Sri Sambhu Das @ Bijoy Das & Anr V/S State of Assam CRIMINAL APPEAL NO. 342 OF 2007 September 15, 2010.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 342 OF 2007


Sri Sambhu Das @ Bijoy Das & Anr. .............. Appellants

Versus

State of Assam ..............Respondent

JUDGMENT

H.L. Dattu, J.

1) This appeal is directed against the judgment and order passed

by the Gauhati High Court in Criminal Appeal No. 63 of 2005, dated

26.04.2006, whereby and where under, the High Court has affirmed

the order passed by the Sessions Judge, Hailakandi, in Sessions Case

No.2 of 2002. The appellants are convicted under Section 302/34 IPC

and sentenced to imprisonment for life and to pay a fine of Rs.

10,000/- each, and in default, to undergo further imprisonment for six months each.





2) The case of the prosecution is that, on 07.06.1997 at about

5.00 P.M. the deceased Fanilal Das was returning home on a




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rickshaw driven by Manilal Das (PW2). The deceased stopped the

rickshaw near Shiva temple and after offering his prayer, he came

back to the rickshaw and at that point of time, the appellants and

others assaulted the deceased and, thereafter, forcibly took him to

the house of Kunja Mohan where he was assaulted by all the

accused persons. It is their further case, that, one Upendra Das

informed the wife of the deceased about the assault on her husband

by the appellants and on hearing the same, she came to the place of

occurrence and saw the accused persons assaulting the deceased,

and on being informed by PW-3, police came to the place of

incident and took the injured to the hospital where he was declared

dead. After completing the investigation, the accused persons

were charge-sheeted. Initially, four accused persons were tried by

the Sessions Judge, Hailkandi for commission of the offence under

Section 302/34 IPC. During the trial, four other persons were also

arrayed as accused and tried along with the appellants. All the

accused persons pleaded not guilty. During the course of the trial,

the prosecution examined eight witnesses. After completion of the

trial, the appellants were examined under Section 313 Cr.P.C.,

wherein the appellants completely denied their involvement in the



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alleged offence. The learned trial Judge convicted the appellants

and two others for the offence under Section 302/34 IPC and

sentenced as stated earlier. This order of the Sessions Court is

confirmed by the Gauhati High Court by rejecting the criminal

appeals filed by the accused persons.


3) This appeal is filed only by Sambhu Das @ Bijoy Das

(Accused No. 4) and Bibhu Das @ Sekhar Das (Accused No. 5).


4) While assailing the judgment and order of the High Court, it is

contended by Shri M.N. Rao, learned senior counsel, that

admittedly, the Inquest Report was recorded by the Investigating

Officer at 9.30 PM and the FIR was lodged by the wife of the

deceased at 11.30 PM on 07.06.1997. Therefore, it is contended

that the First Information Report loses all authenticity if written

after Inquest Report. In aid of his submission, reliance is placed

on the observation made by this court in the case of Balaka Singh

& Ors. Vs. The State of Punjab, [1975(4) SCC 511] and Ramesh

Baburao Devaskar and Ors. Vs. State of Maharashtra, [2007(13)

SCC 501]. It is further contended that the High Court has failed to

address itself to certain crucial aspects of evidence and proceeded



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to dispose of the appeal on general observations and more so, in a

very casual and cavalier manner which is impermissible in law.

Reliance is placed on the observation made by this court in the

case of Badri vs. State of Rajasthan, [1995 Supp. (3) SCC 521],

Ishvarbhai Fuljibhai Patni vs. State of Gujarat, [1995 (1) SCC 178]

and Lal Singh vs. State of Madhya Pradesh, [2003 (9) SCC 464].

