Debashis
Daw and Ors. Vs. State of West Bengal [2010] INSC 584 (5 August 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1679
OF 2005 Debashis Daw & Ors. ...Appellants Versus State of West Bengal
...Respondent WITH
CRIMINAL APPEAL NO. 1680 OF 2005 Subhasish Daw & Ors. ...Appellants Versus
State of West Bengal ...Respondent WITH CRIMINAL APPEAL NO. 924 OF 2006 Dulal
Khara ...Appellant Versus State of West Bengal ...Respondent
B.
Sudershan Reddy, J :
1.
The appellants in these appeals and three others were tried in
Sessions Trial Case No. XXVII of March 1987 by 2 the Additional Sessions Judge,
Midnapore for offences punishable under Sections 148, 324/149 and 304 part
I/149 of the Indian Penal Code. The learned Additional Sessions Judge, as per
his judgment dated 26th September, 1989 convicted the accused persons under
Sections 148 and 304 part I read with Section 149 and as well as under Section
324/149, IPC and sentenced them to suffer rigorous imprisonment for ten years
each under Section 304 part I read with Section 149, IPC only. No separate
sentence has been awarded for the proven charges under Sections 148 and 324/149
of the IPC. The appellants herein preferred appeals before the High Court at
Calcutta. A Division Bench of the High Court, as per its judgment dated 21st
April, 2005 dismissed the appeal of the appellants.
2.
Against the said judgment of the High Court, the appellants have
preferred the above noted three criminal appeals.
3.
Brief facts necessary for disposal of these appeals are as
follows:
According
to prosecution case, on 31st March, 1986, the appellants have formed themselves
into an unlawful assembly and being armed with deadly weapons like bhojali,
sword, tangi and lathi etc. had been at Rajagram Kharida T.O.P. under Kharagpur
(town) P.S. and all of them being members of such unlawful assembly,
voluntarily caused hurt with a sharp cutting weapon and injured Kalyan Seth (PW
2) and also assaulted Subrata Ghosh (deceased) with deadly weapons and as a
result of such assault, the said Subrata Ghosh succumbed to his injuries.
4.
The police officer of Kharagpur (town) P.S. having received the
information over telephone, made a G.D. entry and rushed to the place of
occurrence where he met Suphala Sau (PW 1) who narrated about the incident
which was reduced into writing at about 11.35 p.m. on 31st March, 1986. The
injured Kalyan Seth (PW 2) was taken to the hospital by the local residents at
about 11.00 p.m. on 31st March, 1986 and was treated by Dr. Subrata Jana (PW
7). The First Information Report (FIR) was despatched from police station on
1st April, 1986 at about 10.00 a.m.
5.
The Investigating Officer recovered the body of the injured
Subrata Ghosh and sent to nearby hospital for immediate medical treatment where
he died. The Investigating Officer conducted inquest over the dead body of the
deceased and witnesses were examined in connection with the case. The I.O.
completed the formalities and made charge sheet against 18 persons including
one Rabin Dangua and Sibu Borua who died before the commencement of sessions
trial.
6.
The prosecution altogether examined ten witnesses including
parents of the deceased victim Subrata Ghosh and the injured person Kalyan Seth
(PW 2). Dr. Madanmohan Das (PW 6) is the Medical Officer who conducted
post-mortem of the deceased.
7.
The trial Court upon appreciation of the evidence on record, came
to the conclusion that all the appellants were members of the unlawful assembly
and were present at the place of occurrence armed with deadly weapons with the
object of rioting and in the process, attacked and assaulted Subrata Ghosh
(deceased) causing multiple injuries resulting in his death. The trial Court
also came to 5 the conclusion that Kalyan Seth (PW 2) also received injuries
from the appellants who formed themselves into unlawful assembly. The trial
Court accordingly found all the appellants guilty for the offences punishable
under Sections 148, 324/149 and 304 part I/149, IPC and accordingly sentenced
them as noted hereinabove.
8.
The High Court, upon reappreciation of the evidence available on
record, concurred with the findings and conclusions reached by the trial Court
and accordingly dismissed the appeal.
9.
