{"id":92947,"date":"1994-12-09T00:00:00","date_gmt":"1994-12-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-superintendent-and-vs-mangal-pathak-ors-on-9-december-1994"},"modified":"2015-02-25T03:30:15","modified_gmt":"2015-02-24T22:00:15","slug":"the-superintendent-and-vs-mangal-pathak-ors-on-9-december-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-superintendent-and-vs-mangal-pathak-ors-on-9-december-1994","title":{"rendered":"The Superintendent And … vs Mangal Pathak & Ors on 9 December, 1994"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Superintendent And … vs Mangal Pathak & Ors on 9 December, 1994<\/div>\n
Equivalent citations: 1995 SCC, Supl. (1) 239 JT 1995 (1)\t227<\/div>\n
Author: K J Reddy<\/div>\n
Bench: Reddy, K. Jayachandra (J)<\/div>\n
           PETITIONER:\nTHE  SUPERINTENDENT AND REMEMBRANCEROF LEGAL AFFAIRS, WEST B\n\n\tVs.\n\nRESPONDENT:\nMANGAL PATHAK & ORS.\n\nDATE OF JUDGMENT09\/12\/1994\n\nBENCH:\nREDDY, K. JAYACHANDRA (J)\nBENCH:\nREDDY, K. JAYACHANDRA (J)\nPUNCHHI, M.M.\n\nCITATION:\n 1995 SCC  Supl.  (1) 239 JT 1995 (1)\t227\n 1994 SCALE  (5)206\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
1.   This  appeal  by the State of West Bengal\tis  directed
\nagainst\t the judgment of the Division Bench of the  Calcutta
\nHigh  Court.   There are nine  respondents  namely  original
\naccused\t nos.\t1  to  9.  They\t were  tried  for   offences
\npunishable  under  Sections 148, 302\/149  and  326\/34.\t The
\ntrial court convicted and sentenced each of them to  undergo
\nimprisonment  for  life\t for the  offence  punishable  under
\nSections 302\/ 149 and lesser terms of imprisonment for minor
\noffences.   On\tan  appeal the High Court  by  the  impugned
\njudgment  set  aside  the judgment of the  trial  court\t and
\nacquit-\n<\/p>\n
229<\/span><\/p>\n
ted  all  of  them of all the charges.\t Hence\tthe  present
\nappeal.\n<\/p>\n
2.   All  the accused and the deceased\tBrahmananda  Pathak,
\nhis  brother P.W. 12 the injured witness and his son  P.W.1,
\nAmalendu  Pathak  belong  to  Village  Surulia\tin   Purulia
\nDistrict.  There were disputes between the deceased and\t his
\nmen  on one side and the accused and the other villagers  on
\nthe  other  side in respect of fishing towards\tthe  end  of
\nmonth  of Kartik.  Thus there were two parties and each\t was
\ninimical  towards the other.  About 4 or 5 years before\t the
\npresent\t incident  there was a dacoity in the house  of\t the
\ndeceased  and  in  that\t criminal  case\t A-2  and  A-8\twere
\nconvicted and sentenced to eight years’ R.1. They  preferred
\nan  appeal  and were released on bail  pending\tappeal.\t  On
\n14.11.79   some\t  of  these  accused  alongwith\t  12   other
\n,criminally  trespassed into the house of the  deceased\t and
\ntook  away a gun and threatened the deceased.  As a  counter
\nblast  the  accused  also  instituted  a  case\tagainst\t the
\ndeceased,  P.Ws.  1  and 12 and others.\t In  that  case\t the
\ndeceased and P.W. 1 were granted bail with a condition\tthat
\nthey should remain outside the District and subsequently  it
\nwas  relaxed and they were allowed to visit their  house  on
\nWednesday  and\tsunday\tand this order was  in\tforce.\t The
\ndeceased  had an old mother.  Two or three days\t before\t the
\npresent incident she feel ill and she expressed a desire  to
\nsee  the deceased.  On 23rd July, 1980 it was  a  Wednesday.