It is further contended that the High Court has erred in not

appreciating the fact that the accused has put forward a reasonable

defence throughout the trial and as well as in their statement

recorded under Section 313 of Criminal Procedure Code. While

elaborating this contention, it is stated that prior to the occurrence,

the complainant's husband and her husband's younger brother

Chunnulal Das had got involved in the case regarding the murder

of their brother Arun Das and for that reason they have been

implicated in the present case out of that grudge. It is further

submitted that in the instant case, the High Court has made

departure from the rule, that when an accused person puts forward

a reasonable defence which is likely to be true and in addition,

when the same is supported by some prosecution witnesses, the

burden of proof on the other side becomes onerous, because a



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reasonable and probable story likely to be true when pitted against

a weak and vacillating prosecution case and by that reasonable

doubt, the accused must get the benefit. It is further submitted that

this court, in the case of Hate Singh Bhagat Singh vs. State of

Madhya Bharat, [AIR 1953 SC 468] has held that when an accused

person puts forward a reasonable defence which is likely to be true

and in addition is supported by two prosecution witnesses, then the

burden on the other side becomes all the heavier because a

reasonable and probable story likely to be true when pitted against

a weak and vacillating case is bound to raise reasonable doubts of

which the accused must get the benefit. It is also contended that

one important material witness, namely, Upen Das, who is said to

have informed PW1 that the accused person killed her husband has

not been examined by the prosecution, nor has any explanation for

not examining him as a witness been given by the prosecution and,

therefore, non-examination of Upen Das is fatal to the prosecution

story.


5) The learned counsel for the State while justifying the

impugned judgment and order, would submit that the concurrent




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findings on facts by the Sessions Court and the High Court need

not be interfered by this Court.


6) The question that requires to be noticed and answered is,

whether this Court in exercise of the powers under Article 136 of

the Constitution of India, can upset the concurrent findings of fact

recorded by the Trial Court and the Appellate Court. Shri M.N.

Rao, learned senior counsel for the appellants, submits that this

court can take a different view and also come to different

conclusion than the one arrived at by the Trial and the Appellate

Court, if this Court prima facie comes to the conclusion that the

findings of fact reached by the Trial Court and confirmed by the

High Court suffers from any patent error of law or has resulted in

miscarriage of justice. In our view, the law on this issue is now

well settled by several pronouncements made by this court.


7) In Dhananjay Shanker Shetty vs. State of Maharashtra, [(2002)

6 SCC 596], it is stated that :

"Ordinarily, after appraisal of evidence by the two
courts below and recording concurrent verdict of
conviction, this Court does not interfere with the same,
but where it is found that compelling grounds exist and
there would be failure of justice, a duty is enjoined
upon it to reappraise the evidence itself for doing
complete justice in the case."



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8) In Ravinder Parkash & Anr. vs. State of Haryana, [(2002) 8

SCC 426], it is observed :

".....It is true normally this Court would not substitute
its subjective opinion of the evidence with that of
concurrent findings of the two courts below. However,
having considered the findings of the courts below, we
have noticed that the trial court, though by a lengthy
judgment has found the appellants guilty, we have found
that finding is not supported by the material on record.
Therefore, we have considered the prosecution evidence
independently and have disagreed with the same for
reasons mentioned in this judgment. We have not done
this by merely substituting our subjective satisfaction but
we have done the same for reasons based on material on
record......." (Para 14)

9) In Bharat vs. State of Madhya Pradesh, [(2003) 3 SCC 106], it

is observed that :

"....The prosecution has to prove its case against the
appellant beyond reasonable doubt. The chain of
circumstances, in our opinion, is not complete so as to
sustain the conviction of the appellant. There is thus no
substance in the contention urged on behalf of the State
that this Court may not interfere in the concurrent
findings of fact of the courts below."
(Para 12 )


10) In Mousam Singha Roy & Ors. vs. State of West Bengal,

[(2003) 12 SCC 377], it is stated :

"We are also aware that this Court does not disturb
the concurrent findings of the courts below if the same
are based on legal evidence merely because another view
is possible. Thus, keeping in mind the caution expressed
by Baron Alderson (supra) as also the need to respect the
concurrent findings of the two courts below, we have
assessed the evidence in this case very carefully, but in


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spite of the same we are unable to concur with the
findings of the courts below. In our opinion, both the
courts below have departed from the rule of prudence
while appreciating the evidence led by the prosecution."
(Para 29 )