We have heard Shri Pradip Kumar Ghosh, learned senior counsel on
behalf of the appellants and as well as M/S Rauf Rahim and Rakesh Garg, learned
counsel for the appellants in the connected appeals. We have also heard Shri
T.C. Sharma, advocate on behalf of the State.
10.
The learned senior counsel for the appellants strenuously
contended that the FIR in the present case is unreliable document because it
was neither first in point of time nor truthful in its contents. The submission
was that the maker of the FIR, Ms. Sufala Sau (PW 1) did not support her
version given in the FIR while deposing in the Court.
6 Learned
senior counsel further contended that the injured Kalyan Seth (PW 2) gave
entirely a different version implicating only Rabin Dangua, Dulal Khara, Mantu
Santra and Chunki Santra when he made a statement to the Doctor (PW 7) who
treated him at the hospital. It was mainly contended that the prosecution
deliberately shifted the place of occurrence from Rajagram Kharida to that at
Gokulpur road with an obvious intention to introduce the parents of the
deceased who were examined as PWs 5 and 8 in the trial Court. The learned
senior counsel submitted that admittedly the police received a telephonic
message to the effect that a disturbance was going on at Teghori near Madbhati
liquor shop and to that effect made a G.D. entry at 10.45 pm on 31st March,
1986. There is no explanation forthcoming as to why the police reached Rajagram
instead of village Teghori since the telephonic message received by the police
was regarding some disturbance at village Teghori. It was submitted that there
is no explanation forthcoming as to why the police went to the house of Suphala
Sau (PW 1) who is a resident of Rajagram which is a village to the east of
railway line and 7 opposite to the side of village Teghori. These factors,
according to the learned senior counsel, make the whole prosecution story
doubtful. Learned senior counsel made an attempt to point out certain
contradictions in the evidence of PWs 2, 5 and 8 who are stated to be the
eyewitnesses. The submission was that if PWs 5 and 8 are to be disbelieved
there is no other credible evidence at all to convict the appellants. It was
further submitted that Kalyan Seth (PW 2) specifically pointed out and named
only four persons as his assailants in his statement made to the Doctor (PW 7)
at the hospital. None of the appellants in Criminal Appeal No. 1679 of 2005
were named by him. He, however, named only Mantu Santra being one of the
appellants in Criminal Appeal No. 1680 of 2005. Later on, he named others in
Court but that was an improvement in his deposition.
11.
Learned counsel for the respondent submitted that the trial Court
and as well as the appellate Court, upon appreciation of evidence, found the
appellants guilty of the charges framed against them and there is no reason to
interfere with concurrent findings of fact arrived at by 8 the Courts below.
Learned counsel submitted that there is absolutely no reason to disbelieve PWs
2, 5 and 8 who are material witnesses examined by the prosecution in support of
their case.
12.
Suphala Sau (PW 1) is the maker of the FIR but was declared
hostile as she did not support the prosecution story. Nothing much turns upon
her evidence except that she disclosed that there was an unlawful assembly of
which some of the appellants were members carrying deadly weapons but she did
not state anything about the actual participation of the appellants either in
inflicting the assault on PW 2 or on the deceased. She retracted from her
version given in the FIR. Nothing much turns upon her evidence and the Courts
below did not place any reliance on her evidence to convict the appellants.
13.
We do not find any particular reason as to why the evidence of
Kalyan Seth (PW 2) is to be disbelieved. It is in his evidence that the
deceased was a very close friend of his and both of them were on visiting
terms. It is clearly stated in his evidence that on 30th March, 1986, at about
6.00 in the evening, the deceased came to his 9 house and after about three
hours, both of them were proceeding towards the house of the deceased at
Teghori which is at a distance of about 250 meters to the east of his house,
when they have reached the culvert near the licensed country liquor shop, the appellants
encircled him and the deceased with deadly weapons in their hands.
Then all
of a sudden, Rabin Dangua (since died) hit the deceased with a lathi on his
head and the deceased fell down, then Rabin Dangua hit PW 2 with a lathi on his
right leg. Thereafter, all the appellants attacked them at random with
different weapons. He could see the deceased somehow managed to save himself
from the hands of the appellants and ran towards the east but all the
appellants were chasing him with the weapons in their hands. Of course, he
named only four persons in his statement made to the Doctor (PW 7) who treated
him in the hospital. Obviously, he must have been under terrible shock as he
along with the deceased was encircled by a riotous mob with deadly weapons in
their hands. The mere fact that he did not mention the names of all the accused
is no reason to disbelieve his evidence. There is 10 no particular reason
suggested in the cross examination as to why he should depose falsely against
the appellants.
