LexDEBASHIS DAW & ORS. versus STATE OF WEST BENGAL
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A B c [2010] 9 S.C.R. 654 DEBASHIS DAW & ORS. v. STATE OF WEST BENGAL (Criminal Appeal No. 1679 of 2005) AUGUST 5, 2010 [B. SUDERSHAN REDDY AND SURINDER SINGH NIJJAR, JJ.] Penal Code, 1860 - ss. 148, 3241149 ands. 304 Part II 149 - Accused armed with deadly weapons forming unlawful assembly and causing injury to one and death of another - Conviction and sentence u/ss. 148, 3241149 ands. 304 Part 11149, by courts below - Interference with - Held: Each of the D accused was part of unlawful assembly and armed with deadly weapons, together indulged in indiscriminate beating and freely used weapons in their hands causing severe injuries on the body of deceased - Evidence of injured witness and . PWs 5 and 8-father and mother of deceased was reliable - E Medical evidence not at variance with the version given by father and mother of deceased - Minor contradictions in the evidence of Investigating officer and injured witness would not affect the prosecution case - Thus, conviction of accused upheld but sentence reduced to the period already undergone F - Evidence. According to the prosecution case, the appellants formed themselves into an unlawful assembly and armed with deadly weapons caused injuries to PW 2 and G assaulted SG, resulting in his death. The trial court convicted and sentenced the appellants u/ss. 148, 324/ 149 and s. 304 Part 11149 IPC. The High Court upheld the order. Hence these appeals. H 654 DEBASHIS DAW & ORS. v. STATE OF WEST BENGAL Disposing of the appeals, the Court 655 HELD: 1. The conviction of the appellants is upheld but having regard to the peculiar facts and circumstances A of the case, the sentence is reduced to that of the period already undergone. The appellants may be released from 8 the jail forthwith provided they are not required in any other case. [Para 22) [669-C-D] 2.1 There is no reason to disbelieve the evidence of PW 2. It is in his evidence that the deceased was a very close friend of his and both of them were on visiting C terms. It is clearly stated in his evidence that on 30th March, 1986, at about 6.00 in the evening, that when PW 2 and the. deceased reached the culvert near the licensed country liquor shop, the appellants encircled him and the deceased with deadly weapons in their hands. RD (since D died) hit the deceased with a lathi on his· head and the deceased fell down, then RD hit PW 2 with a lathi on his right leg. Thereafter, all the appellants attacked them at random with different weapons. He could see the deceased somehow managed to save himself from the hands of the appellants and ran towards the east but all E the appellants were chasing him with the weapons in their hands. He named only four persons in his statement made to the Doctor-PW 7 who treated him in the hospital. He must have been under terrible shock as he along with F the deceased was encircled by a riotous mob with deadly weapons in their hands. The mere fact that he did not mention the names of all the accused is no reason to disbelieve his evidence. There is no particular reason suggested in the cross examination as to why he should G depose falsely against the appellants. Admittedly, the deceased and PW 2 were bosom friends and meeting almost everyday. His presence at the scene of offence along with the deceased cannot be doubted. In the circumstances, the courts below rightly placed reliance H 656 SUPREME COURT REPORTS [2010] 9 S.C.R. A on the evidence of PW 2. [Para 13) [664-B-H; 665-A] 2.2 There is no reason to reject the evidence of PWs 5 and 8-father and mother of deceased. They clearly speak about the assault on the deceased by the 8 appellants forming themselves into an unlawful assembly armed with deadly weapons. They did not realise as to who was the victim when the accused were actually assaulting the deceased. There is nothing unnatural in the evidence of PWs 5 and 8 that they have seen the actual assault on the victim inasmuch as the appellants C having themselves formed into unlawful assembly armed with deadly weapons encircled the victim and it is for that reason they could not realize that the victim injured in the act of indiscriminate attack was none other than their own dear son. [Para 14) [665-D-G] D 2.3 The submission that the torch lights that were · seized and produced in the Court were without batteries and bulbs and therefore there was no possibility of PW 5 identifying the
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