11) In Ganga Kumar Srivastava vs. State of Bihar, [(2005) 6 SCC

211], it is observed :

"From the aforesaid series of decisions of this Court
on the exercise of power of the Supreme Court under
Article 136 of the Constitution following principles
emerge:
(i) The powers of this Court under Article 136 of the
Constitution are very wide but in criminal appeals this
Court does not interfere with the concurrent findings of
fact save in exceptional circumstances.
(ii) It is open to this Court to interfere with the
findings of fact given by the High Court, if the High
Court has acted perversely or otherwise improperly.
(iii) It is open to this Court to invoke the power under
Article 136 only in very exceptional circumstances as
and when a question of law of general public importance
arises or a decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution
fell short of the test of reliability and acceptability and as
such it is highly unsafe to act upon it.
(v) Where the appreciation of evidence and finding is
vitiated by any error of law of procedure or found
contrary to the principles of natural justice, errors of
record and misreading of the evidence, or where the
conclusions of the High Court are manifestly perverse
and unsupportable from the evidence on record.
(Para 10)

12) This Court, in exercise of its powers under Article 136 of the

Constitution, will not re-open the findings of the High Court when

there are concurrent findings of facts and there is no question of




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law involved and the conclusion is not perverse. Article 136 of the

Constitution, does not confer a right of appeal on a party. It only

confers a discretionary power on the Supreme Court to be

exercised sparingly to interfere in suitable cases where grave

miscarriage of justice has resulted from illegality or

misapprehension or mistake in reading evidence or from ignoring,

excluding or illegally admitting material evidence. [See Basudev

Hazra v. Matiar Rahaman Mandal - AIR 1971 SC 722].


13)Keeping in view the aforesaid settled legal principles, we now

proceed to examine the main contention canvassed by learned

senior counsel Shri M.N. Rao, appearing for the appellant. It is

submitted that in the instant case, the investigating officer (PW8),

has recorded/prepared the inquest report on 7.6.1997 at 9.30 PM

and at the instance of PW1, the first information report was

recorded by PW8 on 7.6.1997 at 11.30 PM under Sections 147,

148, 149, 341, 342, 325, 326 and 302 of IPC against four persons

and, therefore, it is contended that since FIR is lodged after inquest

was held, the FIR is not reliable. Alternatively, it is contended that

in a case under Section 302 read with Section 32 IPC, First

Information Report cannot be lodged after the inquest has been


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held. Reliance, as we have already stated, is on the decision of this

Court in Balkasingh's case (supra) and in Ramesh Babu Rao

Devaskar's case (supra).



14) In Balaka Singh's case, it was observed by this Court, that the

names of four accused out of nine were missing in the body of the

Inquest Report and this omission was not explained and, therefore,

it lead to the probability that FIR must have been prepared after the

preparation of Inquest Report. That was a case where there were

nine accused persons and the names of five accused were

mentioned in the Inquest Report. The A.S.I. had no valid

explanation for the same. It was also found by the Court that FIR

was registered subsequently. Therefore, the observation of this

Court is to be understood in that background. We do not think that

this decision lays down that under all circumstances, the First

Information Report loses its authenticity, if it is filed after Inquest

Report.


15) In Ramesh Babu Rao Devaskar's case, First Information Report

was lodged after inquest was held and the same was based on the

version of alleged eye witness. This court was of the view that


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there was no explanation why FIR was not lodged by eye witness

and also noticed that the name of only one accused was mentioned

in the FIR. However, in the Inquest Report statements of Panch

witnesses recorded to the effect that some unknown assailants

killed the deceased. Apart from the above omission, copy of the

FIR was sent to the concerned Magistrate after four days, sharing

of common object by other accused persons with the accused who

was named in the FIR was not made out and one of the PWs turned

hostile and testimony of other two PWs was not reliable. In view

of these discrepancies, this Court, on facts, held it would be

hazardous to record conviction of the accused.


