The Superintendent and Remembrancer of
Legal Affairs, West Vs. Mangal Pathak & Ors  INSC 659 (9 December
REDDY, K. JAYACHANDRA (J) REDDY, K.
JAYACHANDRA (J) PUNCHHI, M.M.
CITATION: 1995 SCC Supl. (1) 239 JT 1995 (1)
227 1994 SCALE (5)206
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
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 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
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.
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 gunshot 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 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.
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.
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.
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
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 along with 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 moment has given the earliest report Ex.P. 1 to
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
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 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.
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.
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.