Phani Bhusan Das & Another Vs. tate of West Bengal
EmailAppeal: Criminal Appeal No. 309 of 1990
Petitioner: Phani Bhusan Das & Another
Respondent: tate of West Bengal
Apeal: Criminal Appeal No. 309 of 1990
Judges: M.M. PUNCHHI & K. JAYACHANDRA REDDY, JJ.
Date of Judgment: Sep 16, 1994
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860:
Sections 304, 34, 148 and 323/149 – Two appellants were con- victed under section 304 part II/149 IPC while acquitting 15 out of 17 accused in respect of attack on the deceased – If the same test is to be applied, then the case of appellants would come under the same category – Evidence of the eye witnesses is not acted on in respect of 15 out 17 accused rejecting the substratum of the prosecution case in respect of attack on de ceased – Conviction and sentence of four years’ set aside – Other conclusions under sections 148, 323/149 confirmed.
Held:
The evidence of 4pthe eye-witnesses shows that not only the appellants but others also inflicted injuries on the head with lathis. The Doctor,who examined the deceased, found three lacerated injuries on the head of the deceased and he opined that those could have been caused by a hard and blunt object like an iron rod, shovel or lathi etc. The case of the appellants was singled out only on the ground that they used the iron rod and shovel. In their earlier statements the alleged eye-witnesses stated that all the accused including the two appellants inflicted blows with their respective weapons on different parts of the body, as can be seen from the cross-examination of the investigating officer. These are all vital contradictions in the evidence of the alleged eye-witnesses and it cannot definitely be said that these two appellants alone are responsible for causing the death. Though the witnesses have deposed throughout that all the accused caused injuries with their respective weapons on different parts of the body of the deceased, 15 out of the 17 accused were not found guilty in respect of the attack on the deceased and they were accordingly acquitted of that charge. If the same test is to be applied then the case of the appellants also would come under that category. Further this is a case relating to an occurrence that took place in the year 1973. In any event the evidence of the witnesses is not acted upon in respect of 15 out of the 17 accused, as stated above thereby rejecting the sub-stratum of the prosecution case in respect of the attack on the deceased. (Para 3)
The conviction of the appellants under Sections 304 Part II/34 I.P.C. and sentence of four years’ R.I. are set aside and they are acquitted of that charge. The other convictions under Sections 148 and 323/149 I.P.C. are confirmed but the sentences are reduced to the period already undergone. (Para 4)
Phani Bhusan Das & Another v. State of West Bengal (16-09-1994) JT 1994 (6) SC 57 (M.M. Punchhi & K. Jayachandra Reddy, JJ.)
JUDGEMENT:
K.JAYACHANDRA REDDY, J.:
1. The two appellants Phani Bhusan Das and kanai Bag (original accused nos. 1 and 13 respectively) were tried alongwith 15 others by the learned Assistant Sessions Judge, Midnapore under Sections 148, 323/149, 325/149 and 304 Part II/149 I.P.C. The learned Assistant Sessions Judge acquitted one and convicted the other 16 persons including the appellants under Sections 148, 323/149 and 304 Part II/149 I.P.C. Under the last count, the two appellants were sentenced to undergo R.I. for seven years and other accused were sentenced to lesser terms of imprisonments. All of them were also convicted under Sections 148 and 323/149 I.P.C. and sentenced to lesser terms of imprisonments. All the convicted accused preferred an appeal to the Sessions Court and the appeal was allowed. Aggrieved thereby the de-facto complainant moved the High Court in revision and the High Court set aside the order of acquittal and directed the re-hearing of the appeal on merits by the Sessions Court. After the remand the appeal was re-heard and the then Additional Sessions Judge confirmed the conviction of the 16 accused persons under Sections 148 and 323/149 I.P.C., as awarded by the learned Assistant Sessions Judge. As regards the conviction under Section 304 Part II/149 I.P.C. the learned Additional Sessions Judge acquitted the other 14 persons and convicted the two appellants under Section 304 Part II I.P.C. but reduced the sentenced to five years. Against the said judgment the two appellants preferred a revision to the High Court. The High Court again set aside the judgment and remanded the case and directed the re-hearing of the appeal so far it related to the two appellants with a further direction that the appeal on remand would be confined to the materials on record. The Sessions Court once again heard the matter in respect of the two appellants and dismissed the same. The two appellants again filed a revision and the High Court having considered the question elaborately whether Section 149 I.P.C. can be applied, ultimately convicted the two appellants under Section 304 Part II I.P.C. and reduced the sentence to four years. The other convictions under Sections 148 and 323/149 were confirmed. Having considered the applicability of Section 149 in respect of the offence under Section 304 Part II I.P.C. elaborately, the High Court ultimately convicted them under Sections 304 Part II/34 I.P.C. Hence the present appeal.
