State of West Bengal Vs. Nilkantha Mahato and ors. - Court Judgment

Malay Kumar Basu, J.

1. Both these appeals having arisen out of the same judgment and they involving common questions of law and fact, will be governed by this single judgment.

2. Both these appeals are directed against the judgment and order dated 17th April, 1989 passed by the Ld. Additional Sessions Judge, Purulia in Sessions Case No. 52/1985 (S.T.3/1988) of that Court whereunder the Ld. Sessions Judge found all the accused persons guilty of an offence under Section 148, IPC and convicted them thereunder and sentenced them to suffer rigorous imprisonment each for three years, but he found the other charges against the accused persons not established and accordingly he acquitted them of such charges. The convicts have preferred the appeal being C.R.A. No. 202/89 against the first part of the order, that is, against the said order of conviction and sentence, whereas the State has preferred the Appeal No. G.A. 29/1989 against the second part of the order, that is, order of acquittal of the accused persons of the various charges framed against them.

3. The prosecution case is that on 1-12-1982 one Shambhu Nath Mahato lodged an FIR with the C.C. Purulia (Maffassal) P. S. to the following effect. On that date at about 8-30 a.m. the accused person : along with their labourers consisting of about 25-30 heads were harvesting the standing paddy grown by one Joyram Mahato as bargadar under Kartick Chowdhury who cultivated the disputed lands bearing plot No. 550. They were armed with deadly weapons like lathi, tangi, sword, bows & arrows, etc. The accused Kalipada Mahato was standing behind them with a gun in his hand. Seeing them to harvest the paddy the informant Shambhu Mahato along with Panu alias Prankrishna Mahato, Nepal Mahato, Subhas Mahato, Chepulal Mahato, Dashrath Mahato, Digam Chitrakar, Ambuj Sohis, Haradhan Mahato and others went there in order to protest against such illegal act of the accused persons. When they went; near that land, the accused Dulu Mahato shot an arrow towards them and it hit Nepal Mahato by the side of his nose. Immediately thereafter those accused persons attacked them saying 'Maro sala digokay' and they inflicted cut injuries on Jathan Mahato and Nepal Mahato with tabla, so that Nepal fell down on the ground and when he fell down, Patal Mahato, Halalal and Ramanath started assaulting them with taworal, tabla and lathi. The accused Mathan Mahato and Bishma Mahato assaulted Panu alias Prankrishna Mahato with tabla and lathi so that fell down. Then Lalbas Mahato hit the informant with an iron rod on his head and Chepulal Mahato was assaulted on his head by Nilkantha with a lathi and Bulu Mahato hit Chepulal on his head with an arrow. Kalipada Mahato was standing with a gun and way saying, 'finish the salas, I am here'. Then the party of the informant started funning away in fear and only those who were lying on the ground in injured condition remained there. The disputed paddy was cultivated by Joyram as a bargadar and his name was also recorded as bargadar and he had been cultivating the land since long. On the basis of this FIR police started the Purulia (M) P.S. case No. 1 dt. 1-12-1982 under Sections 147, 148, 149, 334, 326, 307, 506 and 302, IPC and 19(4) L.R. Act against all the accused persons named in the FIR. After investigating police submitted charge-sheet against the accused persons under Sections 147, 148, 149, 506, 326, 307 & 302, IPC. Some of the offences being sessions triable, the case was committed to the Court of Session for trial of the accused persons. The Ld. Addl. Sessions Judge framed charges against different accused persons under different Sections of the Penal Code as follows :

4. Under Section 302/109, IPC against the accused Kalipada Mahato; under Section 302/34, IPC against the accused Mathan alias Manmatho Mahato. Ramanath Mahato, Bishma alias Bhiswadeb Mahato; under Section 148, IPC against all the accused persons, namely, Nilkantha Mahato, Bishma alias Bishadeb Mahato, Mathan alias Manmath Mahato, Kalipada Mahato, Bulu Mahato, Fatal Mahato, Lalbas Mahato, Haralal Mahato, Ramanath alias Satyanarayan Mahato, Majhi Sohis, Chinib alias Srinibas Mahato; under Section 326/34, IPC against accused Mathan alias Manmatha Mahato, Haralal Mahato, Ramanath Mahato and Fatal Mahato; under Section 324, IPC against the accused Bulu Mahato; under Section 325, IPC against the accused Lalbas Mahato, under Section 323, IPC against accused Nilkantha Mahato.

5. It is to be mentioned here that the said accused, Nilkantha Mahato, died during pendency of this Appeal on 13-6-1995 vide the Death Certificate granted by the concerned PHC filed in this behalf. The Ld. Public Prosecutor has not disputed this fact, Accordingly, the Appeal as against this accused-respondent being Govt. Appeal 29/1989 as well as the Appeal as preferred by that accused-appellant in C.R.A. 202/89 have abated Under Section 394, Cr. P.C.

6. The defence case from the trend of cross-examination of the P.Ws. and the statements of the accused persons under Section 313, Cr. P.C. appeared to be that the accused Mathan along with his labourers had gone to the disputed plots on that date for the purpose of harvesting paddy and while that they were cutting the paddy the complainant party came there armed with deadly weapons and assaulted Mathan causing serious injuries on his person so that he was removed from that place to his home and on the next date his daughter lodged a FIR with the Purulia (M) P.S. and a case was started by police against the complainant: and his party under Section 147/148/149/ 326/379, IPC and after investigation police submitted charge-sheet against Nepal Mahato and 12 others under those sections.

7. After considering the evidence on record and hearing the argument of the Ld. Advocates for both the sides the Ld. Addl. Sessions Judge came to the finding that the prosecution had not been able to establish its charge under Section 302/3; IPC against the accused Mathan alias Manmatho, Ramanath and Bishma; Bishwadeb Mahato and under Section 302/109, IPC against the accused Malipada Mahato and also failed to prove its charge under Section 326/3; IPC against the accused Mathan, Haralal, Ramanath and Patal Mahato and further failed to prove its charge under Section 32; IPC against the accused Bulu Mahato and the charge under Section 325, IPC against the accused Lalhas Mahato and lastly, failed to prove its charge under Section 323, IPC against the accused Nilkantha Mahato and accordingly he found those accused not guilty of those offences and acquitted them of the same. But the Ld. Judge found all the accused persons guilty of the offence under Section 148, IPC and therefore convicted them thereunder and sentenced them to suffer rigorous imprisonment for 3 years each.

8. Being aggrieved by and dissatisfied with that order of conviction and sentence the convicts have preferred the said Criminal Appeal No. 202/1980 challenging that order as erroneous, illegal and unsustainable.

9. Whereas, the State of West Bengal having been aggrieved by the other part of the order whereunder the accused persons have been acquitted has preferred the said Govt. Appeal No. 29/1989 challenging such order of acquittal as erroneous, illegal and unjustified and hence liable to be set aside.