16) In the present case, there is the documentary evidence in the

form of G.D. entry No.164 recorded by PW-8 in the General Diary

on 07.06.1997 at about 6.30 P.M. That entry was made on the

telephonic message/information supplied by Asabuddin

Mazumdar, PW-3. It is clearly stated therein by PW-3 that a man

named Fanilal Das was lying in a serious condition on the side of

verandah of Chandan Das. It was on receipt of this information

that PW-8 went to the place of occurrence of the incident, drew up

the inquest report, made seizure of the material objects and


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recorded the statement of those present, including PW-1.

Admittedly, the inquest report is prepared by PW-8 at 9.30 P.M.

and the formal FIR is lodged by PW-1 at 11.30 P.M. The learned

senior counsel Shri M.N. Rao, by placing his fingers on the

admission made by PW-8 in his evidence would contend, that, FIR

loses its authenticity if it is lodged after the inquest report is

recorded. This submission of the learned counsel is a general

proposition and may not be true in all cases and all circumstances.

This general proposition cannot be universally applied, by holding

that if the FIR is lodged for whatever reason after recording the

inquest report the same would be fatal to all the proceedings

arising out of the Indian Penal Code.



17)The Inquest Report is prepared under Section 174 Cr.P.C. The

object of the inquest proceedings is to ascertain whether a person

has died under unnatural circumstances or an unnatural death and

if so, what the cause of death is? The question regarding the

details as to how the deceased was assaulted or who assaulted him

or under what circumstances he was assaulted, is foreign to the

ambit and scope of the proceedings under Section 174 Cr.P.C. The



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names of the assailants and the manner of assault are not required

to be mentioned in the inquest report. The purpose of preparing

the inquest report is for making a note in regard to identification

marks of the accused. The inquest report is not a substantive

evidence. Mention of the name of the accused and eye witness in

the inquest report is not necessary. Due to non-mentioning of the

name of the accused in the inquest report, it cannot be inferred that

FIR was not in existence at the time of inquest proceedings.

Inquest report and post mortem report cannot be termed to be

substantive evidence and any discrepancy occurring therein can

neither be termed to be fatal nor even a suspicious circumstance

which would warrant a benefit to the accused and the resultant

dismissal of the prosecution case. The contents of the inquest

report cannot be termed as evidence, but they can be looked into to

test the veracity of the witnesses. When an officer incharge of

Police Station receives information that a person had committed

suicide or has been killed or died under suspicious circumstances,

he shall inform the matter to the nearest Magistrate to hold Inquest.

A criminal case is registered on the basis of information and

investigation is commenced under Section 157 of Cr.P.C. and the



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information is recorded under Section 154 of Cr.P.C. and,

thereafter, the inquest is held under Section 174 Cr.P.C. This

Court, in the case of Podda Narayana Vs. State of Andhra Pradesh

[AIR 1975 SC 1252], has indicated that the proceedings under

Section 174 Cr. P.C. have limited scope. The object of the

proceedings is merely to ascertain whether a person has died in

suspicious circumstances or an unnatural death and if so, what is

the apparent cause of the death. The question regarding details as

to how the deceased was assaulted or who assaulted him or under

what circumstances, he was assaulted is foreign to the ambit and

scope proceeding under Section 174. Neither in practice nor in law

was it necessary for the Police to mention these details in the

Inquest Report. In George Vs. State of Kerala AIR 1998 SC 1376,

it has been held that the Investigating Office is not obliged to

investigate, at the stage of Inquest, or to ascertain as to who were

the assailants. In Suresh Rai Vs. State of Bihar AIR 2000 SC

2207, it has been held that under Section 174 read with Section

178 of Cr. P.C., Inquest Report is prepared by the Investigating

Officer to find out prima facie the nature of injuries and the

possible weapon used in causing those injuries as also possible



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cause of death.



