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PETITIONER: TARAK NATH SING & ANR.

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT:       04/12/1997

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                THE 4TH DAY OF DECEMBER, 1997 Present:                Hon’ble Mr. Justice G.T. Nanavati                Hon’ble Mr. Justice V.N. Khare Rajinder Sachhar, Sr.Adv., R.P. Gupta, Adv. with him for the appellants. G.S. Chatterjee,  Raja Chatterjee,  (J.R.Das,) Adv  for M/s. Sinha & Das, Advs. for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: Nanavati, J      The appellants were convicted by the Sessions Court for committing the  offence punishable  under Section  307  read with  Section  34  IPC  and  sentenced  to  suffer  rigorous imprisonment for  ten years.  Appellant Tarak Nath Singh was also convicted  under Sections 25 and 27 of the Arms Act and was sentenced  to suffer  rigorous imprisonment  for one and three years  respectively.   The High  Court  confirmed  the conviction of  the appellants  under Section  307 read  with Section  34   IPC  but  reduced  the  sentence  to  rigorous imprisonment for  eight years.   Conviction  of  Tarak  Nath Singh under  sections 25  and 27  of Arms Act was set aside. Aggrieved by  the conviction  and the  order of sentence the appellants have filed this appeal by special leave.      What has  been found  against the appellants is that on April 23,  1979 at about 10.30 p.m. when Ramashish Singh was examining his  account books  and  counting  money  in  this ’Gaddi’ (place of business) the appellants with four or five unknown persons  entered the  ’Gaddi’ with revolvers, knives and bombs,  Tarak Nath  Singh  fired  six  rounds  from  his revolver and  caused injuries  to Ramashish Singh and Chhabi Nath (appellant  No.2) stabbed  him  with  a  knife  on  his abdomen.  After attacking Ramashish Singh in this manner the assailants had escaped after hurling bombs.      Both the  courts below  have believed  the evidence  of Ramashish (PW-1) and also of PWs-2,3 10 and 11.  Shewnarayan (PW-2) was  the owner  of a  nearby tea  stall, Lalan Tewari (PW-3) was  a  passer  bye,  Ganga  Prasad  (PW-10)  was  an employee of  Ramashish and  Birendera (PW-11)  is the son of Ramashish.   All of  them rushed  to his  ’Gaddi’  on  their

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attention being attacked by the sound of firing of shots and explosion  of   bombs  and  also  by  the  alarm  raised  by Ramashish.   All these  witnesses had stated that soon after reaching there  they were  informed by Ramashish that he was attacked by  Tarak nath  Singh (appellant No.1), Chhabi Nath (appellant No.2)  and four  to five  unknown persons.    The trial  court   held  that  the  evidence  of  Ramashish  was corroborated  by  the  medical  evidence  and  also  by  the evidence  of   the  aforesaid  witnesses.    It,  therefore, convicted the appellants as stated above.      The  High   Court  agreed   with  appreciation  of  the prosecution evidence  by the  trial court  and confirmed the findings recorded  by it that the appellants along with four of five  other persons  had attempted  to cause the death of Ramashish Singh  as alleged against them.  It, however, held that conviction  of appellant Tarak Nath Singh under section 25 and  27 of  Arms Act was bad because the sanction granted by the  District Magistrate  was bad in law.  It, therefore, acquitted Tarak  Nath Singh f those charges.  As regards the sentence imposed  upon the  appellants the High Court was of the view  that it was rather harsh and therefore, reduced it as stated above.      Mr. Rajinder  Sachhar, learned  senior counsel  for the appellants, contended  that both  the courts below failed to appreciate that the prosecution had failed to establish that an emergency light was burning in the ’Gaddi’ at the time of the incident.   His submission was that admittedly there was load shedding  in the  area at  the time of the incident and therefore, it  was incumbent  upon the  prosecution to prove that in the ’Gaddi’ of Ramashish there was a source of light sufficient  enough   to  identify   the  assailants.     The Investigating Officer had neither seized any emergency light from the  ’Gaddi’ nor  had made  any inquiry in that behalf. We do  not find  any substance  in this contention as it was not at  all necessary  for the  police to  seize and produce before the  Court the said emergency light. Undisputedly the ’Gaddi’ of  Ramashish was  open as  the incident  had  taken place inside  the ’Gaddi’ and it was unlikely that at such a late hour  Ramashish was  sitting in his ’Gaddi’ without any light.   It was  not even  suggested to  PWs-1,2,3,10 and 11 that there  was no  light in  the Gaddi  at the  time of the incident or  when they  reached there.  Both the courts have believed the  evidence of  the witnesses and held that there was light  in the  ’Gaddi’ and  we see  no reason  to  doubt correctness of that finding.      It was  next contended  that Ramashish was really taken to the  hospital not  by his  son Birendera  but by Jagdish, son-in-law of  the elder brother of Ramashish, and that till Ramashish was  admitted in  the emergency  ward names of the assailants were  not known either to Ramashish or Jadgish as disclosed by  the  discharge  certificate  and  the  medical certificate, which  contained history of the assault but did not contain  the names of assailants.  It was also submitted that Birendera  really did  not know  about the incident and had not gone to the hospital at all and to support his false claim the  prosecution had  examined Shewnarayan (PW-2).  It is true  that in  the discharge  certificate prepared by the hospital it  is mentioned  that the person who got Ramashish admitted in  the hospital  was one  Jagdish but from that it does not necessarily follow that Birendera had not taken his father to  the hospital.   the evidence of Birendera on this point is  not only  supported by the evidence of PWs-1,3 and 10 but  also by  the evidence  of PWs-4,  5 and  14.   Jahar Banerjee (PW-4) was an employee of Calcutta Medical Research Institute,  where   the  injured  Ramashish  was  taken  for

