Calcutta High Court (Appellete Side)
Abu Taleb Mondal & Ors vs The State Of West Bengal on 27 February, 2026
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.A. 411 of 2014
Abu Taleb Mondal & Ors.
-Vs-
The State of West Bengal
For the Appellants : Mr. Kallol Kumar Basu
Md. Jannat Ul Firdous
For the State : Mr. Madhusudan Sur
Mr. Manaranjan Mahata
Judgment on : 27.02.2026
Ananya Bandyopadhyay, J.:-
1. This appeal is preferred against judgment and order of conviction dated
17.05.2014 & 19.05.2014 passed by the Learned Additional District &
Sessions Judge, Fast Track Court-III, Basirhat, North 24 Parganas in
Sessions Trial No.05(01)2013 arising out of Sessions Case No.01(06)2012
convicting the appellants under Sections 148, 325/149, 326/149, 307/149
& 354/149 of the Indian Penal Code and sentencing them to suffer rigorous
imprisonment for a period of 2 years each, for the offence under Section 149
of the Indian Penal Code, rigorous imprisonment for a period of 7 years for
the offence under Section 307/149 of the Indian Penal Code and rigorous
imprisonment for a period of 5 years each and to pay a fine of Rs.1,000/-
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each in default to suffer rigorous imprisonment for a period of 2 months
each for the offence under Section 326/149 of the Indian Penal Code
respectively and all the sentences shall run concurrently.
2. The prosecution case precisely stated one Rahima Bibi lodged a complaint
before the I/C Basirhat P.S. on 25.02.2010 alleging to have been possessing
the land being Plot No.1166 and 444 measuring 11 Katha within
Madhyampur mouza and cultivating the same over years. On 22.02.2010 at
about 09:00 a.m., in the morning
Abu Taleb Mondal, Firoj Mondal, Saifudding Mondal, Sariful Mondal, Abu
Khalek Mondal, Abu Kalam Mondal illegally entered into the said land for
reaping the Khariff Crops and they while they were severing Mustard Seed
Crops from the land, elder brother-in-law protested. Firoj Mondal instructed
the other offenders to kill him hurling abusive languages. Thereafter, Abu
Taleb Mondal assaulted her elder brother-in-law Bhasur with a "Shovel" on
his head with successive blows and as a result fell down on the ground
sustaining profused bleeding injury. Abu Khalek Mondal assaulted her
husband on his head with a "Lathi" made of bamboo. Saifuddin assaulted
with a "Kaste". When her husband came to rescue one of his fingers of his
right hand was cut off. The complainant and her family members
immediately rushed to the place of occurrence and the miscreants also
assaulted them with weapons in their respective hands. As a result of
which, her mother-in-law, sister-in-law, son-in-law fell down on the ground
sustaining bleeding injury being unconscious. At the alarm of her daughter,
local persons came to the place of occurrence and took them to Basirhat
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P.S. by a hired Maruti vehicle wherefrom they were admitted at Basirhat
Hospital. All five injured persons were admitted at Basirhat Hospital and
were medically treated.
3. On the basis of the said written complaint a case being Basirhat Police
Station Case No.68 of 2010 dated 25.02.2010 was initiated under Sections
147/148/149/323/325/326/307/354 of the Indian Penal Code against the
appellants and an investigation was taken up.
4. After completion of the investigation a charge-sheet was submitted by the
investigating officer against the appellant under Sections
147/148/149/323/324/307/354 of the Indian Penal Code to which the
appellants pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution examined as many as 9 witnesses
and exhibited certain documents.
6. Learned Advocate for the appellants submitted as follows: -
i. On 22.02.2010 at about 09:00 a.m., in the morning the petitioner Abu
Taleb mondal along with Firoj Mondal, Saifuddin mondal, Sariful
Mondal, Abu Khalek Mondal, Abu Kalam Mondal, allegedly infringed
into a "land" for cutting poppy seeds. Samsur Mondal (PW-1), the
brother-in-law of Rahima Mondal (PW-2) raised alarm and protest
while trying to stop the miscreants. Allegedly Firoj Mondal asked the
other petitioners to kill PW-1 while hurling abuses at him.
Immediately thereafter Abu Taleb Mondal allegedly assaulted PW-1
with shovel on his head with successive blows which made PW-1
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unconscious. The husband of de facto tried to save his brother,
during which he was allegedly attacked by Abu Khalek Mondal and
Saifuddin. During which allegedly one of his finger got amputated.
The de facto complainant along with her mother-in-law Sonovan Bibi,
Sufia Bibi and Rajiv Gazi, the relatives of the victim, went to the place.
They were also allegedly assaulted by the miscreants. It was Bilkis
Bibi (PW-8), the daughter of Samsur Mondal, who in her statements
on oath claimed on the way to her market found de facto complainant
along with Ansar, Sonovan, Samsur, Sufia to the hospital. She took
them to the hospital with help of others to Basirhat SD hospital.
Thereafter, the complaint got registered on 25.02.2010 written by
Scribe named Ohidul Sahaji two days after the incident and the police
commenced the investigation.
ii. The deposition of PW-1 disclosed material omissions with regard to
the assault and injuries that he received. PW-1 didn't state about his
condition of being senseless before police and about the fact he was
admitted in hospital on the first occasion to the police. His statements
contradicted with that of the Investigating officer.
iii. PW-2, Rahima Bibi in her deposition claimed she was on the way to
market when she found the informants in injured conditions after
which she took them to Basirhat Hospital and Sufia Bibi allegedly
went to the point of occurrence ten minutes after receiving the news,
however she did not mention the name of Rajiv Gazi which was
mentioned in the complaint. After which they were also allegedly
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attacked by the miscreants. They were taken to the hospital whereby
her husband and brother-in-law were admitted for around 15 days.
PW-2 deposed and agreed that they were granted bail in the criminal
case filed by the accused. She also admitted the presence of the
accused person admitted in the hospital.
iv. PW-2 also admitted that she was not aware about what is written in
the complaint and the same is not read over and explained to her.
While Rahima Bibi claims that her mother in Law was admitted in
Jadavpur K.B.C. hospital for 2 years, PW-3 herself states the same to
be only one month creating another major contraction. Further agreed
that there was a dispute which existed between the complainant and
the petitioners.
v. PW-3, Sonavan Bibi, the mother of PW-1 also speaks about the
incident. But the incident she mentions on dock contradicts with that
of the statement given by one PW-2 and one mentioned in written
complaint. PW-2 also said that they went to the place after hearing
the assault on PW-1 and hearing that her husband's finger was
amputated by the miscreants. After which they were assaulted. The
statement of PW-3 stated otherwise creating a doubt with regard to
the chain of circumstances. Her statements were also found in
contradictions with the investigating officer. The fact that she was
admitted in hospital for a month for treatment, the medical report
pertaining to the same had not been exhibited.
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vi. PW-4, Dr. Bikas Chandra Gain who had examined Ansar Ali Mondal
who was brought by Fajer Ali Dhali and another Samser Mondal.
Although he claims that there were multiple injuries but injury report
shows only one injury. No light about amputation of any finger of
Ansar Ali Mondal getting amputated, nor the person has deposed any
statement with regard to the same. As per the deposition of the Doctor
from Badartala hospital, he claimed there were only three injured
persons namely - Samsur Mondal, Ansar Mondal, And Sonavan Bibi.
Also, there was no mention of the fact that there was any finger of one
Ansar Mondal that was at all being amputated. The patients didn't
disclose to the doctor the name of the miscreants during the
treatment. In the injury report there was only one injury that was
mentioned, the same was admitted by the medical examiner during
the examination.
vii. PW-5, Ohidul Sahaji, scribe of complaint given by PW-2, was informed
by the de facto complainant about the dispute and quarrel allegedly
between the petitioners and that of the alleged victims.
viii. PW-6, Fajer Ali Mondal happened to be a chance witness to be present
in the tea stall near the P.O. PW-7 stated that there were no stalls or
shops or house by the side of the P.O. all of which were at least 500 m
away from the point of occurrence, who had allegedly taken Ansar
Mondal to the hospital. PW-6 had taken the persons to the hospital at
the request of I.O. but there was yet a delay in lodging the FIR.
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ix. PW-7, Din Islam Dhali's statement contradicted and created suspicion
in the statement of Fajer Ali Mondal who was cultivating in the land
near the point of occurrence. He claimed that it was the de facto upon
whose hue and cry, they entered the field.
x. PW-8, Bilkis Bibi claimed that she was on the way to the market when
she found Rahima Bibi, Samsur Ali Mondal, Ansar Ali, Sonavan Bibi
and Sufia Bibi injured in the P.O., which implied she had not seen the
incident. PW-8 admitted that there happened to be a long standing
dispute between the victim and the petitioners.
xi. PW-9, Chittaranjan Das, started investigation two days after the
incident despite the fact that the victims were taken to the hospital at
the instruction of the police station as evident from the deposition of
PW-5. The entire deposition of PW-5 pertaining to the same was called
into question as the I.O. claimed that PW-5 had not stated about the
instruction of P.S. to him.
The deposition of the I.O. brought out multiple omissions and
contradictions and the fact that several facts deposed by the
witnesses were at all informed to him by the witnesses at the first
instance.
The I.O. stated that Samsur Mondal didn't depose about his
injuries and his days in hospital before him. The I.O. deposed that
Sonavan Bibi never mentioned about her hand injury during her
interrogation, or about the amputation of the finger of Ansar Mondal.
