& Ors Vs. State of Tripura  Insc 358 (23 August 2002)
Banerjee & B.N. Agrawal. B.N.Agrawal, J.
were convicted by the trial court under Section 302 read with Section 34 of the
Penal Code and sentenced to undergo imprisonment for life.
were further convicted under Section 326 read with Section 34 of the Penal Code
and each one of them was sentenced to undergo rigorous imprisonment for a
period of three years. The sentences, however, were ordered to run
concurrently. On appeal being preferred by the appellants, their convictions
and sentences have been upheld by the High Court.
case, in short, is that on 5.9.1990 at 9 P.M. a meeting in the locality was
held in the house of one Subhash Chandra Das (PW.4) to discuss the organisational
matters in respect of ensuing Durga Puja which the members wanted to celebrate
under the auspices of Kiran Sangha Club, its Secretary being one Narayan Debnath
(PW.18). At the place of meeting, all of a sudden, thirteen accused persons
came armed with daos (chopper), lathis, ballams, etc. and started assaulting Laxman
Debnath, Baghla Charan Das (PW.9) Santosh Das (PW.12), Rajani Debnath (PW.16)
and Narayan Debnath (PW.18) on their heads and other parts of body as a result
of which Laxman Debnath subsequently succumbed to the injuries. When the
accused persons were going out from the house, they assaulted other persons as
well. Stating the aforesaid facts, on the basis of the written report submitted
by PW.4, the First Information Report was drawn up at the police station on the
same day at 10.45 p.m. in which names of all the accused
persons were mentioned.
police after registering the case took up investigation and on completion
thereof submitted charge sheet on receipt whereof, the learned Magistrate took
cognizance and committed all the 13 accused to the Court of Sessions to face
of the accused persons was that they were innocent. They, however, have not
denied their presence at the alleged place and time of occurrence. According to
them, they were also invited to the meeting in which they were present during
the course of which some altercation ensued between the two groups one led by
the deceased-Laxman Debnath and another by the accused persons. The prosecution
party, according to the defence, was the aggressor and some of the accused
persons were assaulted by them and they had received injuries. One of the
accused Shanker Debnath had taken a plea of alibi as, according to him, he was
undergoing orientation programme course in Sericulture Training Institute at Santir
trial, the prosecution examined 24 witnesses in all out of whom 11 persons
claimed to be the eyewitnesses, namely, PWs. 4 to 12, 16 and 18. From amongst
these witnesses, PW.4 is nobody else than the informant himself, whereas PWs.
5, 9, 12, 16 and 18 claimed to have received injuries during the course of the
occurrence. PWs. 1 and 17 are witnesses who have corroborated the statements of
the eyewitnesses. PWs. 2,3,13,14 and 15 are formal witnesses. PW. 19 is Doctor
who examined the injuries of the injured prosecution witnesses as well as some
of the accused persons. PW.21 is also a Doctor who held postmortem examination
on the dead body of the deceased.
is a Police Officer who drew up formal First Information Report whereas PWs. 20
and 24 are the two Investigating Officers. Upon the conclusion of trial, the
learned Sessions Judge convicted all the accused persons, as stated above, and
their convictions and sentences have been upheld by the High Court. Hence this
appeal by special leave.
P.N. Misra, learned Senior Counsel appearing in support of the appeal, at the
outset, submitted that the High Court has not considered the regular appeal
preferred by the appellants in the manner postulated under law which amounts to
negation of their right of appeal, therefore, the appeal should be remitted to
it for considering the same afresh in accordance with law. We have been taken
through the impugned judgment of the High Court from which it does not appear
that the same suffers from any infirmity as entire evidence has been considered
by it, although not in great detail. It appears to us that the High Court has
taken into consideration vital points raised in the case and material evidence
adduced by the parties. Minor discrepancies pointed out in the evidence of the
prosecution witnesses did not rightly weigh with the High Court as in its
opinion the prosecution witnesses had supported the prosecution case in
material particulars. Even though we are not inclined to accept the submission
put forth by learned counsel on behalf of the appellants, we feel that the High
Court has not considered individual cases of the accused persons, which we
propose to ourselves consider instead of remitting the appeal.
No. 1 is said to have assaulted deceased-Laxman with dao.
and 12 have stated that this appellant inflicted injuries upon the deceased.
Appellant No. 2 is also said to have assaulted the deceased as would appear
from the evidence of Pws. 8 and 11. Likewise, Appellant No. 3, according to the
evidence of Pws. 4,5,6,8,10,11 and 12, had assaulted the deceased. Appellant
No. 4, as disclosed by PWs. 8 and 11, assaulted the deceased. Appellant No. 5,
as stated by PWs. 4,5 and 10, assaulted the deceased. Appellant No. 6 is said
to have assaulted the deceased, as unfolded by PWs. 6,8,10,11 and 12 in their
evidence. Appellant Nos. 7,8,9,10 and 11 assaulted the deceased as disclosed by
the solitary witness PW. 11. Appellant No. 12, as deposed to by PWs. 8 and 11,
inflicted injuries upon the deceased.
