Calcutta High Court (Appellete Side)
Uttam Hazra & Ors vs The State Of West Bengal on 22 April, 2016
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Aniruddha Bose
And
The Hon'ble Justice Sankar Acharyya
C.R.A. No. 78 of 2008
Uttam Hazra & Ors.
Vs.
The State of West Bengal
Advocates for the Appellant: Mr. Sekhar Basu (Senior Advocate),
Mr. Milon Mukherjee (Senior Advocate),
Mr. Jyotirmay Adhikary,
Mr. Subhashis Dasgupta.
Advocates for the State: Mr. Subir Banerjee (APP)
Mr. Pratick Bose.
Heard On: 23.07.2015, 12.08.2015, 14.08.2015,
19.08.2015, 14.09.2015, 11.04.2016,
18.04.2016.
Judgement On: 22.04.2016
ANIRUDDHA BOSE, J.:-
1.In this appeal, ten appellants assail their conviction and consequential sentence for committing offences under Sections 148/307/34 of the Indian Penal Code in a judgment delivered by the Additional Sessions Judge, 2nd Court Nadia, in Sessions Trial No. I(XI)05 corresponding to Sessions Case No. 45(12)04 on 21st January, 2008. The appellants have been sentenced to suffer simple imprisonment for three years each and to pay a fine of Rs.2,000/- each in default of which further simple imprisonment for one year each for the offence punishable under Section 148 Indian Penal Code. They have been sentenced to suffer rigours imprisonment for 10 years for commission of offence under Section 307 of the Code, and pay fine of Rs.4,000/- each in default thereof simple imprisonment of further two years. Both the sentences have been directed to run concurrently. The charge against the appellants involve attack on one Jaganmoy Roy on 27th June, 2000 with sharp-edged agricultural implements, which have been described as "dao", "ramdao" and "hahsua" by the witnesses, which ultimately resulted in amputation of the victim's right lower forearm. The First Information Report (F.I.R.) was lodged on the following day, that is 28th June, 2000 by the brother of the victim, Mangalmay Ray in Kaliganj Police Station, Nadia. Altogether eleven persons have been named as the assailants in the F.I.R. We find from records that one of them, Krishnachandra Dey passed away on 7th November 2004, before facing the trial. It has been recorded in the complaint on the basis of which the formal F.I.R. was registered that on 27th June, 2000 while the victim was returning home at Jayrampur village from Juranpur village on a bicycle, he was attacked by the ten appellants in addition to the deceased Krishnachandra Dey with the intention to commit murder of the victim, Jaganmoy Roy at about 5 P.M. The place of occurence has been described by the victim, in his deposition as P.W. 2 to be of little distance from a culvert near the land of one Balak Das. We shall reproduce the relevant part of his deposition later in this judgment.
2. The complaint records that Sunirmal (Santu Hazra) (Appellant No. 10) had ordered:-
"Let the wicked fello be hacked to death if you can" (copied verbatim from the translated version of the written complaint.
The sentence in the written complaint in bengali could be loosely translated as "make sure the wicked fellow is hacked to death."
3. Thereafter Krishna Dey had grappled the victim when he was trying to escape. Sahadeb Dey (Appellant No. 9), Mati Hazra (Appellant No. 8) and Uttam Hazra (Appellant No. 1) started assaulting him repeatedly with ram dao and hansua, aiming his head and neck. When the victim sought to protect him from the blows with his right hand, blow from the assault weapon fell on his right hand, which almost severed the said limb from rest of the body. Blows followed thereafter on his head and back and many persons encircled him with lathi and ramda. When the victim raised alarm uttering the words "save, save", people from the nearby fields reached the place of occurence. Nakul Ghosh, Madhu Hazra and Nadhu Ghosh, who had reached the place of occurence chased the assailants, who then escaped. Nakul, who has deposed as P.W. 7 gave the information and the rest carried the victim to his residence, from where he was admitted to Katowa sub-divisional hospital. The First Information Report was lodged at 12.20 hours on the day following the day of assault, being 28th June, 2000. It has subsequently transpired from the evidence of prosecution witnesses that after the lower forearm of his right hand was amputated in Katowa hospital, he remained there for twenty-two days. There has been some dispute on the question as to whether such a long stay in the hospital was necessary or not, but this dispute has little impact so far this appeal is concerned. During that period, the victim had been referred to the Burdwan Medical College and Hospital for brain scan. After his discharge, he was taken to a nursing home in Kolkata and underwent further treatment there.
4. The case, which was registered as Kaliganj P.S. Case No. 138 of 2000 was initially investigated by Bimal Kumar Pati (P.W. 13) who at the material point of time was the officer-in-charge of the said police station. Another sub- inspector of police, Sagar Chandra Saha (P.W. 15) was subsequently posted as Officer-in-charge at the same police station on 6th October 2000, and from that date he continued with the investigation. In his deposition, he has stated that while he was on leave during his tenure as Officer-in- charge of the said police station, an amputated right hand was seized by one Subhash Chandra, a police personnel and a seizure list was prepared, which was marked as "Ext. 5". P.W. 15 continued investigation till 3rd March 2011. As he was under an order of transfer investigation was taken over by one Tapan Kumar Chattopadhyay as officer-in-charge of the same police station from 4th March 2001. Said Tapan Kumar Chattopadhyay deposed as P.W. 14. He had submitted the charge-sheet.
5. Charge was framed on two counts against all the appellants in the following terms:-
"First-That you, on or about the 27th day of June, 2000 at on the way in between Juranpur village and Jayrampur, P.S. Kaliganj, Dist. Nadia, were a member of unlawful assembly and were at that time armed with deadly weapons, to wit ramda, hansua, lathi, tangi etc. and did in prosecution of the common object of that assembly, namely in assaulting Jagannnath Roy to commit the offence rioting and thereby committed an offence punishable under Section 148 of the Indian Penal Code, and within my cognizance Secondly-That you, on or about the same time and at the same place in furtherance of the common intention of you all, did an act to wit assaulted Jagannath Roy with ram dao, hansua etc. with such knowledge and under such circumstances thst if by that act you had caused the death of Jagannath Roy, you would have been guilty of murder and that you cuased hurt to the said Jagannath Roy And thereby committed an offence punishable under Section 307/34 of the Indian Penal Code, and with my cognizance."