\nThe deceased and his son P.W. 1 were in their rice godown in
\nPurulia\t Town.\t Towards  evening P.W. 12,  brother  of\t the
\ndeceased  came\tthere and informed the\tdeceased  about\t the
\ndeteriorating condition of his mother and her desire to\t see
\nhim.   Thereafter  the deceased and P.Ws 1  and\t 12  started
\ntogether  to their house to see the old lady, P.W. 1  had  a
\nbicycle with him and a three-cell torch and a bag containing
\nsome  papers.  On the way to their house they had a  grocery
\nshop.  They dropped in there for some time and at about 8.45
\nP.M.  they were proceeding to a place called Rakhabari,\t and
\nthere  they  noted 7 or 8 persons coming towards  from\tthem
\nfrom  the opposite direction.  P.W. 1 flashed the torch\t and
\nsaw accused nos. 2,3,4,8 and 9 and some others and they were
\ncarrying  various weapons.  A-8 was armed with a table,\t A-2
\nand  A-3 were armed with swords and A-4 and A-9\t were  armed
\nwith  tangis.  P.W. 1 apprehending danger gave his cycle  to
\nthe deceased and asked him to leave immediately.  While\t the
\ndeceased  was ready to ride on the cycle, A-8 Aswini  Pathak
\nreached\t there and assaulted the deceased on his  neck\twith
\nthe tabla with the result that the deceased fell down on the
\nground.\t  P.W. 1 immediately ran from the place\t raising  an
\nalarm.\tWhile running he looked back and saw his uncle\tP.W.
\n12 also being assaulted by A-8 and others.  P.W.1 reached  a
\nlocality  called Hanchuk Para and raised an alarm.   Hearing
\nthis  P.Ws.  2,3,6, and 7 came out followed by\tothers\tfrom
\ntheir  houses.\tP.W. 1 immediately reported the incident  to
\nthem  and also mentioned the names of accused  nos.  2,3,4,8
\nand 9 as the, assailants.\n<\/p>\n
3.   After  P.W.  1 had run away from the  place  as  stated
\nabove, P.W. 12 seeing that his brother deceased had  fallen,
\nwent to save him and caught hold of A-8.  Both of them\tfell
\ndown.  At that time A-2 and A-3 attacked him with swords and
\ninflicted injuries on his neck and back.  As P.W.12 tried to
\nresist\tthe attack on him by raising his hands he  sustained
\nbleeding  injuries on his hands and his right little  finger
\ngot severed and his wrist watch also fell down.\n<\/p>\n
230<\/span><\/p>\n
At that time the deceased got up and was trying to run\taway
\nbut  he\t was- chased and was assaulted\tby  the\t assailants.
\nP.W.  12  in the meantime managed to get up  and  walk\tupto
\nHanchuk\t Para.\t At  the  time of  the\tincident  there\t was
\nmoonlight and little thereafter there was a shower to  rain.
\nAt  the request of P.W. 1 some of the residents\t of  Hanchuk
\nPara went to inform the police over the phone and some other
\nmade  arrangement for carrying P.W. 12 to  Purulia  Hospital
\nfor  treatment.\t  P.W. 1 was informed that  his\t father\t had
\nexpired.  On the information received at about 1 1. 1 5 P.M.
\nthe  police  arrived.  On their way they saw P.W.  12  being
\ncarried.   P.W. 16, Police Sub Inspector then  recorded\t the
\nstatement, Ex.P.1 of P.W.1 and sent it to the police station
\nfor   registering   the\t  case.\t  P.W.\t16   took   up\t the
\ninvestigation,\twent  to the place of  occurrence  and\theld
\ninquest\t next  day  morning  and  sent\tthe  dead  body\t for
\npostmortem.   He  recorded  statements\tof  several  persons
\nincluding that of P.W.12. P.W. 11, the Doctor, who conducted
\nthe  postmortem, found as many as six incised  injuries\t all
\nover  the body.\t The Doctor also found one gun\tshot  injury
\nover  the right lumber region which injured the\t kidney\t and
\nother parts.  He recovered pellets from the body.  He opined
\nthat  the  death  was due to shock and\themorrhage  and\t the
\nincised\t injuries could have been caused by cutting  weapons
\nlike  tabla, sword and tangi and the last injury could\thave
\nbeen  caused  by a fire-arm.  P.W. 12 also was\texamined  by
\nanother\t Doctor, P. W. IS and he found as many as six  sharp
\ncutting\t wounds on the hands and other parts of the body  of
\nP.W. 12 and also found his right little finger missing.\t  He
\nopined\tthat these injuries could have been caused by  Tabla
\nand  with  sharp-edged\tweapons.  After\t completion  of\t the
\ninvestigation, the charge-sheet was filed.\n<\/p>\n
4.   The prosecution relied mainly on the evidence of  P.Ws.
\n1 and 12, the eyewitnesses and also on the evidence of P.Ws.
