REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1679 OF 2005

Debashis Daw & Ors.  …Appellants

Versus

State of West Bengal …Respondent WITH

CRIMINAL APPEAL NO.   1680 OF 2005

Subhasish Daw & Ors.  …Appellants

Versus

State of West Bengal …Respondent

WITH

CRIMINAL APPEAL NO.   924 OF 2006

Dulal Khara  …Appellant Versus

State of West Bengal …Respondent

JUDGMENT

B. Sudershan Reddy, J :

1. The appellants  in  these appeals  and three  others  were  

tried in Sessions Trial Case No. XXVII of March 1987 by

the  Additional  Sessions  Judge,  Midnapore  for  offences  

punishable  under  Sections  148,  324/149  and  304  part  

I/149 of  the Indian Penal  Code.  The learned Additional  

Sessions  Judge,  as  per  his  judgment  dated  26th  

September,  1989  convicted  the  accused  persons  under  

Sections 148 and 304 part I read with Section 149 and as  

well as under Section 324/149, IPC and sentenced them  

to suffer rigorous imprisonment for ten years each under  

Section 304 part I read with Section 149, IPC only. No  

separate  sentence  has  been  awarded  for  the  proven  

charges under Sections 148 and 324/149 of the IPC. The  

appellants herein preferred appeals before the High Court  

at Calcutta. A Division Bench of the High Court, as per its  

judgment dated 21st April, 2005 dismissed the appeal of  

the appellants.

2. Against  the  said  judgment  of  the  High  Court,  the  

appellants have preferred the above noted three criminal  

appeals.

3. Brief facts necessary for disposal of these appeals are as  

follows:

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According to prosecution case, on 31st March, 1986, the  

appellants  have  formed  themselves  into  an  unlawful  

assembly and being armed with deadly weapons like bhojali,   

sword,  tangi  and lathi  etc. had been at Rajagram Kharida  

T.O.P. under Kharagpur (town) P.S. and all  of them being  

members of such unlawful assembly, voluntarily caused hurt  

with a sharp cutting weapon and injured Kalyan Seth (PW 2)  

and also assaulted Subrata Ghosh (deceased) with deadly  

weapons and as a result of such assault, the said Subrata  

Ghosh succumbed to his injuries.

4. The  police  officer  of  Kharagpur  (town)  P.S.  having  

received  the  information  over  telephone,  made  a  G.D.  

entry and rushed to the place of occurrence where he met  

Suphala  Sau  (PW  1)  who  narrated  about  the  incident  

which was reduced into writing at about 11.35 p.m. on  

31st March,  1986. The injured Kalyan Seth (PW 2) was  

taken to the hospital by the local residents at about 11.00  

p.m. on 31st March, 1986 and was treated by Dr. Subrata  

Jana  (PW  7).  The  First  Information  Report  (FIR)  was  

despatched from police station on 1st April, 1986 at about  

10.00 a.m.

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5. The  Investigating  Officer  recovered  the  body  of  the  

injured  Subrata  Ghosh  and  sent  to  nearby  hospital  for  

immediate  medical  treatment  where  he  died.  The  

Investigating  Officer  conducted  inquest  over  the  dead  

body of  the deceased and witnesses  were examined in  

connection  with  the  case.  The  I.O.  completed  the  

formalities  and  made  charge  sheet  against  18  persons  

including  one  Rabin  Dangua  and  Sibu  Borua  who  died  

before the commencement of sessions trial.

6. The  prosecution  altogether  examined  ten  witnesses  

including parents of the deceased victim Subrata Ghosh  

and  the  injured  person  Kalyan  Seth  (PW  2).  Dr.  

Madanmohan  Das  (PW  6)  is  the  Medical  Officer  who  

conducted post-mortem of the deceased.