10. The Ld. Trial Judge has found after scanning the evidence of the witnesses, particularly the alleged eye-witnesses to the occurrence, that it was discrepant and conflicting with each other and also with the story as made out in the FIR. As per the FIR story, when the complainant's party reached near the case land, the accused Bulu threw an arrow which struck Nepal near his nose and the accused Mathan Mahato assaulted Nepal by means of tabla when Nepal Mahato fell down on the ground and accused Patal Mahato assaulted him by means of sword and the accused Haralal Mahato by means of tabla and accused Ramlal hit him by lathi. Further, Prankrishna Mahato was assaulted by Mathan Mahato by means of tabla and by accused Bishma Mahato by means of lathi whereupon Prankrishna fell down and Lalbas Mahato assaulted the complainant by means of an iron rod on his head while Nilkantha assaulted Chepulal by means of Lathi and Bulu assaulted Chepulal with an arrow. In the FIR it has been further stated that the accused Kalipada Mahato was standing with a gun in his hand and was commanding others to 'finish' them. The observation of the Ld. trial Judge is that from the story depicted in the FIR the allegation of chasing the accused persons does not appear and such a story was introduced for the first time in the evidence. The Ld. Judge has relied upon a decision reported in : 1981CriLJ736 wherein it has been held that the eye-witnesses giving dramatic account of an incident with minute details of attack on each of the victims while admitting in their cross-examination that they were attacked simultaneously cannot be relied upon. Ld. Judge has observed that while it has been stated in the FIR that they were attacked simultaneously, in the evidence it was sought to be established by the prosecution that the witnesses were being chased by the accused persons and while they were running away towards the east out of fear of life the incident of assault took place. According to Ld. Judge in such circumstances the evidence of the eye-witness suffers from some inherent improbability. He has commented that it is not possible on the part of a person who is running from the scene of occurrence out of fear of life to give such minute details of the injuries or of the assault on each of the victim and also about the weapons used by the accused persons in causing such injuries. According to him, the way in which the eye-witnesses have described the incident is contrary to the common course of human behaviour, because it is not possible for a person, who was running from the place of occurrence out of fear of life, to stand and see how the injuries were being caused or to whom or with what weapon the assault was being perpetrated or to give the details of the parts of the body on which such injuries were allegedly inflicted by different accused persons. Secondly, the Ld. Judge has been of the view that the serious injuries which the accused Mathan sustained on his body through the incident and as a result of which he was admitted into the hospital have not been explained away by any of the P.Ws. or, for that matter, by the prosecution, that is to say, how and under what circumstances or by virtue of whose assault such injuries were received by him and the Ld. Judge relying on the decision reported in : 1976CriLJ1736 has held that the injuries of Mathan remaining unexplained renders the story of the prosecution suspicious, because according to the dictates of the above-mentioned decision of the Apex Court the non-explanation of the injuries sustained by the accused at the time of the occurrence constitutes a very important circumstance from which the Court can draw the following inferences; (1) that the prosecution has suppressed the genesis and the origin of the occurrences and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable and (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. In this connection the Ld. Trial Judge has relied upon another decision of subsequent origin reported in : 1988CriLJ925 to the effect that if the story of the prosecution is supported by trustworthy witnesses and the version of the prosecution appears to be consistent, non-explanation of the injuries on the person of the accused persons sustained in course of the same transaction may not render the prosecution story unworthy of credit. The Ld. Judge has then come to hold that since it was established beyond doubt that the accused Mathan receiving serious injuries on his person was admitted in a hospital and since it is admitted in the FIR that the complainant's party used lathi in exercise of their right of private defence while protesting against the cutting of paddy, and since in their evidence the P.Ws., particularly the eyewitnesses, have not given any explanation as to how Mathan sustained such injuries and thus has not supported the abovementioned portion of the FIR story, it could not be taken by him that the eye-witnesses were deposing truth and thus the evidence was not considered by him to be trustworthy, inasmuch as,-the witnesses were giving the details of the incident in a manner which is contrary to the common course of human behaviour and this coupled with the background of inimical relationship between the parties and non-explanation of the injuries on the person of Mathan constituted circumstances which according to the Ld. Judge rendered the version of the prosecution as to the manner of assault of the deceased Prankrishna and others suspicious. The Ld. Trial Judge has further found that in view of the evidence not supporting the averments in the FIR regarding the place of occurrence an element of uncertainty has surrounded the alleged place of occurrence. According to the Ld. Judge, the place of occurrence as given in the FIR is the bargaland comprising plot No. 550 but as per the evidences of the eye-witnesses the place of occurrence is the bed of the tank known as Upar Bundh. Further, according to P.W. 17 Jawharlal Pahari, the dead body of Prankrishna was found on the ail of a field while according to evidence of P.W. 12 Pranab Mitra, the place of occurrence has been the eastern side of the tank called Upar Bundh. Thus the Ld. Judge has held that such conflicting version regarding the exact place of occurrence has rendered the prosecution case as made out in the FIR unsubstantiated. Again, the Ld. Trial Judge is also not satisfied about the evidence as to who were the eye-witnesses to the occurrence. He has observed that as per the prosecution case Gandhi Mahatoni appears to be an eye-witness to the alleged incident, but the P.W. 23 Labu Mahato who is the son of Gandhi's sister has excluded the presence of the Gandhi Mahatoni on the place of the occurrence at the time of the occurrence. Thus P.W. 23 has said that at the time of occurrence he met Gandhi at her house and thus the statement of Gandhi Mahatoni that she saw the incident by her own eyes while she was proceeding towards the spot has been falsified. According to Ld. Judge, the evidence of record does not help the Court to fix the responsibility of any particular accused person either for causing the death of Prankrishna or for causing the injuries on the person of Nepal Mahato, Chepulal Mahato, Siju Mahato or Shambhu Mahato. Then again, it has been further held by the Ld. Trial Judge that from the evidence on record it was not clearly proved that Prankrishna Mahato was assaulted by the accused Mathan, Bishma and Ramanath in furtherance of their common intention, nor it could be said from the evidence on record that the said Prankrishna was murdered in pursuance of any abetment given by the accused Kalipada Mahato. Because, according to the Ld. Judge, Kali Pada, as per the evidence, was not asking any one of the accused person to cause death on any particular person but his utterance was a general one and it was difficult to say under such circumstances whether Prankrishna was fatally injured in pursuance of any such direction of the accused Kalipada Mahato. Similarly, due to similar reasons, according to Ld. Trial Judge, it is difficult to say that the other accused persons caused the alleged injuries to the other victims by means of different instruments like bows and arrows, tabla, sword or iron rod. In view of such reasons, the Ld. Trial Judge has expressed his inability to find the charges against different accused persons under different sections of the law established save and except the charge under Section 148, IPC against all the accused persons and accordingly, he passed the impugned order as mentioned above.

11. As it has already been mentioned above, two appeals have been preferred against this judgment and order by the two aggrieved parties. The convicts have preferred their appeal, (C.R.A. No. 202/1989) challenging the order of their conviction and sentence under Section 148, IPC as illegal and erroneous on the grounds, inter alia, that the judgment is based on conjectures and surmises unwarranted by the evidence on record. According to these appellants, the Ld. Judge failed to consider the weight of the evidence of P.W. 1 the informant, of the case when he stated in the FIR that some of the complainants party carried lathis with them and from this fact it was evident that there was a free fight between the parties and under such circumstances it was impossible to ascertain which party attacked first. According to the appellants, again the Ld. Judge failed to consider the probable factor, namely, that it was impossible on the part of the P.W. 1 who allegedly witnessed the assault on Nepal and Prankrishna by remaining in standing position there, because it goes against the normal course of human conduct that when such fight with deadly weapons was being carried out the P.W. 1 would continue to remain their standing and watching the entire incident and would not flee away from that place in fear. The Ld. Judge also, according to the appellants, failed to properly appraise the inconsistency and discrepancies between the statement of different eye-witnesses, for example, the inconsistency between the evidence of P.W. 3 and P.W. 1 when the former has stated in his evidence that on request of Prankrishna he along with others accompanied Prankrishna to that disputed land where the appellants were cutting away paddy, but the P.W. 3 never mentioned the name of the P.W. 1 who also claimed himself to be a companion of the said Prankrishna while they were proceeding towards the disputed land prior to the occurrence. The appellants have further contended that the Ld. Trial Judge failed to consider the evidence of P.W. 14 who stated that he could not say the plot Nos. of the disputed land though his father, according to the prosecution, was supposed to be the bargadar of the disputed land and also the Ld. Judge ought not to have relied upon the evidence of P.W. 18 who is also another alleged eye-witness and also one of the injured who stated that after the alleged incident he did not narrate anything to the police when he met them on the village road and such statement goes counter to normal course of human behaviour. The Ld. Judge according to the appellants also failed to consider the evidence of P.W. 28 who stated that P.W. 21 led him to the spot gave him an account of the incident but he did not disclose the name of the appellants and this statement is falsified by the evidence of P. W. 21 when he said that police came to the spot in his presence and this means that he was at the place of occurrence before arrival of the police. It is further contended that the Ld. Judge failed to consider that in a free fight between the two parties it was difficult to ascertain as to who assaulted whom and who were the aggressors and in such a situation it cannot be taken to be proved that each and every appellant was vicariously liable for his individual act in furtherance of the common object of the unlawful assembly. According to the appellants, the finding of the trial Court that the charge under Section 148, IPC has been proved against all the accused, suffers from illegality and incorrectness and therefore that part of the order should be set aside.

12. The State of West Bengal has preferred the appeal being G.A. No. 29/1989 challenging the part of the order under which the Ld. Judge has acquitted the accused persons of the various charges under different sections of the IPC as erroneous, illegal and unjustified. According to the appellant, there is sufficient and cogent evidence on record substantiating such charges against the accused persons and the Ld. Judge failed to appreciate such evidence, particularly of the eye-witnesses and he laid undue and unnecessary stress on the question of non-explanation of certain injuries occurring on the person of the accused Mathan. According to this appellant there is no scope in this case in view of the state of evidence for saying that the accused persons committed the offences of causing murder and hurt in exercise of their right of private defence, particularly when no such positive plea was taken by the accused persons at the time of the trial and no such evidence has also been adduced by them, According to this appellant, the order of acquittal passed by the Ld. Trial Judge is unwarranted and unjustified and illegal and hence it should be set aside and the accused persons should be found guilty of the said offence and should be convicted thereunder and sentenced appropriately.