18)This Court has consistently held that Inquest Report cannot be

treated as substantive evidence but may be utilized for

contradicting the witnesses of the Inquest. Section 175 Cr. P.C.

provides that a Police Officer proceedings under Section 174 may,

by an order in writing, summon two or more persons for the

purpose of the said investigation. The provisions of Sections 174

and 175 afford a complete Code in itself for the purpose of

inquiries in cases of accidental or suspicious deaths.


19) Section 2 (a) of the Cr.P.C. defines "Investigation" as

including all the proceedings under this code for the collection of

evidence conducted by the police officer.


20) Section 157 of the Code says that if, from the information

received or otherwise an officer incharge of a police station has

reason to suspect the commission of an offence which he is

empowered to investigate, he shall forthwith send a report of the

same to the Magistrate concerned and proceed in person to the spot

to investigate the facts and circumstances of the case, if he does



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not send a report to the Magistrate, that does not mean that his

proceedings to the spot, is not for investigation. In order to bring

such proceedings within the ambit of investigation, it is not

necessary that a formal registration of the case should have been

made before proceeding to the spot. It is enough that he has some

information to afford him reason even to suspect the commission

of a cognizable offence. Any step taken by him pursuant to such

information, towards detention etc., of the said offence, would be

part of investigation under the Code.


21)In Maha Singh vs. State (Delhi Administration), [(1976)

SCC 644], this court considered a case in which police officer

arranged a raid after recording a complaint, but before sending it

for registration of the case. It was held in that case that "the

moment the Inspector had recorded a complaint with a view to take

action to track the offender, whose name was not even known at

that stage, and proceeded to achieve the object, visited the locality,

questioned the accused, searched his person, seized the note and

other documents, turns the entire process into investigation under

the Code.




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22) In State of U.P. vs. Bhagwant Kishore, [AIR 1964 SC 221], this

court stated that "Though ordinarily investigation is undertaken on

information received by a police officer, the receipt of information

is not a condition precedent for investigation."


23) The principles now well settled is that when information

regarding a cognizable offence is furnished to the police that

information will be regarded as the FIR and all enquiries held by

the police subsequent thereto would be treated as investigation,

even though the formal registration of the FIR takes place only

later.



24)Assuming that some report was made on telephone and that was

the real First Information Report, this by itself would not affect the

appreciation of evidence made by the learned Sessions Judge and

the conclusions of fact drawn by him. The FIR under Section 154

Cr. P.C. is not a substantive piece of evidence. Its only use is to

contradict or corroborate the maker thereof. Therefore, we see no

merit in the submission made by learned counsel for the appellants.




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25)Now we focus our attention to the merits of the appeal. The

Postmortem was conducted by Dr. Ashit Som (PW6). From the

Postmortem Report of the deceased Fanilal Das, it appears that

injuries on their examination were found to be ante mortem in

nature. In his opinion, death is due to shock and haemorrhage

resulting from the injuries sustained which were caused by blunt

weapons. Unfortunately, the doctor has not stated in his report

whether the injuries sustained by the deceased were of homicidal

in nature. Therefore, we have seen the report furnished by the

doctor, who, as per his post mortem report found lacerated wound

over the middle of frontal region of the scalp with fracture of

frontal bone corresponding to the injury, lacerated wound over

right parietal of the scalp 6cmx2cmx2cm fracture of parietal bone,

two incisior and two canine teeth of both jaws were dislocated.

Dislocation of both elbow and ankle joint was also there. He has

further opined that the injuries were fresh and caused by a blunt

object. It has come in the evidence of PW-8 that immediately after

the inquest report was prepared, the body of the deceased was sent

for post mortem. This would coincide with this evidence on this

aspect. Secondly, the seizure report which is marked as one of the



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exhibit in the evidence, he has clearly stated the material objects

seized by him, such as nylon rope, bamboo stick, iron chain, dao,

rod and lathi etc. A little comparison of these seized objects and

the wounds found on the body of the deceased, a safe inference can

be drawn that this part of evidence of this witness can be believed,

since it corroborates with the opinion of the Doctor, PW-6.

Therefore, it can be safely inferred that the deceased died because

of the injuries sustained by the assault made by other persons and

not by self inflicted wounds.