7. The  trial  Court  upon  appreciation  of  the  evidence  on  

record,  came  to  the  conclusion  that  all  the  appellants  

were members of the unlawful assembly and were present  

at  the place of  occurrence armed with deadly weapons  

with the object of rioting and in the process, attacked and  

assaulted  Subrata  Ghosh  (deceased)  causing  multiple  

injuries resulting in his death. The trial Court also came to  

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the  conclusion  that  Kalyan  Seth  (PW  2)  also  received  

injuries from the appellants who formed themselves into  

unlawful  assembly. The trial  Court accordingly found all  

the  appellants  guilty  for  the  offences  punishable  under  

Sections  148,  324/149  and  304  part  I/149,  IPC  and  

accordingly sentenced them as noted hereinabove.

8. The  High  Court,  upon  reappreciation  of  the  evidence  

available  on  record,  concurred  with  the  findings  and  

conclusions  reached  by  the  trial  Court  and  accordingly  

dismissed the appeal.

9. We have heard Shri Pradip Kumar Ghosh, learned senior  

counsel  on behalf  of the appellants and as well  as M/S  

Rauf  Rahim and  Rakesh  Garg,  learned  counsel  for  the  

appellants in the connected appeals. We have also heard  

Shri T.C. Sharma, advocate on behalf of the State.

10. The learned senior counsel for the appellants strenuously  

contended that the FIR in the present case is unreliable  

document because it was neither first in point of time nor  

truthful  in  its  contents.  The  submission  was  that  the  

maker of the FIR, Ms. Sufala Sau (PW 1) did not support  

her version given in the FIR while deposing in the Court.  

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Learned senior counsel further contended that the injured  

Kalyan  Seth  (PW  2)  gave  entirely  a  different  version  

implicating only Rabin Dangua, Dulal Khara, Mantu Santra  

and  Chunki  Santra  when  he  made  a  statement  to  the  

Doctor (PW 7) who treated him at the hospital.  It  was  

mainly contended that the prosecution deliberately shifted  

the place of occurrence from Rajagram Kharida to that at  

Gokulpur road with an obvious intention to introduce the  

parents of the deceased who were examined as PWs 5  

and  8  in  the  trial  Court.  The  learned  senior  counsel  

submitted that admittedly the police received a telephonic  

message to the effect that a disturbance was going on at  

Teghori near Madbhati liquor shop and to that effect made  

a G.D. entry at 10.45 pm on 31st March, 1986.  There is  

no explanation forthcoming as to why the police reached  

Rajagram instead of village Teghori since the telephonic  

message  received  by  the  police  was  regarding  some  

disturbance at village Teghori. It was submitted that there  

is no explanation forthcoming as to why the police went to  

the house of Suphala Sau (PW 1) who is a resident of  

Rajagram which is a village to the east of railway line and  

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opposite  to  the  side  of  village  Teghori.  These  factors,  

according to the learned senior counsel, make the whole  

prosecution story doubtful. Learned senior counsel made  

an  attempt  to  point  out  certain  contradictions  in  the  

evidence  of  PWs 2,  5 and 8 who are stated to be the  

eyewitnesses. The submission was that if PWs 5 and 8 are  

to be disbelieved there is no other credible evidence at all  

to convict the appellants. It  was further submitted that  

Kalyan Seth (PW 2) specifically pointed out and named  

only four persons as his assailants in his statement made  

to  the  Doctor  (PW  7)  at  the  hospital.  None  of  the  

appellants  in  Criminal  Appeal  No.  1679  of  2005  were  

named by him. He, however, named only Mantu Santra  

being one of the appellants in Criminal Appeal No. 1680 of  

2005. Later on, he named others in Court but that was an  

improvement in his deposition.

11. Learned  counsel  for  the  respondent  submitted  that  the  

trial  Court  and  as  well  as  the  appellate  Court,  upon  

appreciation of  evidence,  found the appellants  guilty  of  

the charges framed against them and there is no reason  

to interfere with concurrent findings of fact arrived at by  

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the Courts below. Learned counsel submitted that there is  

absolutely no reason to disbelieve PWs 2, 5 and 8 who are  

material  witnesses  examined  by  the  prosecution  in  

support of their case.

