GYANESHWAR SHYAMALversusSTATE OF WEST BENGAL

                        [2016] 2 S.C.R. 419



                   GYANESHWAR SHYAMAL                                   A
                                 v.
                   STATE OF WEST BENGAL
              (Criminal Appeal No. 2147 of2009 etc.)
                         MARCH 29, 2016                                 B
   [JAGDISH SINGH KHEHAR AND C. NAGAPPAN, JJ.]
      Penal Code. 1860 - ss.148, 3641149, 3021149,0°3071149 -
Prosecution under - Of 35 accused - Conviction of 7 accused
including the appellants-accused ulss. 148, 3241149 and 3641149
by trial court and remaining accused acquitted of all· the charges -
                                                                        c
Appeal of the convicted accused dismissed by High Court - On
appeal by the appellant-accused, held: Prosecution case is supported
by the eye-witnesses includ_ing an, independent injured eye-witness
- The appellants-accused all through shared the common object of
the assembly - Conviction of the appellants-accused confirmed.          D
     Dismissing the appeals, the Conrt
     HELD: 1. According to Exh. 5 Sketch Map, the occurrence
had taken place inside the house of the deceased. It cannot be
appreciated that the eye-witnesses were only the family members
and their testimonies were interested ones. The occurrence              E
having taken place inside the house, it is only the family members
who could witness it. PW 4 was an independent witness and he
was also injured during the occurrence. His testimony
corroborates the testimonies of other eye-witnesses. [Para 9]
[424-G-H; 425-A-E)                                                      F
      2. It is true that two of the appellants/A:lO and A25 belonged
to,different villages. Their names are fonnd mentioned with their .
residential village in the complaint which was lodged at the earliest
point in time. PWs 2, 4 and 8 have testified abont the pJ1rticipation
of both the above accused in the occnrrence and have id;ntified
them also. Nothing is put in the cro_ss-examination of the
prosecution witnesses either denying their presence or absence
of any role played· by therr in the assembly. Not even a suggestion .
was made in this regard. These accused in their replies made
under Section 313 Cr.P.C. have not deni,ed their presence in the
                                                                        H
                                419
420              SUPREME COURT REPORTS                       [2016] 2 S.C.R.


A       occurrence. Ou the other hand their presence in the occurrence
        place is established by the evidence available on record. [Para
      · 10] [425-B-D]
             Akbar Sheikh and Ors. vs. State of West Bengal 2009
             (7) SCR 518:(2009) 7 SCC 415 - distinguished.
B            3. The prosecution iu a case of the nature as in the present
       case, was required to establish : i) Whether the appellants were
       present; and ii) Whether they shared a common object. The
       appellants uudisputedly raided the house of the deceased and
       they were armed with deadly weapons and they attacked the
c      deceased and PW4 and abducted the deceased in order to murder
       him. The appellants right from the beginning viz., when they
       assembled in ·a house till the abduction of the deceased, shared
       the common object of the assembly at all stages. Therefore, the
       impugned judgment of the Jligh Court does not suffer from any
       infirmity to warrant interference. [Para 12] (425-E-F]
D
                                Case Law Reference
        2009 (7) SCR 518                distinguished.          Paras
             CRIMINALAPPELLATEJURISDICTON: Criminal Appeal No.
       2147 of2009.
 E
             From the Judgment and Order dated 09 .02.2009 passed by the
       Division Bench of the High Court at Calcutta in C.R.A. No. 7of1991.
                                       WITH
             C.A. No. 2295 of2009
 F           P. K. Ghosh, Sr. Adv., Ankur S. Kulkarni, Shubham Jaiswal, (for
       M/s. Lex Regis Law Officers), Anurag Pandey (For Mr. Bijan Kumar
       Ghosh), Joydeep Mazumdar, Roh"it Dutta, Parijat Sinha, Ad vs., for the
       appearing parties.
             The Judgment of the Court was delivered by_
G
              C. NAGAPPAN, J. 1. These two appeals are preferred against
       the judgment dated 9.2.2009 passed by the High Court of Judicature at
       Calcutta in CRA No. 7 of 1991.
               2. The appellants in Criminal Appeal No. 7 of 1991 are accused
       Nos. I to 5, I 0 and 25 in Sessions Trial Case No. XIV of March 1987 on
H      the file of 5'h Additional Sessions Judge at M idnapore. They along with
  GYANESHWAR SHYAMAL v. STATE OF WEST BENGAL                               421
               [C. NAGAPPAN, J.]  '