2. From the above facts it can be seen that the case has a chequered history. The same relates to an occurrence that took place at about 9.30 P.M. on 29th June,1973. It is alleged that P.W.2 Subodh went to the house of Sripati, his uncle where he was found to be talking with one Santi Shee at Village Barisha. He asked Santi See as to why he gave ‘Bhangchi’ in his sister’s marriage to which Santi declined to answer. Then A-1 came out and said that it was he who made the allegations against his sister. An altercation took place and P.W.2 was forcibly taken to his house by his family members. Thereafter according to the prosecution, A-1 alongwith other accused chased P.W.2 and damaged the house. On the next morning P.W.2 went to Howrah to inform about the incident to his three brothers while Parbati, P.W.17 and her father went to the Kolaghat Beat House to lodge a complaint. On 30th June, 1973 at about 11.30 P.M. all the brothers and Madan, P.W.18, went to the house of A-1 to ask as to why he gave ‘Bhangchi’. Then it is alleged that A-1 called other accused persons who came armed with lathis, shovels etc. formed into an unlawful assembly and attacked the house of P.W.2. Being afraid, P.W.18 came out of his house and he was assaulted by some of the accused. When Baidyanath, the deceased in the case, came out from the house, he was assaulted with rod by A-13 Kanai and he fell down. Then A-1 hit him on his head with an iron shovel. When the two other brothers Subodh and Charan came out, they were also assaulted by some other accused. Meanwhile the police was informed and a complaint was given. The police removed the injured to the Health Centre and the deceased Baidyanath was removed to the Tamluk Hospital where he died on Ist July, 1973 and an altered F.I.R. was issued. The inquest was held over the dead body and the same was sent for post-mortem. The Doctor found some injuries on the head and opined that the injuries could have been caused by some blunt weapons. The Doctor also found some swellings on the body which could have been caused by hands and blunt instruments. He gave the opinion that the death was due to the head injuries. After completion of the investigation, the charge-sheet was laid.
3. The prosecution relied on the evidence of the eye-witnesses some of whom were injured. As already mentioned, the trial court applied Section 149 I.P.C. and convicted all of them under Sections 304 Part II/149 I.P.C. The evidence of the eye-witnesses shows that not only the appellants but others also inflicted injuries on the head with lathis. The Doctor,who examined the deceased, found three lacerated injuries on the head of the deceased and he opined that those could have been caused by a hard and blunt object like an iron rod, shovel or lathi etc. The case of the appellants was singled out only on the ground that they used the iron rod and shovel. In their earlier statements the alleged eye-witnesses stated that all the accused including the two appellants inflicted blows with their respective weapons on different parts of the body, as can be seen from the cross-examination of the investigating officer. These are all vital contradictions in the evidence of the alleged eye-witnesses and it cannot definitely be said that these two appellants alone are responsible for causing the death. Though the witnesses have deposed throughout that all the accused caused injuries with their respective weapons on different parts of the body of the deceased, 15 out of the 17 accused were not found guilty in respect of the attack on the deceased and they were accordingly acquitted of that charge. If the same test is to be applied then the case of the appellants also would come under that category. Further this is a case relating to an occurrence that took place in the year 1973. In any event the evidence of the witnesses is not acted upon in respect of 15 out of the 17 accused, as stated above thereby rejecting the sub-stratum of the prosecution case in respect of the attack on the deceased.
4. For all these reasons the conviction of the appellants under Sections 304 Part II/34 I.P.C. and sentence of four years’ R.I. are set aside and they are acquitted of that charge. The other convictions under Sections 148 and 323/149 I.P.C. are confirmed but the sentences are reduced to the period already undergone. Accordingly the appeal is partly allowed to the extent indicated above.