The fact that Fajer Ali Mondal happened to be an eye witness and
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there was a tea stall near the point of incident had not been stated by
the witness before the I.O. during the investigation. One Din Islam
Dhali happened to be an eye witness and the petitioners fled after the
incident was not stated by the witness before the I.O. during the
investigation. Nowhere in the statement of Bilkis Bibi, she had ever
mentioned that Rahima Bibi was at all being assaulted. Bilkis Bibi
was going to the market while she found the injured persons; were
also not informed to the Investigating Officer. Further the
Investigating Officer admitted that the medical examiner was not
examined by him. No weapon was at all recovered in the alleged
incident.
xii. In State of M.P. v. Mishrilal, (2003) 9 SCC 426: 2003 SCC (Cri) 1829:
2003 SCC OnLine SC 467 at page 431
"8. In the instant case, it is undisputed, that the investigating officer
submitted the challan on the basis of the complaint lodged by the
accused Mishrilal in respect of the same incident. It would have been
just, fair and proper to decide both the cases together by the same court
in view of the guidelines devised by this Court in Nathi Lal case [1990
Supp SCC 145: 1990 SCC (Cri) 638]. The cross-cases should be tried
together by the same court irrespective of the nature of the offence
involved. The rational behind this is to avoid the conflicting judgments
over the same incident because if cross-cases are allowed to be tried by
two courts separately there is likelihood of conflicting judginents. In the
instant case, the investigating officer submitted the challan against
both the parties. Both the complaints cannot be said to be right. Either
one of them must be false. In such a situation, legal obligation is cast
upon the investigating officer to make an endeavour to find out the truth
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and to cull out the truth from falsehood. Unfortunately, the investigating
officer has failed to discharge the obligation, resulting in grave
miscarriage of justice."
xiii. In Nathi Lal v. State of U.P., 1990 Supp SCC 145: 1990 SCC (Cri) 638
at page 145
"2. We think that the fair procedure to adopt in a matter like the present
where there are cross cases, is to direct that the same learned Judge
must try both the cross cases one after the other. After the recording of
evidence in one case is completed, he must hear the arguments but he
must reserve the judgment. Thereafter he must proceed to hear the
cross case and after recording all the evidence he must hear the
arguments but reserve the judgment in that case. The same learned
Judge must thereafter dispose of the matters by two separate
judgments. In deciding each of the cases, he can rely only on the
evidence recorded in that particular case, The evidence recorded in the
cross case cannot be looked into. Nor can the judge be influenced by
whatever is argued in the cross case. Each case must be decided on the
basis of the evidence which has been placed on record in that particular
case without being influenced in any manner by the evidence or
arguments urged in the cross case. But both the judgments must be
pronounced by the same learned Judge one after the other.
It is clear that the accused had also filed a case regarding the same
incident and a fair trial has not been held in that instance. The case
had genesis due to which cognigence was taken and the trial
commenced but due to lack of prosecution it was closed. The same case
has not been taken into consideration.
2. Ante-timed FIR.
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Promptness of an FIR is essential in such cross cases. Delay in lodging
FIR also sometimes cast doubt in the case of the prosecution. It shall be
statement that it was observed in the judgement of Meghaji Godadji
Thakore v. State of Gujarat, the importance of "satisfactory
explanation" for the delay."
xiv. In Meghaji Godadji Thakore v. State of Gujarat, 1992 SCC OnLine Guj
164: 1993 CriLJ 730: (1992) 33 (2) GLR 1347 at page 736
"21. The prosecution had also relied on the FIR produced at Ex. 9. It is
dated 3-7-1986. The FIR is filed by the complainant Gandabhai
Mevabhai, who stated in his complaint that the theft in his house
occurred almost is 15 days before. No reasonable explanation is given
as to why FIR is lodged very late. In absence of any explanation for
delay in FIR the version of the prosecution is weakened. In the present
case it will be unsafe to place reliance on such FIR. Delayed FIR does
not help the prosecution. Mere delay is not fatal in every case. Delay
has to be explained. It is found from the facts of the present case that
the complainant could have given the FIR on the same day as there is
an outpost in village Bhotwa, where complainant is residing. The FIR is
lodged after almost 15 days before Police Inspector Mr. Parmar on 3-7-
1986. That in the present case delay in lodging FIR also creates
suspicion about the version of the prosecution. The Trial Court as well
as the Sessions Court have committed serious illegality in not
considering this aspect in favour of the accused in the present case.
22. The FIR in a criminal case is an extremely vital and valuable piece
of evidence for the purpose of corroborating the oral evidence adduced
at the trial. The importance of the above report can hardly be over
emphasised from the standpoint of the accused. The object of insisting
upon prompt lodging of the report to the Police in respect of commission
of an offences is to obtain prior information regarding the circumstances
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in which the crime was committed the names of the actual culprits and
the part played by them as well as the names of eye-witnesses present
at the scene of occurrence, Delay in lodging the FIR often results in
embellishment which is the creature of an after-thought. On account of
delay the report only gets bereft and the advantage of spontaineity
danger creeps in and the introduction of coloured version, exaggerated
account or concocted story as a result of deliberation and consultation.
It is therefore, essential that the delay in the lodging of the FIR should
be satisfactorily accounted for. This proposition of law is very well
setded. It is true that FIR is not substantive piece of evidence. It is also
true that the FIR need not be elaborate with meticulously prepared.
Nontheless the importance of FIR made promptly cannot be minimised.
The underlying object of Section 154 of the Code is to obtain earlier
information of an alleged criminal activity on record the circumstances
before there is time for them to embellishment the prosecution story.
The learned P.P. has not been able to show any reason why FIR came
to be lodged 15 days after the occurrence of the alleged theft in the
house of the complainant. It appears that the P.S.I. on suspecion
arrested the accused persons and thereafter in view of the alleged
confession of the accused the FIR is lodged without explaining the
delay. In such a situation the FIR cannot be said to be reliable. Courts
below have seriously erred in placing reliance on such FIR."
In Shankarlal Deolal v. State of M.P., 1981 SCC OnLine MP 9: 1981 MP
LJ 736: 1982 Cri LJ 254 at page 737
"6. In my opinion, the explanation given for lodging the first information
report after two days is a lame excuse. It has not come in the evidence
of the complainant himself that it was not possible for him to reach the
Police Station which was at a short distance of seven miles from the
place of incident, immediately and he had to wait for about two days to
reach the Police Station. The result of filing the first information report
late is that no reliance can be placed on the report which is lodged after
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an inordinate delay. It clearly shows that the complainant along with
his witnesses, thought over the matter and after seeing that the
appellants are on inimical terms with them, they might have included
their names in the first information report. Curiously enough, the
Prosecution has not examined the Investigating Officer in this case. If
he would have been examined, the accused party could have cross-
examined on the point of delay. This clearly has prejudiced the defence
of the petitioners. Further, the alleged weapons of offence were also not
recovered from any of the petitioners. Therefore, there is no direct
evidence to connect the petitioners with the alleged offence through the
weapons of offence. Added to these facts, Laxman (P.W. 2) has
admitted in his evidence that the relations between the petitioners and
Laxman are strained one and these strained relations between the
parties existed for the last so many years. If all these facts are taken
into consideration, in my opinion, it cannot be held that the petitioners
were rightly convicted as having taken part in the alleged incident.
Also it shall be mostly highlighted if the witness went to hospital with
the instruction of the police station as per the versions of two witness
(darogababu), thereby the investigating body had some knowledge
about the same incident. But there was a delay which cannot be
substituted by the mere illness of Rahima Bibi.
xv. In Nandlal and Ors., v. State of Chattisgarh, 2023 SCC Online 2620:-
"It can thus be seen from the evidence of PW-14, 10 that the police had
information about the incident at least prior to 11.45 PM on 3rd
November 2006. No doubt that mere delay in registering FIR would not
be fatal to the prosecution case. The effect of delay in lodging the FIR
would differ in the facts and circumstances of each case. In the present
case, admittedly, accused No. 11 Naresh Kumar had received grievous
injuries which have not been explained by the prosecution. A specific
defence has been taken by accused No. 11 Naresh Kumar that when he
was coming after consuming liquor, he was assaulted by Atmaram (PW-
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1). Thereafter, he went to the Police Station along with accused No. 7
Charnu Jangde, accused No. 12 Paltan Jangde, Ashwini and Vinod,
whereafter he was referred for medical treatment. Looking at the
injuries of accused No. 11 Naresh Kumar, it appears difficult that he
could have taken part in the second part of the incident. The
prosecution has suppressed the first report lodged by Atmaram (PW-1)
as well as by accused No. 11 Naresh Kumar. If Naresh Kumar was
examined at 11.45 PM, the police must have had some information
about the incident at least by 11.00 PM. As such, there is a delay of at
least four hours in lodging the FIR."
It can also be stated that when such disputed scenario has been taken
into consideration, the ante- timed nature of it shall be considered with
greater scrutiny."
xvi. In Ramesh Baburao Devaskar v. State of Maharashtra, (2007) 13 SCC
501: (2009) 1 SCC (Cri) 212: 2007 SCC OnLine SC 1285 at page 509
"19. In a case of this nature, enmity between two groups is accepted. In
a situation of this nature, whether the first information report was ante-
timed or not also requires serious consideration. First information
report, in a case of this nature, provides for a valuable piece of evidence
although it may not be substantial evidence. The reason for insisting on
lodging of first information report without undue delay is to obtain the
earlier information in regard to the circumstances in which the crime
had been committed, the name of the accused, the parts played by
them, the weapons which had been used as also the names of
eyewitnesses. Where the parties are at loggerheads and there had
been instances which resulted in death of one or the other, lodging of a
first information report is always considered to be vital.
Testimony of Interested and related witnesses where there is a
previous or longstanding enmity between the parties-
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In a case where the related and interested witness may have some
enmity with the assailant, the bar would need to be raised and the
evidence of the witness would have to be examined by applying a
standard of discerning scrutiny. (Parmeshwar Das @ Bhura vs State Of
M.P.)"
xvii. In Darya Singh v. State of Punjab, (1964) 3 SCR 397: AIR 1965 SC 328:
(1965) 1 Cri LJ 350
"6. There can be no doubt that in a murder case when evidence is given
by near relatives of the victim and the murder is alleged to have been
committed by the enemy of the family. criminal courts must examine the
evidence of the interested witnesses, like the relatives of the victim,
very carefully. But a person may be interested in the victim, being his
relation or otherwise, and may not necessarily be hostile to the
accused. In that case, the fact that the witness was related to the victim
or was his friend, may not necessarily introduce any infirmity in his
evidence. But where the witness is a close relation of the victim and is
shown to share the victim's hostility to his assailant, that naturally
makes it necessary for the criminal courts examine the evidence given
by such witness very carefully and scrutinise all the infirmities in that
evidence before deciding to act upon it. In dealing with such evidence.
