGurudas (PW  1) was  in possession and whether he had raised<br \/>\nthe paddy in that plot. The learned Session Judge considered<br \/>\nthe prosecution\t case and  held that  Gurudas (PW  1) was in<br \/>\npossession of  this p-lot  and that it was he who raised the<br \/>\npaddy  there.\tThereafter,  the   learned   Session   Judge<br \/>\nconsidered whether  the\t incident,  as\talleged,  had  taken<br \/>\nplace. He  then referred to the relevant evidence, including<br \/>\nthe medical  evidence, and  used the  words &#8220;all the accused<br \/>\npersons&#8221; when he came to the conclusion that<br \/>\n     &#8220;all the  accused persons,\t came up<br \/>\n     to a  body being  armed with lathis<br \/>\n     etc. When\tGurudas and his men paid<br \/>\n     to head  to the  words of\tthree of<br \/>\n     the accused  person  who  had  come<br \/>\n     earlier.  The  evidence  on  record<br \/>\n     thus shows\t that the accused person<br \/>\n     where  members   of   an\tunlawful<br \/>\n     assembly.\tthe   common  object  of<br \/>\n     which  was\t  to   commit\tcriminal<br \/>\n     trespass upn  the land which was in<br \/>\n     the  possession   of  the\t defacto<br \/>\n     complaint\tand   to   assault   the<br \/>\n     defacto  complainant  and\this  men<br \/>\n     including his sons. the evidence on<br \/>\n     record Shows  that all  the accused<br \/>\n     persons  were  armed  with\t lathis,<br \/>\n     baliams sickle etc.&#8221;\n<\/p>\n<p>     Thereafter the  learned Session Judge proceeded to hold<br \/>\nfurther as follows:\n<\/p>\n<blockquote><p>     &#8220;Considering the evidence on record<br \/>\n     and the  circumstance of  the case,<br \/>\n     I,\t therefore,   hold  that     the<br \/>\n     prosecution has convincingly proved<br \/>\n     beyond all\t reasonable  doubt  that<br \/>\n     the accused  persons, who more than<br \/>\n     five in number, assembled together,<br \/>\n     that the  assembling came\tupon for<br \/>\n     the purpose  of committing criminal<br \/>\n     trespass and to assault the defacto<br \/>\n     complainant and his mens, that some<br \/>\n     members of\t the assembly used force<br \/>\n     or violence,  that\t such  force  on<br \/>\n     violence\twas    used    in    the<br \/>\n     prosecution of  such common  object<br \/>\n     and the  accused persons were armed<br \/>\n     with deadly  weapons at the time of<br \/>\n     the incident.&#8221;\n<\/p><\/blockquote>\n<blockquote><p>     He finally concluded.\n<\/p><\/blockquote>\n<blockquote><p>     &#8220;The evidence  on record  has  also<br \/>\n     proved  convincingly   beyond   all<br \/>\n     reasonable\t doubt\t that  all   the<br \/>\n     accused persons  were members of an<br \/>\n     unlawful  assembly\t  and  that  the<br \/>\n     offence under  section  304  Part-I<br \/>\n     and   section    323   I.P.C   were<br \/>\n     committed by  some members\t of such<br \/>\n     as such (six) as the members of the<br \/>\n     assembly knew  to be  likely to  be<br \/>\n     committed\tin  prosecution\t of  the<br \/>\n     common object of that assembly.&#8221;<\/p><\/blockquote>\n<p>     ON that  basis, he\t convicted  the\t eight\taccused\t (A6<br \/>\nhaving\tdied   earlier)\t and  sentenced\t them  as  mentioned<br \/>\nhereinbefore.