6. In course of trial, altogether 15 witnesses were examined by the prosecution, including the victim, Jagnnmoy Roy himself (P.W. 2). The other witnesses who deposed on behalf of the prosecution were the F.I.R. maker Mongolmoy Roy (P.W. 1), Purnima Roy (wife of the victim) as P.W. 3. Madhu Hazra (P.W. 4), Nadu Ghosh (P.W. 7) and Nakul Ghosh (P.W. 8) deposed that they were close to the place of occurence at the material point of time and on hearing the alarm raised by the victim, they had reached the spot and chased the assailants away. P.W. 4 has deposed as an eye- witness, having seen the incidence of attack of the victim with "dao", whereas P.W. 7 and P.W. 8 were post-occurence witnesses. In their evidence, they have stated that they had seen the assailants fleeing away. The other important part of their depositions is that on being asked who were responsible for his injury, the victim disclosed to them the identities of certain individuals. They also assisted the victim to be brought home. The other witnesses who deposed for the prosecution were the three Investigating Officers, as P.W. 13, P.W. 14 and P.W. 15, to whom we have already referred. Two doctors at Katowa sub-divisional hospital, Dr. Pareshnath Mitra (P.W. 11), who had carried on the amputation surgery and Dr. Arun Ghosh (P.W. 12) who treated the victim at the same hospital were also examined by the prosecution. Md. Jahangir (P.W. 5) at the material point of time was an assistant sub-inspector at kaliganj police station. He had received the written complaint and registered the F.I.R. Md. Sajman Sk. (P.W. 6) deposed as the scribe of the written complaint. Srimonta Roy (P.W. 9) deposed as seizure witness of bloodstained and sample earth from the place of occurrence. This seizure list has been marked "Exhibit 3". One Adhir Ghosh (P.W. 10), was also a seizure witness of bloodstained wearing apparels of the victim. He had accompanied one Gautam Roy to the police station on 28th June 2000 for depositing the bloodstained wearing apparels. The said seizure list was marked "Exhibit 4". Both the seizure lists were prepared on 28th June, 2000.
7. All the ten appellants in their examination under Section 313 of the Code of Criminal Procedure, 1973 denied their complicity in the offence and claimed to be innocent. The tenth appellant, Sunirmal Hazra, who has also been referred to as Sentu Hazra, however, set up an alibi. In response to his examination under Section 313 of the Code he, inter alia, stated:-
"Sir, I am innocent. At present I am a Head
Master of Kanai Nagar Primary School. At the
time of incident I was a teacher of Kadihati Primary School. On that date at about 3.30 p.m. I went to Gobra Panchayet Office to bring the books and after receiving the books I kept in my school and where from at about 5.00 p.m. I had gone to Katowa."
8. Appellant no. 10 examined four witnesses in support of his plea of alibi. They were Fazlay Ahamed (D.W. 1), who was attached to Kadihati Primary School as head teacher when he was examined. D.W. 2, Sudarshan Das was posted as a teacher at the same school in the month of June 2000. The third defence witness was Ramjanam Choudhury (D.W. 3). He, at the material point of time was the anchal Pradhan of the Gobra gram panchayat. The fourth defence witness was Tapan Kumar Das. He was attached to the Gobra Panchayat Office as job assistant in the year 2000. In course of his examination-in-chief, Tapan Kumar Das had identified the signature of Sunirmal Hazra on the Master Roll of the Anchal Panchayat for supplying the books to all the students of respective primary schools under that Anchal. In the certified copy of that Master roll marked Ext. 'B', he referred to the signature of the Appellant no. 10 along with endorsement of the date, being 27.6.2000. He has deposed that Sunirmal Hajra had received the books by his signature on 27th June 2000. As regards the time when he handed over the books, he deposed:-"So far my memory goes we handed over the books in question to Sunirmal Babu at about 4.45 P.M. after the meeting was over on the relevant date". Of these four defence witnesses, Sudarshan Das (D.W. 2) specifically stated that the appellant no. 10 had left the school for bringing the books from Gobra anchal panchayat office. On seeing the attendance register of 27th June 2000, he stated in his deposition, inter alia:-
"On that date the said Sunirmal Babu left our school at 3.30 P.M for bringing the books from Gobra Anchal panchayat Office which is 6 to 7 kilometers off from our Kadihati Primary School. This is the said attendance register of the relevant date. This relevant page of that date be marked exhibit A."
9. The Trial Court's decision on conviction was founded primarily on evidence of P.W. 2 being the victim and P.W. 4, P.W. 7 and P.W. 8. In the opinion of the Trial Court there was corroboration of their statements by the P.W. 1, being the F.I.R. maker (also the elder brother of the victim) and P.W. 3, being the wife of the victim. P.W. 2 has altogether named 10 persons excluding Krishna Dey. In course of his examination-in-chief, he referred to nine appellants who, according to him had come out from a jute field with lathi, ramda, hansua and claim that they encircled him. The name of Haru Chand has also been specified in his deposition, as the person, who along with Uttam, Mati, Sahadeb and Bipad began to assault him with ram dao. He has stated in his examination-in-chief, describing the incident:-
"On that date and time while I was returning by my bi-cycle after attending meeting as regards to the matter of hospital of Juranpur and after crossing a few distance from a culvert near the land of said Balak Das, then the accd. Santu Hazra, Krishna Dey, Sahadeb Dey, Mati Hazra, Bipad Hazra, Uttam Hazra, Tapan Dutta, Nisakar Gupta, Jaydeb Mandal and Manick Pal came out from the field of jute armed with lathi, ramdao, hansua and encircled me on the metalled road. Then the accd. Santu ordered them Mar Kop. Then I tried to flee away by leaving my cycle. Then the accd. Krishna caught hold me. Then, the accd. Uttam, Mati, Sahadeb, Bipad and Haru Chand began to assault me by ram dao. While accd. Shadeb tried to struck me by ram dao aiming me on my neck, then I tried to resist that blow by my right hand as a result, the blow of ram dao fell on my right wrist and I sustained out injury on my right wrist and a some portion of my right wrist was joined with my hand and I sat down and accd. Uttam, Mati Haru Chand, Bipad began to strike me by ram dao on my person but I got cut injuries on my head, neck and shoulder. Then, I fell down on the ground. While I was assaulted by them then I raised alarm saying 'mere fallow, mere fallow.' On hearing my alarm, Madhu, Nadu, Nakul and other villagers rushed towards me. On seeing them, the accused persons fled away from the field. Madhu tied my cut portion of right wrist by napkin. Then, I was taken by Madhu, Nadu on their shoulder and Nakul took my cycle towards my house for reporting the same to the inmates of my house. Thereafter, I was taken near to my house. Then, the inmates of my house came out from my house and I was taken to Katowa hospital, accompanying them. For the first time, I stated the incident to my wife and the persons who were assembled there and thereafter I was hurriedly taken to the hospital."
(quoted verbatim)
10. The Trial Court did not accept the plea of alibi of the appellant no. 10, observing:-
"Furthermore, the defence wanted to prove that on the relevant date upto 3-30 p.m. the accused Santu Hazra was in his School and Attendance Register of the said School has been marked as ext. A and the alleged P.O. is situated at a far off distance from the said school. It has also been pointed out that on the relevant date Santu Hazra, the accused being the Head Teacher of Kadihati Primary School came to Gobra Gram Panchayat Office for bringing the books of the students at a free of cost from the said Panchayat office and so the name of the accused Santu Hazra as stated by the P.Ws. is quite un- natural. But, at the same time, it has been pointed out by the learned p.p.-in-charge at the time of argument that no such document has come forward before the learned Court that on the relevant date, the accused Santu Hazra went to bring books from the concerned Panchayat office and came to the school thereafter and kept the same in the said school. Furthermore, the learned P.P.-in-charge also disputed about the ext. A on the same ground that the document in question was prepared thereafter as the accused Santu Hazra was the Head Teacher at the relevant period and the document was in his custody. I have very carefully gone through the submission of the learned Advocate on behalf of the defence as well as the submission of the learned P.P.-in- charge and also perused the ext. A to C and it appears to me that there is no corroborative or documentary evidence on the part of the defence that accused Santu Hazra, who being the Head Teacher of the said School had been to Gobra Gram Panchayat office at the relevant time to bring the books in question and after receiving the said books he again went to his school and thus the plea as taken by the defence as regards to accused Santu Hazra did not inspire my confidence."
