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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- 229 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

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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. 230 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

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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 231 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

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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 232 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

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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. 233 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. 234