1. The two appellants Phani Bhusan Das and kanai Bag (original accused nos. 1 and 13 respectively) were tried alongwith 15 others by the learned Assistant Sessions Judge, Midnapore under Sections 148, 323/149, 325/149 and 304 Part II/149 I.P.C. The learned Assistant Sessions Judge acquitted one and convicted the other 16 persons including the appellants under Sections 148, 323/149 and 304 Part II/149 I.P.C. Under the last count, the two appellants were sentenced to undergo R.I. for seven years and other accused were sentenced to lesser terms of imprisonments. All of them were also convicted under Sections 148 and 323/149 I.P.C. and sentenced to lesser terms of imprisonments. All the convicted accused preferred an appeal to the Sessions Court and the appeal was allowed. Aggrieved thereby the de-facto complainant moved the High Court in revision and the High Court set aside the order of acquittal and directed the re-hearing of the appeal on merits by the Sessions Court. After the remand the appeal was re-heard and the then Additional Sessions Judge confirmed the conviction of the 16 accused persons under Sections 148 and 323/149 I.P.C., as awarded by the learned Assistant Sessions Judge. As regards the conviction under Section 304 Part II/149 I.P.C. the learned Additional Sessions Judge acquitted the other 14 persons and convicted the two appellants under Section 304 Part II I.P.C. but reduced the sentenced to five years. Against the said judgment the two appellants preferred a revision to the High Court. The High Court again set aside the judgment and remanded the case and directed the re-hearing of the appeal so far it related to the two appellants with a further direction that the appeal on remand would be confined to the materials on record. The Sessions Court once again heard the matter in respect of the two appellants and dismissed the same. The two appellants again filed a revision and the High Court having considered the question elaborately whether Section 149 I.P.C. can be applied, ultimately convicted the two appellants under Section 304 Part II I.P.C. and reduced the sentence to four years. The other convictions under Sections 148 and 323/149 were confirmed. Having considered the applicability of Section 149 in respect of the offence under Section 304 Part II I.P.C. elaborately, the High Court ultimately convicted them under Sections 304 Part II/34 I.P.C. Hence the present appeal.
2. From the above facts it can be seen that the case has a chequered history. The same relates to an occurrence that took place at about 9.30 P.M. on 29th June,1973. It is alleged that P.W.2 Subodh went to the house of Sripati, his uncle where he was found to be talking with one Santi Shee at Village Barisha. He asked Santi See as to why he gave ‘Bhangchi’ in his sister’s marriage to which Santi declined to answer. Then A-1 came out and said that it was he who made the allegations against his sister. An altercation took place and P.W.2 was forcibly taken to his house by his family members. Thereafter according to the prosecution, A-1 alongwith other accused chased P.W.2 and damaged the house. On the next morning P.W.2 went to Howrah to inform about the incident to his three brothers while Parbati, P.W.17 and her father went to the Kolaghat Beat House to lodge a complaint. On 30th June, 1973 at about 11.30 P.M. all the brothers and Madan, P.W.18, went to the house of A-1 to ask as to why he gave ‘Bhangchi’. Then it is alleged that A-1 called other accused persons who came armed with lathis, shovels etc. formed into an unlawful assembly and attacked the house of P.W.2. Being afraid, P.W.18 came out of his house and he was assaulted by some of the accused. When Baidyanath, the deceased in the case, came out from the house, he was assaulted with rod by A-13 Kanai and he fell down. Then A-1 hit him on his head with an iron shovel. When the two other brothers Subodh and Charan came out, they were also assaulted by some other accused. Meanwhile the police was informed and a complaint was given. The police removed the injured to the Health Centre and the deceased Baidyanath was removed to the Tamluk Hospital where he died on Ist July, 1973 and an altered F.I.R. was issued. The inquest was held over the dead body and the same was sent for post-mortem. The Doctor found some injuries on the head and opined that the injuries could have been caused by some blunt weapons. The Doctor also found some swellings on the body which could have been caused by hands and blunt instruments. He gave the opinion that the death was due to the head injuries. After completion of the investigation, the charge-sheet was laid.
3. The prosecution relied on the evidence of the eye-witnesses some of whom were injured. As already mentioned, the trial court applied Section 149 I.P.C. and convicted all of them under Sections 304 Part II/149 I.P.C. The evidence of the eye-witnesses shows that not only the appellants but others also inflicted injuries on the head with lathis. The Doctor,who examined the deceased, found three lacerated injuries on the head of the deceased and he opined that those could have been caused by a hard and blunt object like an iron rod, shovel or lathi etc. The case of the appellants was singled out only on the ground that they used the iron rod and shovel. In their earlier statements the alleged eye-witnesses stated that all the accused including the two appellants inflicted blows with their respective weapons on different parts of the body, as can be seen from the cross-examination of the investigating officer. These are all vital contradictions in the evidence of the alleged eye-witnesses and it cannot definitely be said that these two appellants alone are responsible for causing the death. Though the witnesses have deposed throughout that all the accused caused injuries with their respective weapons on different parts of the body of the deceased, 15 out of the 17 accused were not found guilty in respect of the attack on the deceased and they were accordingly acquitted of that charge. If the same test is to be applied then the case of the appellants also would come under that category. Further this is a case relating to an occurrence that took place in the year 1973. In any event the evidence of the witnesses is not acted upon in respect of 15 out of the 17 accused, as stated above thereby rejecting the sub-stratum of the prosecution case in respect of the attack on the deceased.
4. For all these reasons the conviction of the appellants under Sections 304 Part II/34 I.P.C. and sentence of four years’ R.I. are set aside and they are acquitted of that charge. The other convictions under Sections 148 and 323/149 I.P.C. are confirmed but the sentences are reduced to the period already undergone. Accordingly the appeal is partly allowed to the extent indicated above.