28 other accused were tried for the alleged offences under Sections         A
148,364/149, 3021149 and 307/149 ofthe Indian Penal Code. The Sessions
Court found accused Nos.1 to 5, I 0 and 25 ;;uilty of charges under
Sections 148, 324/149 and 364/149 and not guilty of the charge under
Section 302/149 of the Indian Penal Code. Accused Nos. I to 5, 10 and
25 were sentenced to undergo rigorous imprisonment for I 0 years each
                                                                            B
with fine of Rs.1,000/- each and in default to undergo further rigorous
imprisonment for six months each for the conviction under Section 364/
149 !PC; sentenced them to undergo rigorous imprisonment for one year
each for the conviction ·under .Section 148 !PC and further sentenced
them to undergo rigorous imprisonment for one year each for the
conviction under Section 3 24/149. At the same time the Sessions Court      c
acquitted remaining 28 accused of all the charges.
      3. Aggrieved by this conviction and sentence accused Nos.1to5,
IO and 25 preferred Criminal Appeal in CRA No.7of199.1 before the
High Court of Judicature at Calcutta. The High Court by its judgment
dated 9.2.2009 dismissed the appeal. Accused Nos. 2, 3 and 4 died           D
during the pendency of the appeal. Challenging the impugned judgment
accused No.25 Ganeshwar Shyamal preferred Criminal Appeal No.2147
of 2009 and accused No. I Manik Monda], No.5 Amar Monda] and
No.10 Mihir Patra preferred Criminal Appeal No.2295 of 2009 before
this Court. These two appeals are heard together.
                                                                             E
       4. Briefly the prosecution case is as follows: PW2 Jitobahan is
the husband of PW3 Smt. Khiroda. Deceased Satyaban is their elder
unmarried son and PW8 Manoranjan Monda] is thefr younger son. All
of them lived together in Karthnala village. PW4 Muralidhar Kuila is
friend of deceased Satyaban. On 9._I 0.1983 between 9 and 10 a.m., the
cattle of accused Hariram Monda I caused damage to the Kundri plants         F
grown on the back side of the house of PW2 Jitobahan. Satyaban drew
away the cattle and this enraged Manik Monda I, son ofHariram Monda!,
who retaliated with the bow and arrow in his hand. Satyaban came
inside the house. lt was also alleged that there was political rivalry
between them. Around noon time on the same day all the accused              G
including the appellants armed with lathis, tangis, bows and arrows
assembled in the house of Golak Monda], situated at a distance of 30
cubits from the house ofSatyaban. At about 1.30 p.m. PW4 Muralidhar
Kuila came to the house of Satyaban and was talking to him in his house.
At that time all the accused with arms in their hands came there and
 surrounded Satyaban and Muralidhar. Accused No.. I Monik Monda! hit        H
422             SUPREME COURT REPORTS                     [2016] 2 S.C.R.


