MD. ISHAQUE AND OTHERSversusSTATE OF WEST BENGAL AND OTHERS

                         [2013] 5 S.C.R. 518


A                  MD. ISHAQUE AND OTHERS
                                  V.
            STATE OF WEST BENGAL AND OTHERS
               (Criminal Appeal No. 1421 of 2007)
                            MAY 3, 2013
B
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

          Penal Code, 1860 - s.304 Part I - Number of persons
    forced out of their houses - Assaulted with various weapons
C   - Death of one person and serious injuries to three others
    (PWs 1, 2 and 4) - Conviction of accused-appellants uls.302
    - Justification - Held: PWs 1 to 6 subjected to lengthy cross-
    examination, but nothing significant to discredit their evidence
    - Mere fact that some witnesses were interested witnesses,
D   not a ground to discard their evidence, when evidence taken.
    as a whole supported the case of the prosecution -:- PW1,
    PW2, PW4 sustained serious injuries, and their evidence was
    believed by the court - Prosecution succeeded in proving the
    place of occu"ence, the time of occurrence as well as the
E   manner of assault made on injured persons who were all
    examined by the Court and their evidence fully co"oborated
    the prosecution case - Prosecution successfully proved that
    it was the appellants and others who had committed the crime
    - Several injuries were caused by the appellants on the vital
F   parts of the deceased and the injured persons, with dangerous
    weapons and the injuries were sufficient, as certified by the
    doctor, in the ordinary course of nature to cause death -
    Appellants caused the injuries with deadly weapons,
    therefore, intention can be presumed regarding causing
G   injuries likely to cause death, which falls uls.304 Part I -
    Conviction therefore converted to that uls.304 Part I with RI
    of 10 years and fine of Rs.5,000/-each - 50% of the money
    recovered as fine to be paid to wife of the deceased as
    compensation.

H                                518
      MD. ISHAQUE v. STATE OF WEST BENGAL                519

      Evidence - Witness - Injured witness - Appreciation of.   A
      Evidence - Witness - Interested witness - Appreciation
of.
     The prosecution case is that some 200-250 persons
including the accused-appellants, forced out a number of        B
persons from their houses, and then assaulted them with
various sharp cutting weapons as well as blunt weapons.
One victim succumbed to his injuries while three other
victims, PWs 1, 2 and 4 sustained grievous injuries. PW3,
5 and 6 escaped from the place of assault. The trial court      c
convicted the appellants under Section 302 IPC and some
other penal sections. The conviction was affirmed by the
High Court, and therefore the instant,appeal.
      Disposing of the appeal, the Court
                                                                D
     HELD: 1. PW-1, in his statement, has categorically
stated that the incident had occurred on 5.7.1983 at
Siktahar .and his evidence finds full support from the
evidence adduced by the Investigating Officer PW20.
Facts indicate that an incident had taken place on              E
4.7.1983 at village Malopara, which resulted in the death
of 13 persons and due to that occurrence, there was an
atmosphere of terror over the surrounding villages and
also as a sequel of that massacre of Malopara, Siktahar
village was attacked. PWs1 and 6 were directly affected
                                                                F
by the incident that had occurred at Siktahar, in which the
involvement of the appellants was clearly established.
PWs 1 to 6 were subjected to lengthy cross-examination,
but nothing significant was brought out to discredit their
evidence. [Para 10] [525-A-D]
                                                                G
     2. The mere fact that some of the witnesses are
interested witnesses, that by itself is not a ground to
discard their evidence, when the evidence taken as a
whole supports the case of the prosecution. [Para 11]
[525-H; 526-A]                                                  H
    520     SUPREME COURT REPORTS                [2013] 5 S.C.R.


A       Hari Obula Reddy and Ors. v. The State of Andhra
    Pradesh (1981) 3 sec 675 - relied on.
         3. PW1, PW2, PW4 sustained serious injuries, and
    their evidence was believed by the court. It is trite law that
    the testimony of injured witnesses is entitled to great
B   weight and it is unlikely that they would spare the real
    culprit and implicate an innocent person. Of course, there
    is no immutable rule of appreciation of evidence that the
    evidence of injured witnesses should be mechanically
    accepted, it also has to be in consonance with
C   probabilities. In the instant case, the prosecution has
    succeeded in proving the place of occurrence, the time
    of occurrence as well as the manner of assault made on
    injured persons who are all examined by the Court and
    their evidence fully corroborates the prosecution case.