11. The Trial Court found the appellants guilty of the offences they were charged with, holding:-
"On careful consideration of the entire evidence and materials on record, I have no hesitation to hold that the evidence of P.W. 2 is fully corroborated with the evidence of P.Ws. 4, 7 and 8 who are the eye witnesses to the occurrence, coupled with the medical report vide ext. 4 series and also with the evidence of P.Ws. 1 and 3 who heard the incident from the P.W. 2, the victim-injured of this case who stated in his evidence that he stated the fact of the incident to them, including the names of the accused persons thereafter. Consequently, I have no hesitation to hold that on the relevant date and time, the accused persons being armed with deadly weapons attacked and encircled P.W. 2 and as per order of accused Santu Hazra, the accused Krishna Chandra Dey caught hold of him and the accused persons viz. Sahadeb Dey, Mati Hazra, Bipad Hazra, Haru Chand and others began to assault him by ram dao and by the strike of Sahade, the right hand of P.W. 2 was amputated and the accd. Uttam, Mati, Haru and Bipad began to strike him by ram dao and the rest accused persons also encircled him as such, I have no hesitation to hold that all the accused persons had the intention to assault P.W. 2 with a view to kill him on the relevant date and time and they assaulted him by ram dao and hansua and by that assault P.W. 2 sustained injuries on his person and thereafter his right wrist of the right hand was also amputated and I also hold that all the accused persons whose names as stated by the injured P.W. 2 are responsible which may cause the death of him for such offence. It is pertinent to note that the dealy in filing or lodging the F.I.R. has been properly mentioned by P.W. 1 in his evidence as well as in ext. 1, the F.I.R."
(quoted verbatim)
12. This judgment has been assailed by the appellants on multiple counts. It has been urged on their behalf that there is delay of a day in lodging the F.I.R. The specific time of delay has been computed to be 19 hours and 20 minutes from the time of occurence of the incidence and it has been pointed out that the police station and the hospital were situated side by side. As regards proximity of the police station to the hospital, the deposition of P.W. 6 has been highlighted, where he stated that Kaliganj hospital and Kaliganj Police Station are situated side by side. So far as this case is concerned, however, such proximity is not of much significance as the victim was taken to Katowa hospital, and not Kaliganj hospital. Delay in forwarding the First Information Report to the Sub- Divisional Judicial Magistrate has also been emphasized by the learned counsel appearing for the appellants. The endorsement on the F.I.R. suggests the same was received on 30th June by the Sub-Divisional Judicial Magistrate whereas the F.I.R. was lodged on 28th June, 2000. In this regard, violation of the provisions of Section 157 of the 1973 Code has been alleged. Learned counsel for the appellants have also argued that there is ambiguity in describing the place of occurrence which ought to weaken the prosecution version of the case. In particular, it has been submitted that there was no clear evidence as to whether the alleged incident took place on metalled Road or near the land of Balok Das. It is also pointed out on behalf of the appellants that the rough sketch map which has been made 'Exhibit 6' does not clearly specify the location of the place of occurence.
13. We have been taken through the depositions of P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 7 and P.W. 8. P.W. 2 is the victim and P.W. 4 has deposed as an eye-witness whereas the rest are all post-occurence witnesses. Submission of the appellants is that there are inconsistencies in the versions of these witnesses on diverse aspects while describing the role of the accused-appellants individually in the act of assault. The P.W. 2, the victim has stated that Sentu Hazra, Krishna Dey, Sahadeb Dey, Mati Hazra, Uttam Hazra, Tapan Dutta, Nishakar Gupta, Jaydeb Mandol and Manik Pal had come out of the jute field and encircled him on the metalled Road. Thereafter on exhortation of Sentu, Krishna grappled him and Uttam, Mati, Sahadeb, Bipod and Haru Chand began to assault him with ramdao. The actual blow which resulted in near severance of his right lower forearm is attributed to Sahadeb. According to him, Uttam, Mati, Haru Chand and Bipod thereafter began to strike him with ramdao. There is no person by the name of Haru Chand arraigned as accused but the appellant no. 3, Haradhan Chandra Dey has been identified by the witnesses, who in their depositions have referred to Haru Chand. Similarly, in the deposition of P.W. 4, surname of Sentu has been noted to be Halder and Hazra in two different sentences. This witness also identified Sunirmal or Sentu Hazra as well as other accused persons, and there was no accused by the name of Sentu Halder. On these counts, no specific argument on misidentification has been raised on behalf of the appellants. We accordingly proceed on the basis that Haradhan Chandra Dey and Haru Chand is the same person. Madhu Hazra (P.W. 4), who has deposed as eye-witness in his examination-in-chief has stated:-
"AT that time, I was cutting grass (To court) in the field near the said rastha which was/is situated for about 1 to 1 bighas off from that rastha. Then says:- At that time I was in the field. Suddenly I heard a hue and cry. Then, I rushed to the P.O. and found that accd. Uttam was chopping Jaganmay Roy by dao. Sentu Halder, Tapan, Manick Pal and Sahadeb also were chopping Jaganmay by dao. On seeing me, they fled away. Then says:- I have seen to flee away them from the P.O. they are namely Sentu Hazra, Bipad Hazra, Mati Hazra, Uttam Hazra, Sahadeb, Manick Pal, Nisha Gupta, Jaydeb mandal. Thereafter, Jaganmmay fell down on the ground."
14. From the deposition of P.W. 4 it also transpires that immediately after the incident the P.W. 2 had named Sentu as the person who had ordered his assault and all the accused persons had chopped or hacked him and he specifically named Uttam, Bipod, Mati, Haru Chand and Sahadeb as his assailants, attributing striking of the main blow to Sahadeb. P.W. 7, a post-occurence witness has stated that he had seen about five persons fleeing and identified Bipod, Mati, Sahadeb, Uttam and Haru Chand.
