IMPORTANT POINT
Merely because some of the accused persons have been acquitted, that does not render the evidence of eye-witnesses suspect either on ground of relationship or affiliation to a particular political party.

Headnote:(i) Indian Penal Code, 1860-Sections 302 read with 149 and 148-Accused-Appellants convicted under- Second Journey to Supreme Court-Contention regarding interestedness of the witnesses for furthering prosecution version-Rejected-Case law referred.
       Held : Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent ad credible. (Para 11)
       After reviewing case law held : Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned. (Para 16)
       (ii) Indian Penal Code, 1860-Sections 302 read with 149 and 148-Accused-appellants convicted under-Contention that benefit of doubt should be given on account of co-accused s acquittal-Whether tenable? (No)-Case law discussed.
       Held : Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (Para 18)
        At this juncture, it would be appropriate to deal with the plea that ocular evidence and medical evidence are at variance. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". (Para 21)
       (iii) Indian Penal Code, 1860-Sections 302 read with 149 and 148-Accused-appellants convicted under-Appeal against-Whether Section 149 IPC has any application for fastening the constructive liability which is sine qua non for its operation? (Yes)-Distinction between common object and common intention explained-No overt act is required to be proved against an accused who is alleged to be a member of an unlawful assembly with a common object and was likely to commit any of the acts which fall under Section 141 IPC (See paras 23, 24, 25) and case law-Even if definite roles have not been assigned to the accused Section 149 is applicable (see para 26)-Case law discussed.
       Held : Above being the position, we find no substance in the plea that evidence of eye witnesses is not sufficient to fasten guilt by application of Section 149. So far as the observations made in Kamaksha Rai s case (supra), it is to be noted that the decision in the said case was rendered in a different factual scenario altogether. There is always peril in treating the words of a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases (see Padamasundara Rao (dead) and Ors. v. State of Tamil Nadu & Ors. [JT 2002 (3) SC 1]. It is more so in a case where conclusions relate to appreciation of evidence in a criminal trial, as was observed in Krishna Mochi s case (supra). The inevitable result of this appeal is dismissal which we direct. (Paras 29 and 30)

JUDGMENT

Arijit Pasayat, J.-This is the second journey of the accused-appellants to this Court questioning their conviction on being found guilty of offences punishable under Section 302 read with Section 149 and Section 148 of the Indian Penal Code, 1860 (in short the IPC ).

2. On the first occasion apart from the conviction for the aforesaid offences, the appellants were also convicted under Section 307 read with Section 149 IPC. However, in the second instance, the said conviction has been altered to one under Section 324 read with Section 149 IPC.

3. Filtering out unnecessary details, the prosecution version as unfolded during trial is as follows:

4. On 31.12.1988, there was an altercation between Jairam Das and Sadananda (hereinafter referred to as the deceased) on one hand and Jagabandhu Samal (D.W.1) on the other near Motto Hat in connection with occupation/construction of a shed in a market area. When Jagabandhu suddenly got up his head struck against a bamboo protruding into the thatch and he sustained some injury. Subsequently, when Jairam Das (PW-1), Gagan Das (PW-5) and the deceased proceeded towards their village near Balabhadrapur Sasan, they found that the accused persons armed with lathi, tentas etc., were coming. Being afraid, the deceased and his companions ran towards to the village. Gagan Das (P.W. 5) went inside the house of Sikhar Bal whereas the other three concealed themselves inside the house of Nilakantha Rath (P.W. 8). The house was surrounded by the accused persons who dealt blows on the door and walls of the house and some of them entered inside the house. Accused Panchanan (appellant 10 in the present appeal) and Subash Samal (appellant 7 in the present appeal) dragged the three persons and assaulted them. At that time, one of the accused persons shouted that police personnel were coming and subsequently all the accused persons fled away. PW-5 who saw the incident through an opening in the door leaf of the house of Sikhar Bal lodged the report before the Police which was treated as the First Information Report. Apart from PW-1 who was injured in the incident and PW-5, the informant, the occurrence was seen by some other persons including PWs. 2, 3, 4, 7 and 8. The last two witnesses are the owners of the house wherein the deceased and his companions had taken refuge and also spoke about the occurrence but except a few they were not able to name the other accused persons. Investigation was undertaken and on completion thereof, charge sheet was placed.

5. The accused persons gave a different version of the incident. According to them, the allegation that the accused persons being armed followed the deceased and his companions to Balabhadrapur Sasan is incorrect. In fact, some incident took place in the Motto Hat itself where DW-1 was assaulted and in order to save himself, he had brandished a Bahunga As a result, the deceased, PW-1 and Sanatan were injured. To substantiate their plea, they examined DW-1 and nine others. It was indicated that the appellant-Subash Samal is the son of DW-1. It was claimed by them that since they belonged to Communist Party and the deceased belonged to Congress Party, they were falsely implicated.

6. Originally, there were 21 accused persons. The Additional Session Judge, Bhadrak acquitted six of them and convicted the other 15 under Section 302 read with Section 149 IPC and Section 148, IPC as well as under Section 307 read with Section 149 IPC and sentenced them to suffer imprisonment for life for the conviction and sentence under Section 302 read with Section 149 IPC, and three years rigorous imprisonment on each count i.e. for offences punishable under Section 148 and under Section 307 read with Section 149 IPC. The sentences were directed to run concurrently.

7. The 15 accused persons who had been convicted preferred an appeal before the Orissa High Court. A Division Bench by its judgment dated 18.4.1995 dismissed the appeal i.e. Criminal Appeal No. 1

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2002 Supreme(SC) 1028

IMPORTANT POINTMerely because some of the accused persons have been acquitted, that does not render the evidence of eye-witnesses suspect either on ground of relationship or affiliation to a particular political party.

Cases Referred (26)

IMPORTANT POINT
Merely because some of the accused persons have been acquitted, that does not render the evidence of eye-witnesses suspect either on ground of relationship or affiliation to a particular political party.