Courts naturally begin with the enquiry as to whether the said
witnesses were chance-witnesses or whether they were really present
on the scene of the offence. If the offence has taken place, as in the
present case, in front of the house of the victim, the fact that on hearing
his shouts, his relations rushed out of the house cannot be ruled out as
being improbable, and so, the presence of the three eyewitnesses
cannot be properly characterised as unlikely. If the criminal court is
satisfied that the witness who is related to the victim was not a chance-
witness, then his evidence has to the examined from the point of view
of probabilities and the account given by him as to the assault has to be
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carefully scrutinised. In doing so, it may be relevant to remember that
though the witness is hostile to the assailant, it is not likely that he
would deliberately omit to name the real assailant and substitute in his
place the name of the enemy of the family out of malice. The desire to
punish the victim would be so powerful in his mind that he would
unhesitatingly name the real assailant and would not think of
substituting in his place the enemy of the family though he was not
concerned with the assault, It is not improbable that in giving evidence,
such a witness may name the real assailant and may add other
persons out of malice and enmity and that is a factor which has to be
borne in mind in appreciating the evidence of interested witnesses. On
principle, however, it is difficult to accept the plea that if a witness is
shown to be a relative of the deceased and it is also shown that he
shared the hostility of the victim towards the assailant, his evidence
can never be accepted unless it is corroborated on material particulars.
We do not think it would be possible to hold that such witnesses are no
better than accomplices and that their evidence, as a matter of law,
must receive corroboration before it is accepted. That is not to say that
the evidence of such witnesses should be accepted light-heartedly
without very close and careful examination;
4. Statements of witness shall be taken either as a whole and not in
part.
It is a settled principle that 'Evidence of a witness has to be read as a
whole. Words and sentences cannot be truncated and read in isolation.
In a plethora of judgement the Hon'ble lordships of Apex Court has
dealt with the appreciation of evidences."
xviii. In Rakesh v. State of U.P., (2021) 7 SCC 188: (2021) 3 SCC (Cri) 149:
2021 SCC OnLine SC 451 at page 197
"14. It is also the case on behalf of the defence that according to the
witnesses/eyewitnesses the weapon used was "dagger" and not
"knife" and what is recovered is "knife" and PW 2 has subsequently
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improved his deposition that the other accused caused injuries by
knives. It is the case on behalf of the defence that even the doctor in his
cross-examination has stated that it is very doubtful to say that the
injuries were by sharp cutting weapon on both sides. However, it is to
be noted that the doctor answered the question which was put to him.
One is required to consider the entire evidence as a whole with the
other evidence on record. Mere one sentence here or there and that too
to the question asked by the defence in the cross-examination cannot
be considered stand alone. Even otherwise it is to be noted that what is
stated by the doctor/medical officer can at the most be said to be his
opinion. He is not the eyewitness to the incident. PW 1 and PW-2 have
categorically stated that the other accused inflicted the blows by
knives. The same is supported by the medical evidence and the
deposition of PW 2. Injuries 2 to 8 are sufficient by the sharp cutting
weapon. Injuries 2 to 8 are on different parts of the body which show
the intention and conduct on the part of the other accused A-2 and A-3.
Therefore, they are rightly convicted for the offence punishable under
Section 302 IPC with the aid of Section 34 IPC. Their presence and
participation have been established and proved by the prosecution by
examining PW 1 and PW 2 who are found to be reliable and trustworthy
witnesses."
xix. In Shamim v. State (NCT of Delhi), (2018) 10 SCC 509: (2019) 1 SCC
(Cri) 319: 2018 SCC OnLine SC 1559 at page 513
"12. While appreciating the evidence of a witness, the approach must
be whether the evidence of the witness read as a whole inspires
confidence. Once that impression is formed, it is undoubtedly necessary
for the court to scrutinise the evidence more particularly keeping in view
the deficiencies, drawbacks and infirmities pointed out in the evidence
as a whole and evaluate them to find out whether it is against the
general tenor of the evidence and whether the earlier evaluation of the
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evidence is shaken as to render it unworthy of belief. Minor
discrepancies on trivial matters not touching the core of the case,
hypertechnical approach by taking sentences torn out of context here or
there from the evidence, attaching importance to some technical error
without going to the root of the matter would not ordinarily permit
rejection of the evidence as a whole. Minor omissions in the police
statements are never considered to be fatal. The statements given by
the witnesses before the police are meant to be brief statements and
could not take place of evidence in the court. Small/trivial omissions
would not justify a finding by court that the witnesses concerned are
liars. The prosecution evidence may suffer from inconsistencies here
and discrepancies there, but that is a shortcoming from which no
criminal case is free. The main thing to be seen is whether those
inconsistencies go to the root of the matter or pertain to insignificant
aspects thereof. In the former case, the defence may be justified in
seeking advantage of incongruities obtaining in the evidence. In the
latter, however, no such benefit may be available to it."
xx. In the following case, the Learned Sessions Judge has himself pointed
out material contradictions, omissions and exaggerations in versions
of several prosecution witnesses viz. PW-1, PW-3, PW-6, PW-7 but has
considered part of witness for convicting the accused.
xxi. It was clear on the face of the case that the accused were also
admitted in the hospital and that they received injuries. The Ld.
Sessions Judge had only relied on some mere statements of the PW-2
which was a very light approach.
xxii. It was the duty of the prosecution and the same was a settled law that
when there had been any injury upon the accused the same should be
explained by that of the prosecution. If the prosecution fails to explain
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the same, it shall be considered that the prosecution has suppressed
the genesis and the origin of the occurrence and has thus not
presented the true version.
xxiii. In Nandlal and Others v State of Chattisgarh, 2023 SCC Online 262
"26. We will first consider the issue with regard to non-explanation of
injuries sustained by accused No. 11 Naresh Kumar. In the case of
Lakshmi Singh v. State of Bihar, which case also arose out of a
conviction under Section 302 read with Section 149 of the IPC, this
Court had an occasion to consider the issue of non-explanation of
injuries sustained by the accused. This Court, after referring to the
earlier judgments on the issue, observed thus:
"12........It seems to us that in a murder case, the non-explanation of the
injuries sustained by the accused at about the time of the occurrence or
in the course of altercation is a very important circumstance from which
the court can draw the following inferences:
"(7) that the prosecution has suppressed the genesis and the origin of
the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on
the person of the accused are lying on a most material point and
therefore their evidence is unreliable,
(3) that in case there is a defence version which explains the injuries on
the person of the accused it is rendered probable so as to throw doubt
on the prosecution case."
The omission on the part of the prosecution to explain the injuries on the
person of the accused assumes much greater importance where the
evidence consists of interested or inimical witnesses or where the
defence gives a version which competes in probability with that of the
prosecution one. In the instant case, when it is held, as it must be, that
the appellant Dasrath Singh received serious injuries which have not
been explained by the prosecution, then it will be difficult for the court
19
to rely on the evidence of PWs 1 to 4 and 6, more particularly, when
some of these witnesses have lied by stating that they did not see any
injuries on the person of the accused. Thus neither the Sessions Judge
nor the High Court appears to have given due consideration to this
important lacuna or infirmity appearing in the prosecution case. We
must hasten to add that as held by this Court in Stare of Gujarat v. Bai
Fatima [(1975) 2 SCC 7: 1975 SCC (Cri) 384] there may be cases where
the non-explanation of the injuries by the prosecution may not affect the
prosecution case. This principle would obviously apply to cases where
the injuries sustained by the accused are minor and superficial or
where the evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and creditworthy, that it far
outweighs the effect of the omission on the part of the prosecution to
explain the injuries. The present, however, is certainly not such a case,
and the High Court was, therefore, in error in brushing aside this
serious infirmity in the prosecution case on unconvincing premises."
xxiv. To conclude it shall be stated that the maxim falsus in Uno, falsus in
omnibus' which means that 'false in one thing will lead to false in
everything', is greatly witnessed in this case.
xxv. The Hon'ble Courts have time and again stated when there is a doubt
in truth and falsity, benefit of doubt shall be given to the accused. It
shall be implied that the prosecution has failed to separate the grain
from the chaff.
xxvi. The contradictions of statement among the witness, even with regard
to the point of occurrence and its surrounding cast a serious doubt
whether the same were at all present in the incident or has been a
planted witness. Alongside this, there are major contradictions,
20
omissions and exaggerations in the statement of witness and most of
the same differs from one another.
xxvii. Further, there was no mention about amputated finger of one Ansar
by the medical examiner in his report. Nor, Ansar has at all deposed
anything before the same. Two other witnesses Rajiv Gazi and Sufia
Bibi who were also allegedly victims of the case had also not been
examined before the Hon'ble Court.
xxviii. The story of the Ante timed FIR and the cause of delay doesn't satisfy
the same as the Investigating Authority already had information about
the alleged incident and the same shall not be taken as a 'satisfactory
explanation of delay.
xxix. It was clear on the face of record that this F.I.R. was a counter blast
FIR and the same should be subjected to major scrutiny.
xxx. The weapons used in the incident plays a vital part and confusion
among the witnesses shall cast a serious doubt. It shall be stated that
in order to attract 307 IPC, the miscreant shall have the intention or
knowledge that such act may cause death of the person. The nature of
the weapons used plays a crucial part in the same. More so, there has
been major omissions on part of the witnesses before the police by
PW-1, PW-3 about the weapons used for assaulting them and the
nature of the assault which further casts a doubt when the question
of bringing home the ingredients of Section 307 Indian Penal Code are
concerned.
21
xxxi. In Jage Ram v. State of Haryana, (2015) 11 SCC 366: (2015) 4 SCC
(Cri) 425: 2015 SCC OnLine SC 69 at page 370
"12. For the purpose of conviction under Section 307 IPC, the
prosecution has to establish (i) the intention to commit murder; and (ii)
the act done by the accused. The burden is on the prosecution that the
accused had attempted to commit the murder of the prosecution
witness. Whether the accused person intended to commit murder of
another person would depend upon the facts and circumstances of each
case. To justify a conviction under Section 307 IPC, it is not essential
that fatal injury capable of causing death should have been caused.
Although the nature of injury actually caused may be of assistance in
coming to a finding as to the intention of the accused, such intention
may also be adduced from other circumstances. The intention of the
accused is to be gathered from the circumstances like the nature of the
weapon used, words used by the accused at the time of the incident,
motive of the accused, parts of the body where the injury was caused
and the nature of injury and severity of the blows given, etc."
xxxii. More so, Section 325 of the Indian Penal Code can also not be
attracted as there is no scope or findings how the conditions of
Section 320 of the Indian Penal Code was satisfied.
xxxiii. First - Emasculation. Secondly - Permanent privation of the sight of
either eye. Thirdly - Permanent privation of the hearing of either ear.