Admittedly,
the deceased and PW 2 were bosom friends and meeting almost everyday. His
presence at the scene of offence along with the deceased cannot be doubted. In
the circumstances, we hold that the Courts below rightly placed reliance on the
evidence of PW 2.
14.
PW 5 is the father of the deceased. On the fateful day at about
9.00 p.m. he was at his house at Teghori. He came out of the house along with
his wife after hearing an alarm and went towards the railway line to ascertain
the cause as the alarm was coming from the eastern side of the railway line.
After crossing rail line, he saw a group of persons. He was having a torch
light with him and clearly saw the appellants armed with deadly weapons
encircling and assaulting somebody. At that time he did not realize that his
son was the victim because the victim was encircled by the mob. Only after the
mob left, he searched for the unfortunate victim subjected to assault by the
appellants and to his utter shock and dismay, realized that the victim was none
other than his son 11 Subrata Ghosh lying in the drain with multiple injuries.
The
injured was pulled out from the drain. In the meanwhile, the police reached
there and took the injured to hospital. This version has been fully
corroborated by the evidence of PW 8 who is none other than the mother of the
deceased. We do not find any reason to reject the evidence of PWs 5 and 8. They
clearly speak about the assault on the deceased by the appellants forming
themselves into an unlawful assembly armed with deadly weapons. It is true that
they did not realise as to who was the victim when the accused were actually
assaulting the deceased. There is nothing unnatural in the evidence of PWs 5
and 8 that they have seen the actual assault on the victim inasmuch as the appellants
having themselves formed into unlawful assembly armed with deadly weapons
encircled the victim and it is for that reason they could not realize that the
victim injured in the act of indiscriminate attack was none other than their
own dear son.
15.
Further, the comment by the learned senior counsel that the torch
lights that were seized and produced in the 12 Court were without batteries and
bulbs and therefore there was no possibility of PW 5 identifying the appellants
as the assailants at the place of occurrence that took place at about 9.00
p.m., does not impress us. The fact that the torch lights marked as material
objects are without batteries and bulbs after so many years is of no
consequence. They were perhaps missing for obvious reasons.
16.
Be it noted that the learned Sessions Judge in his judgment noted
that the incident had taken place on 31st March, 1986 just after four days
after the full moon and all the assailants were known to PWs 5 and 8 and it was
not impossible for them to identify them at the relevant time. We do not find
any reason not to accept the reasons given by the learned Sessions Judge in
this regard.
17.
We do not find any merit in the criticism levelled by the learned
senior counsel about the absence of the parents of the deceased at the hospital
and their not accompanying their injured son to the hospital after being pulled
out from the drain. This, according to the learned 13 senior counsel, makes the
presence of PWs 5 & 8 at the scene of occurrence doubtful. It is clearly
stated in the evidence of PWs 5 and 8 that their request to accompany the
injured to the hospital was turned down for want of accommodation in the Jeep
and the I.O. (PW 9) also supported the said version. The I.O. in his evidence
clearly stated that all his effort was to shift the injured quickly and take
him for the treatment and in the process did not bother as to who should
accompany the victim in the jeep. Be it noted, there was mud all over the body
of the victim with the multiple injuries. The parents of the victim were told
by the I.O. that it was not possible to accommodate them in the jeep since
there was no sufficient space available for them to accompany the victim in
such a condition with mud all over the body.
18.
Likewise, we do not find any merit in the submission that the
scene of occurrence has been deliberately shifted to the vicinity of the
residence of PW 5 to conveniently press the parents of the victim into service
to speak falsely. The failure to collect control earth from the scene of
occurrence by the I.O. may be a lapse on the part of the 14 I.O. but the same
would not make the presence of PWs 5 and 8 doubtful at the scene of occurrence.
There is no particular reason suggested to PWs 5 and 8 as to why they should
speak falsely against the appellants. Once we accept the evidence of PWs 5 and
8, minor contradictions if any in the evidence of the I.O. and PW 2 fail to
persuade us to take a different view.