15. P.W. 3, Purnima Roy is the wife of P.W. 2. P.W. 2, when brought to home was kept lying in front thereof before being taken to the hospital. In her deposition, she has stated that when the victim was brought home after the incident, he had named Sentu Hazra as the person who had ordered his assault and Krishna was the one who had grappled him. Uttam, Mati, Bipod, Sahadeb and Haru Chand are meant to have had hacked him using dao and hansua and the main blow had been struck by Sahadeb Ghosh. It also appears from the the deposition of Purnima that the victim had named Manick Pal, Jaydeb Mondal, Tapan Dey, Nisha Gupta as the persons who with lathis had encircled her husband. P.W. 1 being the F.I.R. maker in his deposition has, inter alia, stated:-
"After admission at Katowa hospital, my said elder brother reported to me the name of the persons viz. Krishna Chandra Dey who caught hold my said brother and ordered to assault my said brother by ramdao and accd. Sahadeb Dey, Mati Hazra, Bipad Hazra, Haru Chand assaulted by brother by hansua and ramdao and some persons were standing there."
16. On behalf of the appellants, our attention has been drawn to the ratio of a Bench decision of this Court in the case of Mamfru Chowdhury Vs. King Emperor, (AIR 1924 Calcutta 323), in which one of the basic principles of criminal jurisprudence has been explained as:-
"The proof of the case against the prisoners must depend for its support, not upon the absence or weakness of explanation on their part, but upon the positive affirmative evidence of their guilt that is given by the Crown."
We accept this principle to be the guiding light in any criminal trial, and keeping this ratio in mind, we shall proceed to examine the evidence adduced in this case while testing the legality of the judgment under appeal.
17. We have been urged by the learned counsel for the appellants to disbelieve the version of the aforesaid witnesses of fact, on the ground that none of them is an impartial or neutral witness. P.W. 1 and P.W. 3 are close relatives of the victim, being his younger brother and wife. P.W. 4 was known to the victim and there was suggestion given to this witness that he was a "lethel" (which in today's context would imply a hired security personnel) of the victim. The P.W. 7 was also known to the victim and his father was a 'Peyada' (a peon or a messenger) of the victim. From his cross-examination, it appears that they were generation wise working in that capacity. P.W. 8 was also known to the victim Jagnmoy. There was suggestion to him that he was residing over the land of victim and that they were also 'peyada' of the Roy family generation wise, but these suggestions were refuted. It is also admitted position that there has been past enmity as well political rivalry between Sunirmal Hazra (Appellant no. 10) and the victim. It has transpired from examination of the P.W. 10 that Sentu and the victim were the candidates of a Panchayat election, in which the victim lost. P.W. 10, who was known to the victim also deposed that the victim was implicated in several cases. There also appears to have been a pending land dispute in which Haru, Mati and Bipod were involved. The P.W. 2 himself was arrested in a police case in the past. The P.W. 4 had in the past has been accused of injuring Mati. P.W. 7 has stated in his cross-examination that on several times in criminal cases he had been arrested by the police and forwarded to the Court and he was detained in hazat (lock- up) in connection with a murder case of a house wife. The P.W. 8 is also an accused in a case involving assault of one Dilip Sk. of another village. On the same point, i.e. reliability of these witnesses, it has been highlighted by the learned counsel for the appellants that though there is evidence to the effect that there were several persons who had gathered at the place of occurence after the incident, none of them who could be termed as independent, was produced as witness. The P.W. 2 (the victim) himself in his examination-in-chief has stated that on hearing his alarm Madhu, Nadu, Nakul and other villagers had rushed towards him. In his deposition P.W. 4 (Madhu Hazra) has stated that apart from himself Nadu, Prokash Ghosh, Keshab took the victim to his residence. The presence of Keshab and Prokash at the time the victim was taken to his residence from the place of occurence has also been corroborated by P.W. 7 and P.W. 8. In his deposition, the P.W. 8 has stated the name of one Jatai Das who had helped, along with the rest, in carrying the victim to his own residence. The other point which was urged on behalf of the appellants is that the P.W. 3, Purnima had never informed the Investigating Officer the names of the assailants. In this regard our attention has been drawn to the deposition of P.W. 14 Bimol Kumar Pati. In his cross- examination stated:-
"I examined Purnima who never stated before me that she was informed by Nakul Ghosh in connection with this case and she never stated that she along with her ja and daughter went to the alleged P.O. and her husband was taken by Madhu Ghosh from the alleged P.O. and her husband was kept in front of her house. She also never stated before me that Haru Chanda and Bipad Hazra chopped her husband by hensua. She also stated before me that some miscreants of her village assaulted her husband with a view to murder. There is no note in my C.D. that I enquired about the antecedent of the accused person."
18. So far as reliability of evidence of independent witnesses is concerned, no doubt that evidence of impartial witnesses lends credibility to the prosecution case. But it is also not the legal position that evidence of interested witnesses have to be altogether discarded. In the cases of Gurjit Singh Vs. State of Haryana [(2015)4 SCC 380] and Gangabhabani Vs. Rayapati Venkat Reddy (AIR 2013 SC 3681), principle of law on this point has been laid down. It has been held by the Hon'ble Supreme Court that the evidence of closely related witnesses is required to be scrutinized carefully and appreciated before any conclusion is made to rest upon. The same principle ought to apply in respect of interested witnesses also. In the judgment of Gurjit Singh (supra), referring to a decision of Hon'ble Supreme Court in the case of Ashok Rai Vs. State of U.P. [(2014)5 SCC 713], it has been observed that evidence of interested witnesses is not infirm. If the prosecution fails to produce independent witnesses in spite of there being reference to them, which has been asserted before us on behalf of the appellants citing the names of Prakash, Keshob and Jatai, in our opinion the same principle of law shall apply. We would have to subject the evidence of the above-referred prosecution witnesses to greater degree of scrutiny, but not discard them straightaway or altogether.
19. The appellants have argued that there were inconsistencies in the deposition of the P.W. 3 (wife of the victim) and she did not inform the Investigating Officer the names of the assailants. What was exactly stated to the investigating officer by the P.W. 3 does not appear from her examination-in-chief or cross-examination in clear terms. It has transpired from her deposition that she had gone to the police station after two days of occurence of the incident and reported the fact of the incident to the daroga babu (duty officer) who had written down the same. She has also stated in her cross- examination that it was not a fact that she stated that accused Haru and Bipod never chopped her husband. In response to cross-examination, she, inter alia, stated:-
"I stated before the I.O. at Katowa hospital on the subsequent day of the incident. At that time police, nurses and parents were present. I stating the same before the Court and prior to that I have consulted with my relatives and inmates of my house over the incident.
I cannot remember whether the said cycle was
shown to the I.O. or not. I did not take the
daroga babu to the place for the first time when I met my husband on the road. I came to Court for two times, including this day with summons. Not a fact that I stated before the I.O. that Manick, Tapan, Jaydeb and Nisa encircled my husband along with lathi. Not a fact I am deposing falsely as regards to the manner, time and place as I have stated in my examination-in-
chief about the incident. Not a fact I am
deposing falsely. Not a fact that I am deposing
falsely being tutored by my husband."
20. Other flaws in the prosecution case, pointed out by the learned counsel for the appellants are non-disclosure of the assailants' names before the doctor at the Katowa hospital, failure to seize any of the weapons of assault and failure to send the seized articles for forensic examination.
