LexUMAPADA KAYAL versus STATE OF WEST BENGAL
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[2009) 14 S.C.R. 1039 -+ UMAPADA KAYAL A v. STATE OF WEST BENGAL (Criminal Appeal No. 1015 of 2003) OCTOBER 6, 2009 B [V.S. SIRPURKAR AND DEEPAK VERMA, JJ.] ;.__ Penal Code, 1860 - s. 304 (Part-II) - Nine accused ·~ prosecuted uls. 302134 - Acquittal of all the accused by trial court - High Court acquitting eight accused - One accused c convicted uls. 304 (Part-II) relying an evidence of eye-witness, medical evidence and version of other witnesses - On appeal by convicted accused, held: Conviction by High Court justified - However, in view of age and health of the accused, - )., sentence reduced to 5 years RI from 10 years RI. D Appeal: Appeal against acquittal - Interference with - scope of - Held: The whole appeal is open on facts as well as law. Appellant-accused alowngwith eight accused was E tried for offence punishable uls. 302134 IPC. All the accused were acquitted. In appeal, High court maintained the acquittal of all the accused except the appellant- accused and convicted him uls. 304 (Part II) relying on the evidence of PW& (eye-witness), PW 7, and PWS and F medical evidence. He was sentenced to undergo 10 I years RI. Hence the present appeal. ,, Partly allowing the appeal, the Court HELD: 1.1. The judgment of the trial court lacks the G ., -( proper appreciation of the evidence of the eye-witnesses as also the evidence of the Doctor who had conducted the post-mortem. Therefore, the High Court committed no 1039 H 1040 SUPREME COURT REPORTS (2009] 14 (ADDL.) S.C.R. A mistake in re-appreciating the evidence. [Para 1 O] [1044- J; A-B] 1.2. In an appeal against acquittal,. the whole appeal is open on facts as well as on law and the High Court can B go into re-appreciation of evidence if it finds that the said appreciation was not proper at the trial level and that is precisely what has happened in the present case. PW 1 and PW 6 have specifically referred to the role played by A the appellant-accused in striking the deceased with or' c 'chowki'. (a stick with spikes). Both the witnesses have been extensively cross-examined but the whole cross- examination is irrelevant since there has been no cross- examination in respect of the actual incident. Both the witnesses had asserted in their'. evidence that the chowki D was struck in the body of the deceased by the appellant and had to be pulled out. The other important ..X. ,.... . circumstance is the oral dyin,g declaration of the deceased. He told PW 6 that the accused had beaten. Strangely, there is no cross-examination of PW 6 on this aspect. [Para 8] [1043-A-D] E 1.3. PW 21 the doctor who conducted post-mortem examination, in his statement very clearly asserted that. the injuries which were found on the body of deceased ~- could have been caused by the said weapon (chowki) F which was shown to him at the time of evidence. There is very little cross-examination in the respect of those injuries and as a matter of fact those injuries were quite -# probable. [Para 9] [1043-D-F] ' G 2. There is no error in the judgment of the High Court when the High Court has chosen to rely on the evidence of PW 6, PW 7 and PW 8. In fact, the High Court has )-· ... considered the evidence of the said witnesses in depth. Therefore, even if the High Court had not given any reason to find fault with the judgment of acquittal, the H High Court was correct in coming to its conclusions. The \ UMAPADA KAYAL v. STATE OF WEST BENGAL 1041 ~·· conviction of the accused for an offence under Section A 3041.P.C. is confirmed. However, considering the fact that . the incident took place 26 years back and the accused had inflicted only a single blow, the sentence is reduced to five years' rigorous imprisonment. [Paras 9 and 11) [1043-G-H; 1044-A] B CRIMINAL APPELLATE JURISDICTION : Criminal Appeal )t, No. 1015 of 2003. ~ From the Judgment & Order dated 23.B.2002/26.8.2002 c of the High Court at Calcutta in Govt. Appeal No. 3 of 1989. Piyosh K. Roy (for G. Ramakrishna Prasad) for the Appellant. - Tara Chandra Sharma for the Respondent. D ). The Judgment of the Court was delivered by V.S. SIRPURKAR, J. 1. This appeal is filed by the sole accused who has been convicted for the offence under Section 304 Part-II of Indian Penal Code. Initially, as many as nine E accused persons came to be tried before the learned Additional Sessions Judge on the allegation that they had _, committed the
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