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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.148 OF 2007

Haradhan Das ...  

Appellant

Versus

State of West Bengal ... Respondent

J U D G M E N T

Swatanter Kumar, J.

1. The  present  appeal  is  directed  against  the  concurrent  

judgment  of  conviction  dated  29th June,  2001  and  order  of  

sentence  dated  30th June,  2001  passed  by  the  learned  

Additional Sessions Judge, Cooch Behar affirmed by judgment  

of the High Court dated 20th May, 2005.

2. The  investigative  machinery  of  the  police  was  put  into  

motion by one Shri  Somnath Mukherjee son of  Shri  Barindra

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Nath Mukherjee, the deceased, by lodging a written complaint  

at  about  8.00 a.m.  on  9th October,  1983.   According  to  the  

complainant at about 12.00 a.m. a dacoity took place in the  

house of Barindra Nath Mukherjee.  It was further stated that 3-

4 persons armed with weapons, criminally trespassed into the  

house, committed dacoity and also hurled bombs.  First, they  

entered into the room of Barindra Nath Mukherjee and his wife  

Anuva  Mukherjee,  PW9,  assaulted  them  and  demanded  the  

documents  relating  to  their  land-property.   Thereafter,  they  

entered  into  the  room  of  the  daughter  of  Barindra  Nath  

Mukherjee and searched for their only son, Somnath Mukherjee.  

The  miscreants  then  attacked  the  room  of  the  brother  of  

Barindra  Nath  Mukherjee,  Jiten   Mukherjee,  PW10  and  even  

threw a bomb causing injury to the said Jiten.  Barindra Nath  

Mukherjee, his wife, Anuva and brother Jiten were taken to the  

hospital the next morning.  Due to the injuries inflicted by the  

miscreants upon Barindra Nath Mukherjee, he succumbed to his  

injuries in the hospital.

3. On  the  basis  of  the  written  complaint,  the  Police  

completed  its  investigation  and  submitted  a  charge  sheet  

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against  five  accused  persons,  namely,  Chandra  Kumar  Das,  

Ram Kumar Das Rabindra Nath Sil, Haradhan Das and Krishna  

Kumar Das under Sections 458, 459, 326, 302 and 120B of the  

Indian  Penal  Code,  1860  (for  short  ‘IPC’).   However,  charge  

against the accused persons were framed under Sections 148,  

302/149, 326/149 and 460 of the IPC.  The accused persons  

were committed to the Court of Sessions to face trial on these  

charges.

4. It  may be noticed here that during the trial,  one of the  

accused,  namely,  Krishna  Kumar  Das,  died.   Thus,  the  case  

against him came to be closed as having been abated.  The  

prosecution examined as many as 18 witnesses including the  

daughter,  injured  witnesses,  investigating  officer,  etc.   The  

accused persons did not lead any defence and took up the plea  

of complete denial in their statement under Section 313 of the  

Code  of  Criminal  Procedure,  1973  (for  short  ‘CrPC’).   The  

learned  Trial  Court,  after  discussing  the  ocular  and  the  

documentary evidence noticed that there was a long standing  

civil  litigation  between  the  parties  and  also  found  certain  

discrepancies in the case of the prosecution.   It acquitted three  

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accused persons, namely, Chandra Kumar Das, Ram Kumar Das  

and  Rabindra  Nath  Sil  of  all  the  charges  and  directed  their  

discharge.   However,  the  Trial  Court  convicted  the  accused  

Haradhan Das for an offence punishable under Section 302/149  

IPC and sentenced him to life imprisonment and to pay a fine of  

Rs.10,000/- and in default to suffer imprisonment for one year  

under the said provision.

