LexGYANESHWAR SHYAMAL versus STATE OF WEST BENGAL
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[2016] 2 S.C.R. 419 GYANESHWAR SHYAMAL v. STATE OF WEST BENGAL (Criminal Appeal No. 2147 of2009 etc.) A MARCH 29, 2016 B [JAGDISH SINGH KHEHAR AND C. NAGAPPAN, JJ.] Penal Code. 1860 - ss.148, 3641149, 3021149,0°3071149 - Prosecution under - Of 35 accused - Conviction of 7 accused including the appellants-accused ulss. 148, 3241149 and 3641149 by trial court and remaining accused acquitted of all· the charges - Appeal of the convicted accused dismissed by High Court - On appeal by the appellant-accused, held: Prosecution case is supported by the eye-witnesses includ_ing an, independent injured eye-witness - The appellants-accused all through shared the common object of the assembly - Conviction of the appellants-accused confirmed. Dismissing the appeals, the Conrt HELD: 1. According to Exh. 5 Sketch Map, the occurrence had taken place inside the house of the deceased. It cannot be appreciated that the eye-witnesses were only the family members and their testimonies were interested ones. The occurrence having taken place inside the house, it is only the family members who could witness it. PW 4 was an independent witness and he was also injured during the occurrence. His testimony corroborates the testimonies of other eye-witnesses. [Para 9] [424-G-H; 425-A-E) 2. It is true that two of the appellants/ A:lO and A25 belonged to,different villages. Their names are fonnd mentioned with their . residential village in the complaint which was lodged at the earliest point in time. PWs 2, 4 and 8 have testified abont the pJ1rticipation of both the above accused in the occnrrence and have id;ntified them also. Nothing is put in the cro_ss-examination of the prosecution witnesses either denying their presence or absence of any role played· by therr in the assembly. Not even a suggestion . was made in this regard. These accused in their replies made under Section 313 Cr.P.C. have not deni,ed their presence in the 419 c D E F H 420 SUPREME COURT REPORTS [2016] 2 S.C.R. A occurrence. Ou the other hand their presence in the occurrence place is established by the evidence available on record. [Para B c D E · 10] [425-B-D] Akbar Sheikh and Ors. vs. State of West Bengal 2009 (7) SCR 518:(2009) 7 SCC 415 - distinguished. 3. The prosecution iu a case of the nature as in the present case, was required to establish : i) Whether the appellants were present; and ii) Whether they shared a common object. The appellants uudisputedly raided the house of the deceased and they were armed with deadly weapons and they attacked the deceased and PW4 and abducted the deceased in order to murder him. The appellants right from the beginning viz., when they assembled in ·a house till the abduction of the deceased, shared the common object of the assembly at all stages. Therefore, the impugned judgment of the Jligh Court does not suffer from any infirmity to warrant interference. [Para 12] (425-E-F] Case Law Reference 2009 (7) SCR 518 distinguished. Paras CRIMINALAPPELLATEJURISDICTON: Criminal Appeal No. 2147 of2009. From the Judgment and Order dated 09 .02.2009 passed by the Division Bench of the High Court at Calcutta in C.R.A. No. 7of1991. WITH C.A. No. 2295 of2009 F P. K. Ghosh, Sr. Adv., Ankur S. Kulkarni, Shubham Jaiswal, (for G M/s. Lex Regis Law Officers), Anurag Pandey (For Mr. Bijan Kumar Ghosh), Joydeep Mazumdar, Roh"it Dutta, Parijat Sinha, Ad vs., for the appearing parties. The Judgment of the Court was delivered by_ C. NAGAPPAN, J. 1. These two appeals are preferred against the judgment dated 9.2.2009 passed by the High Court of Judicature at Calcutta in CRA No. 7 of 1991. 2. The appellants in Criminal Appeal No. 7 of 1991 are accused Nos. I to 5, I 0 and 25 in Sessions Trial Case No. XIV of March 1987 on H the file of 5'h Additional Sessions Judge at M idnapore. They along with GYANESHWAR SHYAMAL v. STATE OF WEST BENGAL [C. NAGAPPAN, J.] ' 28 other accused were tried for the alleged offences under Sections 148,364/149, 3021149 and 307/149 of the Indian Penal Code. The Sessions Court found accused Nos.1 to 5, I 0 and 25 ;;uilty of charges under Sections 148, 324/149 and 364/149 and not guilty of the charge under Section 302/149 of the Indian Penal Code. Accused Nos. I to 5, 10 and 25 were sentenced to undergo rigorous imprisonment for I 0 years each with fine of Rs.1,000/- each and in default to undergo further rigorous imprisonment for six month
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