Fourthly -Privation of any member or joint. Fifthly - Destruction or
permanent impairing of the powers of any member or joint. Sixthly -
22
Permanent disfiguration of the head or face. Seventhly - Fracture or
dislocation of a bone or tooth. Eighthly - Any hurt which endangers
life or which causes the sufferer to be during the space of twenty days
in severe bodily pain, or unable to follow his ordinary pursuits,
xxxiv. It shall be stated that there was no report that either of the victims
has at all been subjected to any of the above conditions. Coming to
the point of breaking of hand of PW-3 Sonavan Bibi was concerned, it
should be taken as a material omission and also there was no
corroboration or light thrown from the medical reports used as
exhibits. The amputation of finger of one Ansar Ali is also not
supported by the medical witness.
xxxv. More so, the report of the doctor had specifically mentioned that there
was only one injury which shall be considered in order to bring home
the charges of Section 325 of the Indian Penal Code.
xxxvi. Further it shall be held that the charges under Section 148 of the
Indian Penal Code and Section 149 of the Indian Penal Code shall be
understood specifically with its ingredient.
xxxvii. Ingredients of Section 148 of the Indian Penal Code -
Assembly of five or more persons. The assembly is unlawful. Use of
force or violence. Accused was a member of such unlawful assembly.
In prosecution of the common object such unlawful assembly used
force.
xxxviii. In the present case 6 persons were charged with the offence being
punishable under Section 148 of the Indian Penal Code. PW-1 in his
23
evidence stated that he was assaulted by all the accused persons, who
had entered the alleged land and while he went to stop him being
armed with Lathi, Tangi, Sabol, rod. There was a major omission on
part of PW-1 for not providing major details to the Investigating officer
and major part of his statement was held contradictory. The
prosecution has failed to provide any Seizure list as exhibits with
regard to recovery of weapons. It was also deposed by the
investigating officer that no articles/weapons were seized in the
present case from any of the accused persons.
xxxix. It was true that though the prosecution has adduced evidence that
there was an assembly of more than 5 or more persons, the
prosecution could not prove their case as stated by the complainant
that the accused persons were armed with deadly weapons.
xl. More so, it was not a doubt that the land in question was in dispute
and that PW-1 had himself deposed that the land was not in his
name.
xli. Just by the gathering of five persons in the field cutting crops could
not be said to be unlawful assembly when there was no charge of
trespassing.
xlii. The Trial Court believed the evidence of PW-1 that the accused
persons were armed with deadly weapons, when no weapons, Rod,
Bamboo etc. were seized from any of the accused persons. More so,
the injuries stated also differed from the injury what the doctor
stated.
24
xliii. The prosecution also could not prove from the evidence on record that
there was an assembly and that it was unlawful or that they had any
common object.
xliv. A similar situation was observed by this Hon'ble Court in Shibnath
Koley and Others v State of West Bengal, 2022 SCC Online Cal 1840
whereby the Hon'ble Court went on to say-
"Motive of Crime
From the evidence before the Trial court, this court finds:
(i) That there is evidence as admitted by the prosecution witnesses that
there is a case and counter case between the parties in this case.
(ii) Admittedly there is also a dispute between the complainant Anil
Mondal and accused Satya Nayek regarding construction of a latrine.
(iii) As stated by Arati Das (PW-9) that she had rebuked the accused
persons in respect of setting fire to her stack of straw, the accused
persons told that as she had abused them, the accused persons had
assaulted her."
xlv. No evidence to prove that the accused persons had a common object.
xlvi. No evidence to indicate that there was an assembly of the accused
persons or that it was unlawful,
xlvii. Certain witnesses have stated that two persons assaulted them and
some have named all the accused persons.
xlviii. Admittedly there was a dispute between the complainant and accused
Satya Nayek (personal dispute) regarding construction of a toilet.
xlix. Admittedly there had been a case, counter case between the parties.
l. Evidence before Trial Court was that all of a sudden the accused
person came and assaulted without any specific reasons.
25
li. No articles/deadly weapons as alleged, were seized in this case,
lii. PW-12 (Doctor) had deposed regarding the alleged assault on PW-2,
PW-8, PW-9 and PW-10 (tendered) though there were 11 injured
persons as seen from the general injury report (Exhibit-8).
liii. PW-7 had deposed that there was a free fight between the parties.
7. The Learned Advocate representing the State contended the Trial Court
carefully evaluated the evidence and rightly found the prosecution case to
be proved beyond reasonable doubt. It was further submitted that the
testimony of injured witnesses reflected substantial evidentiary value
fortified by the corroboration of medical evidence. It was also argued that
the discrepancies or omissions were inequitable in the testimony of rustic
witnesses which did not affect the core of the prosecution case, since the
evidence of injured witnesses, medical examiners and independent
witnesses had been foundational to the establishment of the prosecution
case beyond reasonable doubt.
8. A circumspection of evidence of the prosecution witnesses revealed as
follows:-
i. PW-1 deposed he lodged a written complaint before the Ld. A.C.J.M.,
Basirhat against the petitioners. In respect of self-same incident one
Rahima Bibi also lodged a written complaint before I/C Basirhat P.S.
The incident took place on 22.02.2010 at about 09:00 a.m. The
petitioners went to his field for cutting crops. Then, he resisted the
petitioners. Thereafter, the petitioners assaulted him and he became
26
senseless. Then, he was admitted at Basirhat S.D. Hospital. Police
interrogated him after 3 days of incident.
ii. PW-1 in his cross-examination stated he could show documents to
prove that the land in Dag No.1166 & 444 under Mouza -
Madhyampur belong to them. He also stated that "the land in
question" was not recorded in his name. One Abu Khaleque Mondal
also filed a criminal case against him in respect of the self-same
incident and he got bail in that case.
iii. PW-2 deposed to have lodged a written complaint at Basirhat P.S.
against the petitioners. The incident took place on 22.02.2010 at
about 09:00 a.m. The petitioners went to their field for cutting the
mustard crops. Then, her husband resisted the petitioners.
Thereafter, the petitioners assaulted her husband. Her husband
suffered injury on his head and one finger of left hand was cut off.
Thereafter, her husband and brother-in-law were admitted for 15 days
at Badartala Hospital. She was interrogated by police after 3 days of
incident. The written complaint was drafted as per her instruction but
she could not state who wrote the F.I.R. The signature of the witness
was marked as Exbt.-1.
iv. PW-2 in her cross-examination stated PW-1 i.e. her brother-in-law
filed a complaint case under Section 156(3) of Cr.P.C., before Court in
respect of selfsame incident. PW-1 also filed a private complaint before
Learned Court of A.C.J.M., Basirhat in respect of selfsame incident
which was ultimately dismissed for non-prosecution in the court of
27
Ld. J.M., 1st Court, Basirhat. She also stated that Abu Taleb Mondal,
Firoj Mondal, Amena Bibi and Rahima Bibi W/o - Abu Khaleque
Mondal were admitted at hospital but they were not injured. She
reached at P.O. after 10 minutes of the alleged incident.
v. PW-3 deposed PW-2 was the de-facto complainant of that case. PW-1
also lodged a complaint in respect of selfsame incident. The incident
took place 3 years back at about 09:00 a.m. All the petitioners went to
the victim's field for severing crops. PW-1 resisted the petitioners,
then Taleb Mondal assaulted PW-1 by a "Shabol" . Khaleque Mondal
assaulted both Samsur Mondal and Ansar Mondal by a Lathi on their
head and hands. She also suffered fracture injury on her left hand.
She was admitted at Badartala Hospital for 15 days. Police
interrogated her after one month of incident.
vi. PW-3 in her cross-examination stated that she reached P.O. after 10
minutes of the incident. She stated before police that the Saifuddin
Mondal assaulted her by a "Shabol" on her left hand.
vii. PW-4 deposed that on 22.02.2010 he was posted as M.O. Basirhat
S.D. hospital. On that date he examined one Answer Ali Mondal, S/o -
Fakir Ali Mondal of Matnia, Basirhat. The patient was examined at
about 09:57 a.m., on 22.02.2010. As per statement of patient he was
injured due to assault. On examination he found multiple injury with
head injury over volt of the head, 3" long. The patient was treated by
stitches and bandage and he was admitted at M.S.W. Injury was
grave. The said injury report, prepared by him, was marked as Exbt.-
28
2. On the same date at about 09:23 a.m., he also examined one
Samsur Mondal, S/o- Fakir Ahmed Mondal of Matnia, Basirhat. There
was history of assault and head injury. On examination he found
injury over the vertex 5" in length. He was treated by stitches and
bandage, five stitches given, injury was grave. The patient was
admitted at M.S.W. The said injury report, prepared by him, was
marked as Exbt.-3.
On the same date at about 10:20 a.m., he also examined one
Sonavan Bibi, Matnia, Basirhat. There was history of assault
overhead and left humorous by "Tangi" and Lathi. On examination he
found injury over the skull 3 inches in length with left shaft
humorous and treated by stitches and dressing. Injury was grave. The
said injury report, prepared by him, was marked as Exbt.-4.
viii. PW-4 in his cross-examination stated that the patients did not
disclose the name by whom they were assaulted. There was a remote
possibility that the type of injury might be caused due to accident.
There was a remote possibility that type of injury might be caused if
anybody fell down from a height. In injury report only single injury
was mentioned. He had no personal knowledge regarding that
incident.
ix. PW-5 deposed the incident took place on 22.02.2010 at 09:00 a.m. He
was not present at the P.O. at the time of incident. Rahima Bibi
informed him over telephone that there was a dispute and quarrel in
between the petitioners and Rahima Bibi and her family members.
29
She also informed him that there was scuffle in between the parties.
As per request of Rahima Bibi, he went to P.O. and found Samsur
Mondal, his mother and Answer Mondal were lying in a Maruti Van in
injured condition. He took those patients to Badartala Hospital as per
requisition of police and they were admitted at hospital. He found
Samsur Mondal suffered head injury stitches were given to him,
Soleman Bibi suffered injury on her right hand and one finger of the
left hand of Answer was amputated.