5. At this stage, I may usefully refer to the discussion of the  

Court as under :

“I  think on the facts  and evidence of  the  witnesses as discussed above coupled with  the  medical  evidence  that  there  were  no  serious  discrepancies  between  the  testimonies of P.Ws.8 to 10, 14 and 15 and  the story of the F.I.R.  regarding the time,  place  and  manner  of  occurrence  and  the  name  of  the  assailants  as  disclosed  by  P.Ws.8  to  10,  14  and  15  and  duly  corroborated by P.Ws.2 and 4, the evidence  as it  was held in a reported decision that  the evidence of an eye witness were held to  be true and reliable and it was further held  that  some  discrepancies,  deviating  and  embellishment  a  minor.   This  part  of  argument of learned lawyer for the defence  since rather hallow to me as because there  are  many occasions  where  Haradhan and  the accused persons have chances to meet  the  family  members  of  Barin  Muherjee.  Now,  from  the  side  of  the  defence  the  

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certified  copy  of  the  plaint  of  T.S.  23/62  (Ext.A),  certified  copy  of  judgment  of  decree  of  Title  Appeal  no.20/63  (Ext.B),  certified  copy  of  judgment  and  decree  of  T.S.  23/62  (Ext.C)  and  certified  copy  of  Appeal  (Ext.D)  are  filed  but  all  these  exhibits  do  not  at  all  help  the  accused  persons.   These only show that  there are  long standing Civil litigation in between the  accused persons and the family member of  Barin Mukherjee but pendency of these civil  litigation or result does not give any person  right to commit murder.   If  the witnesses  who are near  relation to  Barin  Mukherjee  have hatred for the accused persons then  they promptly  named or  identified all  the  four  accused  persons  facing  trial  in  the  instant case.  But Anuva Mukherjee and her  three daughters and Daor have only stated  that  they  have  been  able  to  identify  Haradhan Das among the other miscreants.  The  presence  of  Anuva  Mukherjee  at  the  spot cannot be doubted.  After perusing the  evidence  of  Anuva  Mukherjee  and  her  daughters there is no such confimrity (sic)  which may call upon the testimony of these  witnesses doubtful or untrustworthy.  It was  held in a Calcutta decision that when there  was  no  serious  discrepancy  between  the  testimony of eye witness and the story in  the  F.I.R.  regarding  the  time,  place  and  manner of the occurrence and the name of  the assailants, the testimony of eye witness  were  also  corroborated  by  medical  evidence, the evidence of eye witness was  held  to  be  true  and  reliable  and  it  was  further  held  that  some  discrepancies  deviation  and  embellishment  in  minor  details  do  not  warrant  rejection  of  the  entire testimony.  May be I pointed earlier  that according to settled position of law the  

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evidence  of  injured  witnesses  as  in  this  case  Anuva  Mukherjee  (P.W.9)  cannot  be  easily  discarded  and  disbelieved  because  their  presence  at  the  time  of  occurrence  remains  doubted.   Merely  because  their  relation  to  each  other,  their  evidence  cannot be thrown overboard on that ground  alone when there are convincing reason to  accept them.

Thus,  it  is  established  from  the  evidence  adduced  from  the  prosecution  side as well  as from the defence that the  injury  upon  Barin  Mukherjee  is  done  by  Haradhan Das.  Thus, I have no hesitation  to hold that Haradhan Das is responsible for  the murder of Barin Mukherjee but there is  no  sufficient  evidence  to  show  who  assaulted  Anuva  Mukherjee  (P.W.9)  and  Jiten  Mukherjee  (P.W.10)  have  not  stated  anything  against  other  three  accused  persons  and  so  they  are  entitled  to  get  reasonable  benefit  of  doubt.   Thus,  the  prosecution has been able  to  bring home  the  charge  under  Section  149/302  IPC  against the accused Haradhan Das and the  accused Chandra Kumar Das,  Ram Kumar  Das and Rabindra Nath Sil  are entitled to  get  reasonable  benefit  of  doubt  in  the  instant case.

In  the  premises,  on  consideration  of  the facts,  circumstances and materials on  record the prosecution, as I find, has been  able  to  bring  home  the  charge  under  Section  149/302  IPC  against  the  accused  Haradhan Das beyond all reasonable doubt.  As such, the said accused Haradhan Das is  found  guilty  under  Section  149/302  I.P.C.  and the accused Chandra Kumar Das, Ram  Kumar Das and Rabindra Nath Sil are found  

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not  guilty  of  the  charge  labelled  against  them and as such they are acquitted from  this case under Section 235(1) Cr.P.C. and  be  discharged  from  their  respective  bail  bonds at once.”