21. The bedhead ticket, which has been marked exhibit 4 does not contain sufficient details. The column which requires disclosures on "OPERATIONS" and "OTHER SURGICAL PROCEDURE" have been left blank, in the standard form used by the hospital, entitled "RECORD OF IN-PATIENT". The names of the assailants also have not been recorded. In similar cases, usually the patient or the accompanying persons inform the treating doctors these particulars. The P.W. 11, Dr. Pareshnath Mitra has deposed that he had amputated the right lower forearm of the patient. In cross-examination he stated that there was no note about the history of assault to the patient in the bedhead ticket and there was no note in the bedhead ticket how injury had occurred. In his deposition Dr. Arun Ghosh (P.W. 16) stated that the patient had informed that he was assaulted by dao. He was, however, not examined by the Investigating Officer for the case.
22. We shall first deal with the question of delay in lodging the complaint. The fact of injury of the victim has been established by the prosecution. Injury was of serious nature and amputation of the victim's right lower forearm has also been established by the P.W. 11. From his deposition, we find that the victim was admitted at 8.25 p.m. on 27th June 2000 and the F.I.R. maker was accompanying him. The amputation surgery must have had taken place after that. The P.W. 1 has stated that the complaint was written at 8 A.M. the following morning, at Katowa hospital in the district of Burdwan and thereafter it was submitted to the police station at Kaliganj police station in the district of Nadia. In such circumstances, we do not think delay in lodging the F.I.R. was fatal in this case. The reason for delay comes out in the evidence of P.W. 1 itself. Next comes the question of delay in forwarding the complaint to the learned Magistrate. The endorsement shows that the F.I.R. was seen on 30th June 2016 by the learned Magistrate, though the complaint was lodged on 28th June 2016. The appellants have alleged breach of provisions of Section 157 of the Code of Criminal Procedure, 1973. The aforesaid statutory provision, however, does not mandate termination of investigation in case of delay in forwarding the F.I.R. Such delay, however, may raise suspicion of some kind of tampering in relation to the complaint. Learned counsel for the State submitted that a day's delay would not be fatal, and if this was the defence which the appellants-accused wanted to raise seriously, it was incumbent on their part to put questions to the police witnesses, being P.W. 6, who registered the F.I.R. and P.W. 13, the first Investigating Officer. On this point, the judgment of the Hon'ble Supreme Court in the case of Hem Raj Vs. Raja Ram (AIR 2004 SC 1489) has been relied upon on behalf of the State. In that case, the names of the accused persons were not recorded in the inquest report. For that reason, the F.I. statement was disbelieved by the Hon'ble High Court. This reasoning was not accepted by the Hon'ble Supreme Court on appeal. It was observed in the judgment of the Hon'ble Supreme Court in appeal:-
"It is pertinent to note that neither the
investigating officer nor the officer who
conducted the inquest was questioned on this
aspect."
In the context of this case, where commission of
offence is established, we do not think the delay in
forwarding the F.I.R. would be fatal. There is delay of
only one day, which we do not think is sufficient to
demolish the prosecution case.
23. The place of occurence in this case stands
established. The appellants' contention is that there are
contradictory statements as regards the place of occurence. We find the sketch-map (Exhibit 6) prepared by the police personnel to be sketchy, lacking in details in specifying the surrounding areas. But the victim (P.W. 2), P.W. 4, P.W. 7 and P.W. 8 in their depositions have given a uniform description of the location, being between Juranpur and Jayrampur. P.W. 2 has described the location to be of little distance from a culvert near the land of Balok Das. There has been no contradiction in evidence as regards the place of occurence and P.W. 7 (in his cross-examination) and P.W. 8 in his examination-in-chief have stated the place of incident to be rashta, meaning road.
24. Learned counsel for the appellants have relied on the decision of the Hon'ble Supreme Court in the case of Surajit Sarkar Vs. State of West Bengal [(2013)2 SC (Cri) 146] to contend that the prosecution cannot be permitted to fill in the lacuna in the investigation before the Court, and the prosecution's failure to recover arms and prove use of such arms would be fatal. It has also been contended that the very fact that the investigating agency had failed to send the blood-stained earth and blood-stained wearing apparels for forensic examination is fatal to the prosecution case. On behalf of the State, on the other hand the cases of Maqbul Vs. state of U.P (AIR 2011 SC 184) and C. Muniappan Vs. State [(2010)9 SCC 567] have been referred to in support of their submissions.
25. The question as to whether defective investigation would result in nullification of the prosecution case would largely depend on degree or dimension of the defect in investigation. In the case of Surajit Sarkar (supra), itself, where case was made of delayed examination of witnesses, the Hon'ble Supreme Court observed that delay per se might not be a clinching factor but when there is a whole range of facts that need to be explained but cannot, then the cumulative effect of all the facts could have an impact on the case of the prosecution.
26. The First Court judgment, impugned before us, is primarily founded on witness account of facts. The defects in investigation, urged by the appellants, involve delay in lodging of F.I.R., non-disclosure of names of the accused in the medical records, failure in recovery of the offending weapons, failure to have forensic testing of seized wearing apparels and blood-stained clothes. In the context of this case, in our opinion, these defects by themselves cannot demolish the prosecution case. The deposition of P.W. 12 (Dr. Arun Ghosh) records that the patient had stated that he was assaulted by "dao" and the wounds have also been described. The P.W. 12 in his examination-in-chief found three incised wounds in right post auricular region, left side of the neck and vault of scalp. We thus would have to refer to primarily witness accounts and the manner in which the Trial Court appreciated such evidence while testing the correctness of the judgment impugned. Learned counsel for the appellants have relied on a Full Bench judgment of the Hon'ble Bombay High Court in the case of Kamlesh Kumar Ishwardas Patel Vs. Union of India and Others [1995(1) All India Criminal Law Reporter 117] on a different point, which we shall deal with later. In that judgment, there is reference to a Common Law principle, "the criminal should not go free because the Constable blundered", which is accepted in India. This principle has been referred to in a different context in that judgment. But our decision in this appeal rejecting the plea of defective investigation raised by the appellants has been largely influenced by the underlying jurisprudential concept of this principle.