He informed the matter to P.S. and as per instruction of P.S. He
came to P.S. and drafted the written complaint as stated by Rahima
Bibi. The said complaint was marked as Exbt.-1/1.
x. PW-5 in his cross-examination stated when he was informed by
Rahima Bibi it was 10:00 a.m., he reached hospital at about 10.30
a.m. There were 10 to 12 persons who went to hospital including the
injured. He went to P.S. at about 4/4.30 p.m. and called Rahima Bibi
to come to P.S. for lodging the complaint but due to illness Rahima
Bibi could not come to P.S. He had no personal knowledge regarding
the alleged incident.
xi. PW-6 deposed the incident took place on 22.2.2010 at about 09:00
a.m. in the land of PW-1. The petitioners went to the field for cutting
crops and PW-1 resisted them. Then, the petitioners assaulted
Samsur Mondal by "Shabol" , bamboo stick and "Kaste". Abu Taleque
Mondal assaulted Samsur Mondal by "Shabol" on his head. Abu
Khaleque Mondal assaulted Ansar by bamboo stick on his head when
30
Ansar went to rescue his brother. Saifuddin assaulted Ansar by
"Kaste" and due to that one of the finger of Ansar was amputated. At
the time of incident he was in the tea stall adjacent to the P.O. and
hearing hue and cry he rushed there. Other villagers also went there.
Then the petitioners escaped. They took Ansar and Samsur to
Basirhat P.S. Thereafter, they took them to Basirhat hospital. Police
interrogated him during investigation.
xii. PW-6 in his cross-examination stated that the petitioners and de-facto
complainant were relatives. He stated to police that he was in the tea
stall adjacent to the P.O. He also stated to police that they took
Samsur Mondal and Ansar Mondal to Basirhat P.S. He stated to police
that they took Ansar Mondal and Samsur Mondal to Basirhat Hospital
as per advice of Darogababu. About 50 persons gathered at P.O. after
the incident.
xiii. PW-7 deposed to have known the de-facto complainant. The incident
took place on 22.2.2010 at about 9.00 a.m. He was cultivating in his
own land which was adjacent to Samsur Mondal's land. He found the
petitioners armed with "Sabol", Lathi, "Kaste" enter into the land of
Samsur Mondal with intention to cut the mustard crops from the land
of Samsur Mondal. Samsur Mondal raised protest. Then, the
petitioners assaulted the victims. Thereafter, they went to P.O. and
took the injured victims to Basirhat Hospital. During investigation,
the police interrogated him.
31
xiv. PW-8 deposed to have known the de-facto complainant. The incident
took place on 22.2.2010 at about 9.00 a.m. The petitioners entered
into the field of Samsur Mondal armed with "Dao", Lathi, "Kaste" etc.,
and with intention to murder Samsur Mondal and to take possession
of the land of Samsur Mondal, they assaulted Samsur Mondal. He
was proceeding towards market and found the victims injured in the
field. He took the injured persons with help of other persons to
Basirhat S.D. Hospital for their treatment. During investigation, the
police interrogated him.
xv. PW-9 deposed on 25.2.2010 he was posted as S.I. of police at Basirhat
P.S. On that date, the then I.C. Basirhat P.S. endorsed to him
Basirhat P.S. Case No.68/2010 dated 25.02.2010 for investigation.
Taking the charge of investigation he had perused the F.I.R., visited
P.O., examined the available witnesses and recorded their statement
U/S 161 Cr.P.C. He had also drawn rough sketch map along with
index which was marked as Exbt.-5. He also deposed that he
attempted to arrest the F.I.R., named persons but failed. He had
collected the injury report of injured persons from doctor of Basirhat
S.D. Hospital. After completion of investigation as per advice of his
superior he submitted charge sheet being no.594 dated 30.11.2010
under Sections 147/148/149/323/324/307/354 of the Indian Penal
Code against the petitioners.
xvi. PW-9 in his cross-examination stated Samsur Mondal never stated to
him that Firoj Mondal assaulted him with Lathi in his leg and head.
32
Samsur Mondal stated to him that Saifuddin assaulted him with a
Shovel in his head. Samsur Mondal never stated to him that he
became senseless due to assault by the petitioners. Sonavan Bibi
never stated to him that Samsur Mondal raised protest against the
petitioners to cut the mustard crops from the field.
He had not examined the doctor who treated the injured persons.
No weapon was seized during his investigation. He did not attempt to
record statement of the witnesses under Section 164 Cr.P.C., by the
Learned Magistrate.
9. The Hon'ble Supreme Court in the case of Vahula Bhushan Vs. State Of
Tamil Nadu1 held the following: -
"4. PW 1 is the only eyewitness to the incident. The trial court on
weighing the evidence of PW 1 as well as the evidence of the doctor
PW 7 held that the charge under Section 302 IPC has been proved
against the accused A-2. Accused A-2 was, therefore, convicted
under Section 302 IPC for committing the crime of murder of
deceased, Chinnaiyan by stabbing him with the crowbar and
sentenced him to undergo imprisonment for life. The trial court
further held that so far as the charge under Section 302 read with
Section 34 IPC and under Section 323 IPC against the accused A-1,
it was not proved beyond reasonable doubt and so the accused A-1
was acquitted of all the charges.
5. Accused A-2 filed an appeal being Criminal Appeal No. 105 of
1980 in the High Court of Madras against the judgment of the trial
court. The appeal was dismissed and the conviction and sentence
awarded by the trial court were upheld.
1
1989 Supp(1) SCC 232
33
6. The High Court held that PW 1 deposed in a cogent and
reasonable manner regarding the occurrence in this case and his
evidence was trustworthy. It was further held that the evidence of
PW 1 on the whole is natural and acceptable. The evidence of PW 1
is corroborated by the medical evidence adduced through PW 7. The
High Court further held that:
"Although it is not the principle of law that a conviction cannot be
sustained on the testimony of a single witness, yet it is a well
known principle of criminal jurisprudence that before convicting a
person on the sole testimony of a witness, the court must have
implicit faith and reliance on his testimony. Only if the said sole
witness is found to be interested, hostile to the accused, unreliable,
not firm and discrepant, the benefit of doubt should be given to the
accused. In the instant case, when we apply the above test, we find
that the evidence unfurled through PW 1 is convincing, trustworthy
and is amply corroborated by the medical evidence in this case as
discussed above. In this view, we have no hesitation to hold that the
sole witness PW 1 who had seen the occurrence in this case has
satisfactorily withstood the strenuous cross-examination that had
been done on behalf of accused Appellant 2 herein and nothing
material has been elicited in his cross-examination so as to discredit
his evidence. We have no hesitation to hold that the prosecution has
established that it was A-2 the appellant herein, who had caused
the fatal injuries on the deceased with MO 3. In the instant case, the
offence under Section 302 of the Penal Code, 1860 has been proved
to the hilt by the prosecution against A-2, the appellant herein."
7. The instant appeal on special leave has been filed against this
judgment and order. It has been urged on behalf of the appellant
that the courts below should not have convicted the accused on the
sole testimony of PW 1 as the same was not corroborated by the
evidence of any other witness. This contention is unsustainable
34
inasmuch as there is no rule of law that the testimony of a single
witness cannot be accepted and the conviction cannot be based on
such evidence, if believed. The testimony of a single witness if it is
straightforward, cogent and if believed is sufficient to prove the
prosecution case, the conviction can be made on the testimony of
such a single witness.
8. In the case of Vadivelu Thevar v. State of Madras [(1957) SCR
981 : AIR 1957 SC 614 : 1957 Cri LJ 1000] the appellant was
convicted on a charge of murder on the sole testimony of a witness.
The question arose whether such a conviction can be sustained or
not. It was held that there was no statutory requirement that a
conviction cannot be made on the testimony of a single witness
unless it is corroborated. The court can accept the evidence of a
single witness though uncorroborated and convict an accused except
in cases where the nature of the testimony of the single witness
itself required, as a matter of prudence, that corroboration should be
insisted upon, as in the case of a child witness, an accomplice or
any others of an analogous character.
9. In the instant case, the High Court has appraised the evidence of
PW 1 and accepted the same as it was cogent and trustworthy
considering the facts and circumstances of the case. Furthermore,
the evidence of PW 1 was corroborated by the medical evidence. In
such circumstances, in our considered opinion this contention is
devoid of any merit. The second contention is that MO 3, crowbar
was found imbedded in the earth at the place where the deceased
was first beaten by accused A-1 and A-2 with sticks MO 1 and MO
2. At the time when the crowbar was seized and taken possession
of by the police it was found embedded in the earth in the same
place. It was, therefore, submitted that the use of the crowbar by the
accused A-2 in causing stab injuries on the person of the deceased
is not possible. This submission was also made before the High
35
Court and the High Court rightly repelled the submission by holding
that in Ex. P. 1 it had been mentioned that MO 3 contained
bloodstains. PW 1 has clearly stated in his evidence that it is
accused A-2 who caused the stab injuries with the crowbar MO 3 on
the person of the deceased, Chinnaiyan which resulted in his death
on the spot. Furthermore, it is also evident from the evidence of PW 1
that accused A-2 while proceeding towards the house of Srinivasa
Naidu took out the crowbar MO 3 in his right hand. There is,
therefore, no iota of doubt that MO 3 i.e. crowbar was in the hands
of accused A-2 and he assaulted the deceased with the said
weapon. This submission, therefore, is not at all tenable."
10. The Hon'ble Supreme Court in the case of Uppari Venkataswamy And
Others Vs. The Public Prosecutor, High Court Of A.P.2 held the
following:-
"31. The aforesaid eyewitness account put forward consistently by
all the injured prosecution witnesses PWs 1 and 4 to 7 could not be
shown to be involving any inconsistency inter se as fairly stated by
Shri Lalit, learned Senior Counsel for the accused. He, on the
contrary, stated that the version was so parallel and accurate that it
appeared to be too good to be true and, therefore, according to him it
could be dubbed as unnatural. However, he had to concede that
version of all these prosecution witnesses did establish that they
were subjected to attacks by bombs on the date of the incident. Not
only that but we find from medical evidence that all these
prosecution witnesses who were travelling in the jeep and had
suffered from bomb injuries were medically examined shortly after
the incident and it was clearly established from the medical
evidence that each of them had suffered number of injuries from
bomb blast. Evidence of Dr A. Anjanelu is eloquent on the point. He
2
(1996)7 SCC 232
36
examined the complainant K. Ramalinga Reddy, since deceased,
and found the following injuries on his person:
(1) A lacerated injury of the size 2 cms × 2 cms × 1 cm present on the
pinna of the left ear, edges are black.