6. The High Court affirmed the judgment of the Trial Court.  

Aggrieved from the judgment of the High Court, Haradhan Das,  

the accused, has filed the present appeal before this Court.

7. The learned counsel appearing for the appellant has, with  

some vehemence, argued that :

(a) There  was  common  evidence  against  all  the  accused  

persons and the learned Trial Court as well as the High  

Court having acquitted three other accused persons could  

not  have  returned  a  finding  of  conviction  against  the  

appellant.   Conviction  of  the  appellant  was  not  even  

permissible with the aid of Section 149 IPC.  The judgment  

under appeal, thus, suffers from a patent error of law and  

that of appreciation of evidence.

(b) No  specific  role  was  assigned  to  the  appellant  and,  

therefore, he could not be convicted for the offence.

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(c) PW1,  PW3  and  PW5  had  been  declared  hostile  by  the  

prosecution.  This aspect seen in conjunction with the fact  

that no recoveries were made from the appellant, he was  

entitled  to  benefit  of  doubt  and,  thus,  to  an  order  of  

acquittal.

8. To the contra, the submission on behalf of the State is that  

the accused has rightly been convicted for  an offence under  

Section 302/149 IPC.  Even if, for the sake of argument, it is  

assumed  that  the  said  offence  was  not  made  out,  still  the  

appellant could be convicted for committing an offence under  

Section   460  IPC,  the  offence  for  which  the  accused  was  

charged and tried.

9. From the above version of the prosecution, it is clear that  

the  miscreants  had  come  to  the  house  of  Barindra  Nath  

Mukherjee on 9th October, 1983.  They had committed dacoity,  

injured  persons  including  Barindra  Nath  Mukherjee  very  

seriously  and  had  even  asked  for  the  papers  of  the  land-

property  for  which  a  civil  dispute  was  pending  between the  

parties.   

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10. First and foremost, I may deal with the effect of the hostile  

witnesses.  PW1, Bhiguram Sealsarama in his examination-in-

chief  has  stated  that  he  was  sleeping  on  the  night  of  

occurrence at his house and after hearing the hue and cry, two  

persons namely Dhurjadhan Sarkar and Aloke had come to his  

house and told him that the condition of Somnath’s father was  

serious.  He made his statement 13-14 years subsequent to the  

date of event.  He stated that one Khagen had taken father of  

Somnath  on  rickshaw  to  the  hospital  while  he  had  taken  

Somnath and his mother to the hospital.   After  reaching the  

house of Barindra Nath Mukherjee, at about 1.00 a.m. in the  

night  he  had  heard  that  a  dacoity  had  taken  place  in  that  

house.   He  also  heard  that  the  dacoits  had  hurled  bombs.  

However, he stated that he did not know who had committed  

the  dacoity.   Subsequently,  he  was  declared  hostile  by  the  

prosecution.   

11. PW3, Khagen Das, stated that at about 1.00 a.m. in the  

night a dacoity was committed in the house of Barindra Nath  

Mukherjee.  There was a pucca road between his house and the  

house of Barindra Nath Mukherjee.  He also rushed to the house  

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of Barindra Nath Mukherjee after hearing the hue and cry from  

that house.  He found Barindra Nath Mukherjee in blood-stained  

condition with head injury.  His wife had also sustained serious  

injuries all over her body.  Barindra Nath Mukhrejee’s younger  

brother had also received injury by bomb.  In his van he had  

taken Sima, Barindra Nath Mukherjee and Hiru to MJN Hospital,  

Cooch Behar.   He had heard from members of the family of  

Barindra  Nath  Mukherjee  that  6-7  persons  had  committed  

dacoity in their house.  However, they did not tell him who had  

committed the dacoity at  that  stage.   He was also declared  

hostile.   

