Judgment:
J.N. Hore, J.
1. The five appellants and one Ananda Ghosh, since deceased, were arraigned before a learned Additional Sessions Judge, Nadia, to answer the following charges:
First - That you, on or about the 15th day of December, 1984 at Ushidpur within P.S. Kotwali, were member of an unlawful assembly and did in prosecution of the common object of such assembly viz. in committing the murder of Mantu Ghosh commit the offence of rioting and at that time were armed with deadly weapons to wit Ramdao, falaetc. and thereby committed an offence punishable under Section 148 of the Indian Penal Code, and within my cognizance.
Secondly - That you, on or about the same day and at the same place in furtherance of common intention did commit murder by intentionally causing the death of Mantu Ghosh and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code, and within my cognizance.
Accused Ananda Ghosh died before the commencement of trial.
2. After completion of the trial, all the five appellants were convicted under Section 302/34, Indian Penal Code and sentenced to imprisonment for life. They were also convicted under Section 148, Indian Penal Code and for such conviction, they were sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 2,000/- each, in default to suffer further rigorous imprisonment for one year more. The substantive sentences of imprisonment were ordered to run concurrently. The fine, if realised, was ordered to be paid to the legal heirs of the deceased.
3. Briefly stated, the prosecution case is as under:
Mantu Ghosh (the deceased) was living with his family at Ushidpur, P.S. Kotwali, Nadia. De facto complainant Binapani Ghosh (PW1), Cousin of Mantu's wife Jari (PW9) and sister-in-law of Mantu, was living in the house of Mantu since the death of her husband at tender age. Mantu constructed a new house at Brahmanagar, not far off from Ushidpur. Mantu's wife Jari shifted to the house at Brahmanagar 4 days before the occurrence and she gave birth to a child 3 days before the occurrence.
4. On 15-12-84 Mantu came to his Ushidpur house in the afternoon and at or about5.00 P. M. Mantu, Binapani and Mantu's son Tarak left their house at Ushidpur for good and started for Brahmanagar with their belongings, A steel trunk containing belongings was placed on the carrier of a bicycle and a bag of rice was also fastened to the bicycle. Mantu was pushing the bicycle followed by Binapani and Tarak. When they proceeded some distance along the village pathway and reached near the house of Dilip Mondal, the five appellants, Ananda Ghosh (since deceased) and some unknown persons armed with 'fala', 'Ramdao' etc. intercepted Mantu. Ananda dealt a Ramdao blow inflicting injuries on the four fingers of Mantu's right hand when Mantu lifted his right hand to ward off the blow. Appellant Bhola assaulted Mantu with a ramdao on his left hand as a result of which, 4 fingers of the left hand of Mantu were chopped off and fell down on the ground. Thereafter, appellant Atchali struck a blow with ramdao on the head of Mantu as a result of which Mantu fell down on the ground. All the persons who assembled there then assaulted Mantu with various weapons. Mantu, Binapani and Tarak raised a hue and cry and the assailants fled away. Being attracted by the alarm, Monoranjan Ghosh (PW 2), Kala Das (PW 6), Dulal Mondal, Mahananda Das and others collected at the place of occurrence and arranged for shifting injured Mantu to hospital on a cart but on way to hospital Mantu expired near the Asram.
5. Balai Pal (P.W. 7) and Paritosh Saha (PW 8) went to village Bishnupur and reported the incident to PW 12 S.I. Anil Kumar Manna who came there in connection with investigation of another case. On receipt of the information, PW 12 visited Ushidpur village and found the deadbody of Mantu lying on a cart in front of the Asram. He recorded the statement of PW 1 Binapani Ghosh which was treated as the First Information Report in this case. P.W. 12 forwarded the complaint to the Officer-in-Charge, Kotwali P.S. through police driver Rathin Das (PW 11). Police registered a case against the appellants and another and P.W. 12 took up investigation. After completion of investigation he submitted charge-sheet against the appellants and another which, in usual course, ended in committalof the case to the Court of Session.
