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2006 Supreme(Cal) 746
High Court of Judicature at Calcutta
Pravendu Narayan Sinha & Partha Sakha Datta
Prabhash Dhali
Versus
State of West Bengal
C. R. A. No. 435 of 2003
Decided On : 28-11-2006
Rupna Bhattacharjee (Roy), Anima Das for the appellant;
Asimesh Goswami, ld. APP, P. Bhattacharya, Kalyan Moitra for the State.
Evidence of interested witnesses cannot be discarded merely because they are related to each other, especially when their evidence is corroborated by independent witnesses.
Headnote:
CRIMINAL APPEAL - 447/307 IPC and 27 ARMS ACT - FIR lodged by housewife and semi-literate person - Appellant named in evidence but not in FIR - Whether appellant's entanglement is an afterthought - Whether evidence of interested witnesses should be discarded - Whether sentence was proportionate to the gravity of the crime.
Fact of the Case:
Appellant convicted under Sections 447/307 of the IPC and Section 27 of the Arms Act for firing at the complainant's husband in the verandah of his house, narrowly missing him, and for the subsequent lynching of four of his companions by a furious mob.
Finding of the Court:
1. Appellant's entanglement was not an afterthought as the FIR was lodged by a semi-literate housewife in the midst of mob fury and the appellant was consistently identified by all the important witnesses. 2. Evidence of interested witnesses cannot be discarded merely because they are related to each other, especially when their evidence is corroborated by independent witnesses. 3. Sentence was proportionate to the gravity of the crime as the appellant had the intention to kill the complainant's husband and the lynching of his companions was a direct consequence of his actions.
Issues: 1. Whether the appellant's entanglement was an afterthought since he was not named in the FIR. 2. Whether the evidence of interested witnesses should be discarded. 3. Whether the sentence was proportionate to the gravity of the crime.
Ratio Decidendi: 1. The court held that the appellant's entanglement was not an afterthought as the FIR was lodged by a semi-literate housewife in the midst of mob fury and the appellant was consistently identified by all the important witnesses. 2. The court held that evidence of interested witnesses cannot be discarded merely because they are related to each other, especially when their evidence is corroborated by independent witnesses. 3. The court held that the sentence was proportionate to the gravity of the crime as the appellant had the intention to kill the complainant's husband and the lynching of his companions was a direct consequence of his actions.
Final Decision: Appeal dismissed and the judgment and order of the learned Trial Court confirmed.
P.S. Datta, J.
This is an appeal against the judgment and order dated 30.08.2003 passed by the learned Additional Sessions Judge, Fast Track Court-II, Barasat in the district of North 24-Parganas in Sessions Trial No.2(7) of 2003 convicting the appellant under Section 447/307 of the IPC and under section 27 of the Arms Act and sentencing him to suffer rigorous imprisonment for three months with fine of Rs. 500/-with default stipulation on account of the charge under section 447 IPC, seven and half years of rigorous imprisonment with fine of Rs. 5,000/-with default stipulation on account of the charge under section 307 IPC and rigorous imprisonment of three years with a fine of Rs. 3,000/- with default stipulation on account of the charges under section 27 of the Arms Act.
2. Nilima Sarkar (P.W.1) submitted a written ejahar to the O.C. of Gaighata P.S. at 14.25 hours on 17.11.2001 leading thereby to the registration of Gaighata P.S. Case No. 168 of 2001 dated 17.11.2001 against the appellant under the aforesaid sections of law and alleging therein that at 10 a.m. on 17.11.2001 some young boys came to her house in search of her husbands elder brother Bidhan Sarkar (P.W.2). She asked them to sit on the verandah and when Bidhan shortly came home and asked them the purpose of their visit, the miscreants with a view to killing Bidhan fired but the bullet missed Bidhan and hit instead against the wall of the verandah of the house and thus Bidhan narrowly escaped with his life. Then all the inmates of the house raised alarm and the people of the village rushed to the house of P.W.1 and when the miscreants tried to flee away the village people caught hold of the four miscreants and beat them to death and dropped their deadbodies by the side of the road, while others fled away. It has been alleged in the complaint (Ext.1) that out of previous grudge the miscreants attacked the house and tried to kill her husbands elder brother Bidhan.
3. Of the 10 witnesses examined by the prosecution it is the FIR-maker Nilima Sarkar, P.W.2 Bidhan Sarkar, P.W.3 Sima Sarkar (the wife of P.W.2), P.W.5 Chitta Ranjan Das,
P.W.8 Dulal Ch. Roy and P.W.9 Sanjay Baidya are according to the prosecution the eye-witnesses to the incident, while P.W.4 Smt. Santilata Sarkar, P.W.6 Haripada Mondal and P.W.7 Tarak Biswas are the post-occurrence witnesses. I.O. is P.W.10 Aloke Ranjan Munshi.
4. P.W.1 says that at 10 a.m. on 17.11.2001 5/7 persons came to her house in search of her husbands elder brother Bidhan Sarkar and one of such persons was the appellant. She asked those persons to take sit in the verandah as Bidhan was not at home then. A few minutes after when Bidhan came home the accused fired bullet against Bidhan but the bullet got missed and hit against the wall. All the inmates of the house raised alarm whereupon the co-villagers came to the house. The miscreants tried to flee away but four of them could be caught hold of who were lynched to death. The appellant was in the group of those miscreants who managed to flee away. The cross-examination of this witness relates to the antecedent and personal life of P.W.2 Bidhan Sarkar including her marriage and children, topography of the house of P.W.1, arrest of Bidhan in connection with a case by the Calcutta Police, her non-acquaintance with Tarak Biswas and Dulal Roy and acquaintance with Sanjay Baidya and Haripada Mondal. The important piece of evidence according to the defence of this witness is that she did not mention in the FIR that she knew the appellant Prabhash Dhali and that Prabhash Dhali fired against P.W.2. P.W.2 Bidhan Sarkar says that at 10.30 a.m. when he came back home he found 5/6 persons including the appellant in verandah and when he asked them as to why they had come Prabhash fired from his revolver but it missed the target because the bullet hit against the wall. All the members of the family raised alarm and local people rushed to the spot, Prabhash and some miscreants managed