\n<\/p>\n<p>     In the appeal preferred by the eight accused before the<br \/>\nHigh Court  the\t aforesaid  conviction\tand  sentences\twere<br \/>\nconfirmed against  all the  accused. The high Court rejected<br \/>\nthe contention\tthat the incident die not take place in plot<br \/>\nNo. 1855 and observed that the omission of the plot No. 1855<br \/>\nin the\tFIR was\t immaterial, it held that though the FIR did<br \/>\nnot specifically mention as to who was assaulted by whom.\n<\/p>\n<blockquote><p>     &#8220;but nonetheless,\tit is absolutely<br \/>\n     plain and\tclear from  the FIR that<br \/>\n     Gurudas and  Chitta were  assaulted<br \/>\n     by the  appellants. and  convincing<br \/>\n     the   circumstances   of\tassault,<br \/>\n     namely, that  the\tassailants  came<br \/>\n     together armed  with  members,  non<br \/>\n     disclosure of  the individual  part<br \/>\n     taken by  the different  assailants<br \/>\n     is\t not  a\t substantial  defect  to<br \/>\n     affect the case of the prosecution.<br \/>\n     Sachin (PW\t 2) and Panchanan (PW 3)<br \/>\n     were independent witnesses and they<br \/>\n     came from\tthe neighbourhood, after<br \/>\n     the incident  started and\tthat the<br \/>\n     evidence showed  that there  was  a<br \/>\n     unlawful assembly\tand  its  object<br \/>\n     was to  commit trespass and assault<br \/>\n     and in prosecution thereof.<br \/>\n     Some  members   of\t  the\tassembly<br \/>\n     voluntarily caused\t hurt to Gurudas<br \/>\n     while some\t others assaulted Chitta<br \/>\n     which resulted in his death shortly<br \/>\n     thereafter.&#8221;\n<\/p><\/blockquote>\n<blockquote><p>     On these findings, the appeal was dismissed.<\/p><\/blockquote>\n<p>     Learned senior  counsel  for  Sudhir  Samanta  (A4)  in<br \/>\nCriminal Appeal\t No. 296  of 1987  and for  S.K Ejahar alias<br \/>\nAsgar Hussain  (A() in\tCriminal  Appeal  NO.  298  of\t1987<br \/>\ncontended that the learned Session Judge as well as the High<br \/>\nCourt ought  to have held that there was no evidence against<br \/>\nthese appellants that they with other accused formed into an<br \/>\nunlawful assembly  with\t the  common  object  of  committing<br \/>\ntrespass and  assault and further that there was no evidence<br \/>\nthat they  had any  motive or  were carrying any weapons nor<br \/>\nthat they  hit\t PW  1\tor  Chitta  with  the  said  weapons<br \/>\nresulting injury  to PW 1 and death of Chitta. Even assuming<br \/>\nthey were present at the time of the incident somewhere near<br \/>\nthe scene  of the offence, it could not be assumed that they<br \/>\nhad become  part of  the unlawful  assembly and\t shared\t the<br \/>\ncommon object of committing the offence of criminal trespass<br \/>\nand  assault,\tin  fact,  there  were\ta  large  number  of<br \/>\nvillagers, even according to the prosecution &#8211; and there was<br \/>\nno material  to distinguish  these two\tappellants from\t the<br \/>\nrest of\t the crowd  and include\t them in the list of accused<br \/>\nalong with those against whom specific acts where alleged.