6. In defence, the appellants pleaded innocence alleging that they had been falsely implicated by Nepal Ghosh (PW 4) out of enmity in collusion with Binapani and the Investigating Officer.
7. The murder of Mantu is not disputed before us and has been proved by overwhelming evidence. PWs 1, 2, 5,6 and 7 saw Mantu lying injured on the road near the house of Dilip Mondal at Ushidpur on 15-12-84 at about dusk. On way to hospital Mantu succumbed to his injuries near the Asram. PW 12 held inquest on the dead body of Mantu, identified by Binapani and others. Dr. M. Sarkar who conducted autopsy is dead. Dr. R.N. Ghosh, a retired member of West Bengal Health Service, who is acquainted with the handwriting and signature of Dr. M. Sarkar has proved the post mortem examination report which is Ext. 7. The postmortem report Ext. 7 shows that the deceased received the following injuries:
1, One incised wound on the upper and occipital region about 21/2' X 1/2' X bone deep.
2. One incised wound on the lower end of the occipital bone 1/2 X 1/4' X bone deep.
3. One incised wound on the scapular region about 21/2' X 1/2' X bone deep.
4) Fracture of the occipital bone.
5) One incised wound in the right shoulder joint about 1 1/2' X 1/2' X muscle deep.
6) One incised wound on the lower end of the right shoulder joint about 1' X1/2' X muscle deep.
7) Amputation of the left fore finger, middle finger, ring finger and little finger which were missing from the body.
8) One incised wound on the left wrist joint about l1/2' X 1/4' X muscle deep.
9) One incised wound on the right hand at the lower end about 2' X 1/2' X muscle deep.
10) One incised wound on the right forefinger and index finger.
8. Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of the above mentioned injuries which were ante-mortem and homicidal in nature. According to Dr. R.N. Ghosh, the injuries were sufficient to cause instantaneous death. According to him, the incised wounds might be caused with a sharp cutting weapon like Ramdao. Considering the nature, number and sites of the injuries and the weapon used, there cannot be any doubt that the injuries were caused with the intention to cause death. It is clearly a case of gruesome murder perpetrated in the most cruel manner. '
9. The next point- and the most crucial one - for our consideration is whether the appellants or any of them were responsible for the death of the deceased.
10. In order to bring home the charges to the accused-appellants the prosecution examined 13 witnesses while the defence examined none. Of them PW 1 Binapani Ghosh is the sole eye-witness to the occurrence and the prosecution case mainly rests on the testimony of PW 1. Let us, therefore, advert to her testimony first.
11. The evidence of PW 1 is that Mantu constructed a new house at Brahmanagar not far off from his old house at Ushidpur. On 29th Agrahayan, 2 years before (15-12-84), at about 5.00 P.M. she, Mantu and Mantu's eldest son Tarak left their Ushidpur house for good and were proceeding with their belongings to Brahmanagar to reside in their new house. A steel trunk containing their belongings was placed on the carrier of Mantu's bicycle and a bag of rice was fastened to the rod of the bicycle. Mantu was pushing the bicycle followed by her and Tarak.