12. Suphala  Sau (PW 1)  is  the  maker  of  the  FIR but  was  

declared hostile as she did not support the prosecution  

story. Nothing much turns upon her evidence except that  

she  disclosed  that  there  was  an  unlawful  assembly  of  

which  some  of  the  appellants  were  members  carrying  

deadly weapons but she did not state anything about the  

actual participation of the appellants either in inflicting the  

assault on PW 2 or on the deceased. She retracted from  

her version given in the FIR. Nothing much turns upon her  

evidence and the Courts below did not place any reliance  

on her evidence  to convict the appellants.

13. We  do  not  find  any  particular  reason  as  to  why  the  

evidence of Kalyan Seth (PW 2) is to be disbelieved. It is  

in his evidence that the deceased was a very close friend  

of  his  and  both  of  them were  on  visiting  terms.  It  is  

clearly stated in his evidence that on 30th March, 1986, at  

about  6.00  in  the  evening,  the  deceased  came  to  his  

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house and after  about three hours,  both of  them were  

proceeding towards the house of the deceased at Teghori  

which is at a distance of about 250 meters to the east of  

his house, when they have reached the culvert near the  

licensed country liquor shop, the appellants encircled him  

and the deceased with  deadly  weapons  in  their  hands.  

Then all of a sudden, Rabin Dangua (since died) hit the  

deceased with a lathi on his head and the deceased fell  

down, then Rabin Dangua hit  PW 2 with a  lathi on his  

right leg. Thereafter, all the appellants attacked them at  

random  with  different  weapons.  He  could  see  the  

deceased  somehow managed  to  save  himself  from the  

hands of the appellants and ran towards the east but all  

the appellants were chasing him with the weapons in their  

hands.  Of  course,  he  named  only  four  persons  in  his  

statement made to the Doctor (PW 7) who treated him in  

the hospital. Obviously, he must have been under terrible  

shock as he along with the deceased was encircled by a  

riotous  mob  with  deadly  weapons  in  their  hands.  The  

mere fact that he did not mention the names of all the  

accused is no reason to disbelieve his evidence. There is  

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no particular reason suggested in the cross examination  

as to why he should depose falsely against the appellants.  

Admittedly, the deceased and PW 2 were bosom friends  

and meeting almost everyday. His presence at the scene  

of offence along with the deceased cannot be doubted. In  

the circumstances, we hold that the Courts below rightly  

placed reliance on the evidence of PW 2.  

14. PW 5 is the father of the deceased. On the fateful day at  

about 9.00 p.m. he was at his house at Teghori. He came  

out  of  the  house  along  with  his  wife  after  hearing  an  

alarm and went towards the railway line to ascertain the  

cause as the alarm was coming from the eastern side of  

the railway line. After crossing rail line, he saw a group of  

persons. He was having a torch light with him and clearly  

saw the appellants armed with deadly weapons encircling  

and assaulting somebody. At that time he did not realize  

that  his  son  was  the  victim  because  the  victim  was  

encircled  by  the  mob.  Only  after  the  mob  left,  he  

searched for the unfortunate victim subjected to assault  

by  the  appellants  and  to  his  utter  shock  and  dismay,  

realized  that  the  victim  was  none  other  than  his  son  

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Subrata Ghosh lying in the drain with multiple  injuries.  

The  injured  was  pulled  out  from  the  drain.  In  the  

meanwhile, the police reached there and took the injured  

to hospital. This version has been fully corroborated by  

the evidence of PW 8 who is none other than the mother  

of the deceased. We do not find any reason to reject the  

evidence of PWs 5 and 8. They clearly speak about the  

assault  on  the  deceased  by  the  appellants  forming  

themselves into an unlawful assembly armed with deadly  

weapons. It is true that they did not realise as to who was  

the victim when the accused were actually assaulting the  

deceased. There is nothing unnatural in the evidence of  

PWs 5 and 8 that they have seen the actual assault on the  

victim  inasmuch  as  the  appellants  having  themselves  

formed  into  unlawful  assembly  armed  with  deadly  

weapons encircled the victim and it is for that reason they  

could  not  realize  that  the  victim  injured  in  the  act  of  

indiscriminate attack was none other than their own dear  

son.  