\n<\/p>\n<p>     Learned counsel  for the  four other appellants, namely<br \/>\nA1, A2,\t A3 and\t A8 in\tCriminal appeal\t Nos.  297  of\t1987<br \/>\ncontended that the infirmity in the prosecution case against<br \/>\nKalachand Ghorai (A5) was no different from the infirmitives<br \/>\nagainst accused\t A 4  and A 9. Even assuming A ( was present<br \/>\non the\tscene, his  presence was  not different from that of<br \/>\nthe other  villagers, there was no proof that he was part of<br \/>\nthe unlawful  assembly and  in\tfact  no  specific  act\t was<br \/>\nattributed to  him. So far as the others, A1, A2 and A8 were<br \/>\nconcerned, learned  counsel made  a submission\tthat firstly<br \/>\nthe evidence  adduced was  not sufficient  to treat  them as<br \/>\npart of\t the  unlawful\tassembly  or  that  they  had  taken<br \/>\nspecific part  in the  actual incident of criminal  trespass<br \/>\nand  assault   on  PW  1  and  Chitta  and  alternately\t the<br \/>\nconviction against  A1, A2 and A8 was liable to be converted<br \/>\ninto one  under Section\t 304 Part-II I.P.C in as much as the<br \/>\ningredients  of\t Section  304-Part-I  I.P.C  have  not\tbeen<br \/>\nfulfilled.\n<\/p>\n<p>     On the  other hand,  learned counsel for the respondent<br \/>\ncontended that\tthough there  was no specific evidence as to<br \/>\nthe role  of A4,  A9, and  A5, still there was evidence that<br \/>\nthey were  members of  the unlawful  assembly and  that\t was<br \/>\nsufficient to maintain their conviction and sentence. It was<br \/>\nnot necessary  to prove\t any overt  act on  respect of every<br \/>\nperson who  was a  member of an unlawful assembly. So far as<br \/>\naccused A1,  A2 and  A8 were  concerned\t they  were  rightly<br \/>\nconvicted and  for the\tspecific acts attributed to them. In<br \/>\nparticular, their  hitting Chitta  on the &#8220;head&#8221; brought the<br \/>\ncase under  section 304\t Part I\t and therefore\tthe plea  to<br \/>\nconvert the  conviction into  one under\t section 304 Part-II<br \/>\nshould not be accepted.\n<\/p>\n<p>     We have  already extracted\t the relevant  portions from<br \/>\nthe judgments  of the  learned Sessions\t Judge and  the High<br \/>\nCourt and  the word  underlined by us in the said paragraphs<br \/>\nshow that  all the accused A1 to A9 were dealt with together<br \/>\nthought at  the same  time it was also stated that there was<br \/>\nproof that  &#8220;some of these accused&#8221; have dealt\tthe blows on<br \/>\nPW 1 and Chitta. We have, therefore, to consider whether the<br \/>\ncontention of  the  appellants\tthat  the  approach  of\t the<br \/>\nSession Court  and of  the High Court in this behalf was not<br \/>\ncorrect, has any merit.\n<\/p>\n<p>     We have  heard the\t submission of\tthe learned  counsel<br \/>\nlimited to  these aspects  and have  been taken\t through the<br \/>\nevidence.  Ordinarily,\t this  Court  does  not\t review\t the<br \/>\nfindings of fact if based on evidence considered by the High<br \/>\nCourt and  the\tSessions  Court\t but  where  this  Court  is<br \/>\nsatisfied that\tthe courts  have not considered the evidence<br \/>\nof the witness from the proper perspective or that they have<br \/>\ngone by\t general conclusions drawn from vague or generalised<br \/>\nevidence, it  may sometimes  become necessary to go into the<br \/>\nevidence to  find out  if the approach, having regard to the<br \/>\nfacts of  the case, was proper. In the present case, we find<br \/>\nthat no\t effort was  made by the Sessions Court and the High<br \/>\nCourt to  find whether\taccused A4,  A5 and  A9 were  at all<br \/>\nmembers of an unlawful assembly and we feel, therefore, that<br \/>\nthe High  Court and  Session court  ought to  have gone into<br \/>\nthese aspects in greater detail.