A Satyaban with tangi, a sharp cutting weapon and he also attacked PW4
  Muralidhar above the right eye with tangi. PW4 Muralidhar fled away.
  The accused persons assaulted Satyaban and took him to the house of
  Golak Monda!. Satyaban was thereafter never found either alive or dead.
  PWs ,2 and 3, parents of Satyaban and PW8 Manoranjan, brother
  witnessed the occurrence. Fearing for life PW8 Manoranjan fled to the
B
  house of his brother-in-law at Satma village and narrated the occurrence
  to PWI Ardhendu Satpati who rushed to the police station in his motor-
  cycle which was at a distance of about 44 kilometers. PW I Ardhendu
  Satpati lodged Exh. l written complaint and PWI 0 Sub-Inspector
  Mriganka Sekhar Misra received the same and registered Exh. l (a) First
c Information Report at 6.15 p.m. on the same day. The police had to
  requisition a vehicle and ultimately reached the place of occurrence at
  about 5.00 a.m. in the morning on the next day. PWIO Sub-Inspector
  searched for the accused persons but they were not found. He searched
  the house of accused Golak Monda! and seized a large number of blood-
  stained articles by preparing Exh.6 and 6-A Mahazars. He sent PW4
D
  Muralidhar to Gopiballavpur primary health centre, though PW4 was
  given first aid by Dr. Pushpa Ranjan Ghose. PW9 Dr. Bepari examined
  PW4 Muralidhar Kuila at the primary health centre and found I Y," x
  \/,,'' sharp cut wound over right eye and Yi'' x \!.'' sharp wound below
  the right eye. The injury report given by him is Exh.3. PWIO Sub-
E Inspector on completing the investigation filed chargesheet against 35
  accused. The Sessions Court on framing of charges conducted the trial
  in which prosecution examined I 0 witnesses and marked documents.
  No evidence was adduced by the defence. The trial court convicted
  only seven accused and sentenced them as stated supra. On appeal the
  High Court confirmed the conviction and sentence. Aggrieved by the
F
  same the present appeals have been filed.
            5. Mr. P.K. Ghosh, learned senior counsel appearing on behalf of
      the appellants would urge:
            a) the prosecution case must be held to have not been proved
 G          since the family members are the eye-witnesses;
            b) Whether the occurrence took plac((inside the house or outside
            is not established;
            c) two of the appellants belong to different villages and their
            presence in the occurrence place is doubtful and they have been
 H
   GYANESHWAR SHYAMAL v. STATE OF WEST BENGAL                                   423
                [C. NAGAPPAN, J.]

      implicated falsely due to political rivalry and the courts below           A
      committed ~rror in passing the judgments;
      d) in any event most of the appellants having not taken any active
      part, benefit of doubt should be given to them.
                                                                                 '.
The learned senior counsel in support of his submission mainly placed.
reliance on the decision of this Court in Akbar Sheikh and Ors. vs.              B
State of West Bengal [(2009) 7 SCC 415].
       6. Mr. Joydeep Mazumdar, learned counsel appearing on behalf
of the State, on the other hand, supported the impugned judgment
contending that the appellants armed with deadly weapons attacked PW 4
Muralidhar Kuila and abducted Satyaban to murder him and thereafter              c
Satyaban was never found alive or dead and each one of the appellants
had the requisite common object and the conviction and sentence imposed
on them.are sustainable.
        7. The prosecution case is that the accused armed with deadly
weapons indulged in rioting and abducted Satyaban from his residence             D
and murdered him. The trial court held that Satyaban was murdered in
the house of accused Golak Monda! was not proved since his dead
body was not found despite vigorous search and it is a case of
untraceability of the corpus delicti and hence the charge of murder
was not proved. The State did not prefer appeal against the acquittal of         E
the accused on the said charge and it became final. At the same time
the trial court held thatthe appellants indulged in rioting by causing injury
to PW4 Muralidhar Kuila and abducted Satyaban by assaulting him
with intent to commit m~rder and found the appellants guilty of the
charges stated supra. PW2 Jitobahan and his wife PW3 Smt. Khiroda
were living with their sons Satyaban and PW8 Manoranjan in their house           F
in Karthnala village. According to PWs 2, 3 and 8 on the occurrence
day in the morning cattle ofaccused Hariram caused damage to the
Kundri plants grown on the back side of their house and Satyaban drew
away the cattle and enraged by this accused No. I Monik Monda!
retaliated with bow and arrow and Satyaban came inside the house. It is
                                                                                 G
their further testimony that by noon time on the same day all the accused
 including the appellants assembled in the house ofGolak Monda! which
was situated near their house and at that time they were armed with
lathis, tangis, bow and arrows. PWs 2, 3 and 8 have testified further
that PW4 Muralidhar Kuila came at about 1.30 p.m. to their house to
                                                                                 H
424              SUPREME COURT REPORTS                          [2016] 2 S.C.R.