(2) A lacerated injury of the size ½″ × 1/12″ × ¼″ present on the left
shoulder, edges are black.
(3) An abrasion of the size ½″ × ¼¼″ present on the left side of the
back, edges are black.
(4) Multiple abrasions present on the left side of the back, edges are
black. Abrasions are surrounded by blackened areas.
(5) An abrasion of the size ½″ × ½″ present on the left side of the
chest. Edges are black.
All the above injuries were simple in nature and aged more than six
hours prior to the examination. Ex. P-10 is the wound certificate
issued by the witness to Shri K. Ramalinga Reddy. We may leave
aside the injuries suffered by PWs 2 and 3 who had turned hostile
to the prosecution though the doctor found that even they had
suffered multiple injuries by bomb blast in the same incident. The
doctor found the following injuries on PW 7 K. Lakshmi Reddy:
1. A lacerated injury of the size ¼″ × ¼″ × ¼″ present on the occipital
region -- edges are black.
2. A lacerated injury of the size ¼″ × ¼″ × ¼″ present on the right
side of the back above the shoulder blade. Edges are black.
3. Multiple abrasions present on the left side of the back and right
side of the back. Edges are black.
4. Multiple abrasions present on the outer aspect of the left upper
arm. Edges are black.
5. Lacerated injury of the size ¼″ × ¼″ × ¼″ present on the left
forearm -- edges are black.
The doctor also found the following injuries on PW 1 K. Srikantha
Reddy:
37
1. Multiple abrasions present on the right side of the back -- edges
are black, surrounded by blackened areas. Stone piece was
recovered from the wound and preserved for expert's opinion.
2. A lacerated injury of the size ¼″ × ¼″ × ¼″ present on the right
side of the back, edges are black.
3. Multiple abrasions present on the left side of the back. Edges are
black and surrounded by blackened areas.
4. Abrasion of the size ½″ × ½″ present on the left parietal region --
edges are black.
Injuries found on PW 6 Narayana Reddy were as under:
1. A lacerated injury of the size ¼″ × ¼″ × ¼″ present on the left
cheek, edges are black.
2. An abrasion of the size 1-½″ × 1″ present on the back of the right
elbow joint surrounded by blackened areas.
So far as PW 4 Rajeshwar Reddy is concerned, he stated in his
deposition that he received injuries on both of his legs when some of
the pellets (splinters) of exploded bombs hit him. All the people who
had travelled by jeep received injuries having received splinters of
the exploded bombs. The Circle Inspector examined him and sent
him and 8 other injured persons to the Government Hospital of
Nandyal. While he was in the hospital the Circle Inspector of Police
seized his bloodstained full panche [Ed.: Means dhoti] and
bloodstained shirt. He identified the bloodstained terricotton shirt
and the bloodstained banian MOs 6 and 7. This version of his could
not at all be shaken in the cross-examination. Same was the position
with PW 5 KappuramSubba Reddy who had stated that he received
bleeding injuries when some of the discharged splinters hit him on
forehand. He and other injured were sent to Government Hospital,
Nandyal by the Circle Inspector of Police. While he was in the
hospital the CI of Police seized his bloodstained full shirt MOs, his
38
bloodstained banian MO 9 and his bloodstained Glaxo full
panche MO 10."
......
“47. So far as this point is concerned, we have already discussed in
detail while considering Point No. 1 how the eyewitness account of
injured eyewitnesses PWs 1 and 4 to 7 remains well sustained on
record in the light of medical evidence. For the reasons recorded by
us on that point, therefore, it must be held that the eyewitness
account of these witnesses who were members of the marriage party
and who got injured on account of the bomb attack mounted on the
jeep car on that fateful morning by Accused 1 and his party, has to
be accepted. Their version as we have noted earlier is quite
consistent and parallel. In fact as Shri Lalit, learned Senior Counsel
for the accused, submitted it is too accurate to be true. In our view
merely because the version of all these injured eyewitnesses is
accurate and comprises parallel versions deposed to by each of
them, it cannot be said that it is a parrot-like version which should
not be accepted especially when the medical evidence has fully
supported their version that they received bomb injuries in the
attack. In fact Shri Lalit, learned Senior Counsel for the accused,
fairly stated that on this evidence it is not possible for him to submit
an extreme contention that these witnesses had not suffered bomb
injuries in that attack but according to him their evidence could not
be relied upon to show that these accused had caused these
injuries. So far as this aspect is concerned, it is obvious that there
was deep-seated enmity between the complainant’s party and the
party of Accused 1 and his supporters. It is also to be noted that
Accused 2 to 9 were all close relatives of Accused 1 who was the
leader of the team being an aged man of 70 years or more. Other
accused were his own sons and nephews apart from Accused 10.
Therefore, they had a deep-seated common grievance against
39
complainant Ramalinga Reddy and his relatives who were
accompanying him and were members of his party. There was an
earlier attack by bombs by accused party on the complainant’s
party. It was also alleged that in past bombs were hurled by
complainant’s partymen at the house of Sirigiri Rama Subba Reddy
who belonged to the faction of Accused 1. The evidence has also
revealed that the road from Nandyal to Mahanandi passed through
a forest and at the spot where the incident occurred there was
history of earlier attack by bomb by accused party on Ramalinga
Reddy and his party. Under these circumstances when the jeep was
being driven on the spot if the accused mounted the attack from the
front it is easy to visualise that the occupants of the jeep would
clearly locate them especially when they were all known to them
since long and were in fact apprehending such an attack from them.
The ‘panchnama’ of the jeep car Ex. P-19 clearly supports the
eyewitness account of these witnesses apart from the medical
evidence to which we have made a reference while discussing Point
No. 1. It is true that the jeep car was not seized or photographed but
still the ‘panchnama’ about the condition of the jeep car after the
incident is eloquent enough to fully support the version of these
injured eyewitnesses. Ex. P-19 recites that behind the seat of the
driver where the bomb had fallen, the portion had turned yellow and
was smelling of sulphur. The side bar at the tarpaulin by the side of
the driver was slightly bent. The tarpaulin on the side of the driver
due to bomb hit was torn here and there. There were yellow marks
of sulphur on the tarpaulin. The tarpaulin on the left side was of
rexine. The tarpaulin on the top was torn. Due to bomb hit, marks
like that of smallpox were formed on the side angle and they were
yellow in colour. The danger light which was on the back right side
of the jeep was broken. This ‘panchnama’ clearly shows that the
jeep on the date of the incident had suffered multiple bomb attacks.
40
Shri Lalit submitted that if nine bombs were used in the attack as
per these alleged eyewitnesses, damage to the jeep would have
been much more extensive. It is difficult to appreciate this
contention. The ‘panchnama’ of the scene of offence has shown that
one bomb was lying unexploded on the spot. There was thick bush
growth on both sides of the road near the scene of offence, therefore,
some bombs might not have hit the target. It is also to be kept in
view that deceased 1 and 2 also suffered from at least three bomb
injuries and there were extensive and multiple injuries suffered by
seven occupants of the jeep who deposed before the trial court being
PWs 1 to 7 and the complainant since deceased also had suffered
from bomb injuries in the incident. Not only that even the hostile PWs
2 and 3 had also suffered from bomb injuries as found from medical
evidence and their own evidence. These diverse injuries on number
of persons travelling in the jeep clearly indicated that the eyewitness
account that all the accused were armed with bombs and had
hurled the bombs at the occupants of the jeep being the members of
marriage party headed by complainant Ramalinga Reddy cannot be
said to be in any way an exaggerated or a false version. On the
contrary, the said version appears to be quite justified and well
supported by evidence on record. Shri Lalit, in this connection,
submitted that the evidence shows that the jeep was having
tarpaulin covers on both sides and when the case of the prosecution
is that the attack was mounted by the accused from the front side it
is not possible to believe that all the witnesses would have seen the
actual hurling of bombs. Even this submission cannot be accepted
for the simple reason that the prosecution version which is
supported by eyewitness account is to the effect that the accused
came from two directions. In fact the entire incident on the spot can
be divided into three parts that took place in quick succession. In the
first part Accused 1 to 4 came from the right side and hurled three
41
bombs on the occupants of the jeep. That caused injuries to the
occupants on the right side of the jeep including the driver PW 1 and
damaged the jeep on the right side. Thereafter in the second part of
incident Accused 5 to 9 came from the western side, that is, the left
side and mounted bomb attack on the jeep which resulted in
damage to the top of the jeep which was set aflame and also caused
injuries to complainant Ramalinga Reddy and other occupants on
the left side in the jeep. When such an attack is mounted from the
front side from two directions, it is easy to visualise that the
occupants would naturally get scared and would look on the front
side from where the attack was being mounted and can witness the
culprits. In this connection also, it may be noted that so far as
deceased-complainant Ramalinga Reddy is concerned he was sitting
on the extreme left in the front seat and he had received injuries
from bomb blast on the left side of his body. Nature of the injuries
suffered by him fully corroborates the eyewitness account deposed
to by PWs 1 and 4 to 7. It cannot, therefore, be said, as submitted by
Shri Lalit for the accused, that these occupants of the jeep who
suffered from injuries on account of bomb attack could not have seen
as to who were the culprits or authors of the attack. It was broad
daylight in the morning of 1-6-1987 and all the accused were very
well-known to these witnesses and when they attacked, coming in
front of the jeep from both left and right sides, they would be fully
visible to the occupants of the jeep. It is, therefore, not possible to
agree with the contention of Shri Lalit that the occupants of the jeep
could not have identified these accused. The third part of the
incident refers to what happened to deceased 1 and 2 who jumped
from the jeep car and met their death by suffering from bomb
injuries at the hands of the accused in the course of the very same
transaction. For all these reasons, therefore, it is not possible to
agree with the submission of Shri Lalit that the eyewitness account
42
of these witnesses should not be believed. We find that the High
Court has given cogent reasons at pp. 13 and 14 of the judgment
under appeal as well as at p. 21 why the eyewitness account of
these witnesses should be believed. We entirely concur with the
same. The High Court has also noted one submission canvassed on
behalf of the accused that when Accused 1 to 9 were allegedly
throwing bombs at the jeep from either side it would have been more
prudent for deceased to remain in the jeep itself. Said submission
was rightly turned down by the High Court as it is not possible to
predicate with any degree of certainty as to how a person would
behave when he is being attacked by bombs from both the sides by
belligerent attackers. If getting scared, deceased 1 and 2 jumped out
of the jeep along with PWs 8 and 9 it cannot be said that they had
acted in an unnatural manner or that they should have continued to
remain in the jeep to suffer from bomb blasts. Instinct of self-
preservation prompted the deceased to get out of harm’s way by
jumping out of the attacked jeep but unfortunately they could not
save themselves. Consequently, it cannot be said that the
eyewitness account of Accused 1 and 4 to 7 in any way is
unbelievable or unacceptable. On the contrary, their account is quite
natural and remains well sustained on the record of the case. In this
connection, we may also note one additional submission of Shri
Lalit. He submitted that the first information report Ex. P-17
mentioned that four persons remained in the jeep after the bomb
attack and 8 persons jumped out of the jeep whereas the
eyewitnesses’ account showed that 8 persons remained in the jeep
and 4 persons jumped out. We fail to appreciate how this would
make any difference. Whether 4 persons jumped out or 8 persons
jumped out would not affect the culpability of the accused who had
mounted the attack on the jeep, which remained well established on
record in the light of the eyewitness account. Even otherwise as we
43
have discussed earlier, while considering Point No. 1 the
eyewitnesses’ account of these witnesses cannot be contradicted
with what is stated in the first information report by the complainant
who could not be examined in the case. The version of the
eyewitnesses could be contradicted with their earlier police
statements if at all. Their version cannot be contradicted with what
was stated in the first information report by a third party and which
by itself was not a substantive piece of evidence and which even
could not be tested on the anvil of cross-examination as the
complainant was dead prior to the trial. Shri Lalit next contended
that the prosecution has not fully established its case that this party
was going to attend the marriage at Village Mahanandi. It is difficult
to appreciate this contention. The eyewitness account which has
remained unshaken in cross-examination shows that there was a
marriage in the family of complainant Ramalinga Reddy at Village
Mahanandi and they were all going to attend the said marriage. The
occupants in the jeep car along with the complainant Ramalinga
Reddy were PW 1 his son, his younger son Lakshmi Reddy, his
brother Damodara Reddy and his son-in-law Rajsekhara Reddy
deceased 2, and other relatives and acquaintances, in all 10 and
who were also accompanied by two menial servants PWs 8 and 9.