12. PW5,  Bidhan  Das  stated  that  about  17  years  ago,  an  

incident had taken place at Barindra Nath Mukherjee’s house.  

He was a member of the R.G. party who were patrolling from  

village to railway over bridge of the pucca road.  A jeep was  

coming from Alipurduar side near the village and before they  

could reach near the jeep, it went away towards the southern  

direction.  The jeep came back after 10-15 minutes when they  

were  on  the  pucca road.   They  heard  the  sound  of  door  

breaking from a distance.  There were sounds of hue and cry.  

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Some people came to them and after crossing the bridge they  

heard  the  sound  of  a  bomb  blast.   People  started  walking  

towards the house and on the way they saw that Barindra Nath  

Mukherjee was being taken to the hospital by the rickshaw van.  

They  walked  towards  Barindra  Nath  Mukherjee’s  house.  

According to this witness, Barindra Nath Mukherjee had three  

daughters  who  were  present  in  the  house  and  the  young  

daughter Latu was his student.  At their request PW5 along with  

the members of his party stayed in the house of the deceased,  

Barindra Nath Mukherjee, till the next morning but they did not  

inform or disclose the identity of the miscreants.   At this stage,  

this witness was declared hostile.

13. No doubt, these three witnesses were declared hostile by  

the prosecution but still one fact remains that the examination-

in-chief  and particularly the above recorded portions of their  

statements do provide support to the case of the prosecution.  

They suggest that an incident of dacoity had taken place at the  

house of Barindra Nath Mukherjee who was badly injured and  

taken to the hospital.  There was a bomb blast at the house and  

the presence of these witnesses at the stated places cannot be  

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doubted.  One of them was staying opposite to the house of  

Barindra Nath Mukherjee while the other was at some distance  

and PW5 was on R.G. Duty.   

14. It  is  a  settled  principle  of  law  that  the  statement  of  a  

witness who has been declared hostile by the prosecution is  

neither inadmissible nor is it of no value in its entirety.   The  

statement, particularly the examination-in-chief, in so far as it  

supports the case of the prosecution is admissible and can be  

relied upon by the Court.  It will be useful at this stage to refer  

to the judgment of this Court in the case of Bhajju @ Karan  v.   

State of Madhya Pradesh [(2012) 4 SCC 327] where this Court,  

after  discussing  the  law  in  some  elaboration,  declared  the  

principle as follows: -

“33. As already noticed, none of the witnesses  or the authorities involved in the recording of  the dying declaration had turned hostile.  On  the  contrary,  they  have  fully  supported  the  case  of  the  prosecution  and  have,  beyond  reasonable  doubt,  proved  that  the  dying  declaration  is  reliable,  truthful  and  was  voluntarily  made  by  the  deceased.  We  may  also  notice  that  this  very  judgment,  Munnu  Raja (1976)  3  SCC  104  relied  upon  by  the  accused  itself  clearly  says  that  the  dying  declaration  can  be  acted  upon  without  

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corroboration and can be made the basis  of  conviction.

34. Para  6  of  the  said  judgment  reads  as  under: (Munnu Raja case, SCC pp. 106-07)

“6. … It is well settled that though a dying  declaration  must  be  approached  with  caution for the reason that the maker of the  statement  cannot  be  subject  to  cross- examination, there is neither a rule of law  nor a rule of prudence which has hardened  into a rule of law that a dying declaration  cannot  be  acted  upon  unless  it  is  corroborated (see  Khushal Rao v.  State of  BombayAIR 1948 SC 22). The High Court, it  is  true,  has held that  the evidence of  the  two  eyewitnesses  corroborated  the  dying  declarations  but  it  did  not  come  to  the  conclusion  that  the  dying  declarations  suffered  from  any  infirmity  by  reason  of  which  it  was  necessary  to  look  out  for  corroboration.”