15. Further, the comment by the learned senior counsel that  

the  torch  lights  that  were  seized  and  produced  in  the  

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Court  were  without  batteries  and  bulbs  and  therefore  

there was no possibility of PW 5 identifying the appellants  

as  the  assailants  at  the  place  of  occurrence  that  took  

place at about 9.00 p.m., does not impress us. The fact  

that  the  torch  lights   marked  as  material  objects  are  

without batteries and bulbs after so many years is of no  

consequence.  They  were  perhaps  missing  for  obvious  

reasons.

16. Be  it  noted  that  the  learned  Sessions  Judge  in  his  

judgment noted that the incident had taken place on 31st  

March, 1986 just after four days after the full moon and  

all the assailants were known to PWs 5 and 8 and it was  

not impossible for them to identify them at the relevant  

time.   We  do  not  find  any  reason  not  to  accept  the  

reasons  given  by  the  learned  Sessions  Judge  in  this  

regard.

17. We do not find any merit in the criticism levelled by the  

learned senior counsel about the absence of the parents  

of  the  deceased  at  the  hospital  and  their  not  

accompanying their injured son to the hospital after being  

pulled out from the drain. This, according to the learned  

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senior counsel, makes the presence of PWs 5 & 8 at the  

scene of occurrence doubtful.  It  is clearly stated in the  

evidence of PWs 5 and 8 that their request to accompany  

the injured to the hospital was turned down for want of  

accommodation  in  the  Jeep  and  the  I.O.  (PW  9)  also  

supported  the  said  version.  The  I.O.  in  his  evidence  

clearly stated that all  his effort was to shift the injured  

quickly and take him for the treatment and in the process  

did not bother as to who should accompany the victim in  

the jeep. Be it noted, there was mud all over the body of  

the victim with the multiple injuries. The parents of the  

victim were told by the I.O. that it was not possible to  

accommodate  them  in  the  jeep  since  there  was  no  

sufficient  space  available  for  them  to  accompany  the  

victim in such a condition with mud all over the body.

18. Likewise, we do not find any merit in the submission that  

the scene of occurrence has been deliberately shifted to  

the vicinity of the residence of PW 5 to conveniently press  

the parents of the victim into service to speak falsely. The  

failure  to  collect  control  earth  from  the  scene  of  

occurrence by the I.O. may be  a lapse on the part of the  

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I.O. but the same would not make the presence of PWs 5  

and 8 doubtful  at the scene of occurrence.  There is no  

particular reason suggested to PWs 5 and 8 as to why  

they should speak falsely against the appellants. Once we  

accept the evidence of PWs 5 and 8, minor contradictions  

if  any  in  the  evidence  of  the  I.O.  and  PW  2  fail  to  

persuade us to take a different view.

19.The evidence of Medical Officers (Pws 6 & 7) is of some  

importance. Dr. Subrata Jana (PW 7), the Medical Officer  

of Kharagpur State General Hospital who initially attended  

on the deceased Subrata Ghosh and noted a number of  

injuries on the body of the victim including one lacerated  

injury over the skull and further noticed that brain matter  

was  protruding  through  it.  The  size  of  that  injury,  

according to him was 6”x4”x2”. He also found three other  

incised wounds on the body of the victim. Of course he  

highlighted in his cross examination about the injury on  

the head which was on the midline. However, PW 6 Dr.  

Madanmohan Das who held post-mortem found sharp cut  

‘x’ type injury over scalp  measuring 4” x ½” x ½” deep  

and another of same dimension. He also noticed as many  

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as eight sharp cut wounds on the body of the deceased.  

The medical evidence in our considered opinion is not at  

variance with the version given by PWs 5 and 8 who are  

undoubtedly the eyewitnesses to the incident.

20. Learned senior counsel for the appellants placed reliance  

upon  the  decision  of  this  Court  in  Badam Singh  Vs.  