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treatment.   He has  stated that  he had  seen a private car arriving at  that place  with  one  person  having  bleeding injuries.   Kalisankar Dhar  (PW-5) was  another employee of that Institute  working in  the emergency department and has stated that  on being  informed  that  a  patient  had  been brought in  a serious condition he had gone with a stretcher and taken him to the emergency department.  According to his evidence the  patient had  bleeding injuries and the man who was with  him had  helped him  in getting down from the car. That man  had no  money and, therefore, had gone back in his car to  bring money.  he identified that person as Birendera Singh, in the court.  In cross-examination he further stated that he  saw one  person in  the car besides the patient and denied that Birendera Singh, identified by him in the court, was not  the person who was with the patient.  Sub Inspector Dinesh Chakraborty  (PW-14) had  stated in his evidence that on receiving information about the incident be had rushed to the ’Gaddi’  of Ramashish  and at  that  time  he  had  seen Ramashish lying  in a  car in  injured condition and his son Birendera Singh  was making  necessary arrangements  to take him  to   the  hospital.     The  evidence  of  these  three independent witnesses  was not  at all  challenged.  It was, therefore, satisfactorily  established  by  the  prosecution that Birendera  Singh after taking his injured father to the hospital had  gone back  to his house to get some money.  It is quite  possible that  Jagdish (son-in-law  of  the  elder brother of Ramashish) and Madan (son of the elder brother of Ramashish who had also by that time arrived at the hospital, as stated  by Birendera  himself, might  have volunteered to give the  history of assault to Dr. Tapan Bhattacharjee, who had prepared the necessary case papers.  The defence version that it  was Jagdish,  who had  taken injured Ramashish from the ’Gaddi’  to the  Hospital, has not been accepted by both the courts  below.   We are  also of  the view that the said version was  rightly not  believed. Once  we believe that it was Birendera Singh who had taken his father to the hospital the contention raised by the learned counsel with respect to the evidence  of Shewnarayan (PW-2) has to be rejected.  The contention that  names of the assailants were not known even to  Ramashish   till  he   was  admitted  in  the  emergency department also has to be rejected.      It was  next contended  by  the  learned  counsel  that Ramashish was about 58 years old at the time of the incident and, therefore,  after receiving  injuries on  his hands and face as  a result of firing of bullets from the revolver and after being stabbed by a knife on his abdomen could not have offered any  resistance and  therefore his  evidence that he had snatched  away the  knife from  the hands  of one of the assailants and caused injury to him cannot be believed.  The evidence discloses  that even after receiving those injuries Ramashish had  not fallen  down and  he was in a position to hand over  money  and  the  papers  containing  accounts  to Shewnarayan (PW-2),  Moreover, it  was not put to any of the doctors who  had examined  Ramashish  that  after  receiving injuries he  could not  have offered  any  resistance.    As stated by  the doctor  on the  basis of  nature of  injuries caused to  Ramashish the bullets fired had little force and, therefore, it  cannot be  said that the version of Ramashish that he could offer resistance, snatch away a knife from the hands of  one of  the assailants and caused an injury one of them is improbable.      It was  lastly submitted  by the  learned counsel  than even if  the conviction  of the appellants is maintained the sentence  imposed   upon  them   deserves  to   be   reduced particularly in  view of  the  fact  that  the  accused  and

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injured are  close relatives  and now  18 years have passed. He also pointed out that the appellants had remained in jail for a  substantial period  and now  the situation  has  also changed.   During these  18 years,  the appellants  have not been involved  in any  offence.   Considering the  facts and circumstances of  the case,  in our opinion, ends of justice would be  met if  the sentence of imprisonment is reduced to the period already undergone but a fine of Rs. 10,000/- each is imposed upon the appellants.      We,  therefore,   partly  allow   this  appeal.     The conviction of  the appellants is maintained but the sentence imposed upon  them is  altered from rigorous imprisonment of eight years  to rigorous imprisonment for the period already undergone but  the appellants  are directed to pay a fine of Rs. 10,000/-  each.   In case  of default of payment of fine the appellants  will undergo  further rigorous  imprisonment for a  period of  two years.  It is directed that out of the fine, if paid, the injured Ramashish be paid Rs. 10,000/- as compensation.