19.
The evidence of Medical Officers (Pws 6 & 7) is of some
importance. Dr. Subrata Jana (PW 7), the Medical Officer of Kharagpur State
General Hospital who initially attended on the deceased Subrata Ghosh and noted
a number of injuries on the body of the victim including one lacerated injury
over the skull and further noticed that brain matter was protruding through it.
The size of that injury, according to him was 6"x4"x2". He also
found three other incised wounds on the body of the victim. Of course he
highlighted in his cross examination about the injury on the head which was on
the midline. However, PW 6 Dr. Madanmohan Das who held post-mortem found sharp
cut `x' type injury over scalp measuring 4" x =" x =" deep and
another of same dimension. He also noticed as many 15 as eight sharp cut wounds
on the body of the deceased.
The
medical evidence in our considered opinion is not at variance with the version
given by PWs 5 and 8 who are undoubtedly the eyewitnesses to the incident.
20.
Learned senior counsel for the appellants placed reliance State of
M.P.1 to contend that the mere fact that PWs 5 and 8 are consistent in their
say is not a sure guarantee of their truthfulness and the Courts below ought to
have considered all the circumstances and taken their version as a whole
instead of relying on their evidence in the examination-in-chief. This
contention is untenable for the trial Court as well as the appellate Court did
consider their evidence in its entirety including the cross examination and
found nothing in it to discard their evidence for any reason whatsoever. It is
not a case where the Courts found the case of the prosecution doubtful or
incredible but convicted the appellants merely on the basis that the evidence
of PWs 5 and 8 was consistant. The High Court 1 (2003) 12 SCC 792 16 critically
scrutinized the evidence in detail and discharged its responsibility as a final
Court of fact.
21.
The learned senior counsel for the appellants relying on W.B.2
submitted that where large number of persons are implicated collectively, the
Courts must insist for something more than their being cited as an accused I n
order to convict them for the charge of the offence. It is well settled and
needs no restatement at our hands that mere presence of the persons at the
scene of offence itself would not be enough to convict them and punish under
Section 149, IPC unless it is established that each one of them was part of the
unlawful assembly and committed the offence in prosecution of the common object
of that assembly. In all such cases, the question who had committed the overt
act is of no consequence.
This
Court in Akbar Sheikh (supra) observed that the prosecution in a case of this
nature is required to establish: (i) whether the appellants were present; and
(ii) whether they shared a common object. The trial Court 2 (2009) 7 SCC 415 17
and as well as the High Court, in the present case, found that all the stated
ingredients were present for each of the appellants was found to be part of the
unlawful assembly armed with deadly weapons and shared common object with that
intention participated in the commission of offence. The evidence available on
record clearly suggests that each of the appellants was part of the unlawful
assembly and armed with deadly weapons, together indulged in indiscriminate
beating and freely used weapons in their hands causing severe injuries on the
body of the deceased. It is true as held by this Court have to be very careful
in case where general allegations are made against a large number of persons
and the Courts should categorically scrutinize the evidence and hesitate to
convict the large number of persons if the evidence available on record is
vague. There must be reasonable circumstances which lend assurance to the story
of the prosecution. But in the present case, there are no circumstances to
doubt the presence of the 3 (1991) Supp. (2) SCC 437 18 appellants as well as
their membership of the unlawful assembly. This is clear from the evidence of
PWs 5 and 8 which the Courts below accepted for good and cogent reasons. It is
not necessary for us to undertake a detailed scrutiny of the evidence of PWs 5
and 8 in view of the concurrent findings by the Courts below upon proper
appreciation of evidence. We see no reason to disturb the concurrent findings
of the Courts below holding the appellants guilty of the charged offences.
22.
We accordingly uphold the conviction of the appellants but having
regard to the peculiar facts and circumstances of the case, reduce the sentence
to that of the period already undergone. The appellants may be released from
the jail forthwith provided they are not required in any other case.
23.
The appeals are accordingly disposed of.
................................................J. (B. SUDERSHAN
REDDY)
................................................J. (SURINDER
SINGH NIJJAR)
19 NEW DELHI,
AUGUST 5, 2010.
Back