13. The questions which mainly falls for determination before us are whether all the accused persons formed an unlawful assembly armed with deadly weapons and whether three of them named, Mathan, Bishma & Ramanath being instigated by the accused, Kalipada Mahato, caused the death of Prankrishna Mahato in pursuance of common intention of them and four of them named Mathan, Haralal, Ramanath and Patal caused grievous hurt to Nepal Mahato by means of tabla, sword etc. in furtherance of their common intention and whether one of them, namely, Bulu caused hurt to the said Nepal Mahato and Chepulal Mahato by means of arrow and whether another accused namely Lalbas caused grievous hurt to Shambhu Mahato and whether the accused Patal Mahato caused hurt to Siju Mahato by means of a tabla.

14. The death of Prankrishna is admitted. The evidence of the doctor, namely, P.W. 6, Dr. S.K. Chattarjee, the then D.M.O., Purulia hospital who held the post-mortem examination of the dead body of the said Prankrishna Mahato has deposed that the body of the said Prankrishna, son of Joyram Mahato of village Bhadsa, was brought and identified by the S.I. of Police, J.L. Pahari for post-mortem examination and this P.W. 6 held the post-mortem examination over his body. In his cross-examination this statement has not been challenged in the least. Therefore, that the dead body was of Prankrishna Mahato son of Joyram Mahato has been established beyond doubt. The said P.W. 6 the Medical Officer has further stated that on post-mortem examination of the body he found the following injuries :

1. 'Incised wound over lower portion (back) of the neck measuring 4' x 1/4' x 4th survical vertibra.

2. One incised wound over the upper part of right leg just below the knee joint measuring 41/2' x 1/2' bone deep.

3. One abrasion on the back of right shoulder measuring 1' x 1/2'. On dessection on injury No. 1-1 found that 4th survical vertebra was cut. Spinal chord was found cut and adjacent vessel and muscles were also found cut.

On desection, of injury No. 2, I found fracture of Tibia and Febula other part of the body was found healthy.'

15. This doctor has given his expert-opinion that injury No. 1 alone is sufficient to cause death of the victim in ordinary course of events and if all the injuries are considered, they are sufficient to cause death of the person in ordinary course of events and according to his view, death was due to shock and haemorrhage as a result of the above noted injuries which were ante-mortem and homicidal in nature. This doctor has further opined that injury No. 1 is on a vital part of the body and after such an injury is inflicted, it is most likely that he will die instantly. He has further stated that after infliction of injury No. 2 the injured may fall on the ground and the injury No. 1 was inflicted with serious force by the assailant and it may be caused by sharpcutting weapon like tabla and so was injury No. 2 while injury No. 3 may be caused by an instrument like lathi. Thus it is evident that the death of this deceased Prankrishna was homicidal in nature and the injuries which were inflicted on his body were found to be ante-mortem. Therefore, the next important question which falls for our determination is how and by whom such fatal injuries were caused to him.

16. It may be noted that it is the defence case (vide the statement of the accused Nilkantha Mahato made under Section 313, Cr. P.C.) that at 8-30 a.m. on 1-12-1982 while the accused Nilkantha along with his brother who was another accused of the case named, Mathan Mahato, and three housewives of their house and two maid-servants and two day-labourers had been to the disputed land bearing Plot Nos. 669 & 674, Mouza -- Bhadsa, to reap paddy which they had grown and while they started harvesting the paddy, Prankrishna Mahato, Nepal Mahato, Chepulal Mahato, Siju Mahato, Shambhu Mahato, Lalbehari Mahato and many others armed with lathis, sword, bows and arrows etc. came near their land and began to abuse them and thereafter they forcibly trespassed into their land and surrounded Mathan and Prankrishna with a tangi and Nepal with a tarowal hit Mathan on his head when Mathan fell down on the ground being seriously injured and unconscious. These statements made by the accused Nilkantha thus go to show that some incident of assault took place on the disputed land and on the day and at the time as alleged by the prosecution.

17. In view of the charges framed, the question is whether the death of the deceased of Prankrishna was caused by the accused Mathan, Ramanath and Bishma and whether such assault on Prankrishna by these three accused persons took place at the instigation of the accused Kalipada Mahato. In order to prove the charges prosecution has examined as many as 31 witnesses in all. Of them, five witnesses, namely, P.Ws. 4, 5, 6, 30 & 31 are Medical Officers; ten witnesses, namely, P.Ws. 7 to 12, and P.Ws. 17, 24, 27 & 28 (I.O.) are Police Officers; two witnesses, namely, P.Ws. 23 & 26 are Seizure List witnesses; two witnesses, namely, P.Ws. 16 & 19 came to the spot just after the occurrence was over and heard about the incident from the eye-witnesses; one witness, namely, P.W. 29 is the Amin who surveyed the disputed land and gave the result of his measurement of the same; three witnesses, namely, P.Ws. 15, 20 & 21 have not said anything substantial regarding the occurrence and eight witnesses, namely, P.Ws. 1, 2, 3, 13, 14, 18, 22 & 25 are found to be eye-witnesses to the occurrence. The last mentioned class of witnesses, namely, the eye-witnesses formed the most vital source of evidence and let us see after scanning and evaluating their evidence how far they have been able to substantiate the prosecution allegations against the accused persons.

18. Of the foremost importance is the evidence of P.W. 1, Shambhu Mahato, who himself was an injured person and was also the informant. He says in his examination-in-chief that on 1st December, 1982 at about 8 to 8-30 a.m. he was working in his vegetable field near his house at Bhadsa Mouza. Suddenly he heard a cry coming from the western side of his village and hearing that he came to the village road and there he met Nepal, Prankrishna and Chepulal Mahato, the three sons of Joyram Mahato, who reported to him that Nilkantha Mahato and some other persons were cutting paddy from their bargaland and they requested him to accompany them to protest against such act of the said persons. Accordingly, he accompanied them to their bargaland in that Mouza Bhadsa and going there they found many persons cutting paddy from the bargaland of Joyram Mahato. This witness found amongst those persons, who were cutting paddy, Nilkantha, Mathan, Bishma, Haralal, Ramanath, Patal, Srinibas, Lalbas, Kalipada and Bulu Mahato and Majhi Sohis all armed with weapons like lathis, tabla, bows & arrows etc. He further found that Nilkantha, Srinibas, Ramanath, Majhi, Bishma had lathi in their hands and Haralal and Mathan had tablas in their hands and Patal had a sword in his hand and Bulu had bows and arrows while Kalipada had a gun. Some labourers of them were cutting paddy and this witness along with his three companions named above protested against such acts of those persons. This was followed by an altercation. Then the accused, Bulu Mahato, threw an arrow which struck Nepal on his mouth whereupon blood was oozing out from the wound. P.W. 1 further states that thereafter all the miscreants named above shouted saying 'Maro sala Digakay' and they chased them, i.e. the complainant's party who then retreated back to some extent and when they had been on the bed of a nearby tank called 'Upar Bundh' which was contiguous to the disputed land, Nepal was gheraoed by the said accused persons when Mathan struck him with a tabla causing injury on his leg so that Nepal fell down on the ground, when Patal struck him with a sword causing bleeding injury on his hand and Haralal struck him with a tabla and Ramanath assaulted him with a lathi. At this Prankrishna, the brother of Nepal, came to the rescue of Nepal but he was assaulted by Mathan with a tabla on his leg while Bishma assaulted him with a lathi. Then this P.W. 1, Shambhu Mahato, protested against such assault on Prankrishna when Lalbas assaulted him also with a lathi on his head causing bleeding injury there. Then, Bulu threw another arrow which struck Chepulal on his head. Kalipada Mahato gave order for finishing him. Then, Nilkantha assaulted Chepulal with lathi on his head. This P.W. 1 then proceeded towards his home and on his way he met Lalbehari, Nagen and other villagers to whom he narrated the incident and then with Lalbehari and Nagen he returned to the spot again and coming back there he noticed injuries on the leg and neck of Prankrishna who had already succumbed to his injuries. They also found Nepal lying unconscious. Thereafter this P.W. 1 came to Purulia to hire a vehicle for taking the injured to Purulia Sadar Hospital as the condition of Nepal was very precarious and bringing to that hospital they got him admitted there. Then he and Chepulal came to Purulia (M) P.S. to lodge information and he lodged an FIR which was recorded by the Police Officer present there and the same was read over and explained to him and after finding the contents correctly written he put his signature thereon. Thereafter he and Chepulal having received injuries were sent by police to the Hospital for treatment. This P.W. 1 further has stated that he had been seeing Joyram to cultivate the disputed bargaland for the last 15/16 years under the owner Kartick Chowdhury. In the cross-examination of this witness we find absolutely nothing which can be said to distray (sic) or put to question the veracity of this witness or the credibility of the statements made by him. Several questions have been put to him in his cross-examination by the defence as to the distance at which he was standing from the place of occurrence or from the place where Nepal fell down or the distance from the bed of tank. Some questions have been put as to what fact has been narrated by him in the FIR touching word certain aspects. We find that in respect of any question he has not been defeated. He has met all the questions well and never his truthfulness is found shaken.