27. Before we examine the composite evidence involving all the accused-appellants, we shall examine the plea of alibi of the appellant no. 10. In his examination under Section 313 of the 1973 Code, he has stated that on that date at about 3.30 p.m. he went to Gobra Panchayat Office to bring the school books for the primary school, of which he was the head master. He further stated that after receiving the books he kept the same in his school, and left the school at about 5.00 p.m. D.W. 1, present head teacher of the school produced the attendance register. This has been marked 'Exhibit A'. The exhibit proves that the appellant no. 10 was present in the school on the date of occurence. His entry time is recorded as 11 and departure time is recorded as 3.30, which obviously implies the day-hours, though there is no specific reference as to whether the time was in terms of a.m. or p.m. In the same register, in a corresponding space, there is endorsement to the effect that the Headmaster had gone to Gobra Gram Panchayat Office to obtain the books. This endorsement is in bengali. D.W. 2 at the material point of time was a teacher of the said school. He deposed that on that date (i.e. 27.6.2000), he had left the school at about 3.30 p.m. for the said purpose. Thus, there is corroboration of the said endorsement. But he could not confirm, in his cross- examination, if the appellant no. 10 had returned to the school in the same afternoon or not. D.W. 3, Ramjanam Choudhury, who was the Anchal Pradhan of Gobra Gram Panchayat at the material point of time has stated in his deposition the existence of the book distribution practise and confirmed the distance of the said school from the panchayat office to be 6 kilometers. D.W. 4, Tapan Kumar Das was at the material point of time a job assistant of the Gobra Panchayat office. He has disclosed the distance of Juranpur from the Panchayat office to be 10 to 12 kilometers. Distance of Jayrampur from Kadihati, he has stated in his deposition, to be 20 to 22 kilometers. This would imply distance of Jayrampur to Juranpur to be about 10 to 12 kilometers off from Juranpur. He has referred to the Muster Roll of the Panchayat office of 2000 and has identified the signature of appellant no. 10 thereon (Exhibit 'B') signifying receiving the books. He has recalled from his memory that he had handed over the books in question to the appellant no. 10 at about 4.45 p.m. The depositions of these four defence witnesses along with the exhibits, establish presence of the appellant no. 10 at the Anchal Panchayat office. The deposition of D.W. establishes that he had been handed over the books at about 4.45 p.m. There is, however, no evidence that he had returned to the school the same afternoon.
28. The prosecution has sought to make out a case that evidence of the aforesaid Defence Witnesses were false. Suggestion has been given to the D.W. 2 that the relevant page of the school register was written by the appellant no. 10 afterwards, or that the appellant no. 10 never went to the panchayat office. D.W. 4 was given suggestion that the documents were created to save the appellant no. 10. These suggestions were refuted, and otherwise we do not find any contradiction in the depositions of the four defence witnesses. The prosecution has also not been able to establish that the three exhibits being 'A', 'B' and 'C', or content thereof, on which reliance has been placed by the appellant no. 10 are false. Thus, what has been clearly established from the evidence in support of the plea of alibi of the appellant no. 10 is that the said appellant had left the school at 3.30 p.m. for the Gobra Anchal Panchayat Office, and collected the books from that office, by making endorsement on the muster roll. As regards the time at which such books were handed over, the D.W. 4 has stated that it was at about 4.45 p.m., after the conclusion of a meeting. We do not have any reason to disbelieve this evidence.
29. To succeed in his plea of alibi, the appellant no. 10, however, has not been able to demonstrate through the Defence Witnesses that he had returned to the school on that date. What he has proved, however, on the basis of the deposition of D.W. 4 that Juranpur is 10 to 12 kilometers off from the Gobra Anchal Office. Apart from giving a suggestion to the D.W. 4 that it is incorrect description of distance, there is no contrary evidence to establish that the distance specified is incorrect. The place of occurrence, as it emerges from the deposition of P.W. 2, is between Juranpur and Jayrampur, and at that time he was returning to his home at Jayrampur. In this background, in our opinion, it would be safe to deduce that within 15 minutes, it would not have been possible for the appellant no. 10 to cross a distance of 10 to 12 kilometers, from the Panchayat office to Juranpur and beyond. There is no evidence that he was using a high- speed vehicle.
30. As opposed to this evidence, there is evidence of P.W. 2, the victim that at about 5 p.m. on 27th June 2000 the appellant no. 10 was at the place of occurence. P.W. 4 (Madhu Hazra) was also an eye-witness to the incident, saw Sentu along with Tapan, Manik Pal and Sahadeb chopping (hacking) the victim. Thereafter, he saw Sentu (appellant no. 10) with certain other accused persons flee away. The victim, at the place of location has indicated presence of Sentu along with other accused persons at the place of occurence to the P.W. 4, and 8 and thereafter to his wife (P.W. 3). The weight of evidence on presence of Sentu (appellant no. 10) at the place of occurence at the material point of time is weak. We are satisfied, on the basis of documentary evidence as well as depositions of Defence Witnesses that the appellant no. 10 had left the school for the Panchayat Office on the day of the incidence at 3.30 in the afternoon and was there at about 4.45 p.m. Thereafter, in our opinion, on the basis of evidence available, he could not be present at the place of occurence at the time the assault had taken place. We are not inclined to believe the prosecution witnesses seeking to establish presence of the appellant no. 10 at the place of occurence at the material point of time. We do not accept the reasoning given by the First Court in rejecting the plea of alibi of the appellant no. 10. In our opinion, the prosecution has failed to prove beyond reasonable doubt involvement of the appellant no. 10 in commission of the offence. The judgment of the learned First Court, to the extent it convicts the appellant no. 10, in our opinion is erroneous. The learned First Court has not properly appreciated the evidence of D.W. 4 and the exhibits A to C.
31. Having come to this finding, we considered whether exoneration of the appellant no. 10 would automatically lead to exoneration of the other appellants as well or not. On going through the materials on record, we find that involvement of the other accused persons in the subject offence was not dependant on finding of guilt against the appellant no. 10. The role of the other appellants in the commission of the offence was individually ascribed, and now we shall examine the basis of conviction of the other accused persons, who are also appellants before us. Their cases ought to be independently examined and dealt with.
32. Two judgements have been cited by the learned counsel for the appellants in support of their submission that some element of active participation in the offending act is necessary to be convicted for having common intention. The first authority is the case of Parshuram Singh Vs. State of Bihar [JT 20002(1) SC 407] and Bikramaditya Singh Vs. State of Bihar [(2013)2 SCC (Cri) 169]. In the case of Parshuram Singh (supra), one of the accused persons had made oral exhortation in a case in which four persons convicted under Section 302/34 had appealed against their conviction. That person had a pistol with him. Another accused was armed with lathi and ordered the killing of the victim but evidence did not show his participation in assault. Opinion of the Supreme Court was that if they had any common intention, it was improbable that there was no use of such weapons. Both these accused persons were acquitted applying the principle of benefit of doubt. In the case of Bikramaditya Singh (supra) several accused persons had surrounded the victim and the appellant had exhorted other accused persons to kill the deceased. Possession of firearm by the appellant was alleged but this was disbelieved. Following the principle laid down in the case of Parashuram Singh (supra), the appellant was given benefit of doubt and his conviction was set aside. A series of cases decided by the Supreme Court in which conviction on the basis of exhortation was taken was cited by the learned counsel for the State. These are:-
(i) Ramaswamy Ayyangar Vs. State of Tamil Nadu (AIR 1976 SC 2027)
(ii) State of A.P. Vs. Thakkidaram Reddy & Ors. [(1998)6 scc 554]
(iii) Surendra Chauhan Vs. State of M.P. [(2000)4 scc 110]
(iv) Gopinath Vs. State of U.P. [(2001)6 scc 620]
(v) Jaswant Singh Vs. State of Haryana [(2004)4 scc 484]
33. In the case of Ramaswami (supra), it has been held:-
"The contention is fallacious and cannot be accepted. Section 34 is to be read along with the preceding Section 33 which makes it clear that the "act" spoken of in Section 34 includes a series of acts as a single act. It follows that the words "when a criminal act is done by several persons" in Section 34, may be construed to mean "when criminal acts are done by several persons".