\n2,3 and others who came out after hearing the cries of\tP.W.
\n1  and\tnarrated the incident.\tThe accused,  when  examined
\nunder Section 313 Cr.  P.C., denied the offence and  pleaded
\nnot  guilty.  The plea set up by the defence was  that\tthey
\nhave  been  falsely roped in and that  the  earliest  report
\ngiven by P.W. 1 was a fabricated one and the  identification
\nof  the assailants by P.Ws. 1 and 12 should not be  accepted
\nbecause it was dark.\n<\/p>\n
5.   The  trial court after an elaborate discussion  of\t the
\nevidence of P.Ws. 1 and 12 accepted their testimony.  He did
\nnot find any serious infirmity in their evidence.  The trial
\ncourt  held that Ex.P. 1 amply corroborated the evidence  of
\nP.Ws.  1 and P.W 12, being an injured witness, his  evidence
\nhas to be accepted.  Coming to the other witnesses the trial
\ncourt  found  that P.W. 2 turned hostile.   P.W.3,  however,
\nsupported   the\t prosecution  case  and\t his  evidence\t was
\naccepted.  P.W. 5 deposed that on hearing the alarm of\tP.W.
\n1 he came out and also saw P.W.12 with bleeding injuries who
\ncame there and thereafter they went to inform the police and
\nfor  sending ambulance and subsequently P.W. 12 was  removed
\nto the hospital.  The trial court held that the evidence  of
\nP.W.  5 could not be discredited on any ground.\t P.W. 6\t who
\nalso  came out on hearing the cries of P.W. 1 supported\t the
\nevidence of P.W. 1. Likewise P.W.7’s evidence also, which is
\nto  the same effect, was accepted by the trial court.\tThus
\nit  can\t be seen that the prosecution case an spoken  to  by
\nP.Ws.  1 and 12 and corroborated by the evidence of P.Ws.  3
\nto 7 was
\n231<\/span>
\naccepted  by  the  trial court.\t  However,  the\t other\tfour
\naccused\t whose\tnames  were not mentioned  in  the  earliest
\nreport were mentioned subsequently and the case against them
\nwas also accepted by the trial court as spoken to by P.Ws. 1
\nand 12.\n<\/p>\n
6.   While  so,\t the High Court in the\tappeal\twithout\t any
\ndiscussion on the evidence whatsoever simply held that\tP.W.
\n12, who knew and recognised the assailants, did not  mention
\nthe  names to the doctor who examined him and  therefore  it
\nwould  be  unsafe to account his evidence.   Coming  to\t the
\nevidence  of  P.W.  1 the High Court pointed  out  that\t the
\nconduct\t of P.W. 1 in not asking any of the villagers to  go
\nthe  rescue  of his father is unnatural and  against  normal
\nhuman  behavior\t and  it  would\t be  risky  to\tsustain\t the
\nconviction  of\tthe accused on the basis of  his  testimony.
\nThese  are  the only main reasons given for  discarding\t the
\nevidence  of P.Ws. 1 and 12. It is needless to say that\t the
\nHigh  Court has not examined the evidence of P.Ws. 1 and  12
\nin  the\t proper perspective and on the basis of\t some  vague
\ngrounds their evidence has been rejected and the few reasons
\ngiven  do  not\tstand judicial scrutiny\t at  all.   We\thave
\ncarefully examined the evidence of P.Ws. 1 and 12  alongwith
\nthe evidence of P.Ws. 3 to 7. The evidence of P.W.5  clearly
\nshows that P.W. 12 who was seriously injured was immediately
\ntaken  to the hospital and we fail to see as to why P.W.  12
\nshould\ttell  the  names of the assailants to  the  who\t was
\nexamining  him\tfor  his injuries.  P.W.1  at  the  earliest
\nmoment has given the earliest report Ex.P. 1 to the  Police.
