Debashis Daw And Ors vs State Of West Bengal

10.00 a.m. 4

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

upon the decision of this Court in Badam Singh Vs.

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

the decision of this Court in Akbar Sheikh Vs. State of

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

in Sherey & Ors. Vs. State of U.P.3 that the Courts

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.