The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design. Such a person also commits an "act" as much as his co- participants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the 'criminal act'. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. In the case before us, A-2 obviously, was acting in concert with A-3 and A-4 in causing the murder of the deceased, when he prevented PW 1 from going to the relief of the deceased. Section 34 was therefore fully attracted and under the circumstances A- 2 was equally responsible for the murder of the deceased. Under these circumstances we think the High Court was justified in convicting A-2 for the offence of murder of Kaliyaperumal with the aid of section 34 of the Penal Code. There was absolutely no difficulty in maintaining the convictions of A-3 and A-4 for the murder of Kaliyaperumal with the aid of section 34 because both had mercilessly assaulted him with Aruvals on the vital parts of the body. In the case of A-2 also it is quite legitimate to hold that he had shared the common intention of A-3 and A-4 in the commission of the murder of Kaliyaperumal."
34. The three other authorities also lay down the same principle of law. Before we express our opinion on this aspect, we would like to point out that involvement in the offence through exhortation primarily relates to the appellant no. 10, and we have already found his plea of alibi to be acceptable. But substantial argument has been advanced on this point, and the point of exhortation has been compositely argued along with the requirement for proving direct participation in an assault to establish common intention under Section 34 of the 1860 Code. As such, we shall test the rival submissions on this point as well.
35. In view of this line of authorities cited on behalf of the State, learned counsel for the appellants had brought to our notice a Full Bench decision of the Bombay High Court in the case of Kamlesh Kumar Ishwardas Patel Vs. Union of India & Ors. (supra). This judgment is an authority on the question as to which authority ought to be followed in the event we are confronted with contrary decisions of the Superior Court emanating from co-equal benches. It has been held in this judgment:-
"Our attention has been drawn by Mrs. Ranjana Desai to the Full Bench decision of the Allahabad High Court in Ganga Saran v. Civil Judge where also a similar view has been taken by the three Judge Bench (at p. 118). With respect, this can be the only reasonable solution and the only way out, when we are confronted with contrary decisions of the Supreme Court emanating from co- equal Benches. Both being binding on us by reason of their authority, we cannot but have the unpleasant task of choosing that one which appears to have better authority of reasons. During the preparation of this judgment our attention has also been drawn to the Division Bench of this High Court in Manasing Surajsingh (1968) 70 Bombay LR 654 at 669) where Tarkunde, J., speaking for the Bench, has also taken the same view after referring to, with approval, the following observations in Salmond on Jurisprudence, 12th Edition Page 153 :-
"Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be."
It may also be noted that the same view was taken by one of us (Bhattacharjee, C.J.) in Gopal Chandra Kalay v. State (1981 Lab IC 422) and in Union of India v. Ashok (AIR 1983 Sikkim 19) and also by a learned single Judge of this Court in Special Land Acquisition Officer v. Municipal Corporation . We may, however, note that the Full Bench of the Allahabad High Court in Ganga Saran (supra) has failed to notice an earlier Full Bench decision of that Court itself in U.P. State Road Transport Corporation (AIR All 1) which laid down a contrary proposition."
36. In the factual context of this case, however, we do not think it would be necessary for us to undertake the pick and choose exercise prescribed in Salmond on Jurisprudence referred to in that judgment. Neither Parshuram Singh (supra) nor Bikramaditya Singh (supra) lays down a new ratio on interpretation of Section 34 of the 1860 Code. The ingredients necessary for establishing common intention in terms of Section 34 of the 1860 Code has been laid down in clear terms by the Hon'ble Supreme Court in the case of Ramaswamy (supra), and the relevant passage from that judgment we have quoted above. Parashuram singh (supra) or Bikramaditya Singh does not deviate from this principle. Nor these two judgment lay down a contrary principle. The Hon'ble Supreme Court in these two cases did not find consensus of minds or common intention of the appellants in these with other accused persons on the basis of lack of participation in the offending acts by the appellants therein. These appeals were decided on the basis of evidence adduced in the cases from which those two appeals originated. In the case before us, however, evidence point otherwise.
37. Argument on this point was primarily advanced on behalf of the appellant no. 10, and if this point involved him alone, we would have avoided any discussion on this aspect in this judgment. But if this lack of direct participation principle is applied in this appeal, then it would be contended that the same principle also would cover the cases of Tapan (appellant no. 5), Manick (appellant no.
4), Nisha (appellant no. 7) and Jaydeb (appellant no. 6) as well. In his deposition, the victim (P.W. 2) has attributed direct physical assault on him to Krishna (deceased), Uttam, Mati, Sahadeb, Bipad and Haru Chand. The evidence of the P.W. 2 in this case, however is that when he reached the place of occurence, all the ten appellants came out from the jute field armed with lathi, ramdao, hansua and encircled him on the metalled road. On Sentu's (appellant no. 10) exhortation, "hack him", (which we now disbelieve) Krishna (deceased) grappled him and the aforesaid five appellants started striking blows on him. When people from the surrounding fields or area reached the place of occurence, all the appellants fled away together. The appellants, being Tapan Dutta, Nisakar Gupta, Jaydeb Mandal and Manick Pal, thus also had participated in the act of assault and shared common intention or object with the other appellants-accused persons barring the appellant no. 10. They cannot escape punishment for the sole reason that they directly did not participate in the assault, by committing the acts of hacking the victim.
38. While dealing with the depositions of these witnesses, we have also considered the fact that majority of the eye- witnesses and post-occurence witnesses of fact had implicated the appellant no. 10. We have found the plea of alibi of the appellant no. 10 to be acceptable, and to that extent the evidence of these witnesses would have to be disbelieved. Now what would be the impact of this on their depositions? In our opinion, for this reason, rest of their depositions ought not to be disbelieved, but their depositions would have to be subjected to strict scrutiny, in the same manner which we have already observed their depositions would have to be tested, for being related or interested witnesses.
39. We shall now deal with the most critical question involved in this appeal, that is whether there was sufficient evidence of guilt against the accused persons under the provisions of the 1860 Code, with which they were charged with. The First Court considered the eyewitness account of the victim (P.W. 2) and P.W. 4. The post- occurence witnesses reached the place of occurence immediately thereafter. These two witnesses saw certain persons fleeing away. P.W. 7 could recognize five of them, Bipad (appellant no. 2), Mati (appellant no. 8), Sahadeb (appellant no. 9), Uttam (appellant no. 1) and Haru Chand (appellant no. 3). The P.W. 8 has deposed that he heard the "hue and cry" from a distance of 100/150 cubits, and he saw three persons fleeing away, being Bipad (appellant no.
