Kayal Vs. State of West Bengal  INSC 1626 (6 October 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1015
OF 2003 UMAPADA KAYAL ....APPELLANT VERSUS
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.
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.
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.
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.
We have heard learned counsel for the parties and have carefully
gone through the evidence of all the witnesses.
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
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).
there is no cross-examination of PW 6 Kush Kumar on this aspect.
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
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
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.
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.
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 ]
OCTOBER 6, 2009.