D   There is sufficient evidence to show that the incident had
    happened on 5.7.1983, as projected by the prosecution.
    The prosecution has successfully proved that it was the
    appellants and others who had committed the crime, so
    found by the trial Court as well as the High Court. [Paras
E   12, 14] [527-D-E, G-H; 528-A--B]
       Makan Jivan and Ors. v. The State of Gujarat (1971) 3
  SCC 297; Machhi Singh and Ors. v. State of Punjab (1983)
  3 SCC 470: 1983 (3) SCR 413; Jangir Singh anp Chet Singh
  and Ors. v. State of Punjab (2000) 1O sec 261 and Jaishree
F v. State of U.P. (2005) 9 sec 788 - relied on.
       4. Large number of persons were involved in the
  incident that occurre.d on 5.7.1983. Several injuries were
  caused by the appellants on the vital parts of the
G deceased anct the injured persons, with dangerous
  weapons and the injuries are sufficient, as certified by the
  doctor, in the ordinary course of nature to cause death
  and the accused persons intended to inflict the injuries
  that were found on the person of the deceased and
H injured persons. Appellants caused the injuries ~ith
     MD. ISHAQUE v. STATE OF WEST BENGAL                521


deadly weapons, therefore, intention can be presumed           A
regarding causing injuries as are likely to cause death,
which 'taHs under Section 304 Part I IPC and hence the
conviction ordered by the trial court under Section 302
IPC is converted to Section 304 Part I IPC. Consequently,
the appellants are found guilty under Section 304 Part I       B
IPC and are sentenced to undergo rigorous
imprisonment of 10 years with a fine of Rs.5,000/-each.
50% of the money recovered as fine has to be paid to the
wife of the deceased as compensation. [Paras 15, 16)
~~~~                                                           c
                    Case Law Reference:
    (1981) 3 sec 675         relied on            Para 11
    (1971) 3 sec 291         relied on            Para 12
                                                               D
    1983 (3) SCR 413         relied on            Para 12
    (2000) 1o sec 261        relied on            Para 12
    (2005) 9 sec 788         relied on            Para 13
                                                               E
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1421 of 2007.
    From the Judgment & Order dated 14.08.2006 of the High
Court at Calcutta in CRA Nos. 425 & 463 of 2011.
    Pradip Ghosh, Vijay Panjwani, Madhu R. Panjwani for the    F
Appellants.
    Bijan Ghosh, Avijit Bhattacharjee, Pijush K. Roy, Kakali
Roy Mithilesh Kumar Singh for the Respondents.
    The Judgment of the Court was delivered by                 G
    K.S. RADHAKRISHNAN, J. 1. This appeal arises out of
a common judgment and order dated 14.8.2006 passed by the
High Court of Calcutta in CRA No. 425 of 2001and CRA No.
463 of 2001, whereby the High Court confirmed the conviction
and sentence awarded to the appellants.                        H
    522     SUPREME COURT REPORTS                [2013] 5 S.C.R.


A       2. The prosecution version is that on 5.7.1983 at about 5
  AM to 5.30 AM, some 200-250 villagers, which included the
  accused persons as well, armed with various weapons like
  Lathi, Ladna, Farsa, Hasua and Ballam surrounded the village
  Siktahar. The accused persons forced out a number of persons
B from their houses, assaulted them in various ways and ultimately
  took four of them in tie-bound condition to a place called Hijul
  Pakur Field which is some distance away from village Siktahar
  and they assaulted them with various weapons causing serious
  injuries. The injured persons were admitted to Ratua Public
c Health Centre and later, shifted to Maida Sadar Hospital. One
  of the injured, namely Azad Ali, succumbed to his injuries. The
  remaining injured persons, viz. the informant - Md. Yasin PW1,
  Hasan Ali PW4 and Farjan Ali PW2 sustained serious injuries.
  During the course of occurrence, accused persons also
  assaulted Mohammed Badaruddin PW3, Mohamed Sabiruddin
0
  PW5 and Mohammed Kalimuddin PW6. However, those
  persons could escape from the clutches of the accused persons
  and flee from the place of assault.