12. When they reached near the house of Dilip Mondal she found Ananda Ghosh, since deceased, and appellants Bhola Ghosh, Dulal Ghosh, Madan Ghosh, Atchali Das and Kamini Das standing on the road in front of the gate of Dilip's house armed with Ramdao, Fala etc. As they reached near them Madan Ghosh shouted 'Dara Sala' and Ananda Ghosh dealt a Ramdao blow inflicting injuries on the four fingers of the right hand of Mantu. Bhola struck Mantu with a Ramdao on his left hand cutting off four fingers which fell down on the ground. Thereafter, Atchali struck Mantu with a Ramdao on his head as a result of which Mantu fell down on the grou nd. Thereafter all those persons assaulted Mantu with various weapons at random. There were some unknown persons in the assembly. She, along with Tarak and Mantu, shouted 'Bachao, mere fello'. Thereafter, Madan and Bhola proceeded towards the house of Dilip while the other assailants proceeded along the pathway. Being attracted by the alarm raised by them Monoranjan Ghosh (PW 2), Nepal Ghosh, Dulal mal and others came there and she requested them to remove Mantu to the hospital. Mantu was removed on a cart but on way to the hospital he expired in front of the village Asram. Seeing Mantu dead she proceeded towards the shop of Nepal Ghosh (PW 4) situated at Bhaluka More (junction) crying loudly and narrated the incident to Nepal. Nepal assured her that he would inform police about the incident over telephone. Thereafter, she went to Brahmanagar and narrated the incident to Mantu's wife Jari (PW 9) who gave birth to a child a few days before the date of occurrence. After narrating the incident to Jari she returned to Ushidpur and found local people and Darogababu (PW 12) near the Asram. She narrated the incident to Darogababu and put her thumb impression on a paper.
13. Her further evidence is that Mantu had no relative at village Ushidpur. She has been living in the family of Mantu for the last 14/15 years since the death of her husband at her tender age.
14. In cross-examination she has stated that before the occurrence Mantu used to take his meals at his Brahmanagar house and pass his nights there. On the day of occurrence Mantu came to his Ushidpur house between 2.00 and 2.30 P.M. She narrated the incident to the local people who collected at the place of occurrence. She has further stated that leaving residence for good on the last day of a month is not suspicious but they had to leave on the last day of Agrahayan because leaving residence in the month of Poush is prohibited. Her evidence goes to show that Jari with her babies left Ushidpur house for Brahmanagar 4 days before the occurrence. She has denied suggestions that she was not with Mantu at the time of occurrence and that she falsely implicated the appellants at the instance of Nepal (PW 4).
15. Let us see if the evidence of PW 1 is true and reliable and can be safely acted upon. Her evidence appears to be straightforward and has a ring of truth. Though an illiterate village woman, she has stood the cross-examination well and nothing transpires from her cross-examination which may impeach her credibility. She has no animus against any of the appellants. There is not even any suggestion of enmity between her and any of the appellants. She has no reason to falsely implicate the accused persons. Her evidence also receives corroboration from the medical evidence, seizure of articles and the testimony of PW 4 as we shall see later.
16. Presence of PW 1 at the time of occurrence, though seriously challenged by the defence, cannot be doubted upon a consideration of the materials on record. PW 12 seized bloodstained earth, control earth, an Atlas bicycle, a steel trunk and a bag of rice fastened to the bicycle from the place of occurrence by a seizure list (Ext. 1). The seizure of the bicycle, a steel trunk and a bag of rice goes to corroborate the testimony of PW 1 that they were finally leaving their Ushtdpur house for Brahmanagar to reside in the newly constructed house with their belongings. PW 6 Kala Das whose house is near the Ushidpur house of Mantu, intervened by another house, has stated in the cross-examination that on the date of occurrence he was in his house throughout the day and that on that date Binapani (PW 1) left after demolishing their Ushidpur house. PW 6 was declared hostile. It is now well-settled that the evidence of a hostile witness cannot be discarded as a whole as a matter of law. In Sat Paul v. Delhi Administration : 1976CriLJ295 , the Supreme Court has held that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court by the party calling him his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken he may, after reading and considering the evidence of the witness as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto. In Rabindra Kumar Dey v. State of Orissa : 1977CriLJ173 , the Supreme Court has similarly held that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. We have carefully gone through the evidence of PW 6 as a whole. According to him, hearing a cry 'Mere fello, bachao bachao' he rushed to the place of occurrence and found Mantu lying dead. The amputated fingers of Mantu were lying by his side. He found a trunk, a bicycle and a gunny bag containing rice lying at the place of occurrence. On reaching the spot he found Balai Paul (PW 17) and Monoranjan Ghosh (PW 2) by the side of Mantu. All these facts are not disputed and his evidence in this regard receives corroboration from other evidence. He was declared hostile by the prosecution and cross-examined with the permission of the court inasmuch as he did not support the prosecution case that PW 1 was present at the place of occurrence when he arrived there. According to him, none other than Balai (PW7) and Manoranjan (PW 2) was present when he visited the place of occurrence. It was not necessary to contradict him on this point with reference to his statement recorded under Section 161 Cr.P.C. inasmuch as he admitted in the cross-examination by the prosecution that going to the spot he found Bina (PW 1) and Tarak crying, holding Mantu. He has further stated on the date of occurrence Mantu with the other members of his family was leaving Ushidpur for good. We have no hesitation in accepting the part of evidence of PW 6 referred to above. His testimony clearly shows that PW 1 was with Mantu at the time of the occurrence.
