REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1015 OF 2003

UMAPADA KAYAL ....APPELLANT

VERSUS

STATE OF WEST BENGAL ....RESPONDENT

JUDGMENT   

V.S. SIRPURKAR, J.

1. This appeal is filed  by the sole accused who has  

been convicted for the offence under Section 304 Part-II  

of Indian Penal Code.  Initially, as many as nine accused  

persons came to be tried before the learned Additional  

Sessions Judge on the allegation that they had committed  

the murder of one Shaktipada Kayal on 5.6.1983.

2. Briefly  stated,  the  prosecution  story,   as  

emerging from the first information report, was that the  

deceased Shaktipada Kayal along with his younger brother  

PW 6 Kush Kumar Kayal and their few relatives  had gone  

to the tank (pukur) for catching fish and while coming  

back, they saw accused persons plucking fruits from the  

palm tree belonging to the deceased.  On questioning as  

to why  the fruits were being plucked, the deceased and  

his  brother   PW  6  were  assaulted  by  as  many  as  nine  

persons.  At once, Umapada picked up a chowki (a stick  

with spikes) and  struck  a  blow on the left side of the

chest of deceased.  The chowki penetrated into his body.  

PW  6  also  sustained  injuries  in   the  incident.   The  

deceased  was  carried  immediately  to  P.G.  Hospital,  

Calcutta  but did not survive.  As a result, the first  

information  report  came  to  be  lodged  on  the  next  day  

i.e., on 6.6.1983.

3. After  usual  investigation  and  collecting  the  

statement of the concerned witnesses, a charge-sheet came  

to  be  filed  against  as  many  as  nine  persons.  Learned  

Additional Sessions Judge  vide  judgment dated 20.9.1988  

acquitted all the nine accused holding that the offence  

under Section 302 read with Section 34 I.P.C. was not  

proved against any of the accused.

4. The  judgment of  the learned  Additional Sessions  

Judge was challenged before the High Court.  The High  

Court vide judgment dated 23.8.2002 dismissed the appeal  

against all the accused except the appellant-accused No.  

1   Umapada  Kayal  and  convicted  him  for  offence  under  

Section 304 Part II I.P.C. and sentenced him to undergo  

10 years' rigorous imprisonment.  The High Court relied  

on the evidence of the injured witness PW 6 Kush Kumar  

Kayal as also the other two eye witnesses PW 7 Kalipada  

Kayal and  PW 8 Bhabesh Chandra Kayal. The High Court has  

also referred to the medical evidence of PW 21  Dr. Asoke

Kumar  Maitra  who  had  performed  the  post-mortem  on  the  

deceased.  Hence, the present appeal.

6. We have heard learned counsel for the parties and  

have   carefully  gone  through  the  evidence  of  all  the  

witnesses.

7. Mr. P.K. Roy, learned counsel appearing for the  

appellant painstakingly took us  to the evidence of all  

the witnesses.  He submits that the High Court has erred  

in allowing the appeal against acquittal only against the  

present appellant who was accused No. 1.  Learned counsel  

further  submits  that  the  reasons  given  by  the  learned  

Additional  Sessions  Judge  were  proper  as  he  had  the  

benefit  of  seeing  the  witnesses  and  under  such  

circumstances, unless the reasons given by the learned  

Sessions Judge were considered and  found to be perverse,  

the order of acquittal should not have been interfered  

with by the High Court.

8. The argument is attractive but without substance  

in this case.  It is held in a number of judgments of  

this Court that in an appeal against acquittal, the whole  

appeal is open on facts as well as on law and the High  

Court can go into re-appreciation of evidence if it finds  

that the said appreciation was not proper at the trial

level and that is precisely what has happened here.  PW 1  

Kalipada  Kayal  and  PW  6  Kush  Kumar  Kayal  have  

specifically  referred  to  the  role  played  by  the  

appellant-accused Umapada Kayal in striking the deceased  

with 'chowki'.   Both the witnesses have been extensively  

cross-examined  but  the  whole  cross-examination  is  

irrelevant since there has been no cross-examination in  

respect of the actual incident.  Both the witnesses had  

asserted in their evidence that the chowki was struck in  

the body of the deceased by the appellant and had to be  

pulled out.  The other important circumstance is the oral  

dying declaration of the deceased.  He told PW 6 Kush  

Kumar Kayal “Uttamda amake merechhe” (Uttamda beat me).  