A     meet Satyaban and both of them were talking in their house and at that
      time all the accused with arms in their hands came to their house and
      surrounded Satyaban and PW4 Muralidhar Kuila. Accused No. l Monik
      Monda! hit Satyaban with tangi and he also attacked PW4 Muralidhar
      Kuila above right eye with tangi and all the accused assaulted Satyaban
      and took him to the house of accused Golak Monda! and Satyaban was
B
      never found thereafter alive or dead. PW4 Muralidhar Kuila has also
      testified that when he was indulged in conversation with Satyaban in
      their house they were surrounded by all the accused and he was attacked
      by accused No.l Monik Monda! with tangi resulting in injury in his right
      eye and he fled for life and Satyaban was abducted by them. PW9 Dr.
c     Bepari examined PW4 Muralidhar Kuila and found two sharp cut wounds
      over and below his right eye. Exh.3 is the injury report issued by him.
      PW8 Manoranjan fled to the house of his brother-in-law at Satma village
      and narrated the occurrence to PW I Ardhendu Satpati who lodged the
      written complaint in the police station.

D            8. The occurrence had taken place atabout2.00 p.m. on 9.10.1983
      and the complaint had been lodged at about 6.15 p.m. on the same day,
      on which the case came to be registered. As mentioned in the FIR, the
      police station was situated at a distance of 54 kms. from the occurrence
      place. In such circumstances there is no delay in lodging the complaint
      and it assumes significance. Seven accused persons have been named
 E    with their residential village in the complaint and it includes the appellants
      herein. The complainant PWl Ardhendu ·Satpati has not witnesse<:I the
      occurrence and on the instruction given by PW8 Manorinjan he had
      lodged the complaint.
             9. PW4 Muralidhar Kuila in his testimony has stated that he saw
 F    Satyaban and his brother Manoranjan in front of the house and he started
      talking to Satyaban and at that time the accused persons surrounded and
      attacked them. PWs 2, 3 and 8 have categorically stated that PW4
      Muralidhar Kuila on the occurrence day at about 1.30 p.m. came to
      their house to meet Satyaban and both of themwere talking inside the
 G    house at which point of time the accused barged in. The Investigation
      Officer PW I 0 in Exh.5 Sketch Map prepared by him has shown the
      occurrence place inside the house of Satyaban. We also perused th.e
      sketch map and are convinced that the occurrence had taken place only
      inside the house of Satyaban. In the same way we are unable to
      appreciate the other contention that the eye-witnesses are only the family
 H    members and their testimonies are interested ones. The occurrence
     GYANESHWAR SHYAMAL v. STATE OF WEST BENGAL                                     425
                  [C. NAGAPPAN, J.]

  having taken place inside the house it is only the family members who              A
  could witness it. PW4 Muralidhar Ku ii a is an independent witness and
  he was also injured during the occurrence. His testimony corroborates
. the testimonies of other eye-witnesses.
         I 0. It is true that two of the appellants/A IO and A25 belong to
  different villages. As already stated their names are found mentioned              B
  with their residential village in the complaint which was lodged.at the
  earliest point in time. ·PW s 2, 4 and 8 have testified about the participation
· of both the above accused in the occurrence and have identified them
  also. Nothing is put in the cross-examination ,of the prosecution witnesses
  either denying their.presence or absence of any role played by them in
  the assembly. Not even a suggestion is made in this regard. It is also
                                                                                     c
  relevantto point outthat these accused in their replies made under Section
  313 Cr.P:C. have not denied their presence in the occurrence. On the
  other hand their presence in the occurrence place is established by the
  evidence available on record.
         11. In the facts of the decision cited supra 29 accused had faced           D
 trial and the testimony of two eye-witnesses were found to be credible
 and those witnesses had not named some of the accused in their
 testimonies and in the absence of any clinching evidence against those
 accused they were acquitted by this Court.
        12. The prosecution in a case of this nature was required to                 E
 establish : i) Whether the appellants were present; and ii) Whether they
 shared a common object. The appellants undisputedly raided the house
 of Satyaban and they were armed with deadly weapons and they
 attacked Satyaban and PW4 Muralidhar Kuila and abducted Satyaban
 in order to murder him. The appellants right from thej>eginning viz.,               F
 when they assembled in the house of Golak Monda! till the abduction of
 Satyaben, shared the common object of the assembly at all stages. We
 are of the view that the impugned judgment of the High Court does not
 suffer from any infirmity to warrant interference.
         13. There are no merit in the appeals and the same are dismissed.
                                                                                     G
 Kalpana K. Tripathy                                           Appeals dismissed.