17. PW 2 Manoranjan Ghosh has no doubt stated that he found none except Mantu at the place of occurrence when he reached there with his sister PW 5 Santi Mondal and others but he has been contradicted by his statement made to PW 12 and recorded under Section 161 Cr.P.C. to the effect that going to the spot he found Binapani and son of Mantu crying catching hold of Mantu on the passage for entry to and exit from the house of his sister Santilata. So this part of his testimony must be rejected. Moreover, he has admitted in cross-examination by the prosecution that he met Binapani at the place of occurrence. PW 5 Santi Mondal, another hostile witness, has at first stated that being attracted by the cry 'bachao, mere fello' she went to the place of occurrence and found Mantu lying on the road with injuries but she did not find any other person. Later on, she stated that she found Binapani crying by the side of Mantu subsequently. This part of her testimony has been contradicted by her statement before the police to the effect that going out of her house she found Binapani and Mantu's son crying catching hold of Mantu. According to her, seeing Mantu's injury she immediately returned to her house and thereafter she did not come out of her house that night. If that be so, she must have seen PW 1 on reaching the spot and not subsequently.
18. There cannot, therefore, be any doubt that PW 1 accompanied the deceased and saw the occurrence. As already stated, she has no animus against any of the appellants and there is no reason why she would falsely implicate the appellants sparing the real culprits.
19. The testimony of PW 1 receives corroboration from the medical evidence which shows amputat ion of the left fore finger, middle finger, ring finger and little finger which were missing from the body, incised wound on the occipital bone and incised wound on the right four fingers and a index finger and other incised wounds including fracture of the occipital bone. According to the doctor, the incised wounds could be caused with a sharp cutting weapon like Ramdao. Mr. Dutta, learned Advocate appearing for the appellants, has urged that no penetrating wound was found by the autopsy surgeon and this discredits testimony of PW 1 that some assailants were armed with fala and assaulted Mantu with 'fala'. On a close scrutiny of the evidence of PW 1 the contention of Mr. Dutta appears to have no substance. According to PW 1 the assailants were armed with 'Ramdao', 'Fala' etc. Ananda gave the first blow with Ramdao inflicting injuries on the fingers of the right hand of Mantu. The second blow was given by Bhola with a Ramdao resulting in amputation of the four fingers of the left hand. The third blow was given by Atchali with a Ramdao on the head of Mantu as a result of which, Mantu fell down on the ground. PW 1 is very specific about these three blows. After the third blow Mantu fell down on the ground. Thereafter, according to PW 1, all the persons who were standing there assaulted Mantu with the weapons in their hands at random. This statement of PW 1 should not be taken too literally. In that situation it was not possible for PW 1 to see clearly and remember rightly what persons gave particular blows. One or two of the assailants might have been armed with 'Fala' but they might not have used the same. The expression 'all' need not be taken too literally. Her evidence shows that she is not definite whether any assailant assaulted Mantu with a fala causing a piercing wound. In cross-examination she has stated that she cannot say if the assailants of Mantu pierced him with fala. Fracture of the occipital bone could be caused with a hard and blunt substance like lathi. According to PW 1 the assailants were armed with fala, Ramdao etc. which does not exclude a hard and blunt substance like lathi. Moreover, fracture of the occipital bone could be caused by a heavy blow with Ramdao. The medical evidence, in our opinion, supports and not discredits, the testimony of PW 1.