19. This P.W. 1 being the informant it is important to verify whether he has corroborated the averments which he made in the FIR. Comparing his statements in the examination-in-chief mentioned above with his statements in the FIR I find that the two are fully consistent in respect of the main particulars and do not raise any suspicion or doubt in our minds as to the bona fides of trustworthiness of the same. In view of FIR also he has said that Bulu Mahato shot an arrow at the first instance that hit Nepal Mahato on the side of his nose. (In the examination-in-chief he has said mouth instead of the 'side of the nose' but to our mind this does not practically make any distinction and the fact he is not using the same word after about 6 years is rather an index of his deposing truth). Then again, this informant, Shambhu, Mahato, says in his FIR that immediately thereafter all the accused persons attacked them saying 'Maro sala Digakay' and saying this the accused Mathan assaulted Nepal with a tabla causing injury on his leg so that Nepal fell down when Patal, Haralal and Ramanath started assaulting him with tarowal, tabla and lathi respectively. In the examination-in-chief the P.W. 1 has said that when Nepal fell down Patal struck him with a sword and Haralal struck him with a tabla and Ramanath assaulted him with a lathi. Thus in respect of this allegation also this informant-witness has very aptly made consistent statements. Then, he says in the FIR that the accused Mathan and Bishma assaulted Prankrishna with tabla and lathi respectively so that Prankrishna fell down and then Lalbas hit him with an iron rod on his head. In his evidence also regarding the assault on Prankrishna he makes a fully consistent statement by saying that when Prankrishna came to the rescue of Nepal, Mathan assaulted him with a tabla on his leg and Bishma assaulted him with a lathi and when this P.W. 1 protested against such act. Lalbas assaulted him (this witness) with lathi on his head. Thus in this behalf also there is nice corroboration of the statement made by the P.W. 1 in the FIR. Then the FIR contains his further allegation that Chepulal was assaulted on his head by Nilkantha with a lathi when Bulu Mahato hit Chepulal on his hand with an arrow and at this time Kalipada was standing with a gun saying, 'finish the salas, I am here.' As I have already mentioned above, the P.W. 1 has made this statement also in his examination-in-chief. P.W. 1 further states that Prankrishna died at the spot and at this time they fled out of fear while the injured persons were lying on the ground at that place of occurrence. Thus this important witness has corroborated his statements made in the FIR very consistently and also convincingly. What is more, as we have already pointed out, corning to his cross-examination we do not find any instance where he has beep defeated or his statements made in the examination-in-chief have been falsified or his trustworthiness as a witness has been put into question. He appears to have lodged the FIR at about 12-35 p.m. on that very day while the occurrence took place at about 8-30 a.m. and considering the fact that he had to come to Purulia after the incident to hire a vehicle and to take the injured Nepal in that vehicle to the Purulia Sadar Hospital and get him admitted there, the time-lag that is found here, namely, about four hours appears to be quite satisfactorily explained away in the process. Such statements made by him practically just after the occurrence give rise to the unerring notion that there was no scope for any embellishment or exaggeration in respect of the allegations levelled by him in the FIR and those allegations having been corroborated in such a natural manner by the witness in his substantive evidence, the veracity of such statements or of the witness is found by us to be absolutely irreproachable. There cannot be any doubt in our mind for our coming to the conclusion that this witnesses is fully reliable and even the statements of this witness alone may be enough for the purpose of furnishing proof of the charges levelled against the accused persons by the prosecution under different sections of the Penal Code.

20. But what is more, he is not the eyewitness of this ghastly occurrence, and the prosecution evidence appears to have been enriched by the wealth of direct testimony of a host of other eye-witnesses whose evidence is by no means of any lesser reliability.

21. Thus, P.W. 2 Haradhan Mahato has stated that on a day in month of Aghrahayan, 6 years back, while he was bringing paddy from the field to his house at Bhadsa at about 8-30 a.m., he found Prankrishna, Nepal and Chepulal coming from their houses and seeing him they informed him that Nilkantha and others were cutting paddy on their land and on their request he accompanied them to their lands and going to the disputed land he found Nilkantha, Bishma, Mathan, Kalipada, Bulu, Patal, Srinibas, Lalbas, Majhi Sohis, Haralal and Ramanath Mahato were standing on the land and some labourers were cutting paddy from that land and the persons named above were armed with lathis, sword, gun, bows and arrows etc. and when they reached there, Nilkantha and Kalipada gave order to the others for assaulting them and at this Bulu threw an arrow towards Nepal and it hit Nepal on his lips and thereafter Nepal was gheraoed by Nilkantha and his companions at the bed of Upar Bundh when Mathan struck him with a tabla on his leg and Patal struck him with a sword and Haralal struck him with a tabla and Ramanath assaulted him with a lathi and thereafter Mathan struck Prankrishna with a tabla on his leg and Bishma assaulted Prankrishna with lathi and Ramanath took a tabla from Haralal and assaulted Prankrishna so that Prankrishna fell down on the ground and ultimately succumbed to his injuries. This P.W. 2 further says that Lalbas assaulted Shambhu Nath Mahato (P.W. 1) with an iron rod Nilkantha assaulted Shambhu with a lathi and further he assaulted Chepulal with the lathi on his head and Bulu again struck an arrow on Chepulal and Patal assaulted Siju with sword at his hand.

22. P.W. 3 Ambuj Sohis, another neighbour of the parties has stated in his examination-in-chief that on the morning of a day in the month of Aghrahayan, 6 years back, while he was passing by the side of Prankrishna's house, the latter informed him that Nilkantha and others were forcibly cutting paddy from his land and at his request he (P.W. 3) accompanied Prankrishna along with others including Chepulal and Nepal went to the bargaland of Joyram, the father of Prankrishna and found there some persons engaged in cutting paddy and they also found the accused persons (all named) standing near the said paddy land with various weapons in their hands such as tabla, arrows, sword, lathi, iron rod and men and when Prankrishna and Nepal protested against such cutting of the paddy, there was an altercation and all on a sudden Bulu struck an arrow towards Nepal which hit the lip of Nepal and under orders of Nilkantha the accused persons started assaulting them and Mathan struck Nepal with tabla on his leg and Patal struck Nepal with sword and Haralal struck Nepal with tabla and Ramanath assaulted Nepal with lathi and he further says that thereafter Mathan struck Prankrishna with tabla on his leg and Bishma assaulted Prankrishna with lathi on his leg so that Prankrishna fell down and then Kalipada commanded others to finish all of them and then Ramanath took a tabla from Haralal and struck Prankrishna and thereafter Prankrishna succumbed to his injuries. The witness frankly states that he did not see the other assaults, because in fear he left the place.

23. Then again, P.W. 13 (Subhas Mahato) another eye-witness to the occurrence has stated that on a morning of the month of Aghrahayan, 6 years back, while he was on the village road he found the accused persons (all named) being armed with various weapons like dang, tangi, tabla, gun, bows and arrows etc. were proceeding towards the bargaland of Joyram Mahato and, later, he also found on the road Prankrishna, Nepal, Chepulal, Shambhu and others who informed him that Nilkantha and his companions were forcibly cutting paddy from the bargaland belonging to them and they asked him to go to the bargaland and on their request this witness followed them and after going there they requested Nilkantha and his companions not to cut paddy from the bargaland when Nilkantha and others shouted and Bulu Mahato threw an arrow to Nepal which struck him on his face and he also found Nilkantha and his companions surrounding them from all sides and they chased them upto the bed known 'Upar Bundh' and there Mathan struck Nepal with a tabla whereupon Nepal fell down and then Patal struck him with a sword and Haralal struck him with a tabla and Nilkantha assaulted him with a lathi. This P.W. 13 also saw Bishma to assault Nepal with a lathi so that blood was coming out of the body of Nepal and he then found Mathan to assault Prankrishna with a tangi whereupon Prankrishna fell down on the ground and Kalipada gave order to finish them and then Ramanath took a tabla from Haralal and assaulted Prankrishna on his shoulder so that Prankrishna fell down on the ground with his face downward and ultimately Prankrishna succumbed to his injury on the spot. This witness also found Nilkantha assaulting Chepulal with lathi and Lalbas assaulting Shambhu with iron rod.