\nIn  that  report  he has mentioned the\tplace  and  time  of
\noccurrence  and\t as  to how he alongwith  the  deceased\t and
\nP.W.12\twere going to their house to see the. old  lady.Then
\nhe mentioned the names of accused nos. 2,3,4,8 and 9 as some
\nof  the\t assailants armed with deadly weapons  and  he\talso
\nstated\tthat  apprehending danger he gave the cycle  to\t his
\nfather\tand asked him to go away.  AT that juncture A-8\t hit
\nhis  father  on\t the neck with\tthe  tabla  and\t immediately
\naccused\t nos.  2,3,4  and 9 surrounded and  were  ready\t for
\nassault\t and he saw his uncle P.W. 12 also  being  assaulted
\nbut  somehow he managed to escape and then raised an  alarm.
\nBefore that he also heard the sound of a bomb explosion.  On
\nreaching Name Surulia he saw P.Ws. 2,3 and others coming out
\nhearing\t his  cries  and he told them  about  the  incident.
\nThereafter  he\tcame to know that his father was  dead.\t  We
\nhave  gone  through Ex.P. 1 carefully, In the light  of\t the
\ncircumstances  we  find that it is a most natural  and\ttrue
\nreport\tand  there  are\t absolutely  no\t indication  of\t any
\nfabrication.   If P.W. 1 has prepared to fabricate a  report
\nafter consultations he could have attributed specific  overt
\nacts to many other accused and the version given in Ex.P.  1
\nhas a ring of truth.  The names of P.Ws. 2,3 and others\t who
\ncame  out hearing his alarm are also mentioned.\t  All  other
\nnecessary  details am mentioned.  All these facts  mentioned
\nin  Ex.P. 1 could not have been incorporated if P.W.  1\t was
\nnot a natural witness to the occurrence to the extent he has
\nwitnessed.   He also deposed that he had a torch and it\t was
\nalso a moonlit night.  The accused were not strangers to him
\nand there would not have been any difficulty in\t identifying
\nthem.\tIn  any event there is evidence of P.W. 12  who\t was
\nseriously injured and whose presence at the scene of  occur-
\nrence can not be doubted.  He must have seen the  assailants
\nat  the close quarters and he has also mentioned  the  parts
\nplayed by accused nos. 2,3, and 8. His version is
\n232<\/span>
\nin  conformity with that of P.W. 1 and the same\t version  is
\nalso  mentioned\t in Ex.\t P. 1, the earliest  report.   Their
\nevidence is further corroborated by the evidence of P.Ws.  3
\nto  7 as mentioned above and the trial court has given\tgood
\nand  valid  reasons  for accepting  the\t evidence  of  these
\nwitnesses.\n<\/p>\n
7.   The  next question is whether a foolproof case is\tmade
\nout  against  all  the respondents namely A-1  to  A-9.\t  As
\nstated above there was bitter enmity between the two parties
\nand  they were involved in criminal cases.  P.Ws. 1  and  12
\narc  admittedly interested witnesses and their evidence\t has
\nto be scrutinised with great care and caution.\tGenerally in
\nsuch a situation their evidence has to be scrutinised in the
\nlight of Ex.P.1, the medical evidence and other\t surrounding
\ncircumstances\tand   with  reference\tto   their   earlier
\nstatements.   It has to be noted that in Ex.  P. 1 only\t the
\nnames  of accused nos. 2,3,4,8 and 9 are mentioned  and\t the
\nnames  of  other accused were not mentioned.   Therefore  we
\nthink it may not be safe to convict the other accused  whose
\nnames  were not mentioned in Ex.P. 1. Then we are left\twith
\nthe  case of accused nos. 2,3,4,8 and 9. In Ex.P.1, P. W.  1
\nhas  stated that it was A-8 who first opened the attack\t and
\ninflicted  a  blow on the neck of the  deceased.   No  other
\novert  acts  are  mentioned obviously  because\the  did\t not
\nwitness the entire occurrence.\tP.W. 12 in his evidence\t has
\nattributed over acts to A-2, A-3 and A-8 only.\tIn a case of
\nthis  nature  we  think it is safe  to\tconvict\t only  those
\naccused to whom specific overt acts are attributed.  P.W. 12
\ndeposed\t that in the flash of torch of P.W. 1 he  recognised
\nthe  nine accused.  Then he proceeded to state that A-8\t was
\nthe  first  person  to inflict a blow on  the  neck  of\t the
\ndeceased  with\ta tabla as a result of which he\t fell  down.