26)The prosecution case solely rests on the evidence of PW1. She is

the wife of the deceased. PW2, though turned hostile, has spoken

to a part of the incident. PW3 is the U.D.P. Secretary of Paikan

Bazar. He is alleged to have gone to Paikan Tempur Bazar to

purchase sweets and having heard from the people gathered on the

side of the verandah of Chandu Das's house at the Paikan Bazar,

that Fanilal Das lying in a serious condition, he informed the

Police from Ballu Das's telephone. This version of PW3 appears

to be correct. This information, in fact, triggered the Investigating




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Agency to reach the place of incident after making necessary

entries in the Registers at the Police Station.



27)The evidence of PW1 requires a thorough scrutiny. PW1 is the

wife of the deceased. According to her, one Upendra Das informed

her that the accused persons including the appellants are assaulting

her husband in Kunja Mohan's house and on receiving the

information, it is further stated by her, that she immediately rushed

to that place and found that the accused persons had tied the hands

of her husband and were assaulting him. It has also come in her

evidence that she saw all the accused persons dragging her

husband inside their house. She has further stated around that

time, the Police Party reached the spot and took her husband in a

vehicle and she also accompanied her husband in the same vehicle

and on arriving at the hospital, the doctors declared that her

husband was dead and after inquest of the dead body, she returned

home with the help of police and immediately she lodged the First

Information Report (Ext.1). In her cross-examination, suffice it to

say, that nothing very striking except minor contradiction has been

elicited, which would not shake her credibility. In fact, she has



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stated that immediately after the Postmortem of the dead body, she

lodged the FIR with the Police and she has further denied the

suggestion that she did not tell the police that the accused persons

had assaulted her husband and killed him while he was returning

home from Hailkandi Town on a Rickshaw. Therefore, two

important aspects emerge from her evidence before the Trial Court.

Firstly, she has seen that her husband was tied by means of a rope

in the house of Kunj Mohan Das and secondly, the accused persons

including the appellants were assaulting her husband. The case of

the prosecution and the fate of the accused entirely depend on her

version and, therefore, as we said earlier, it is on her testimony that

the fate of these accused persons/appellants really hinges. The

reasons for not examining Upendra Das, who is supposed to have

informed PW1 about the incident, is not explained by the

prosecution. Therefore, we might have to eschew this part of the

evidence of PW1, since no effort is made by the prosecution to

explain the reason for non-examination of one of the important

persons, who is said to have informed PW1 about the assault and

dragging of the deceased into the house of first accused, who is not

before us. Then, the next question that would arise is, can we



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believe, as has been done by both the Courts below, the other part

of the testimony of this witness. At this juncture, we intend to add

that if the prosecution fails to explain the reason for non-

examination of an important witness, who is supposed to have

informed the alleged incident, should the accused persons go scot

free. It is a difficult question, sometimes difficult to answer.

Since, it is noticed by this Court time and again that in number of

criminal cases, because of sloppy attitude shown by the

prosecution, the real culprit goes scot free. It is no doubt true that

when her statement was recorded under Section 161 Cr.P.C., she

had not implicated four other accused persons but certainly

implicated the appellants and two other accused persons. Merely

because she has made some improvement in the FIR lodged by her,

we cannot totally discard her testimony.



28)PW8 is the Investigating Officer. He was attached to Hailakandi

Police Station. He was the one who visited the place of occurrence

on being directed to do so by the office-in-charge of the Police

Station. In his evidence, he has stated that Iti Mohan Das-PW3

took him to the place of occurrence and he found the injured



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Fanilal Das tied at the veranda of the accused persons. It has also