24. The next eye-witness is P.W. 14 Chepulal Mahato who is also an injured person. This witness says that on 15th Aghrahayan 5/6 years back at about 8-00 a.m. in the morning he accompanied by his brother Nepal went to their paddy field under Mouza-Bhadsa and after returning home therefrom he heard a hulla and from their house the disputed land being visible he found that many people had assembled there and were cutting paddy and then he informed this matter to Nepal and Prankrishna, his two brothers and thereafter they went to the disputed land along with some neighbours like Digam, Ambuj. Dasharath, Haradhan, Subhas, Sibu etc. and after reaching the field they found Nilkantha and his men to cut the paddy and they asked them not to do so and this was followed by an altercation and thereafter Bulu suddenly threw an arrow towards them and that arrow struck Nepal on his mouth and then under the orders of Nilkantha and others they chased them and surrounded them on the bank of the tank called as 'Upar Bundh' and there the accused Mathan struck Nepal with tabla on his leg and Patal struck Nepal with sword when Nepal fell down on the ground and Haralal struck Nepal with sword and Bishma and Nilkantha assaulted Nepal with lathi and at this time Prankrishna came to the rescue of Nepal taut Mathan struck Prankrishna with tabla at his right leg and Bishma assaulted Prankrishna with lathi on his left leg so that Prankrishna fell down on the ground and at this time Kalipada gave orders to the others to finish him and Ramanath took a tabla from Haralal and struck Prankrishna at his shoulder and at this time this P.W. came to the rescue of his brothers but Nilkantha assaulted him with a lathi on his head and Bulu threw an arrow towards him which struck him on his hand. Shambhu Mahato protested against such assault when Lalbas assaulted Shambhu with an iron rod and Patal struck Siju with a sword and at this time they retreated in fear to some extent. This witness further states that accused fled away when after such assault was over and he went to Purulia hospital for treating his injury and Nepal was admitted into the hospital and remained there for 16 days.

25. Then comes P.W. 18 Siju Mahato is another injured and an eye-witness to the occurrence. He says that 6 years back on a day in the middle of Aghrahayan in the morning on hearing a hue and cry, he came out of his house at Bhadsa Mouza and met the mother of Prankrishna and Nepal. He told him that Nepal and Prankrishna had gone towards the Upar Bundh and hearing this he went to the spot and found the accused persons (all named) along with many others chasing Panu @ Prankrishna and Nepal and also saw Matan to assault with a tabla on his leg when Nepal fell down on the ground and then he found Haralal to assault Nepal with talba and Patal to assault Nepal with a sword. This witness further says that Panu came to the rescue of Nepal at that time but Mathan assaulted him with a tabla at his left leg and Bishma assaulted Panu with a lathi and Kalipada who was present there with a gun in his hand ordered others to finish Prankrishna. He also says that Ramanath took a tabla from Haralal and assaulted Prankrishna at his neck. This witness protested against such assault when Patal tried to assault him with a sword but he saved himself by raising his hand and thereby received the stroke on his left hand. Subsequently he was treated in the hospital.

26. Still another eye-witness can be found in the P.W. 22 Gandhi Mahatoni who is the mother of Prankrishna the deceased, Nepal and Chepulal. She says that on a day in the month of Aghrahayan, 6 years back, she heard a 'golmaal' and then she came out and met Siju, her 'dewar' on the village road and with Siju she came to the Upar Bundh of their village and found her sons Panu and Nepal and also others being chased by the accused Mathan, Nilkantha, Bishma, Kalipada, Bulu, Haralal, Ramanath, Patal, Majhi and others. She further says that Nepal was gheraoed by those persons and Mathan assaulted Nepal with tabla on his leg and Patal assaulted Nepal with a sword and Bishma assaulted Nepal with a dang so that Nepal fell down on the ground and sustained bleeding injury and at this time Prankrishna alias Panu came to the rescue of Nepal when Mathan assaulted Panu with a tabla and Bishma assaulted Panu with a thenga and Kalipada, Nilkantha. Bulu shouted saying to them to finish Panu and Ramanath took a tabla from Haralal and struck Prankrishna on his neck therewith and Prankrishna ultimately succumbed to his injuries.

27. The last eye-witness to the occurrence is the P.W. 25 Nepal Ch. Mahato who is also another injured person and was admitted in the hospital as an indoor patient. He says that on 1-12-1982 in the morning he heard from his brothers Prankrishna and Chepulal that a golmaal was coming from the side of their bargaland of Mouza Bhadsa and they the three brothers went there and on the way they met with some neighbours whom they asked to accompany them and when they went to the disputed land they found the accused persons (all named) to harvest the standing paddy from their bargaland and they asked those persons not to cut paddy grown by them but without paying any heed to their request they picked up a quarrel with them and all on a sudden the accused Bulu threw an arrow which struck him on his mouth and thereafter the accused persons shouted saying 'Maro sala digakay' and at, this the complainant's party tried to retreat and those persons chased them and the accused, Mathan, struck him on his left leg with a tabla from the back side and accused Haralal struck him with a tabla on his back and Bishma assaulted him with a lathi on his head so that he fell down on the ground and then Nilkanta assaulted him with a lathi and at this time his brother, Prankrishna, came to save him but Mathan struck Prankrishna on his right leg with a tabla and Bishma assaulted Prankrishna with a lathi on his left leg and Prankrishna fell down on the ground when Kalipada, Nilkantha, Bishma shouted and ordered others to finish him and thereafter Ramanath took tabla from Haralal and struck Prankrishna on his neck and at this time himself (Nepal Mahato) lost his senses. He further says that he regained his senses at the hospital after 5/6 days and was detained in the hospital for a total period of 24 days. He further says that first he was treated at Purulia Sadar Hospital, but thereafter he had to be treated at Calcutta.

28. Besides these eight eye-witnesses there are two more witnesses who though not eye-witnesses in the strict sense, have given testimonies the effect of which is no less significant than the ocular version of the eye-witnesses to the occurrence. They are the P.Ws. 16 & 19 Lalbehari Mahato and Ramdulal Mahato both of whom being inhabitants of neighbouring areas went to the spot just after the occurrence and saw the dead body of Prankrishna and the injured, unconscious Nepal on the filed at the P.O. P.W. 16 found the mother of Prankrishna and Nepal weeping and he found Chepulal and Shambhu present there and he heard from Chepulal the entire incident including the fact which accused assaulted whom and with which weapon and on which part of the body of the victims they inflicted injuries. Similarly, the P.W. 19 also heard the incident from Subhas Mahato and stated the same to the I.O. Thus the evidences of these two witnesses also go a long way in lending corroboration to the evidence of the P.W. 17 and also to the statements made in the FIR and its role as res gestae as enshrined under Section 6 of the Evidence Act considerably strengthens the prosecution evidence for the purpose of proving the charges against the accused persons.

29. The testimonies of the above eyewitnesses are found to be perfectly in consistency with the medical evidence regarding the nature and extent of the injuries sufferred by the victims and also as to the places on the different parts of the body on which such injuries had been inflicted as per such evidences. The injuries found by the doctor (P.W. 6) holding the post-mortem examination on the dead body of Prankrishna have been mentioned above. Comparing such medical evidence with the ocular one, that is, the statements of the eyewitnesses on how the assault was perpetrated on Prankrishna by means of which weapons and at what places of his body we find that the one unmistakably tallies with the other.

30. So far as the injuries sufferred by the other victims also are concerned, there is no dearth of such consistency. Thus the P.W. 4 Dr. Prasanta Kr. Roy who was posted as the Medical Officer, Purulia Sadar at the relevant time examined the injured Siju Mahato and Shambhu Mahato and found the following injuries on their person. In case of Siju Mahato he found (1) one incised wound 4' x 1/2' over left forearm and (2) Abrasion and tenderness over right shoulder joint and he opines that the injury No. (1) may be caused by sharp cutting weapon like sword and the injury No. 2 may be caused by a blunt weapon like lathi.

31. Similarly, in case of Shambhu Mahato he found (1) one contusion over parietal bone and (2) slight-abrasion over right fronto parietal region of the skull. He opines that the injury No. 1 may be caused by an iron rod and injury No. 2 may be caused by lathi or by coming in contact with hard substance.