2), Mati (appellant no. 8) and Sahadeb (appellant no. 9). The victim has named all the accused persons and has ascribed their specific role in the assault in his deposition. The P.W. 4 has deposed that he had seen Uttam (appellant no. 1) chopping the victim by dao. In his examination-in-chief he has also stated that he had seen Sentu Halder, Tapan, Manick Pal and Sahadeb were also hacking the victim by dao.
40. So far as Sentu is concerned, we have already held that the charges against him have not been proved beyond reasonable doubt. As per deposition of P.W. 4, he saw Tapan and Manick were also hacking the victim. The victim, P.W. 2 has not ascribed this role to Tapan and Manick, but though we will believe the version of the victim on this count, we shall not altogether discard the version of P.W.
4. In our view, in a situation of this nature, when a person becomes a chance witness to an incident of assault on a victim by several assailants, there may be variation in description of roles played by individual assailants in the act of assault. For this reason alone, the entire evidence of a witness ought not to be disbelieved.
41. P.W. 4 has thereafter named eight of the appellant- accused, who, he has stated, saw fleeing away. Apart from Sentu Hazra (appellant no. 1), they were Bipad Hazra (appellant no. 2), Mati Hazra (appellant no. 8), Uttam Hazra (appellant no. 1) Sahadeb (appellant no. 9), Manick Pal (appellant no. 4), Nisha Gupta (appellant no. 7) and Jaydeb Mondal (appellant no. 6). Of the ten appellants, P.W. 4 has stated seeing Haru Chand, at the place of occurrence. Version of the incident depicted by the P.W. 4 varies from the version given by P.W. 2 in certain aspects. P.W. 2 has not deposed Sentu had struck him. This variation also, in our opinion is not fatal, and the reason for that we have already explained.
42. The version of the incident also comes from the evidence of P.W. 4, P.W. 7 and P.W.8 in the form of narration of the incident to them by the victim at the place of occurence. P.W. 4 has deposed that the victim told him that Sentu ordered and rest of all the accused persons had chopped him. Thereafter, he specifically named Uttam, Bipad, Mati and Sahadeb, the last one having dealt the main blow. P.W. 7 and P.W. 8 in their depositions have given the same version of that of the victim, that after Sentu had ordered, Krishna Dey (now deceased) had grappled him and thereafter Bipad, Madhu and Sahadeb had "chopped" him. To P.w. 8, the victim had also stated that Haru Chand, Uttam Hazra, Nesha, Manick, Jaydeb and Tapan Dutta were with them.
43. The wife of the victim, Purnima Roy (P.W. 3) in her deposition stated that after the victim was brought home and was kept in front of his house, he had narrated to her the manner in which the incident occurred and the names of the assailants. In her examination-in-chief, she stated, as the version of her husband told to her that "Sentu Hazra ordered and Krishna caught hold of him. Then accused Uttam, Mati, Bipad, Sahadeb, Haru chand chopped him by dao and hansua. The right wrist of my husband was cut off by the struck of Sahadeb Ghosh. At the time, Manick Pal, Jaydeb Mandal, Tapan Dey, Nisa Gupta were encircled my husband by lathi ..." (quoted verbatim)
44. The other witness who has narrated the version of the incident is the de facto complainant, Mangalmay Roy (P.W.
1). In his deposition, he has stated that the victim, his brother told him after admission in the Katowa hospital the name of Krishna Chandra Dey, who caught hold of the victim and ordered to assault the victim by ramdao and accused Sahadeb, Mati Hazra, Bipad Hazra and Haru Chand assaulted the victim with ramdao and hansua. His deposition, however, does not name Sentu as the person who ordered hacking of the victim. Sentu's name, however, had been stated in the written complaint.
45. As we have already observed, the main witnesses in this case all have certain links with the victim and they could be termed as interested or related witnesses. We have also referred to various authorities which lay down that the depositions of interested witnesses ought not be discarded altogether but while weighing their probative value a high degree of caution should be exercised by the Court. The exercise of such caution would involve testing if these witnesses have made any contradictory statements or not. Otherwise, if they stick by their version of narration of the incident and no other evidence is adduced which would render their deposition on facts doubtful then their evidence would have to be accepted. The contradictions, on prosecution version, which have surfaced in course of hearing of this appeal are identification of the accused-appellants in the various roles they meant to have had played in the assault. There is also some contradiction in identifying the weapons of assault which have been termed as "dao", "ramdao" or "hensua". These are all commonly used sharp-edged harvesting implements and wrong reference to the implement by name would not be fatal to the case of the prosecution. In this case, the failure to recover the assault weapons is also not of great significance as assault has been proved and amputation of the right lower forearm has also been established.
46. A point on which argument was advanced on behalf of the appellant was that P.W. 3 had not specifically named the accused persons in her examination by the Investigating Officer. On this point, the appellants sought to rely on the decision of the Supreme Court in the case of Ramaiah Vs State of Karnataka [(2014)9 SCC 365] to contend that it is permissible to assail a judgment of conviction on the basis of documents seized and produced but withheld by prosecution. In this case conviction is primarily on evidence on factual narrative of the incident, where the victim himself has narrated the incident of assault in detail. The appellants have not shown any contradictory medical report or other documents which could falsify the factual basis of the offence, which is hacking the victim with sharp-edged weapon. It was urged that the dismembered portion of the hand, which was seized was not sent to the forensic laboratory and it was not scientifically established that the seized part of a human body was that of the victim. But we do not think that factor improves the defence case, as striking the blow ultimately resulting in amputation of lower right forearm has been proved by the prosecution.
47. For these reasons, we do not find any reason to interfere with the judgment of convicting and the quantum sentence awarded against the appellant nos. 1 to 9. Their convicting and sentence are sustained. The appeal of appellant nos. 1 to 9 is dismissed. We were apprised by the learned counsel for the parties in course of hearing that the appellant nos. 2 to 7, being Bipad Hazra, Haradhan Chanda (Chandra), Manick Pal, Tapan Dutta, Jaydeb Mandal, Nishakar Gupta, were enlarged on bail during pendency of the appeal. Their bail bonds are cancelled. The Chief Judicial Magistrate, Nadia shall direct the sureties of these appellants to produce them before him within a fortnight for taking them into custody for their serving out the sentence as per the order of the learned First Court. In case of failure of the sureties to produce them, the entire bail amount shall be forfeited and learned Chief Judicial Magistrate, Nadia shall take appropriate steps as per law for taking these appellants into custody and realization of the forfeited bail amount.
48. So far as appellant no. 10 is concerned, the part of the judgment convicting him is set aside, and he is acquitted of the offence he has been charged with. The sentence awarded against him shall also stand set aside. He shall be set at liberty, and be released from bail bond.
49. Urgent Photostat certified copy of this judgment and order be given to the parties expeditiously, if applied for. The lower Court Records along with a copy of this judgment shall be sent down forthwith to the Trial Court. I agree (Sankar Acharyya, J.) (Aniruddha Bose, J.)