come in his evidence that on reaching the place of occurrence, he

drew up sketch map of the place of occurrence, and seized

incriminating materials. He has also stated that he removed the

injured to Hailakandi Civil Hospital where the Medical Officer

declared him dead. It has also come in his evidence that he was

the one who prepared the Inquest Report. He further narrates that

PW2 informed him that the deceased was travelling in his rickshaw

and at that time, Chandra Das@Smritikanta and two unknown

persons dragged him out of the rickshaw and assaulted him by

means of rod, hunter etc. Though PW2 turned hostile, their part of

evidence supports the case of the prosecution. In his cross

examination, defence has elicited from him that Inquest Report

was prepared by him at 9.30 PM and FIR was registered at 11.30

PM. Much was made at out of this admission by learned senior

counsel arguing for the appellants, we have already answered this

issue while considering the issue that whether FIR loses all

authenticity if written after Inquest Report. The other important

admission that was made by him that when he recorded the

statement of PW1, she did not mention the names of Subhash, Bela



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Krishna and Rajan, but had mentioned the names of all the other

accused persons. Her version that she went to the place of

occurrence on being informed to her about the assaulting of her

husband by the accused persons is corroborated in his testimony.

It is also of some importance that PW-1 for the first time, in her

evidence before the Court, implicated them and that is how, they

were arrayed as co-accused and tried along with others. The

learned Trial Judge, however, has acquitted those accused persons.

In our view, rightly so. In our opinion, it is not necessary for the

prosecution to examine every other witness cited by them in the

charge-sheet. Mere non-examination of some persons does not

corrode the vitality of the prosecution version, particularly, the

witnesses examined have withstood the cross-examination and

pointed to the accused persons as perpetrators of the crime. The

Trial Court and the High Court have come to the conclusion that

the evidence of PW1 is trustworthy and reliable. We have also

carefully perused the evidence of PW1, whose evidence is

corroborated by PW-8 and the Postmortem report issued by PW6,

we are convinced that the Trial Court and the High Court were

justified in believing the testimony the testimony of PW-1.



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29)Manilal Das - PW2 is declared hostile by the prosecution.

However, in his examination-in-chief, he says that he was carrying

Fanilal Das in his Rickshaw and he stopped the Rickshaw at Tepur

Bazar on the request made by the deceased and it is at that time,

the deceased had a quarrel with some people and some persons

assaulted him with blunt objects. In his cross-examination by the

learned counsel for the prosecution, he denies the suggestions put

to him with reference to his statement made under Section 161 Cr.

P.C. before the Investigating Officer.



30)Md. Asaf Ali Majumdar - PW3, Md. Masuraff Ali Barbhuiya -

PW4, Harmendra Das-PW5 are brought in by the prosecution as

eye-witnesses to the occurrence. But all of them have turned

hostile. Unfortunately, the trend in this country appears to be, as

the time passes, dead are forgotten and the living with a criminal

record are worshipped and adored and no witness would like to

speak against them. The Trial Court and the High Court has not

given any credence to their evidence.




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31)The testimony of Itimohan Das -PW7 has some relevance. He is a

local tea shop owner. He has stated that he accompanied the

Police to the house of the accused and found the deceased tied with

a rope in the verandah of Kunja Mohan. He also states that he saw

some injuries on the body of the deceased person. He also

confirms that the Investigating Officer seized a chain, a lathi, one

dao and a rope.



32)In our view, having carefully seen the evidence of PW1, which is

corroborated by the postmortem report issued by PW6 and the

evidence of PW8, it is trustworthy and reliable. The Trial Court

and the High Court have accepted her evidence while holding that

the accused persons in furtherance of the common intention,

assaulted Fanilal Das and killed him. We do not find any good

reason to upset this finding of the Trial Court and the High Court.



33)The learned senior counsel submitted that the High Court in a most

casual manner has rejected the appeals filed by the accused. This

assertion, in our opinion, is not justified. The High Court has

arrived at its findings after examination and consideration of the



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main features of evidence. It is only thereafter, the High Court has

affirmed the findings of the trial court while convicting the accused

persons.



34)In view of the foregoing discussion, we do not see any merit in this

appeal. Accordingly, it is dismissed.




..............................................J.
[ DR. MUKUNDAKAM SHARMA ]




..............................................J.
[ H.L. DATTU ]

New Delhi,
September 15, 2010.




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