\n<\/p>\n<p>     While it  is true that before a person could be held to<br \/>\nbe a  member of\t an unlawful  assembly, it  is not necessary<br \/>\nthat he\t should have  done some\t overt act or guilty of some<br \/>\nomission in  pursuance of  the common object of the unlawful<br \/>\nassembly,  it  is  well\t settled  that\tfirst,\tit  must  be<br \/>\nestablished that  he was  a member of the unlawful assembly.<br \/>\nWhen as\t in this  case, a  large number\t of  villagers\twere<br \/>\npresent at  the scene  of the  offence and common object and<br \/>\nspecific acts  were attributed\tonly to a few among the nine<br \/>\naccused and  there was\tnothing so far as A4, A9 and A5 were<br \/>\nconcerned as  regards common  object or overt acts or motive<br \/>\nwere concerned, question arises whether there was proof that<br \/>\nA4, A9\tand A5\twent there  with the  same common  object as<br \/>\nthose accused  to whom\tovert acts  were attributed.  It has<br \/>\nbeen held  that in  such a  context and with a view to guard<br \/>\nagainst convicting  person who were not part of the unlawful<br \/>\nassembly, it  is permissible  to consider  the nature of the<br \/>\ngathering, how\tthey assembled\tand what  weapons they\twere<br \/>\narmed with how they proceeded and further the part played by<br \/>\nthem.\n<\/p>\n<p>     At the  outset, we\t may  point  out  that\tthe  medical<br \/>\nevidence of  PW 13, who examined PW 1 and Chitta on 28.11.79<br \/>\nat the Tamluk B.D. Hospital initially, is to the effect that<br \/>\nPW 1  sustained a single lacerated injury over the centre of<br \/>\nthe scalp  measuring 2&#8243; x 1\/2&#8243; x 1\/2&#8243;. It appeared to him it<br \/>\nwas single  injury, PW\t1 another Doctor who examined him at<br \/>\n11.15 P.M.  on 28.11.79\t when chitta  was  brought  to\tSSKM<br \/>\nHospital, said\t Chitta\t was semi-conscious.  Chitta died at<br \/>\n5.30 P.M  on 29.11.79  and PW  20 who  conducted  the  post-<br \/>\nmorterm said that the found on stitched would over the vault<br \/>\nof the\tskull one  linear crack-fracture  over the middle of<br \/>\nthe left  parental bone to down left parental region and one<br \/>\nabrasion over  the left\t shoulder and  that death  might  be<br \/>\nhomicidal. In  other words, the medical evidence reveals one<br \/>\nsimple accerated  injury on  the right\t       PW  1 and two<br \/>\ninjuries on  Chitta one\t on the\t skull and  another  on\t the<br \/>\nparietal region as stated above and one abrasion.\n<\/p>\n<p>     So far  as the  oral evidence  is concerned  PW 4, PW3,<br \/>\nPW6,  and   PW7\t were  declared\t hostile.  Among  the  other<br \/>\nwitnesses, we  have of\tcourse the evidence of PW 1 Gurudas,<br \/>\nwho is\tan injured  witness,  and  the\tevidence  of  Sachin<br \/>\nBhowmick PW2  and Panchanan  Bhowmick PW3.  PWs2 and  3 have<br \/>\nbeen rightly  treated as  independent witnesses,  they\twere<br \/>\nploughing the  adjoining fields and they were eye witnesses.<br \/>\nPW.1&#8217;s relatives are PW8, Kishore who is the some of PW1 and<br \/>\nP.W. 10,  step-brother of  deceased; Labourers\temployed  by<br \/>\nP.W. 1\tare PW 9, (Madan Jena), PW1 in this evidence, refers<br \/>\nto the\tmanner in  which disputes  regarding land  came into<br \/>\nexistence and  speaks to  his  possession  of  the  plot  in<br \/>\nquestion. He  says that\t Gajendra Nath\tMondal (A2)  is\t his<br \/>\ncousin and  it was  Gajendra who  got Ananga Manjari to file<br \/>\nthe suit.  4\/5 days before 28.11.79, he got information that<br \/>\nSudhir\tSamanta\t  (A4),\t Gajendra   (A2)  Supriya  (A1)\t and<br \/>\nJagannath (A8)\thad conspired  together and had been holding<br \/>\nout threats  to the  effect that they would assault PW 1 and<br \/>\nothers. His  son Chitta lodged as S.D. in the police station<br \/>\non 25.11.79.  