But even assuming that the occasion of marriage at Village
Mahanandi was not established, even then if the complainant’s
party was going on the fateful morning in a jeep car for attending
any other social function at Mahanandi and if that party was
attacked by bombs by the accused in the manner deposed to by the
prosecution witnesses the culpability of the accused would not be
lessened in any manner. For all these reasons, therefore, there is no
substance in this additional submission of the learned Senior
Counsel for the accused for disbelieving the eyewitness account of
44
injured eyewitnesses PWs 1 and 4 to 7. This point is, therefore,
answered in the affirmative.”
…..
“58. As a result of the aforesaid discussion it must be held that the
High Court was quite justified in interfering with the order of
acquittal as passed by the trial court and in convicting the accused
of the offences with which they were charged. Eyewitness account
of injured eyewitnesses being occupants in the jeep car PW 1 and
PWs 4 to 7 as well as eyewitness account of PWs 8 and 9 has
remained well sustained on the record and is fully corroborated by
medical evidence as well as by the evidence of damage to the jeep
car as found in ‘panchnama’ Ex. P-19. Consequently no case is
made out for our interference in this appeal.”
11. The Hon’ble Supreme Court in the case of Pruthiviraj Jayantibhai Vano
Vs. Dinesh Dayabhai Vala And Others3 held the following: –
“17. Ocular evidence is considered the best evidence unless there
are reasons to doubt it. The evidence of PW 2 and PW 10 is
unimpeachable. It is only in a case where there is a gross
contradiction between medical evidence and oral evidence, and the
medical evidence makes the ocular testimony improbable and rules
out all possibility of ocular evidence being true, the ocular evidence
may be disbelieved. In the present case, we find no inconsistency
between the ocular and medical evidence. The High Court grossly
erred in appreciation of evidence by holding that Muddamal No. 5
was a simple iron rod without noticing the evidence that it had a
sharp turn edge.
18. The aforesaid discussion leads us to the conclusion that the
acquittal by the High Court is based on misappreciation of the
evidence and the overlooking of relevant evidence thereby arriving at3
(2022)18 SCC 683
45a wrong conclusion. It is not a case where two views are possible or
the credibility of the witnesses is in doubt. Neither is it a case of a
solitary uncorroborated witness. The conclusion of the High Court is
therefore held to be perverse and irrational. The acquittal is therefore
held to be unsustainable and is set aside. In the nature of the
assault, Section 304 Part II IPC has no application. The conviction of
Respondents 1 to 4 by the trial court is restored.”
12. The Hon’ble Supreme Court in the case of Sardul Singh And Others Vs.
State Of Punjab4 held the following: –
“4. The High Court has examined the evidence of PWs 2, 3 and 4 in
great detail. It must be noted that there cannot be any dispute that
the occurrence took place near the house in which PWs 2, 3 and 4
were staying. Further PW 3 was injured. The FIR was given
promptly in which all the details were mentioned. The presence of
PW 3 is further fortified by the fact that she also received injuries as
stated by her and the medical evidence supports her version. A
feeble attempt was made to show that these injuries could have
been self-inflicted. We see absolutely no basis for the same having
regard to the nature of the injuries on PW 3.”
13. The Hon’ble Supreme Court in the case of Ram Vilas Vs. State Of Madhya
Pradesh5 held the following: –
“6. In the incident, Narmada Prasad (PW 3) and Uma Bai (PW 5),
sister of the deceased sustained injuries and Ext. P-9 and Ext. P-10
are the MLC Reports of Narmada Prasad (PW 3) and Uma Bai (PW
5), respectively issued by Dr S.K. Dhoble (PW 10). Narmada Prasad
(PW 3) and Uma Bai (PW 5) being injured witnesses, their presence
at the time and place of occurrence cannot be doubted. Evidence of4
1993 Supp(3) SCC 678
5
(2016)16 SCC 316
46the injured witnesses is entitled to a great weight and very cogent
and convincing grounds are required to discard the evidence of the
injured witnesses. We do not find any ground to disbelieve the
evidence of injured witnesses Narmada Prasad (PW 3) and Uma Bai
(PW 5).
7. The learned counsel for the appellant Mr Ajay Veer Singh
contended that the presence of appellant Ramvilas at the scene of
occurrence was doubtful as no “katta” was seized from him nor was
any gunshot injury found on the person of deceased Bansilal. As
observed by the High Court, all the eyewitnesses have spoken in
one voice so far as carrying of “katta” by appellant Ramvilas and
therefore his presence at the scene of occurrence cannot be doubted
merely because no “katta” was recovered from him. It has come out
in the evidence that the appellant Ramvilas had exhorted the other
accused in attacking the deceased and also actually participated in
the attack. As pointed out by the courts below that the appellant
Ramvilas nowhere pleaded in his examination under Section 313
CrPC that he was neither present at the scene of occurrence nor
involved in the incident.
8. The conviction of the appellant Ramvilas is based on the evidence
of injured witnesses which is amply corroborated by the evidence of
eyewitnesses and medical evidence. Conviction of the appellant is
based on proper appreciation of evidence and the courts below have
recorded concurrent findings and the same is not liable to be
interfered with in exercise of power under Article 136 of the
Constitution of India.”
14. The Hon’ble Supreme Court in the case of State Of Uttar Pradesh Vs.
Naresh And Others6 held the following: –
6
(2011)4 SCC 324
47“27. The evidence of an injured witness must be given due
weightage being a stamped witness, thus, his presence cannot be
doubted. His statement is generally considered to be very reliable
and it is unlikely that he has spared the actual assailant in order to
falsely implicate someone else. The testimony of an injured witness
has its own relevancy and efficacy as he has sustained injuries at
the time and place of occurrence and this lends support to his
testimony that he was present during the occurrence. Thus, the
testimony of an injured witness is accorded a special status in law.
The witness would not like or want to let his actual assailant go
unpunished merely to implicate a third person falsely for the
commission of the offence. Thus, the evidence of the injured witness
should be relied upon unless there are grounds for the rejection of
his evidence on the basis of major contradictions and discrepancies
therein. (Vide Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 :
(2010) 1 SCC (Cri) 107] , Balraje v. State of Maharashtra [(2010) 6
SCC 673 : (2010) 3 SCC (Cri) 211] and Abdul Sayeed v. State of
M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] )”
….
“30. In all criminal cases, normal discrepancies are bound to occur
in the depositions of witnesses due to normal errors of observation,
namely, errors of memory due to lapse of time or due to mental
disposition such as shock and horror at the time of occurrence.
Where the omissions amount to a contradiction, creating a serious
doubt about the truthfulness of the witness and other witnesses also
make material improvement while deposing in the court, such
evidence cannot be safe to rely upon. However, minor contradictions,
inconsistencies, embellishments or improvements on trivial matters
which do not affect the core of the prosecution case, should not be
made a ground on which the evidence can be rejected in its entirety.
The court has to form its opinion about the credibility of the witness
48and record a finding as to whether his deposition inspires
confidence.
“9. Exaggerations per se do not render the evidence brittle. But it
can be one of the factors to test credibility of the prosecution version,
when the entire evidence is put in a crucible for being tested on the
touchstone of credibility.” [Ed. : As observed in Bihari Nath
Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192, para 9.]
Therefore, mere marginal variations in the statements of a witness
cannot be dubbed as improvements as the same may be
elaborations of the statement made by the witness earlier. The
omissions which amount to contradictions in material particulars i.e.
go to the root of the case/materially affect the trial or core of the
prosecution’s case, render the testimony of the witness liable to be
discredited. [Vide State v. Saravanan [(2008) 17 SCC 587 : (2010) 4
SCC (Cri) 580 : AIR 2009 SC 152] , Arumugam v. State [(2008) 15
SCC 590 : (2009) 3 SCC (Cri) 1130 : AIR 2009 SC 331] , Mahendra
Pratap Singh v. State of U.P. [(2009) 11 SCC 334 : (2009) 3 SCC (Cri)
1352] and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of
Maharashtra [(2010) 13 SCC 657 : JT (2010) 12 SC 287] .]”