35. Now, we shall discuss the effect of hostile  witnesses as well as the worth of the defence  put  forward  on  behalf  of  the  appellant- accused.  Normally,  when  a  witness  deposes  contrary to the stand of the prosecution and  his own statement recorded under Section 161  CrPC,  the prosecutor,  with the permission of  the court, can pray to the court for declaring  that witness hostile and for granting leave to  cross-examine  the  said  witness.  If  such  a  permission  is  granted by the  court  then the  witness is  subjected to cross-examination by  the  prosecutor  as  well  as  an  opportunity  is  provided to the defence to cross-examine such  witnesses,  if  he  so  desires.  In  other  words,  there is a limited examination-in-chief, cross-

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examination  by  the  prosecutor  and  cross- examination by the counsel for the accused. It  is  admissible to  use the examination-in-chief  as well  as the cross-examination of  the said  witness insofar as it supports the case of the  prosecution.

36. It  is  settled  law  that  the  evidence  of  hostile  witnesses can also be relied upon by  the  prosecution  to  the  extent  to  which  it  supports  the  prosecution  version  of  the  incident.  The  evidence  of  such  witnesses  cannot be treated as washed off the records, it  remains  admissible  in  trial  and  there  is  no  legal bar to base the conviction of the accused  upon such testimony, if corroborated by other  reliable evidence. Section 154 of the Evidence  Act  enables  the  court,  in  its  discretion,  to  permit the person, who calls a witness, to put  any  question  to  him  which  might  be  put  in  cross-examination by the adverse party.

37. The view that the evidence of the witness  who has been called and cross-examined by  the party with the leave of the court, cannot  be believed or disbelieved in part and has to  be  excluded  altogether,  is  not  the  correct  exposition of law. The courts may rely upon so  much  of  the  testimony  which  supports  the  case of the prosecution and is corroborated by  other evidence. It is also now a settled canon  of criminal  jurisprudence that the part which  has  been allowed to  be  cross-examined can  also be relied upon by the prosecution. These  principles  have  been  encompassed  in  the  judgments of this Court in the following cases:

a. Koli Lakhmanbhai Chanabhai  v.   State   of Gujarat (1999) 8 SCC 624

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b. Prithi  v.  State of Haryana (2010) 8 SCC  536

c. Sidhartha Vashisht @  Manu Sharma  v.   State (NCT of Delhi) (2010) 6 SCC 1

d. Ramkrushna  v.   State  of  Maharashtra   (2007) 13 SCC 525”.  

15. Another  important  aspect  of  the  case  is  that  all  these  

witnesses had appeared at the place of occurrence or near the  

place of occurrence or in the house of Barindra Nath Mukherjee  

only after the incident was over.  Even if these witnesses were  

informed by some other persons as to how the incident had  

occurred or other persons including injured persons as to how  

the  incident  took  place  once  they  arrived  at  the  place  of  

occurrence,  it  may  not  have  been  a  very  valuable  piece  of  

evidence as ex facie it would be hearsay evidence.  It is not the  

quantity but the quality of evidence which is of Court’s concern.

16. Now, I should examine the above version stated by these  

hostile witnesses in conjunction with the statement of the eye-

witnesses  and  other  crucial  witnesses  produced  by  the  

prosecution.  Unfortunately,  Somnath  Mukherjee,  son  of  the  

deceased who was an eye-witness to the entire episode right  

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from the beginning to the end, died during the pendency of the  

trial without appearing in the Court as a witness.  According to  

PW10,  Jiten  Mukherjee,  Somnath  Mukherjee,  son  of  the  

deceased on the relevant date,  was sleeping in  the western  

side room of southern viti with him. His four nieces along with  

their maternal uncle Biswajit were sleeping in the eastern side  

of the room of the southern viti.   According to this witness, at  

about 12.30 a.m., he had heard hue and cry from the room of  

his elder brother, late Barindra Nath Mukherjee.  He had also  

heard a person demanding papers from his elder brother.  Then  

there was total silence.  In the light of a torch which was in the  

hands of the miscreants, he was able to identify Haradhan Das.  