Strangely,  there  is  no  cross-examination  of  PW  6  Kush  

Kumar on this aspect.  

9. We have gone through the evidence of PW 21  Dr.  

Asoke Kumar Maitra who conducted the post-mortem on the  

body  of  the  deceased.   PW  21  in  his  statement  very  

clearly asserted that the injuries which were found on  

the body of deceased could have been caused by the said  

weapon (chowki) which was shown to him at the time of  

evidence. There is very little  cross-examination in the  

respect of those injuries and as a matter of fact those

injuries were quite probable.  As per the evidence of  

PW  21,   injury  No.  4  found  on  the  body  of  deceased  

corresponds well with the blow of the chowki.  It is true  

that the said injury was a single serious injury but the  

deceased  had  suffered  other  injuries  probably  due  to  

fall.  Therefore, we find no error in the judgment of the  

High Court  when the High Court has chosen to rely on the  

evidence of PW 6 Kush Kumar Kayal, PW 7 Kalipada Kayal  

and PW 8 Bhabesh Chandra Kayal. In fact, the High Court  

has  considered  the  evidence  of  the  said  witnesses  in  

depth.   Therefore, even if the High Court had not given  

any reason to find fault with the judgment of acquittal,  

in our opinion, the High Court was correct in coming to  

its conclusions.

10. We ourselves have seen the judgment of the trial  

court  which  does  lack  the  proper  appreciation  of  the  

evidence of the eye witnesses as also the evidence of the  

Doctor who had conducted the post-mortem.  Therefore, in  

our opinion, the High Court committed no mistake in re-

appreciating the evidence.  In that view, we do not find  

any merit in this appeal and we would dismiss the same.  

However, Mr. P.K. Roy, learned counsel appearing for the  

appellant  very  earnestly  urged  before  us  that  this

incident had taken place 26 years back and the accused  

has also now crossed the age of his youth.  According to  

the learned counsel, the accused is not enjoying a good  

health.  Under such circumstances, the imprisonment of 10  

years' R.I.   would be a harsher punishment.

11. Mr. Tara Chand Sharma, learned counsel appearing  

on behalf of the State of West Bengal, however, suggests  

that the accused must be in late 50's and the accused had  

shown no mercy while giving a blow of  chowki to the  

deceased  and,  therefore,  he  does  not  deserve  any  

sympathy.  As a matter of fact, according  to the learned  

counsel for the State, there should have been an appeal  

against the judgment of the High Court inasmuch as the  

High Court has converted the offence from Section 302 to  

304 Part II I.P.C.  However, that appeal not having been  

filed, it is not open to the learned counsel to suggest  

that the accused could and should have been convicted for  

the offence under Section 302 I.P.C.  Be that as it may,  

we  do  not  find  any  difficulty  in  confirming  the  

conviction of the accused for an offence under Section  

304 Part-II I.P.C..  However, considering the fact that  

the incident took place 26 years back and the accused had  

inflicted only a single blow, we would choose to reduce

the sentence to five years' rigorous imprisonment.  

12. With  this  modification,  the  appeal  is  partly  

allowed.   The  bail  bonds  of  the  accused-appellant  are  

cancelled. The appellant is directed to surrender within  

two weeks from today to serve out the remaining sentence  

failing  which  non-bailable  warrants  shall  be  issued  

against  him.   The  original  record  be  sent  back  

immediately.  

.......................J. [ V.S. SIRPURKAR ]

......................J. [ DEEPAK VERMA ]

NEW DELHI OCTOBER 6, 2009.