20. The seizure of a bicycle, a steel trunk and a bag of rice by Ext. 1 tends to support the testimony of PW 1. that they were leaving Ushidpur house for good with their belongings and proceeding to their new house at Brahmanagar.
21. Let us next advert to the testimony of PW 4 Nepal Ghosh. He is a resident of Brahmanagar. He has a shop at Bhaluka More which is at a distance of less than half a mile from Ushidpur. Brahmanagar is to the north west of Bhaluka at a distance of about half a mile. The testimony of PW 4 is that on Agrahayan 29 about 2 years before, just after dusk while he was in his shop at Bhaluka More, Binapani (PW 1) came to her crying from the direction of Ushidpur and told him that Dulal Ghosh, Bhola Ghosh, Ananda Ghosh, Madan Ghosh, Atchali Das and Kamini Das along with others assaulted Mantu Ghosh. He asked her to go home assuring her that he would inform police about incident. Thereafter, he left his shop for the hospital to inform police over telephone from the hospital, but as the telephone was out of order he could not connect the police station. Thereafter he came to know that police had already reached Ushidpur. Then he went to village Ushidpur and met Tarak, Binapani and the police officer (PW 12) at the Asram. He also met village people there. PW 12 seized in his presence a bicycle, a gunny bag containing rice and a steel trunk etc. from the road in front of the house of Dilip Mondal. In cross-examination he denied the suggestion that the accused persons detained his cattle as he got their crops damaged by cattle. He denied the suggestion that Binapani did not divulge the names of the assailants of Mantu immediately after the occurrence. He also denied the suggestion that he falsely implicated the accused persons in connivance with police.
22. The evidence of PW 4 shows that PW 1 disclosed names of the appellants as the assailants of Mantu immediately after the occurrence. This lends corroboration to the testimony of PW 1 under Section 157 of the Evidence Act.
23. Mr. Dutta has assailed the evidence of PW 4 on various grounds. Firstly: It has been urged that PW 1 has not stated specifically that she mentioned the names of the appellants as the assailants. PW 1 merely stated that he narrated the incident to PW 4 at his shop at Bhaluka More. It has been contended that narration of the incident does not necessarily mean that the names of the assailants were disclosed. It is true that PW 1 has not specifically stated that she mentioned the names of the appellants as assailants of Mantu but her statement that she narrated the incident to PW 4, considered in the context in which it was made, leaves no doubt that she narrated the entire occurrence including the names of the assailants. After narrating the entire incident in details including the part played by the appellants she made the statement that she narrated the incident to PW 4 which necessarily implies. that she narrated to PW 4 what she has deposed.
24. The second ground of attack is that PW 4 has reason to falsely implicate the appellants with whom he has enmity. It appears from the evidence of PW 12 that Kotwali P.S. Case No. 46 dated 14-4-84 u nder Sections 147, 148, 149, 325 and 323, Indian Penal Code and 9(B) of the Explosive Substance Act and Section 26 of the Cattle Trespass Act was registered against PW 4 and others on the complaint of one Satya Charan Sardar in which appellants Madan and Bholanath are chargesheeted witnesses. There is no evidence that the said case has been disposed of or that the appellants Madan and Bholanath have deposed in that case against PW 4. The mere fact that the appellants Madan and Bholanath were chargesheeted witnesses in a criminal case against PW 4 in a case instituted on the complaint of another person does not constitute sufficient motive for PW 4 to implicate the appellants falsely. At any rate, there is nothing to suggest that PW 4 has enmity against the rest of the appellants. PW 4 does not claim to be an eye witness to the occurrence. He has merely deposed about what he heard from PW 1. There is no suggestion of any enmity between PW 1 and any of the appellants and it is quite improbable that PW 1 who saw the occurrence would spare the real culprits and falsely implicate the appellants at the instance of PW 4. The defence case that PW 4 has falsely implicated the appellants in collusion with PW 1 and PW 12 is highly improbable.