PW1 knows\t all the  accused, they\t are his co-<br \/>\nvillagers. A1  is the  son-in-law of  Gajendra brother (i.e.<br \/>\nA2&#8217;s brother).\tA8 is  also related  as his  (PW1&#8217;s) cousin.<br \/>\nAccused Biswanath  (A3) cultivates  land for  Gajendra (A2).<br \/>\nPW1 says  that accused\tpersons are members of S.U.C. party.<br \/>\nthus, it  is clear that A2, A8, A3 are related to PW 1 while<br \/>\nA3 and\tA8 and\tA2&#8217;s supporters.  As regards the incident on<br \/>\n28.11.79, PW1  says that  first A1, A8 and A2 came on to the<br \/>\nfield 1855 and directed PW 1 not to harvest the paddy but to<br \/>\nhave the  dispute amicably  settled  by\t adjudication.\t(The<br \/>\nCivil Suit  was already\t pending), PW1\tsays, he did not pay<br \/>\nneed and  in fact  told them  he would harvest the paddy and<br \/>\nthen he\t started harvasting  the paddy.\t Then A1,  A8 and A2<br \/>\nleft and  about 5  minutes afterwards came back with all the<br \/>\nremaining accused and &#8220;several others&#8221; whom, he did not know<br \/>\nwith lathi,  ballams, katani and sickle and directed PW1 and<br \/>\nothers not  to harvest,\t There was hot exchange of words and<br \/>\nwhen PW1 proceeded to the western boundary, and stood on the<br \/>\nall, A1 hit him with a lathi. It hit his right ear causing a<br \/>\nbleeding injury.  PW1 sat down on the all and then Jagannath<br \/>\n(A8) and  Nemai (A7) began to kick him and hurled blows. PW1<br \/>\nfell down  into the  rescue of\tPW1. At\t that time Biswanath<br \/>\n(A3) inflicted\ta lathi\t blow on  Chitta&#8217;s head. Chitta fall<br \/>\ndown unconscious.  Thereafter Nemai (A7) hurried a blow with<br \/>\nlathi on Chitta.\n<\/p>\n<p>     Though PW1\t speaks of  conspiracy 4-5  days before\t the<br \/>\nincidence to  which Sudhir  Samanta (A4)  is said  to  be  a<br \/>\nparty, we  find that  later section  120-B was\tdropped. The<br \/>\ncase again  A4 was  that he  was  a  member  of\t a  unlawful<br \/>\nassembly. From\tthe evidence  of PW1  set out above, it does<br \/>\nnot show  why the  A4, A5  and A9  were treated\t as  accused<br \/>\nrather than  being treated  as part  of several\t others\t and<br \/>\nthere  is  nothing  in\tthe  evidence  either  expressly  or<br \/>\notherwise to  say that\tA4, A5 and A9 came there on 28.11.79<br \/>\nwith the  common object\t of trespass  and assault on PW1 and<br \/>\nChitta on the fateful day.\n<\/p>\n<p>     PW2,  Sachin    Bhowmick,\tploughs\t an  adjacent  Land,<br \/>\nAccused Biswanath  (A3) is  his cousin.\t He say that when he<br \/>\nwas in\this field  at 9\/9.30 A.M he saw PW1 harvesting paddy<br \/>\nwith his  brother PW  10 &amp;  sons and PW1 cultivated the land<br \/>\nthat year.  