\nThereafter P.W. 12 caught hold of A-8 and both of them\tfell
\ndown  and A-2 and A-3 inflicted blows with swords on him  on
\nthe neck and back.  At that time he saw P.W. 1 running away.
\nHe could not give any other details of the occurrence.\tThus
\nit can be seen that though the names of accused nos. 2,3,4,8
\nand  9 are mentioned in Ex.  P. 1 we find from the  evidence
\nof P.Ws. 1 and 12 that the actual overt acts are  attributed
\nonly   A-1,  A-3  and  A-8.   The  medical   evidence\talso
\ncorroborates  in  respect of overt acts committed  by  these
\nthree accused.\tTherefore we think it is absolutely safe  to
\nconvict\t these\tthree accused and give benefit of  doubt  to
\nothers.\t  But by this way we are not in any manner  doubting
\nthe evidence of P.Ws. 1 and 12.\t By way of abundant  caution
\nhaving regard to the fact that they are interested witnesses
\nand, after a careful consideration keeping in view the prin-
\nciples regarding the scrutiny of such interested  witnesses,
\nthe  other accused are given benefit of doubt for the  above
\nstated\treasons.  However, we have no hesitation  to  accept
\ntheir  evidence as against A-2, A3 and A-8 to whom  specific
\novert  acts  have been attributed.  In our view,  the  pros-
\necution\t has  established the guilt of these  three  accused
\nbeyond\tall  reasonable doubt.\tThe view taken by  the\tHigh
\nCourt  in  acquitting all the accused, as stated  above,  is
\nwholly erroneous.\n<\/p>\n
8.   Now coming to the question of applicability of Sections
\n302\/149\t  I.P.C.,   taking  into   consideration   all\t the
\ncircumstances  of  the cast we are firmly of the  view\tthat
\nmore  than  five  persons participated\tin  the\t occurrence.
\nTherefore there is no difficulty in convicting A-2, A-3\t and
\nA-8 under Sections 302\/149 I.P.C.\n<\/p>\n
233<\/span><\/p>\n
9.   Accordingly we set said the judgment of the High  Court
\nso  far\t these three accused arc concerned and\tconvict\t A-2
\nGurupada pathak, A-3 Bidyadhar Pathak and A-8 Ashwini Pathak
\nunder  Sections 302\/149 I.P.C. and sentence each of them  to
\nundergo\t imprisonment  for  life.  The\tconviction  for\t the
\noffence punishable under Section 148 I.P.C. and sentence  of
\nR.I. for one year and to pay a fine of Rs. 100\/- in  default
\nof  payment of which to undergo further R.I. for  one  month
\nand  the  conviction of A-2 and A-3 under Sections  326\/  34
\nI.P.C. and sentence of R.I. for two years and to pay a\tfine
\nof  Rs.\t 500\/-\tin default of payment of  which\t to  undergo
\nfurther R.I. for six months, as awarded by the trial  court,
\nare  restored.\t The  other directions given  by  the  trial
\ncourt regarding disposal of the articles seized are  upheld.
\nIn  the result the appeal is allowed as against A2, A-3\t and
\nA-8 and dismissed against other respondents-accused.\n<\/p>\n
234<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Superintendent And … vs Mangal Pathak & Ors on 9 December, 1994 Equivalent citations: 1995 SCC, Supl. (1) 239 JT 1995 (1) 227 Author: K J Reddy Bench: Reddy, K. Jayachandra (J) PETITIONER: THE SUPERINTENDENT AND REMEMBRANCEROF LEGAL AFFAIRS, WEST B Vs. RESPONDENT: MANGAL PATHAK & ORS. DATE OF JUDGMENT09\/12\/1994 […]<\/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-92947","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Superintendent And ... vs Mangal Pathak & Ors on 9 December, 1994 - Free Judgements of Supreme Court & 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\/the-superintendent-and-vs-mangal-pathak-ors-on-9-december-1994\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Superintendent And ... vs Mangal Pathak & Ors on 9 December, 1994 - 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