25. Lastly, Mr. Dutta has contended that a look into the First Information Report (Ext. 2) would show that it was not recorded contemporaneously. Letters of the last few lines above the thumb impression of PW 1 have become smaller and gaps between the lines have become less and a look into the recorded statement of PW 1 which has been treated as the First Information Report in this case, would give the impression that some lines have been squeezed in after taking thumb impression of PW 1. One of the sentences so squeezed is to the effect that the complainant narrated the incident to Nepal Ghosh and asked him to inform police. Mr. Dutta, has contended that this averment that PW 1 narrated the incident to Nepal and asked him to inform police was subsequently interpolated so as to make the evidence of Nepal more acceptable. According to Mr. Dutta, the entire statement was recorded subsequently after taking thumb impression of PW 1 on a blank piece of paper. There is no evidence that the thumb impression of PW 1 was taken on a blank paper. Attention of PW 12 who recorded the statement of PW 1 has not been drawn to this aspect of the matter. It may be that after recording the statement and obtaining the thumb impression of PW 1, PW 1 made some further statements which were squeezed in Ext. 2. Had the attention of PW 12 been drawn to Ext. 2, he might have offered a reasonable and acceptable explanation. As he has not been given an opportunity to explain the matter, we are not inclined to accept the argument that Ext. 2 was not recorded contemporaneously. It appears from the evidence of PW 12 that he reached Ushidpur: at 7.55 P.M. He sent the recorded complaint to the police station through PW 11. The endorsement of PW 12 on Ext. 2 as well as the testimony of PW 11 which has not been challenged go to show that the recorded statement was despatched to the police station at 8.30 P.M. The complaint was received at the police station by another officer at 10.05 P.M. The fact that PW 12 reached the place of occurrence at about 8.00 P.M. and despatched the recorded complaint within half an hour clearly shows that the statement was recorded on the spot contemporaneously and there is nothing to suspect the genuineness of Ext. 2.
26. Mr. Dutta has also contended that there was delay in sending the First Information Report to the learned S.D.J.M. giving rise to the suspicion that there was scope for improvements and embellishments. I The complaint reached the police station on 15-12-84 at 10.05 P.M. Date of despatch from the police station is 16-12-84 at 8.00 P.M. Signature of the learned S.D. J.M. shows that it was put up before him on 17-12-84. Now, 16-12-84 was a Sunday. Therewas, therefore, no delay in sending the First Information Report to the Court.
27. Ext. 2 cannot, however, be treated as the First Information Report. The evidence of PWs. 7, 8 and 12 clearly shows that PW 7 reported to PW 12 that Mantu Ghosh had been murdered at Ushidpur and that it was apprehended that the Ghoshes of Brahmanagar might attack the people of village Ushidpur as a reprisal. There was, therefore, earlier information disclosing the commission of a cognizable offence. This information set the police in motion. On receipt of this information PW 12 visited the place of occurrence and started investigation. The evidence of PW4 shows that PW 12 recorded the statement of Binapani after seizure of a bicycle, gunny bag etc. by Ext. 1 and holding inquest on the dead body. The statement of PW 1 being recorded in course of investigation is clearly hit by Section 162, Cr.P.C.