32. Again, the P.W. 5 Dr. Dhrubalal another Medical Officer of the said hospital at that time who examined the injured Chepulal Mahato found (1) one echymosis about 1' x 1/2' in length over left arm on the lateral aspect, (2) one scratch mark (abrasion) about 1/2' in length over left hand, (dorsal aspect) (3) slight abrasion over left thumb and (4) one lacerated wound about 1/2' x 1/2' over left index finger. He has opined that injury No. 4 may be caused by an arrow if it just touches by its side on the body of the subject and other injuries may be caused by hard and blunt substance like lathi.

33. As regards the injuries sustained by Nepal Mahato the evidence of P.Ws. 30 and 31 are worth being gone through. The P.W. 31, Dr. Ajoy Kr. Pakrashi who has stated that on 1-12-1982 while he was on emergency duty at the Purulia Sadar Hospital, at about 12-30 p.m. he examined one Nepal Ch. Mahato, son of Joyram Mahato of village Bhadsa at the Emergency ward and admitted him in the hospital as he had serious injuries on his person. This witness has further stated that he noticed multiple incised looking wounds all over his person and blood was profusely coming out and the general condition of the patient was very poor and prognosis was unpredictable at that moment and the injuries were of recent origin. In his cross-examination not a single such statement has been challenged. Only one line has been taken in his cross-examination from his mouth to the effect that the injured was brought to the hospital by one Sitaram Mahato of village Manikdi. Thus the multiple injuries on the person of this Nepal Mahato are practically admitted. From the evidence of the P.W. 30 also it is found that this patient was admitted in the hospital on 1-12-1982 and thereafter he was placed for treatment under Dr. Amal Kr. Ghosh and the patient was discharged from the hospital on 24th December, 1982. The P.W. 30 also proves the contents of the Bed Head Tickets in respect of this injured person and the same has been marked as Exbt. 17 and from this document the description of various injuries sufferred by this person can also be found. The P.W. 30 has further stated that an injury of the size of 3' x 1/2' on the fronto parietal region can be said to be on the vital part of the body and by the words 'frontal region' is meant the region from the meeting point of the brain above the eyebrow and injury of this portion of the body can be said to be an injury on a vital part of the body just like an injury on the parietal region of the body of the size of 3' x 1/2' x bone-deep and further this medical expert has said that such type of injuries may endanger human life. In his cross-examination also not a single of such statement or opinion of this witness has been challenged in the least. We have shown above how the evidence of the P.W. 1 has been corroborated by other eye-witness that after surrounding Nepal at the Uppar Bandh Mathan struck him with a tabla causing bleeding injuries on his leg when he fell down patal struck him with a sword at his hand, Haralal with a tabla and Ramanath with lathi.

34. Thus from the above analysis of the ocular evidence coupled with the medical evidence one is constrained to hold that the allegations of assault being perpetrated by the accused persons on the person of the victims thereby causing various injuries as alleged by the prosecution on their body have been quite consistently and flawlessly proved by the prosecution. In the cross-examination of the above mentioned P.Ws. nothing has been found by us to say that the statements made by them in their examination-in-chief have been in any way assailed or put into question. Under such circumstances it is not understood how the Ld. Trial Judge found the evidence adduced by the prosecution in abundance not sufficient for the purpose of establishing the charges against the different accused persons under different heads, namely, under Sections 323, 324, 325, 326 and 302/34 and 302/ 109, IPC. He has commented that he does not consider the eye-witnesses to be truthful because the picturesque description of the incident with minute details of the injuries on each of the victims and the details of the weapons used by the accused persons cannot be expected from the eye-witnesses under such circumstances when they were sufferring from a fear-psychosis and they were retreating from the place of occurrence. Such a reasoning of the Ld. Trial Judge appears to our minds to be a queer one. It has been stated by some of the eye-witnesses that when the gang of the accused persons being armed with various kinds of deadly weapons were chasing them or were threatening them with assault they (these witnesses) retreated 'to some extent'. This does never mean that they ran away from the P.O. altogether, but this means that they ran away for few steps obviously in order to widen the distance between the allowing miscreants and themselves. They have never said that they totally left the P.O. at that time. On the other hand, their entire deposition gives the unmistakable impression that they went back for few steps (sic) being present they were watching incident from some distance. The Ld. Trial Judge appears to have imported a theory of his own and wrongly dismissed such consistent statements of so many eye-witnesses terming it as product of imagination.

35. The other reasons which prompted the Ld. Trial Judge to disbelieve the prosecution evidence is the fact that the injuries which were found on the person of the accused, Mathan, had not been explained by the witnesses of the prosecution. This also appears to be surprising. We fail to understand how the existence of injuries on the person of one or some of the accused persons could be taken to have falsified or set at naught the testimonies of so many independent and dis-interested eye-witnesses remaining unassailed. It is not the case of the defence that they assaulted the victims or caused injuries on their person by way of private self-defence. It is not their case that in order to save themselves from the assault of the complainant party they attacked them with such deadly weapons. It is the Ld. Trial Judge who appears to have imported such a theory of private self-defence of his own accord. The fact established from the evidence cannot be denied that the accused persons assaulted the complainant and the members of his party when they came to the disputed plot in order to protest against their harvesting the paddy standing on the disputed plot No. 550.

36. We also do not accept the reasoning of the Court below when it observes that while the prosecution claims that Gandhi Mohatani (P.W. 23) was an eye-witness and accordingly she has been examined by the prosecution, according to the P.W. 23, Labu Mahato who is the son of Gandhi Mahatoni's sister has said in his evidence that he met Gandhi Mahatoni at her house and in view of this Ld. Trial Judge has come to the conclusion that the testimony of Gandhi Mahatoni cannot be believed to be true. It is curious that for such a very minor discrepancy the whole prosecution evidence has been subjected to discredit. If the Ld. Trial Judge was not inclined to believe the statements of Gandhi Mahatoni, the mother of the deceased, then at the most that witness could not be relied upon, but due to such an infirmity affecting the evidence of only one witness the whole prosecution evidence could not be discredited or the statements of 7 (seven) other eye-witnesses could not be thrown away when their testimony appeared to be consistent, cogent and credible. We are also surprised to see the comments made by the Ld. Trial Judge to the effect that responsibility could not be fixed up with reference to the evidence on record as to who caused the injury to whom and how or that the evidence on record does not help the Court to fix the responsibility on any accused person either for the death for Prankrishna or for the injuries caused to Nepal Mahato, Chepulal Mahato, Siju Mahato and Shambhu Mahato. As we have shown above, the evidence of the eye-witnesses who appear to be independent and not inimically disposed towards the accused persons is quite sufficient for the purpose of enabling the Court to fix the responsibility and to determine which accused assaulted with what weapon and caused which injury. The Ld. Trial Judge's finding is also found to be incorrect when he observes that it cannot be said that Prankrishna was murdered in pursuance of any abetment given by the accused Kalipada, because as per the evidence Kalipada was not asking any one of the accused persons to cause the death of any particular person but he was making such utterance in a general way. Thus this much the Ld. Judge was satisfied that the accused, Kalipada gave a command to others for finishing the lives. But, curiously enough, in the next line his finding was that such an instruction was issued in a general way and not directed to any particular accused like the victim, Prankrishna. Even if it was in a general way, even then that does not lose significance. Because, it is obvious that the 'general' includes the 'particular' and if as a result of such a general instruction, if any individual is killed by the followers, then certainly such instigation will fall in the category of abetment as defined under Section 108 of the Penal Code. Moreover, from the trend of evidence of the P.Ws. one gets the impression that such an instruction was being directed specifically towards the said Prankrishna in particular. Because, although the name 'Prankrishna' does not occur after the word 'finish' in the sole evidence of the eye-witnesses General, the sentence is invariably put by them after they have stated that Prankrishna fell down on being assaulted by the accused persons named by them. In the FIR also the statement is like that. Therefore, we do not subscribe to the view taken by the Ld. Trial Judge that Kalipada's utterances mentioned above did not constitute any instigation in the matter of causing of death of Prankrishna by the three other accused persons.