At that  time Supriya  (A1), Jagannath  (A8) and<br \/>\nGajendra (A2)  came there  and asked  PW1 not to harvest the<br \/>\ncrop. PW1  did not  pay heed  and continued  harvesting. The<br \/>\nabove persons  left and came back after 5 minutes along with<br \/>\naccused persons\t and along  &#8220;with some\tothers&#8221;. Lathis were<br \/>\n&#8220;in the hands of 2 of 3 persons&#8221;. This shows that there were<br \/>\nno ballams,  sickles or\t other weapons\tand  that  even\t the<br \/>\nlathis were  there only with 2 or 3 persons, A1 hit PW1 with<br \/>\nlathis which  injured the  PW1&#8217;s right\tear and he sat down,<br \/>\nand the\t &#8220;5 or\t6 persons&#8221;  amongst  the  persons  began  to<br \/>\nassault PW1  with kicks\t and blows.  Chitta rushed  and then<br \/>\nBiswanath (43)\thit him\t on his\t head  with  lathi.  Accused<br \/>\npersons left behind them `one or 2 latins&#8221;. (In fact, police<br \/>\nrecovered one  big lathi  and one small lachi from the scene<br \/>\nof offence). PW1 stated that Chitta was assaulted with a big<br \/>\nlathi. In  cross-examination, he  stated  that\the  did\t not<br \/>\nrecollect whether he stated before the Investigating Officer<br \/>\nthat 5 or 6 persons also assaulted PW1 with kicks and blows.<br \/>\nHe could  not also  recollect whether  he stated  before the<br \/>\nInvestigation Officer  that at first Jagannath (A8), Supriya<br \/>\n(A1) and  Gajendra (A2) came to the spot. Thus except to say<br \/>\nthat accused  A4, A6  and A9  came there  along\t with  other<br \/>\naccused and  villagers, PW1 could not say whether A4, A3 and<br \/>\nA9  had\t come  there  with  any\t common\t objective  such  as<br \/>\ncommitting trespass  and assault  as contemplated by some of<br \/>\nthe other accused.\n<\/p>\n<p>     PW3 is the brother of PW2 and cultivates a neighbouring<br \/>\npiece of  land. He  knows all the accused. Accused Biswanath<br \/>\n(A3) is\t his cousin.  He refers to the land dispute and says<br \/>\nthat initially\tJagannath, Gajendra and Supriya (A8, A2, A1)<br \/>\ncame and  asked PW1 not to harvest but PW1 did not agree and<br \/>\nproceeded to  go ahead\twith the  harvesting. Then the above<br \/>\nsaid three  persons left  and came  there late\twith all the<br \/>\naccused persons\t &#8220;being armed  with lathis&#8221;. (This conflicts<br \/>\nwith the  evidence of  PW2 that\t only 2\t or 3  persons\twere<br \/>\ncarrying lathis. He also speaks to the fact that the accused<br \/>\npersons asked  PW1 to  await the  adjudication of  the civil<br \/>\ndispute but  PW1 did  not agree.  Then Gajendra (A2) ordered<br \/>\nAssault and thereupon Supriya (A1) hurled a lathi blow which<br \/>\nhit PW1\t on his\t right ear,  and he fell down. Chitta rushed<br \/>\nthere and  Biswanath (A3)  hit him with a lathi on his head.<br \/>\nHe fell\t down unconscious.  The\t accused  persons  ran\taway<br \/>\nlater. Before  the Investigation  Officer, he  did not state<br \/>\nabout Supriya, Jagannath and Gajendra (A1, A8 and A2) coming<br \/>\nto PW1 earlier.\n<\/p>\n<p>     So, even  this evidence of PW3 is general and vague and<br \/>\nit does\t not show that A4, A5 and A9 had come there with any<br \/>\ncommon objective  and for the purpose of forming an unlawful<br \/>\nassembly to trespass and to assault PW1 and Chitta.<br \/>\nSo far\ta the  evidence of  the labourers  PW9, 11 and 12 is<br \/>\nconcerned, neither the Sessions Court nor the High Court has<br \/>\nrelied upon any specific part of their evidence to show that<br \/>\nA4, A5\tand A9\thad come  to the  scene of incident with the<br \/>\ncommon objective of trespass and assault.