28. Let us next advert to the testimony of PW 9 Jari, wife of the deceased. Her evidence goes to show that four days before the occurrence she went to their Brahmanagar house from their Ushidpur house leaving her son Tarak and Binapani at Ushidpur house. Three days before the occurrence she was delivered of a child. Her mother was looking after her. On the date of occurrence her husband left Brahmanagar house for Ushidpur for bringing household articles they had left. Just after sunset Binapani, along with Tarak, came to Brahmanagar house and told her that her husband had been murdered. Saying this Binapani left the house with Tarak. Therefore, Binapani along with Tarak returned to Brahmanagar late at night and told her that Ananda, Bhola, Dulal, Kamini, Atchali and Madan murdered him in front of Dilip Mondal's house. It would be clear from her evidence that PW 1 did not disclose the names of the assailants at the first opportunity but disclosed the same to PW 9 when she returned to their Brahmanagar house late at night. Mr. Dutta has contended that the fact that PW 1 did not disclose the names of the assailants at the first opportunity would suggest that till then she did not know the names of the assailants. Weshouldnot forget the circumstances in which PW 1 reported the incident to PW9. She had been to Brahmanagar in a hurry leaving the dead body of her sister's husband at Ushidpur to inform Jari about the death of her husband. -This illiterate village woman had to take charge of the situation after the horrible occurrence. She was in a haste. In such a circumstance the non-disclosure of the names of the assailants at that time does not mean that she was not in the know of the names of the assailants. Moreover, she had already disclosed the names of assailants to PW 4 before she came to Brahmanagar and informed PW 9 about the incident.
29. Upon a careful scrutiny, we have, therefore, no hesitation in accepting the testimony of PW 1 as true and reliable.
30. Mr. Dutta has urged that Nepal Ghosh; (not PW4) and Dulal mal mentioned as witnesses in the First Information Report, have not been examined and for such non-examination of these material witnesses an adverse presumption should be drawn against the prosecution under Section 114, Illustration (g) of the Evidence Act. We are into inclined to accept the contention. They are not eyewitnesses to the occurrence. According to the First Information Report, they were post-occurrence witnesses who were requested by PW 1 to remove injured Mantu to the hospital. They were not witnesses to prove complicity of the appellants in the crime. Non-examination of such witnesses does not appear to us to be fatal to the prosecution case. We have already found that PW 1, an eye-witness to the occurrence, is an absolutely trustworthy and reliable evidence. There is no infirmity in her evidence which calls for corroboration from an independent witness. As the evidence led by the prosecuton is reliable and trustworthy, there is no scope for drawing an adverse presumption against the prosecution for non-examination of Nepal Ghosh and Dulal Mal. In Pal Singh v. State of U.P. : 1979CriLJ917 the Supreme Court has held that after the High Court had believed the eye-witnesses Nos. 1 and 2 and found that their testimony was absolutely credit-worthy and truthful, it could not have rejected the prosecution case merely because some of the eye-witnesses mentioned in the First Information Report were not examined. In such cases, the question which has to be; determined is not whether the absence of the examination of the independent witnesses; would vitiate the prosecution case by itself but whether the evidence actually produced is reliable or not. Once the Court gives a finding of fact that the evidence led by the prosecution is reliable and trustworthy, the infirmities arising out of non-examination of witnesses will not be sufficient to put the, prosecution out of Court.
31. Relying on the evidence of PW 1 we hold that the appellants committed the murder of Mantu in prosecution of the common intention of them alL The appellants were, therefore, rightly, convicted by the court below under Section 302/34, Indian Penal Code.
32. The conviction of the appellants under Section 148, Indian Penal Code cannot, however, i be sustained. The learned Additional Judge has not recorded any finding that the appellants were members of an unlawful assembly with the common object of: committing the murder of Mantu Ghosh and; that they committed the offence of rioting being armed with deadly weapons. Moreover, conviction of the appellants under Section 148 is incompatible with their conviction under Section 302 read with Section 34 of the Indian Penali Code.;
33. In view of the foregoing reasons, we allow the appeal in part only. We affirm the order of conviction and sentence passed by the lower court under Section 302/34, Indian Penal Code against the appellants. Their conviction and sentence under Section 148, Indian Penal Code is, however, set aside.
Sankar Bhattacharyya, J.
34. I agree.