37. The Ld. Trial Judge has not considered the evidence of the P.W. 1 as reliable for the further reason that the story of chasing of the complainant's party by the accused persons is not in the FIR and it is introduced in the oral evidence of the P.Ws. for the first time. We are not impressed by such reasoning of the Court below either. It should not be forgotten that in the FIR all minute details of the occurrence cannot be expected to be divulged. Here what has been stated in the FIR is that first the accused Bulu shot an arrow which hit Nepal on his mouth and thereafter the accused-party attacked the complainant's party after saying 'Maro sala digakey'. In the deposition the P.W. 1, the informant has said that the accused persons shouted saying 'Maro sala digakey' and saying this they chased the P.W. 1's party and going upto the 'Upar Bundh' they surrounded Nepal, etc. If we carefully analyse these two statements, it will be seen that there is practically no discrepancy between the two. In the expression, 'after saying Maro Sala digakey they attacked us.........' it is implicit that there might be some amount of chasing. In between the threat given by saying 'Maro sala digakey' which followed the throwing of an arrow by one of the accused and the actual attack there could be a retreat due to fear on the part of the complainant's party and some sort of chasing by the accused persons to translate the threat given by them into reality. In the FIR this part may not be explicitly narrated due to obvious reasons, due to a sense of hurry and haste, a tense mental state, the gloom and horror pervading the mind of the informant having just lost a near relation, etc. It touches so very minute aspect of the matter that its omission matters little. Nor its express mention at the time of adducing substantive evidence renders this part of the allegation unworthy of credit. It cannot be said that something totally new is being introduced by the witnesses by testifying to the fact of chasing. The expression 'attack' implies and includes as its part and parcel a probable chase and retreat and if the broad fact is only mentioned in the FIR and its accompanying minute details are narrated in the evidence then there is no inconsistent.

38. Another source of criticism levelled by the Ld. Trial Judge against the credibility of the evidence of the prosecution witnesses is the admission of some of them in their cross-examination that they were attacked simultaneously and in a procession. It sounds unbelievable to the Ld. Judge that each victim of the attack would come upon the stage one after another to be attacked by the different accused in succession. We do not find anything surprising or unnatural in the happening of such an event. Evidently the accused persons were in a group consisting of a good number of persons who were armed with various deadly weapons and, as the medical evidence of the doctors discussed above has shown, one person, namely, Prankrishna Mahato received fatal injuries and succumbed to such injuries on the spot and one was seriously injured and had to be hospitalised and two others received injuries for which they had to be medically treated. According to the doctors the injuries sustained by them could be caused by weapons which the eye-witnesses have mentioned in their evidence as ones with which the accused persons had actually assaulted them. So, when the alleged assault is substantiated by such clear and cogent and unshaken evidence, the Ld. Trial Judge's theory appears to have no legs to stand upon.

39. From the evidence discussed above we have seen that almost all the eye-witnesses have named Mathan and Bishma as having assaulted Prankrishna with tabla and lathi respectively. So far as the accused, Ramanath, is concerned, the P.Ws. 2, 3, 13, 14, 18, 22 and 25 have stated that when Prankrishna fell down on being assaulted by Mathan and Bishma, the accused Ramanath took a tabla (Tangi or spear is called Tabla by these people) from Haralal and assaulted Prankrishna on his shoulder (some say 'shoulder', some say 'neck') causing bleeding injury there. It is to be noted that in the cross-examination of the P.Ws. 2, 13, 14 and 18, against such statements of them they have been asked if they made such statements to the I.O., when all of them have answered in the affirmative. But as against such positive statements no further cross-examination has been made. What is done by the defence is putting the same question to the I.O. when he has said that no such statement was made by these witnesses to him. But this answer of the I.O. will not have any legal effect in favour of the defence, because in such a case the legal requirement is that the defence should have to cross-examine this statement by first gives a suggestion to such a witness to the contrary effect that he has not made any such statement to the I.O. and then would put the question to the I.O. and take his answer. Otherwise the statement made by the witnesses concerned in his cross-examination in positive form will continue to be taken as admitted. But, what is more in support of the prosecution in this regard is the fact that the evidence of P.W. 3, Ambuj, P.W. 22, Gandhi Mahatoni, and P.W. 25, Nepal Mahato, on this point has not been challenged in the least. In case of P.W. 3, Ambuj, his positive statement made in his examination-in-chief has not been subjected to any cross-examination at all, not to speak of confronting the I.O. therewith; and in case of the P.W. 22, although in her cross-examination it has been taken from her that she has stated this to the I.O., before the I.O. no whisper at all has been made. Whereas in case of P.W. 25, it has been put in the cross-examination of the I.O. (P.W. 28), in a different language so that a different meaning is conveyed. Thus it is put as follows -- 'P.W. 25 did not state before me that Kalipada issued orders for finishing the complainant's party prior to Ramanath assaulted Prankrishna with tangi on his shoulder.'

40. What is brought home from the above analysis of evidence is that the involvement of the accused, Ramanath Mahato, in the commission of the offence of murder of Prankrishna is well established. Simply because the informant (P.W. 1) has not mentioned his name as an assailant of Prankrishna either in the FIR or in his evidence, the charge against him cannot be given a go-by. A host of other eye-witnesses have testified to the role played by that accused. Their testimony, as we have seen above, remains unshaken. They made such statements before the I.O. Under Section 161, Cr.P.C. just after the occurrence, so that there is no question of doubting into the same any exaggeration or embellishment on their part. When so many assailants were assaulting with such weapons in a body and there were more instances of assault than one simultaneously, it may quite happen that one eyewitness may not take stock of all the cases of assault being perpetrated at the same time. While witnessing one instance of assault, another instance of assault in which another attacker is involved may obviously escape his notice. This rather appears to be the natural course of human conduct and it shows that the witnesses are not giving any tutored version. Moreover, it is not the requirement of the law that all the minute particulars of the offending act should be invariably incorporated into the FIR and its omission will render it liable to be thrown away altogether. If the other eye-witnesses see some acts of the accused which escaped the notice of the informant and they state about such incidents in their 161-Statements which were taken immediately after the occurrence and the Court is satisfied that there was no scope of embellishment or manufacturing of any story, then such evidence will be equally trustworthy like the one which has been supported by the allegations in the FIR.

41. So, from the evidence of the said witnesses, viz., P.Ws. 2, 3, 13, 14, 18, 22 and 25, more particularly, the P.Ws. 2, 3, 14, 18, it has been established beyond doubt that the accused Ramanath Mahato hit Prankrishna Mahato with a tangi on his neck causing serious bleeding injury which proved to be fatal. The P.W. 6, Dr. S.K. Chatterjee, who held the post-mortem has found the injury No. 1 which is an incised wound over lower portion (back) of the neck measuring 4' x 1/2' x 4th Cervical Vertibra on dessection he found the said Vertibra and the adjacent Vessel and muscles as cut. He has opined that this injury being on a vital part of the body alone is sufficient to cause the death of a person in ordinary course of events. He has also said that such an injury may be caused by a sharpcutting weapon like tabla (Tangi).

42. The ocular evidence of the prosecution gets strengthened from another fact, that is, recovery of a number of weapons of assault, namely, (1) the bow (Mat. Ext. VIII) seized from the P.O. which include disputed plot No. 550 (2) arrows seized from the same place (Mat. Ext. III), one gun Mat Ext. II and one tabla and bamboo-lathi (Mat. Ext. V).

43. Charge has been framed against the above three accused viz., Mathan Mahato, Bishma Mahato and Ramanath Mahato Under Section 302/34, IPC to the effect that they committed murder of the deceased in furtherance of their common intention. So here the question is whether from the material on record it has been proved that these accused were being governed by the same intention of causing death to the deceased when they were assaulting him. As we have seen from the evidence discussed above, these three accused were assaulting Prankrishna with deadly weapons in a concert while the accused Kalipada Mahato was commanding them to finish him. They assaulted him one after another in quick succession. From such evidence it is clear that at this particular point of time they were being guided by one and the same intention, namely, to follow the said orders of the accused, Kalipada, and to put an end to the life of Prankrishna, because he (the deceased) came to rescue Nepal whom the accused persons were first assaulting. The stroke given by the accused, Mathan, by means of a tabla (Tangi) on the leg of the deceased causing serious bleeding injury there was enough for the latter to fall down when the accused, Bishma, gave another stroke on his legs with a lathi and thus when he was in lying condition and could not stand up, the accused Ramanath dealt the fatal below by means of a tabla. It is to be noted that there was no time-gap in between the three assaults and as the evidence shows, just after one was perpetrated, another came. This makes it a perfect instance of common intention being shared by these three accused.

44. Thus the charge under Section 302/ 34, I.P.C. is well proved against these accused, namely, Mathan Mahato, Bishma Mahato and Ramapada Mahato. Similarly against the accused, Kalipada Mahato also the evidence is sufficient and satisfactory, as I have discussed above, to the effect that he has instigated those accused persons to kill the deceased and the fatal blows were given in obedience to his direction. Instigation amounts to abetment. Vide illustration (b) to the Section 109, IPC. In that view of the matter, the charge under Section 302/ 109, IPC appears to have been established, against the accused, Kalipada Mahato. Then, as regards the accused, Bulu Mahato, as we have seen, the charge under Section 324, I.P.C. for voluntarily causing hurt to Nepal Mahato and Chepulal Mahato, by means of arrows have also been well established from the evidences, both ocular and medical. Further, the evidence discussed above clearly shows that the charge under Section 326/34, I.P.C. against the accused-respondents, Mathan, Haralal, Ramanath and Patal for causing grievous injury on the person of Nepal and the charge under Section 325, I.P.C. against the accused, Lalbas, for causing grievous hurt to Shambhu Mahato and the charge under Section 324, I.P.C. against the accused, Patal Mamato, for causing hurt to Siju Mahato have also been sufficiently brought home by the prosecution.