\n<\/p>\n<p>     The case  of conspiracy 4 or 5 days prior to 28.11.1979<br \/>\nwhich could bring the case under section 120-B, based on the<br \/>\nG.D. report  of Chitta,\t referred to  by PW`,  -having\tbeen<br \/>\ngiven up,  we have  no positive material to show that A4, A5<br \/>\nand A9\tcame there with the common objective of trespass and<br \/>\nassault as  members of\tan unlawful assembly and not as part<br \/>\nof the group of other villagers present.\n<\/p>\n<p>     For the  aforesaid reasons,  we are of the view that it<br \/>\nwill not  be safe  to treat  Sudhir Samata  (A4),  Kalachand<br \/>\nGhorei (A5) and S.K. Ejahar Elias Asgar Hussain (A9) as part<br \/>\nof the\tunlawful assembly  and make  them vicariously liable<br \/>\nfor the\t overt acts  of other accused which resulted into an<br \/>\ninjury to  PW1 and death of Chitta. We, therefore, set aside<br \/>\ntheir conviction  under all  the provisions under which they<br \/>\nwere charged and acquit them.\n<\/p>\n<p>     We\t shall\t next  take  up\t the  question\twhether\t the<br \/>\nprosecution has established the guilt of A1, A3 and A8 under<br \/>\nsection 304  Part-I I.P.C.  or whether\tthe facts proved can<br \/>\nonly bring their case under section 304 Part-II I.P.C.\n<\/p>\n<p>     We\t shall\t once  again  first  refer  to\tthe  medical<br \/>\nevidence. PW13,\t Khatua who examined Chitta at 1.p.m. in the<br \/>\nTaluk hospital\ton 28.11.1979  stated that  he found one big<br \/>\nlacerated injury  over the  centre of  the scalp and at that<br \/>\ntime, the patient complained of severe head ache. That means<br \/>\nChitta had rehained consciousness. Dr. A.K. Rakshit, PW14 of<br \/>\nS.S.K.M\t Hospital,   Calcutta  (who   examined\t Chitta\t  at<br \/>\n11.15.p.m.  on\t 28.11.1979  said   that  Chitta  was  semi-<br \/>\nconscious, Chitta  expired at 5.30.p.m. on 29.11.1979. (i.e.<br \/>\nnearly 32  hours after the incident). Dr. P.B. Das PW20) who<br \/>\nconducted the  post-mortem examination\ton Chitta on 3.12.79<br \/>\nstated that  he found  one stitched  wound over the vault of<br \/>\nthe skull,  one linear crack fracture over the middle of the<br \/>\nleft parietal  bone down left parietal region. He also found<br \/>\none abrasion  over the\tleft shoulder.\tHe said\t that  dealt<br \/>\n&#8220;might\tbe  homicidal  an  nature&#8221;  and\t the  injuries\twere<br \/>\nsufficient in the ordinary course to cause death.\n<\/p>\n<p>     PW1, father  of Chitta,  stated that initially Supriya.<br \/>\nJayanath and Gajendra (i.e. A1, A8 and A2) came for the plot<br \/>\nand directed him not to harvest paddy and have it settled by<br \/>\nadjudication. (The Civil suit was already pending in Court).<br \/>\nPW1 said  no head.  When the  accused again returned after 5<br \/>\nminutes, they  again directed  him not to harvest the paddy.<br \/>\nPW1 did\t not agree.  Then there\t was not  exchange of words,<br \/>\ninitially PW1  was hit, later Chitta came there and gave one<br \/>\nblow on\t his head  with a  lathi. Later\t A3,  Biswanath\t hit<br \/>\nChitta on  his head.  Nemai (A7) hit Chitta on his body. PW2<br \/>\nsays only 2 or 3 of the accused carried lathis. According to<br \/>\nhim even  after the accused carried lathis. According to him<br \/>\neven after  the accused\t returned after\t 5 months  after the<br \/>\nfirst incident,\t they asked PW1 not to harvest and await the<br \/>\nadjudication by Civil Court. PW3 says that after the accused<br \/>\nwent back  and came after 5 minutes even then they asked Pw1<br \/>\nnot to cut the crop but await the adjudication in Court. PW2<br \/>\nand PW3 also say that one blow was given by A1 and one by A3<br \/>\non the head of Chitta and PW7 gave blows on his body. Chitta<br \/>\nlost  consciousness,   but  regained  it  on  way  to  Taluk<br \/>\nhospital, and  later in the right, he was semi-conscious and<br \/>\ndied next  evening on  29.11.79 at  5.30 p.m.  