He could even identify this accused from his voice.  He stated  

that he knew Haradhan Das prior to the incident.  Then, the  

miscreants entered into the room of his niece by breaking open  

the door.   They were looking for  Somnath.   Sima, his niece,  

informed them that Somnath was out of station.  He heard all of  

this and saw the accused Haradhan Das by peeping through  

the wall made of bamboo.  Sima offered articles to miscreants  

but they refused to take anything.  When the miscreants were  

moving in the courtyard, PW10 was able to identify Ram Kumar  

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Das and Chandra Kumar Das in the light of the torch.  They  

were armed with bamboo sticks.  The miscreants then hurled a  

bomb in the room where this witness was staying.  He suffered  

injuries on his leg as a result of the bomb.  Thereafter, they fled  

away and when PW10 came out of his room and rushed to his  

elder brother’s room, he found that his brother was bleeding  

and was badly injured and that his sister-in-law had become  

unconscious.  A lot of other people had also gathered there.  

PW10 narrated the incident to them and shifted the injured to  

the  hospital.   The inquest  report,  Ext.2  was  prepared in  his  

presence and it bore his signatures.  He identified the accused  

persons in Court.

17. PW8,  Smt.  Sima  Mukherjee  is  the  daughter  of  the  

deceased.  According to this witness, she along with her sisters  

and maternal  uncle,  Biswajit  Chatterjee,  was sleeping in  the  

eastern side of the room of southern viti.  She heard sound of  

door  of  the room of  her  father  breaking.   She woke up and  

heard her parents crying.  She also recognized Haradhan Das  

from his voice as well as the other accused.  She confirmed that  

the accused were asking for her brother, Somnath.  After the  

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miscreants left the premises, they took their parents to hospital  

in two rickshaw vans and on the way, her mother told her that  

they  were  assaulted  by  Haradhan  Das  and  that  she  had  

identified him in the torch light.  The accused, Haradhan Das,  

Ram Kumar Das and Chandra Kumar Das were identified by  

Sima, her uncle, PW10, and her brother Somnath.  On the next  

day,  her  father  died  of  the  injuries.   In  her  statement,  she  

categorically  stated  that  there  was  a  long  standing  dispute  

between the accused and her father which they had won and  

the judgment had been passed in their favour.  She also stated  

that many people had assembled at the place of incident.   

18. PW9, Anuva Mukherjee, is an injured eye-witness and is  

wife of the deceased.  She stated that there was dacoity in their  

house at  about  12.30 a.m.  on 8th October,  1983.   She gave  

complete  description  of  her  family  and  stated  that  three  

miscreants had entered into their room by breaking open the  

door and after entering they demanded the deed of their land  

and other documents relating thereto.  She told them that the  

papers were in Court but on hearing that they pulled down the  

deceased  from  the  cot  and  started  assaulting  him  with  

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weapons.  The deceased begged for mercy but to no avail.  As  

a result of the assault, her husband Barindra Nath Mukherjee  

sustained serious injuries.  Then they assaulted her by giving  

her a dagger blow on her head and even she sustained injuries.  

Thereafter  she  became  unconscious.   She  could  identify  

Haradhan Das in the light of the torch.  She heard about the  

rest  of  the  incident  from  her  Devar,  PW10,  Jiten  and  her  

daughter.  

19. PW  14  and  PW15,  namely,  Ketaki  and  Shipra,  the  

daughters of the deceased were also examined as witnesses  

and they duly supported the case of the prosecution on similar  

lines  as  PW8,  PW9  and  PW10.   They  had  also  identified  

Haradhan Das in light of the torch.  

20. All  these  three  witnesses,  PW8,  PW9  and  PW10  were  

cross-examined  at  great  length  but  nothing  material  or  

damaging  to  the  case  of  the  prosecution  could  come  out.  

These  are  the  witnesses  whose  presence  at  the  place  of  

occurrence cannot be doubted as they were sleeping in their  

own  house  at  such  late  hour  of  night.   Out  of  these  three  

witnesses, PW9 and PW10 were injured.   These witnesses have  

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categorically  stated  that  a  number  of  people  had  gathered  

there  and  had  taken  their  injured  parents  to  the  hospital.  