No. 13, according to the evidence of PW.8, assaulted the deceased.
pointed out certain minor discrepancies in the evidence of some of the
prosecution witnesses which cannot be said to materially affect the prosecution
case and reliability of their evidence which is consistent on vital points. Be
that as it may, so far as the evidence of PW.4 the informant and PW.10 is
concerned, Shri Misra could not point out any discrepancy therein and we find
that their evidence is consistent with the prosecution case disclosed in the
First Information Report and supported by the objective finding of the
Investigating Officer who seized blood stained earth from the place of
occurrence, and the evidence of the Doctors who held postmortem examination on
the dead body of the deceased as well as examined the injured eyewitnesses.
as assault upon PWs. 9, 12, 16 and 18 by the accused persons is concerned, it
may be stated that according to evidence of PWs. 4,5,6,8,9,11,12, 16 and 18,
appellant No. 11 assaulted PW.9 by dao. PW.12 is said to have been assaulted by
appellant No. 6 by lathi as would appear from the evidence of PW.6 and
appellant No. 12 is said to have assaulted him with dao according to the
evidence of PWs. 4, 6 and 12. Third injured witness-PW.16 is said to have been
assaulted by appellant No. 3 by dao as deposed to by PWs. 4,5,6,8,11 and 16.
The last injured witness - PW.18, according to the evidence of PWs. 4 and 5,
was assaulted by appellant No. 6. Further, this witness was assaulted by
appellant Nos. 11 and 13 according to the evidence of PWs. 4,5,6,8 and 12. Shri
Misra pointed out certain discrepancies in the evidence of some of the
witnesses, but the same can be of no avail to the defence as these are minor
ones. In any view of the matter, so far as assault on PW.9 is concerned, PWs. 4,5,
and 9 have consistently supported the prosecution case and no infirmity could
be pointed out therein. As far as the injuries upon PWs. 12 and 16 are
concerned, they have consistently supported assault on them and there is no
discrepancy therein. In relation to assault upon PW.18, evidence of this
witness is corroborated by PW. 4 and he has consistently supported the
prosecution case unfolded in the First Information Report.
next submission of Shri Misra is that in the alleged occurrence accused Amar Malla,
Milan Malla and Prafulla Debnath had also received injuries and the prosecution
has failed to explain the same. From the nature of injuries said to have been
received by these accused persons, it would appear that the same were simple
and minor ones. It is well settled that merely because the prosecution has
failed to explain injuries on the accused persons, ipso facto the same cannot be
taken to be a ground for throwing out the prosecution case, especially when the
same has been supported by eyewitnesses, including injured ones as well, and
their evidence is corroborated by medical evidence as well as objective finding
of the Investigating Officer.
lastly submitted that in any view of the matter, no case under Section 302 of
the Penal Code is made out inasmuch as the accused persons were invited to
attend the meeting and while they and the members of the prosecution party were
attending the same, some altercation ensued in which there was free fight as a
result of which members belonging to both sides received injuries. In our view,
there is absolutely no foundation for this submission as out of the 11
eyewitnesses examined in the case, including the injured ones, only PW.7, who
was declared hostile, has made a vague statement to show that accused persons
were present in the meeting from before and some altercation ensued therein. In
view of the fact that this witness has made vague statements and she has been
declared hostile, veracity of statements of other ten eyewitnesses, including
injured ones, to the effect that while the members of the prosecution party
were holding meeting, the accused persons armed with deadly weapons arrived
there and assaulted them, cannot be doubted. When asked, if the accused persons
were invited to the meeting and they were attending the same from before, as to
what was the reason for their being armed with deadly weapons, Shri Misra had
no answer to offer, except saying that in that part of the country which is
hilly area, people generally carry arms with them for which there is no
evidence whatsoever. Thus, we do not find any substance in this submission
which is accordingly rejected.
view of the foregoing discussion, we are of the view that the High Court has
not committed any error in upholding convictions of the appellants and
sentences awarded to them, as such no interference is called for by this Court.
the appeal fails and is dismissed. Out of the appellants, bail bonds of six of
them, namely, Milan Chandra Malla(appellant No. 2), Raiharan Debnath(appellant
No. 6), Dipak Debnath(appellant No. 8), Sankar Debnath(appellant No. 9), Rakhal
Debnath(appellant No. 10) and Hemanta Debnath(appellant No. 11) who were
granted bail by this Court, are cancelled and they are directed to be taken
into custody forthwith for undergoing remaining period of their sentence.