This  is\t the<br \/>\nrelevant material on this aspect.\n<\/p>\n<p>     To start  with, there  is no  charge under\t Section 302<br \/>\nI.P.C. The charge itself was under Section 304 Part-I. Hence<br \/>\nthe  question  of  accused  having  common  intention  &#8211;  as<br \/>\nrequired for  the third\t clause of  Section 300\t I.P.C. &#8211; to<br \/>\ncause bodily  injury to\t Chitta and  intending\tsuch  bodily<br \/>\ninjury as  is sufficient in the ordinary course of nature to<br \/>\ncause  death,\thas  to\t be  excluded,\teven  going  by\t the<br \/>\nprosecution case.  Therefore the  evidence  of\tthe  doctor,<br \/>\nPW20, cannot  help in  bringing the  case  under  Part-I  of<br \/>\nSection\t 304  I.P.C.  Further,\tthe  circumstance  that\t the<br \/>\naccused pleaded\t with PW1,  father of  deceased Chitta, more<br \/>\nthan once to have the land dispute adjudicated through Court<br \/>\nbecause the  matter was\t already in  Court, the fact that A1<br \/>\ngave only  one blow  with lathi though on the head of Chitta<br \/>\nand stopped there and that later A3 hit Chitta with lathi in<br \/>\nthe parietal  region and  A7 on\t the body, and the fact that<br \/>\nChitta gained  consciousness soon  and was alive for over 32<br \/>\nhours after  the incident,  &#8211; all  these facts\tlead to\t the<br \/>\ninference that\teach of\t these\taccused\t did  not  have\t any<br \/>\nintention of  causing death or of causing such bodily injury<br \/>\nas was\tlikely to cause death. They can only be imputed with<br \/>\nknowledge that\tif force  was used  it was  likely to  cause<br \/>\ndeath. Therefore, the case, in our view, falls under Section<br \/>\n304 Part-II and not under Section 304 Part-I I.P.C.\n<\/p>\n<p>     For the  aforesaid reasons, we modify the conviction of<br \/>\nA1, A3\tand A8\tto one\tunder Section 304, Part II read with<br \/>\nSection 149  IPC and  award them a sentence of 5 years. They<br \/>\nare ordered  to\t surrender  to\tcustody\t to  serve  out\t the<br \/>\nremaining part of the sentence.\n<\/p>\n<p>     A4, A5  and A9  are acquitted of all charges as already<br \/>\nstated. Their bail bonds are ordered to be cancelled.\n<\/p>\n<p>     Appeals allowed as stated above.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Sudhir Samanna vs State Of West Bengal &amp; Another on 21 October, 1997 Bench: G.T. Nanavati, M. Jaganndha Rao PETITIONER: SUDHIR SAMANNA Vs. RESPONDENT: STATE OF WEST BENGAL &amp; ANOTHER DATE OF JUDGMENT: 21\/10\/1997 BENCH: G.T. NANAVATI, M. JAGANNDHA RAO ACT: HEADNOTE: JUDGMENT: WITH (CRIMINAL APPEAL NOS. 297 &amp; 298 OF [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-90248","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Sudhir Samanna vs State Of West Bengal &amp; Another on 21 October, 1997 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sudhir-samanna-vs-state-of-west-bengal-another-on-21-october-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sudhir Samanna vs State Of West Bengal &amp; 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