45. Now regarding the charge under Section 148, I.P.C. against all the accused persons, Ld. Trial Judge found this charge substantiated from the materials on record and he has convicted them thereunder and sentenced them to suffer rigorous imprisonment for three years each. Being aggrieved by this order all the convicts have preferred this appeal (C.R.A. 202/89) challenging that order as erroneous. Let us therefore see if these findings of the Court below are justified. The charge is to the effect that these accused persons being members of an unlawful assembly did in prosecution of the common object of such assembly, viz., forcibly harvesting paddy from the R.S. Plot No. 550 of Mouza-Bhadsa belonging to Joyram Mahato commit the offence of rioting and at that time they were armed with guns, tablas, bows and arrows, lathis, iron rods, etc.

46. As we have seen from the foregoing discussion of the evidences on record, all these accused persons were present at the place of occurrence with the arms or weapons as stated above and it has been also shown that various accused persons committed various offences as alleged. Now the question is whether they committed the offence of rioting, Section 146, I.P.C. defines the offence of rioting. It provides that whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. The expression 'Unlawful assembly' has been defined under Section 141, I.P.C. Under the Clause 'Fourth' of this section an assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing that assembly is by means of criminal force or show of criminal force to take or obtain any property or to deprive any person of any incorporeal right of which he is in possession or enjoyment or to enforce any right or supposed right. Here the prosecution allegation is that the accused persons in a body came to the plot No. 550 which was possessed by Joyram Mahato as bargadar under owner, Kartick Chowdhury and on which Joyram cultivated paddy in the relevant year and the accused persons with the help of their hired labourers were cutting that paddy from that land. Seeing this the three sons of Joyram, namely, Prankrishna, Nepal and Chepulal along with their companion protested against such act of the accused and then the accused persons assaulted them in the manner already stated above. Almost all the co-villagers who have deposed as witnesses for the prosecution have unambiguously stated that the accused persons were harvesting the paddy which had been grown by Joyram on the disputed land vide the evidence of P.Ws. 1, 2, 3, 13, 14, 16, 23, 25 and 26 all of whom have testified to the possession of the plot No. 550 by Joyram as bargadar and the cultivation of paddy by him in the year in dispute and further to the fact of cutting of that paddy by the accused persons in an assembly being armed with different deadly weapons. It is to be noted that in the cross-examination of these witnesses there is absolutely nothing that can be said to have put them into question in the least.

47. Thus all the ingredients of the offence of Rioting are found satisfied. The accused persons being more than five in number formed an assembly the common object of which was to commit criminal trespass into the land which was under possession of another person and to enforce by means of criminal force some supposed right there. Therefore, it became an unlawful assembly. It has further been proved from the evidence, as it has been shown above, that this assembly used force and violence in prosecution of their said common object and thereby the offence of rioting as envisaged under Section 146, I.P.C. becomes complete. Section 148 provides that whoever is guilty of rioting being armed with deadly weapon or with anything which, used as a weapon of offence, is likely to cause death shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Therefore, there is no denying the fact that all these elements of the offence under Section 148, I.P.C. against all the accused persons have been well substantiated from the materials on record discussed above.

48. In this connection the contention advanced by Mr. Dutt, the Ld. Counsel for the accused-appellants is worth being mentioned. He has pointed out that although the other charges framed against different accused persons under different heads of offences have not been linked with any common object, curiously enough, this charge under Section 148, I.P.C. has been framed against all the accused attributing a common object in the unlawful assembly and this constitutes an infirmity in the prosecution case. But we are not impressed by this argument. It is not a necessary corollary that whenever there will be an unlawful assembly being governed by any particular common object, whatever offence is committed by any particular member or a group of members of that assembly will have to be taken as having been committed by all the members in pursuance of such a common object it is not unlikely or unusual that one or some members of that assembly may indulge in commission of any act constitute an offence, which may not be prompted by an object common to all. In the present case, as the materials on record will show, when the accused persons formed an unlawful assembly their common object was to harvest the paddy grown by another person being a bargadar in respect of that land and the members of such assembly might very well not be governed by any object of killing any person or causing injuries or hurt to any person. Later on due to some turn of events and change in the circumstances some members of such assembly may very well commit some acts or offences in deviation from the common object of the unlawful assembly. In such circumstances, there is nothing wrong, if such acts are not linked with the common object of the entire assembly but are viewed as stray ones originating in the individual intention of a particular accused or in the common intention of a group of accused. In view of therefore going reasons we do not find any fault with the finding of guilt and conviction arrived at by the Court below in respect of this charge under Section 148, I.P.C. and we do not find any merit in the Appeal preferred by the convicts against the same,

49. Accordingly, the Criminal Appeal being No. C.R.A. 202/1989 is dismissed at the order of the trial Court convicting the accused-respondents of an offence under Section 148, I.P.C. and sentencing each of them to suffer rigorous imprisonment for three years be affirmed.

50. But the order of the Ld. Trial Judge finding the accused persons not guilty of the other offences with which they were charged and acquitting them of such charges is not acceptable to us in view of the reasons discussed above. In our view the observation of the Trial Judge that responsibility for commission of these offences of either murder or assault or of causing of hurt cannot be fixed is thoroughly contrary to the evidence on record and he totally misunderstood the evidence and misdirected himself by arriving at such unwarranted conclusions from such preponderance of evidence and we consider it a serious error on his part. In view of the foregoing reasons we have no hesitation to hold that all those charges have been established by the prosecution beyond all reasonable doubt and the different accused persons are guilty of the different charges as framed against them and they are liable to punishment in accordance with the penal provisions of the law.

51. In the result, the Govt. Appeal No. 29/1989 is allowed. The order of acquittal passed by the trial Court in respect of the charges other than the charge under Section 148, I.P.C. be hereby set aside. The accused, Mathan @ Manmatha, Bishma and Ramanath Mahato who are found guilty of the offence Under Section 302 read with Section 34, I.P.C. for committing the murder of Prankrishna Mahato in furtherance of common intention of them all are sentenced to suffer imprisonment for life and also to pay fine of Rs. 1000/- each, in default, further rigorous imprisonment for three months each. The respondent, Kalipada Mahato, who has been found guilty Under Section 302 read with Section 109, I.P.C. also is convicted and sentenced to imprisonment for life and to pay fine of Rs. 1000/- i.e. to further rigorous imprisonment for three months. The respondents Mathan @ Manmatha, Haralal, Ramanath and Patal Mahato being found guilty of the offence under Section 326 read with Section 34, I.P.C. for causing grievous hurt to Nepal Mahato is convicted thereunder and sentenced to suffer rigorous imprisonment for five years each and to pay a fine of Rs. 1000/- each i.e. to further rigorous imprisonment for three months each. The respondent Bulu Mahato who has been found guilty of an offence under Section 324, I.P.C. for causing hurt to Nepal and Chepulal Mahato by means of arrows is convicted and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/-. i.e. to further rigorous imprisonment for one month. The respondent-accused Lalbas Mahato being found guilty of the offence Under Section 325, I.P.C. for causing grievous hurt to Shambhu Mahato is convicted and sentenced to suffer rigorous imprisonment for three years and also he shall pay a fine of Rs. 500/- i.e. to further rigorous imprisonment for one month. Lastly, the respondent-accused Patal Mahato who has been found guilty of offence under Section 324, I.P.C. for causing hurt to Siju Mahato by means of a tabla which is an instrument of cutting is convicted thereunder and is sentenced to suffer rigorous imprisonment for two years and also to pay a fine of Rs. 500/-i.e. to further rigorous imprisonment for one month.

52. All the sentences shall run concurrently. The amount of fine, if realised, shall be paid to the mother of the deceased, Sm. Gandhi Mahatoni, if still alive. Otherwise the same shall be paid to the widow of the deceased Prankrishna Mahato.

53. All the convicts shall surrender to their Bail Bonds forthwith in order to serve out the sentences. The Ld. Judge of the Trial Court shall ensure strict compliance with this order by taking all necessary steps for procuring their appearance immediately to give effect to this order.

54. The L.C.R. be sent down to the Court below at once.

Debi Prasad Sengupjta, J.

55. I agree.