State of M.P.1 to contend that the mere fact that PWs 5  

and 8 are consistent in their say is not a sure guarantee  

of their truthfulness and the Courts below ought to have  

considered all the circumstances and taken their version  

as  a  whole  instead  of  relying  on  their  evidence  in  the  

examination-in-chief. This contention is untenable for the  

trial Court as well as the appellate Court did consider their  

evidence  in its  entirety  including the cross examination  

and found nothing in it to discard their evidence for any  

reason whatsoever.   It  is  not  a case where the Courts  

found the case of the prosecution doubtful or incredible  

but convicted the appellants merely on the basis that the  

evidence of PWs 5 and 8 was consistant.  The High Court  

1 (2003) 12 SCC 792

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critically scrutinized the evidence in detail and discharged  

its responsibility as a final Court of fact.

21. The learned senior counsel for the appellants relying on  

the decision of this Court in Akbar Sheikh Vs. State of  

W.B.2 submitted that where large number of persons are  

implicated  collectively,  the  Courts  must  insist  for  

something more than their being cited as an accused I n  

order to convict them for the charge of the offence. It is  

well settled and needs no restatement at our hands that  

mere  presence  of  the  persons  at  the  scene  of  offence  

itself  would not be enough to convict  them and punish  

under Section 149, IPC unless it is established that each  

one  of  them  was  part  of  the  unlawful  assembly  and  

committed  the  offence  in  prosecution  of  the  common  

object of that assembly. In all such cases, the question  

who had committed the overt act is of no consequence.  

This  Court  in  Akbar Sheikh (supra)  observed that the  

prosecution  in  a  case  of  this  nature  is  required  to  

establish:  (i)  whether the appellants were present; and  

(ii) whether they shared a common object. The trial Court  

2 (2009) 7 SCC 415

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and as well as the High Court, in the present case, found  

that all  the stated ingredients were present for each of  

the  appellants  was  found  to  be  part  of  the  unlawful  

assembly  armed  with  deadly  weapons  and  shared  

common  object  with  that  intention  participated  in  the  

commission of offence.  The evidence available on record  

clearly suggests that each of the appellants was part of  

the unlawful assembly and armed with deadly weapons,  

together  indulged  in  indiscriminate  beating  and  freely  

used weapons in their hands causing severe injuries on  

the body of the deceased.  It is true as held by this Court  

in  Sherey & Ors.  Vs.  State  of  U.P.3 that  the  Courts  

have to be very careful in case where general allegations  

are  made  against  a  large  number  of  persons  and  the  

Courts  should  categorically  scrutinize  the  evidence  and  

hesitate  to  convict  the  large  number  of  persons  if  the  

evidence  available  on  record  is  vague.  There  must  be  

reasonable  circumstances  which  lend  assurance  to  the  

story of the prosecution. But in the present case, there  

are  no  circumstances  to  doubt  the  presence  of  the  

3 (1991) Supp. (2) SCC 437

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appellants  as well  as  their  membership  of  the unlawful  

assembly. This is clear from the evidence of PWs 5 and 8  

which  the  Courts  below  accepted  for  good  and  cogent  

reasons. It is not necessary for us to undertake a detailed  

scrutiny of the evidence of PWs 5 and 8 in view of the  

concurrent  findings  by  the  Courts  below  upon  proper  

appreciation of evidence. We see no reason to disturb the  

concurrent  findings  of  the  Courts  below  holding  the  

appellants guilty of the charged offences.

22. We accordingly uphold the conviction of the appellants but  

having regard to the peculiar facts and circumstances of  

the  case,  reduce  the  sentence  to  that  of  the  period  

already undergone. The appellants may be released from  

the jail  forthwith provided they are not required in any  

other case.

23.The appeals are accordingly disposed of.

…………………………………………J. (B. SUDERSHAN REDDY)

…………………………………………J. (SURINDER SINGH NIJJAR)

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NEW DELHI, AUGUST 5, 2010.  

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