       3. Md. Yasin PW1 lodged the FIR on 8.7.1983, which was
E recorded by N. N. Acherjee, S.I., C.l.D. and forwarded to Ratuna
  P.S. and a case was registered being Crime No. 9 dated
  5.7.1983 under Sections 147, 148, 149, 364, 307, 302 IPC at
  Ratuna P.S. and the investigation was taken up by the police.
  Later, investigation was handed over to the C.l.D. and, after
F completion of the investigation, police submitted the charge-
  sheet against 31 accused persons. (Of the charge-sheeted
  persons, accused Ajahar Moral and Tabjul died during the
  course of trial and the accused No. 25 died during the pendency
  of the appeal before the High Court). Two other charge-sheeted
G persons, namely, Hafijuddina and Safijuddin, were not sent up
  and discharged by S.D.J.M. vide his order dated 9.12.1993.
  Vide order dated 27.8.1983, the S.D.J.M. committed the case
  to the Court of Sessions.

      4. Charges were framed against 28 accused persons on
H 10.4.1995, which were read over and explained to accused
    MD. ISHAQUE v. STATE OF WEST BENGAL                        523
           [K.S. RADHAKRISHNAN, J.]
persons, to which they pleaded not guilty and claimed to be           A
tried. The prosecution examined 20 witnesses and produced
various documents. On defence side, one witness was
examined and also produced few documents. The defence took
up the stand that the entire incident was stated to have taken
place at Malo Para on 4. 7.1983 and no occurrence, as alleged,        B
took place either at village Siktahar or at Hajul Pakur Field on
5. 7.1983. Further, it was stated that the case was falsely foisted
due to political rivalry between two groups. Accused persons
belong to the Congress party and the deceased and injured
persons belong to CPM.                                                c
     5. The trial Court, after considering the oral and
documentary evidence, found that the prosecution has
succeeded in proving the case and convicted 27 accused
persons (out of 28 accused persons) and one Abdul Taub found
not guilty and was acquitted.                                         D

      6. Three appeals were filed against the order of conviction
passed by the trial Court. CRA No. 425 of 2001 was filed by
Md. lshaque and another, CRA 463 of 2001 filed by Hefjur
Rahaman and 24 others and CRAN. 700 of 2006 was filed by              E
Jinnatual Haque, son of deceased, appellant no. 22, Md. Nurul
Islam under Section 394 CrPC. The High Court took the view
that the trial Court has rightly convicted all the accused persons,
except appellants Yasin, Daud Hazi, Mannan, Islam Maulavi
and Alauddin. CRA 425 of 2002 and CRA 463 of 2001were,                F
therefore, allowed in part. Since Islam Maulavi was acquitted,
CRA 700 of 2006 was also allowed;

     7. Aggrieved by the same, 21 accused persons have
preferred the present appeal. This Court granted bail to 14
appellants vide its orders dated 19.8.2009 and 27 .1.2012.            G
While the appeal was pending, appellants Haji Md. Belal
Hossain and Aaiyab Ali died.

      8. Shri Pradip Ghosh, learned senior counsel appearing
for the appellants, submitted that the prosecution has failed to      H
    524      SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A establish the case beyond reasonable doubt and the appellants
  deserve acquittal. Learned senior counsel pointed out that the
  accused persons were falsely implicated due to political rivalry
  and the case was framed as a counter-blast to the incident that
  took pl~ce on 4. 7 .1983, a day earlier, wherein 13 persons from
B the village of the accused persons were brutally murdered.
  Learned senior counsel submitted that, on cross-examination
  of the material witnesses namely PW1 to PW6, with reference
  to the statement of the investigating officer, it would appear that
  there were serious omissions and contradictions in their
c statements, hence, the prosecution story cannot be believed.
  The prosecution had also failed to establish the place of
  occurrence, time of the alleged assault and the manner of the
  alleged assault and there was no corroborative medical
  evidence to support the various injuries alleged to have been
  sustained by few of the witnesses. Further, it was pointed out
0
  that the doctor who conducted the post-mortem, was not
  examined. Learned senior counsel also submitted that the High
  Court has rightly acquitted few of the accused persons and the
  reasoning adopted by the High Court equally applies in the case
  of the appellants as well.