15. When the testimonies of the prosecution witnesses are examined in
conjunction with the medical evidence, the essential ingredients of the
offences for which the appellants were charged become evident. The
evidence consistently shows that the appellants arrived altogether at the
place of occurrence armed with weapons such as “Dao” “Kaste” and
“Shabol”. Their collective arrival with such weapons establishes the
existence of an unlawful assembly. The manner in which they entered the
field and began severing crops despite protest demonstrated the assembly
had a common object of asserting dominance over the disputed land and
49
suppressing resistance through force. The assault on the complainant’s side
when resistance was offered clearly constituted the case within the ambit of
Sections 147 and 148 of the Indian Penal Code relating to riot and riot
armed with deadly weapons.
16. The participation of multiple persons in the assault, acting in concert and
using weapons capable of causing serious injury also attracted the principle
embodied in section 149 of the Indian Penal Code. The evidence reflected
the acts committed by individual members of the assembly done in
furtherance of the common object shared by all.
17. The injuries sustained by the victims, as described by the eyewitnesses and
confirmed by the medical officer established the commission of offences
under section 323 and 324 of the Indian Penal Code relating to voluntarily
causing hurt by dangerous weapons. The deep incised wounds on the head,
inflicted with sharp weapons such as “Dao” and “Kaste”, demonstrate that
the appliances used instruments capable of causing grievous injury. More
importantly the nature of assault and the location of the injuries justify the
application of Section 307 of the Indian Penal Code. The appellants directed
blows at the heads of the victims being a vital part of the human body. The
use of sharp-edged weapons and the force with which the blows were
delivered resulted in severe injuries requiring immediate medical attention.
Even though death did not occur, the intention or knowledge required to
constitute an offence under Section 307 of the Indian Penal Code can be
inferred from the weapon used, the body part targeted and the severity of
the attack. The evidence on record therefore supports the Trial Court’s
50
conclusion that the appellants attempted to cause injuries which were likely
to endanger life. The testimony of PW-2 and other witnesses further revealed
during the course of assault a female member of the complainant’s family
was also subjected to violence and indignity thereby attracting the
ingredients of Section 354 of the Indian Penal Code. The defence had
attempted to discredit the prosecution witnesses by pointing out that they
were related to each other and that there existed a land dispute between the
parties. However the mere existence of a dispute did not render their
testimony unreliable. On the contrary the dispute provided a plausible
motive for the occurrence itself. The injured witnesses have withstood cross
examination and their testimonies are supported by medical evidence. Minor
discrepancies or omissions in their statements do not affect the core of the
prosecution case.
18. The argument that the witnesses were interested or inimical could not by
itself render their testimony unreliable. In rural disputes relating to
agricultural land, it is common that those present at the scene belong to the
same family or locality. Such proximity may furnish a motive for hostility,
but it equally explains the witnesses’ presence at the place of occurrence.
The Court must therefore scrutinize their testimony exhaustively rather
than discard it outright. In the present case, despite detailed cross-
examination, the defence has not been able to demonstrate any material
contradiction affecting the core of the prosecution narrative.
19. The argument regarding non-seizure of weapons and delay in lodging the
first information report also does not materially weaken the prosecution
51
case. The victims were taken to hospital immediately after the incident and
their injuries were recorded by the medical officer within a short span of
time. The delay in lodging the FIR is adequately explained by the medical
condition of the injured person.
20. The gravamen of appellants’ challenge relates to the applicability of Section
307 of the Indian Penal Code and it is therefore necessary for this Court to
examine the evidentiary framework particularly. The offence under Section
307 of the Indian Penal Code does not hinge upon the fortuity of death
ensuing from the act; rather, the statutory inquiry is directed towards the
intention or knowledge with which the act is committed. The legislative
emphasis lies upon the mens rea accompanying the assault and the
circumstances in which the act has been carried out, including the weapon
employed, the part of the body targeted and the degree of force with which
the blow was delivered.
21. In the present case the testimonies of PW-1, PW-2 and PW 3 all of whom
were injured witnesses revealed the appellants arrived together at the
disputed agricultural land armed with “Dao” “Kaste” and “Shabol”. Their
arrival was not accidental or spontaneous. It was preceded by an evident
design to assert control over the standing crops in the field. The dispute
regarding possession of the land forms the underlying motive for the
occurrence. Motive though not an indispensable element in every criminal
prosecution, assumes evidentiary significance where the occurrence arises
out of a pre existing hostility. In such situations it provides the contextual
background amongst which the conduct of the accused must be evaluated.
52
The existence of a land dispute between the parties in the present case does
not weaken the prosecution version rather it lends a plausible explanation
to the genesis of the assault.
22. The injured witnesses have consistently deposed when resistance was
offered against the reaping of crops, the appellants launched a violent
attack using sharp-edged weapons. PW-1 described how he received a blow
on the head with a sharp instrument, resulting in immediate bleeding and
loss of consciousness. PW-2 corroborated that her husband was stuck with
such force that he sustained severe head injuries and other bodily harm.
PW-3 similarly testified the appellants assaulted the complainant’s side with
“Shabol” and bamboo sticks during the confrontation. These witnesses were
not mere spectators but victims of the attack themselves. Their presence at
the scene is therefore beyond dispute.
23. The jurisprudence surrounding the testimony of injured witnesses is well
settled. Courts have consistently held that the evidence of a witness who
has himself suffered injuries during the occurrence carries a built in
guarantee of tooth. The reason is both logical and experiential; a person who
has been injured in the course of an incident is unlikely to shield the real
assailant and falsely implicate another for the memory of the attack is by
the very pain and trauma suffered. Consequently unless compelling
circumstances exist to discard such testimony, the evidence of an injured
witness commands a high degree of credibility. In the present case the
defence had not been able to elicit any material contradiction that would
discredit the core of their testimony.
53
24. What lends further strength to the testimony of the injured witnesses is the
medical evidence. PW-4 the medical officer who examined the victims
shortly after the incident, recorded deep incised wounds on the skull and
vertex region of the injured persons. One victim was found with a 5 inch
incised wound requiring multiple stitches while another had a 3 inch wound
on the head. The medical officer categorically opined that the injuries were
grievous in nature and consistent with blows inflicted by sharp cutting
weapons. The timing of the medical examination within a short span of
occurrence excludes the possibility of fabrication or embellishment. The
medical evidence thus forms a vital corroborative link connecting the ocular
testimony with the physical consequences of the assault.
25. The convergence between ocular and medical evidence assumes particular
significance in determining the applicability of Section 307 of the Indian
Penal Code. The blows described by the witnesses were directed at the head
which was indisputably a vital and vulnerable part of the human body. The
weapons employed “Dao” “Kaste” and “Shabol” were sharp-edged weapons
capable of causing fatal injuries. When such weapons had been used with
considerable force against the head of a victim, the inference that the
assailant intended to cause death or such bodily injury as was likely to
cause death became irresistible. The law does not require the prosecution to
prove that the accused explicitly intended to cause death it is sufficient if
the act has been done with knowledge that the injury so inflicted has been
so imminently dangerous that it can in all probability cause death.
54
26. The appellants have attempted to dilute the evidentiary force of the
prosecution case by pointing to certain lapses in the investigation. It has
been argued that the investigating officer failed to seize the weapons
allegedly used in the assault and that certain details narrated by the
witnesses during trial were not recorded in their statements under Section
161 of the Code Of Criminal Procedure. While these criticisms cannot be
dismissed lightly, it must be remembered that the law draws a clear
distinction between defective investigation and absence of credible evidence.
Investigative lapses may invite administrative scrutiny but they do not
necessarily demolish the prosecution case if the substantive evidence on
record remains reliable and convincing. A criminal trial should not be
allowed to collapse merely because of imperfections in the investigation. To
hold otherwise would place the fate of criminal justice entirely at the mercy
of investigative efficiency and would allow the guilty to escape punishment
on account of errors committed by the investigating agency. The duty of the
Court is to re-evaluate whether notwithstanding such lapses, the evidence
of the witnesses inspire confidence and establishes the guilt of the accused
beyond reasonable doubt.
27. In the present matter the prosecution evidence is not dependent solely on
the investigation. The testimonies of the injured witnesses are clear,
consistent and mutually corroborative. Their accounts are further supported
by independent witnesses who reached the scene and observed the
immediate aftermath of the assault. Most importantly the medical evidence
provided objective confirmation of the injuries described by the witnesses.
55
When such credible evidence exists on record the failure of the investigating
officer to recover the weapons cannot be regarded as fatal to the
prosecution.
28. The cumulative effect of the evidence therefore leaves no room for doubt.
The appellants motivated by a dispute over agricultural land assembled
together armed with sharp weapons and attacked the complainant’s side
with considerable force. The blows inflicted on the head of the victims
resulted in grievous injuries that could in the ordinary course of nature
have proved fatal. The intention or knowledge necessary to attract the
elements of Section 307 of the Indian Penal Code thus has been clearly
established.
29. In the line of the forgoing discussion, this Court finds no reason to interfere
with the findings of guilt recorded by the Learner Trial Court. The conviction
of the appellants under Sections 147, 148, 149, 323, 324, 307 and 354 of
the Indian Penal Code is therefore affirmed.
30. However, the question of sentence requires separate consideration. The
incident in question occurred in the year 2010 more than 15 years prior to
the present adjudication. The parties belong to the same rural locality and
appear to have been engaged in a dispute relating to agricultural land. The
injuries sustained by the victims though grievous, did not result in
permanent disability or loss of life. The record does not indicate that the
appellants have been involved in subsequent criminal activities after the
occurrence. These circumstances persuade this Court to consider a limited
modification of the sentence while maintaining the conviction.
56
31. Accordingly, while affirming the conviction recorded by the Trial Court, the
sentence imposed upon the appellants under Section 307 of the Indian
Penal Code is modified and reduce to a rigorous imprisonment for a period
of four years. The sentence is imposed for the other offences under Sections
323, 324, 147, 148, 149 and 354 of the Indian Penal Code shall run
concurrently and stand proportionately reduced subject to the set off
permissible under Section 428 of the Code of Criminal Procedure for the
period already undergone in custody.
32. In view of the above discussions, the instant criminal appeal being CRA 411
of 2014 is dismissed.
33. There is no order as to costs.
34. Lower court records along with a copy of this judgment be sent down at
once to the Learned Trial Court for necessary action.
35. Photostat certified copy of this order, if applied for, be given to the parties on
priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)