E
        9. Shri Bijan Ghosh, learned counsel appearing for the
  State, on the other hand, submitted that the High Court, after
  examining the evidence of the eye witnesses and other
  corroborative evidence, has rightly come to the conclusion that
F the appellants are guilty and deserve the sentence awarded by
  the trial Court. Learned counsel submitted that there is nothing
  on record, wherefrom, it can be gathered that the place of
  occurrence was not the village Siktahar and, thereafter, at Hijul
  Pakur Field, where the injured persons and the deceased were
G assaulted. Learned counsel submitted that the prosecution has
  succeeded in proving the place of occurrence, the time of
  occurrence and also the assault on injured persons and the
  cause of death of the deceased Azad Ali.

          10. We heard the parties at length and have also gone
H
     MD. ISHAQUE v. STATE OF WEST BENGAL                   .525
            [K.S. RADHAKRISHNAN, J.]
through the evidence, especially the evidence of PW1 to PW6 A
and also minutely and meticulously examined the entire gamut
of the prosecution case. PW1, in his statement, has
categorically stated that the incident had occurred on 5. 7.1983
at Siktahar and that his evidence finds full support from the
evidence adduced by the Investigating Officer PW20. Facts B
indicate that an incident had taken place on 4. 7 .1983 at village
Malopara coming under the same P.S. Ratua, which resulted
in the death of 13 persons and due to that occurrence, there
was an atmosphere of terror over the surrounding villages and
also as a sequel of that massacre of Malopara, Siktahar village   c
was attacked. PWs1 and 6 were directly affected by the incident
that had occurred at Siktahar, in which the involvement of the
appellants was clearly established. PWs 1 to 6, particularly
PW1 to PW4, who had deposed, narrating both the occurrences
of Siktahar and Hizul Pakur Field, was subjected to lengthy
                                                                   0
cross-examination, but nothing significant was brought out to
discredit their evidence. Further, there is nothing in the
statement of PW18 to indicate that he found the injured
persons of this case at Malopara village, on the contrary, if the
statement of PWs 18 and 19 are considered together, it would
indicate that the injured persons were found at a field, but not E
certainly at Malopara. Injured persons, including the deceased
Azad Ali, were treated at Ratua Primary Health Centre and,
subsequently, at Maida Sadar Hospital. PW14 to 16 attended
those injured persons and from the reports prepared by the
doctors, it would be clear that on 5.7.1983 all the persons, F
including the deceased Azad Ali, who were injured, were
treated at Ratua Primary Health Centre and thereafter at Maida
Sadar Hospital. Ex.14, the post-mortem report of the deceased
indicates that the deceased suffered homicidal death and the
injuries sustained by him were all ante-mortem in nature and G
that was the result of assault by several persons with sharp
cutting weapons as well as the blunt weapons like Lathi.

    11. We also fully endorse the view of the High Court that
the mere fact that some of the witnesses are interested           H
    526       SUPREME COURT REPORTS                     [2013) 5 S.C.R.


A   witnesses, that by itself is not a ground to discard their
    evidence, the evidence taken as a whole supports the case of
    the prosecution.

       In Hari Obu/a Reddy and Ors. v. The State of Andhra
B Pradesh (1981) 3 SCC 675, this Court laid down certain broad
  guidelines to be borne in mind, while scrutinising the evidence
  of the eye-witnesses, in para 13 of the judgement, this Court
  held as follows:

          "But it is well settled that interested evidence is not
c         necessarily unreliable evidence. Even partisanship by itself
          is not a valid ground for discrediting or rejecting sworn
          testimony. Nor can it be laid down as an invariable rule that
          interested evidence can never form the basis of conviction
          unless corroborated to a material extent in material
D         particulars by independent evidence. All that is necessary
          is that the evidence of interested witnesses should be
          subjected to careful scrutiny and accepted with caution. If
          on such scrutiny, the interested testimony is found to be
          intrinsically reliable or inherently probable, it may, by itself,
E         be sufficient, in the circumstances of the particular case,
          to base a conviction thereon. Although in the matter of
          appreciation of evidence, no hard and fast rule can be laid
          down, yet, in most cases, in evaluating the evidence of an
          interested or even a partisan witness, it is useful as a first
F         step to focus attention on the question, whether the
          presence of the witness at the scene of the crime at the
          material time was probable. If so, whether the substratum
          of the story narrated by the witness, being consistent with
          the other evidence on record, the natural course of human
          events, the surrounding circumstances and inherent
G
          probabilities of the case, is such which will carry conviction
          with a prudent person. If the answer to these questions be
          in the affirmative, and the evidence of the witness appears
          to the court to be almost flawless, and free from suspicion,
          it may accept it, without seeking corroboration from any
H
      MD. ISHAQUE v. STATE OF WEST BENGAL                      527
             [K.S. RADHAKRISHNAN, J.]
     other source. Since perfection in this imperfect world is        A
     seldom to be found, and the evidence of a witness, more
     so of an interested witness, is generally fringed with
     embellishment and exaggerations, however true in the
     main, the court may look for some assurance, the nature
     and extent of which will vary according to the circumstances     B
     of the particular case, from independent evidence,
     circumstantial or direct, before finding the accused guilty
     on the basis of his interested testimony. We may again
     emphasise that these are only broad guidelines which may
     often be useful in assessing interested testimony, and are       c
     not iron-cased rules uniformly applicable in all situations."

      12. PW1, PW2, PW4 in case sustained serious injuries,
 their evidence was believed by the court. It is trite law that the
·testimony of injured witnesses entitled to great weight and it is
 unlikely that they would spare the real culprit and implicate an     D
 innocent person. Of course, there is no immutable rule of
 appreciation of evidence that the evidence of injured witnesses
 should be mechanically accepted, it also be in consonance with
 probabilities (Refs: Makan Jivan and Ors. v. The State of
 Gujarat (1971) 3 SCC 297; Machhi Singh and Ors. v. State             E
 of Punjab (1983) 3 SCC 470; Jangir Singh and Chet Singh
 and Ors. v. State of Punjab (2000) 10 SCC 261.

     13. In this respect, reference may be made to the judgment
of this Court in Jaishree v. State of U.P. (2005) 9 SCC 788,          F
wherein this Court held that whether witnesses are interested
persons and whether they had deposed out of some motive
cannot be the sole criterion for judging credibility of a witness,
but the main criterion would be whether their physical presence
at the place of occurrence was possible and probable.
                                                                      G
      14. We are of the view that the prosecution has succeeded
in proving the place of occurrence, the time of occurrence as
well as the manner of assault made on injured persons who are
all examined by the Court and their evidence fully corroborates
the prosecution case. We notice, in this case, that there is          H
    528     SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A   sufficient evidence to show that the incident had happened on
    5.7.1983, as projected by the prosecution. The prosecution has
    successfully proved that it was the appellants and others who
    had committed the crime, so found by the trial Court as well as
    t_he High Court.
B       15. Large number of persons were involved in the incident
  that occurred on 5.7.1983. Several injuries were caused by the
  appellants on the vital parts of the deceased and the injured
  persons, with dangerous weapons and the injuries are sufficient,
  as certified by the doctor, in the ordinary course of nature to
C cause death and the accused persons intended to inflict the
  injuries that were found on the person of the deceased and
  injured persons. Appellants caused the injuries with deadly
  weapons, therefore, intention can be presumed regarding
  causing injuries as are likely to cause death, which falls under
D Section 304 Part I IPC and hence the conviction ordered by
  the trial court under Section 302 IPC is converted to Section
  304 Part I IPC.
        16. Consequently, the appellants are found guilty under
  Section 304 Part 1 IPC and are sentenced to undergo rigorous
E imprisonment of 10 years with a fine of Rs.5,000/-each. On
  default of payment of fine, they will undergo rigorous
  imprisonment for another six months. 50% of the money
  recovered as fine has to be paid to the wife of the deceased
  as compensation. We further order that if any of the appellants
F had already undergone sentence of 10 years, they would be
  let free, on payment of fine and the remaining accused
  appellants would serve the balance period of sentence and bail
  granted to them would, therefore, stand cancelled and they will
  surrender within a week. Appeal is disposed of accordingly.
G B.B.B.                                     Appeal disposed of.