These  facts  are  duly  corroborated  even  by  the  hostile  

witnesses, PW1, PW3 and PW5.  In face of this evidence, the  

contention  of  the  appellant  that  these  witnesses  are  not  

reliable or truthful is without any substance.  Their statement  

cannot  be  doubted  merely  by  the  virtue  of  their  close  

relationship with the deceased.  At such late hour of the night,  

their presence in their own house was normal. In fact,  these  

witnesses  lost  their  close  relation  and  had  suffered  serious  

injuries  themselves.   Thus,  there is  no occasion for  them to  

falsely implicate the accused persons.  As per the statement of  

the doctor and the investigating officer, the chain of events, as  

stated  by  the  prosecution  stands  proved  beyond  reasonable  

doubt.  To this extent, the findings recorded by the Courts do  

not call for interference.  

21. These facts to some extent are even corroborated by the  

statement  of  hostile  witnesses  PW1,  PW3  and  PW5.   The  

evidence of the injured witnesses has to be examined in light of  

the  statement  of  the  doctors  and  the  investigating  officers.  

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According to PW16, Dr. V. Kumar who had examined Barindra  

Nath Mukherjee when he was brought to the hospital, the son  

of  the  patient  had  disclosed  to  him  that  the  patient  was  

attacked by some persons at his residence at about 12.30 a.m.  

with some sharp weapon.  The patient was extremely restless,  

his  pulse  was  not  recordable  and  respiration  was  30  per  

minute.   There  was  active  bleeding  from the  left  ear.   The  

injuries on the deceased were noticed as follows:-

“1.  One  sharp  cut  injury  3½”  x  1”  over  deep  encircling  the  base  of  left  thumb  &  dorsal and palmar aspect of left palm.

2. Another sharp cut injury 2½” x 1” over  lateral aspect of lower 1/3rd of left arm.”

22. According to PW16, the patient Barindra Nath Mukherjee  

died on the same day, i.e. 9th October, 1983.   The post mortem  

on the body of the deceased was performed by PW11, Dr. S.C.  

Pandit, who noticed the above injuries and also stated in the  

Court that upon dissection, he noticed that the abdominal wall  

and the spleen were injured and there was a fracture in the left  

temporal.  

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23. The doctor specifically stated that these kind of wounds  

were  sufficient  to  cause  death  and  that  the  injuries  were  

caused by a sharp weapon.   To complete the chain of events,  

the prosecution had examined PW18, the investigating officer  

who conducted the investigation after it was marked to him for  

investigation.   He  had  gone  to  the  spot,  prepared  the  site  

sketch  map,  Ext.8,  sent  the  dead  body  for  post  mortem  

examination  and  seized  ruminants of  the  crackers  from the  

spot, blood stained earth and other articles under the seizure  

list Ext. 4/1.   He recorded the statement of various witnesses  

who stated that they could identify the dacoits. The statement  

of  these  witnesses  read  together  clearly  show  that  the  

prosecution has been able to prove its case beyond reasonable  

doubt.   I  see no reason to interfere with the findings of  the  

Court,  recorded  in  the  judgments  impugned  in  the  present  

appeal.

24. The  accused  persons  were  charged  under  Section  302  

read with Sections 149, 148 and 326 as well as Section 460 IPC.  

The FIR had been lodged by Somnath Mukherjee, son of the  

deceased who, as already noticed, expired during the course of  

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the trial.    As per the statement of witnesses, the miscreants  

were five in number.   The present appellant had duly been  

identified by the injured witnesses as well as by other persons  

who were present in the house at the time of occurrence.  The  

Trial  Court  acquitted  three  accused  primarily  on  the  ground  

that  they  had  not  been  identified  and  there  was  no  direct  

evidence implicating the said three accused in the commission  

of  the  crime.    This  finding  of  the  Trial  Court  had  attained  

finality as the State did not challenge the same.   One accused  

died during the trial.

25. The appellant alone has been found guilty and punished  

by the Trial Court and his sentence stands confirmed by the  

High  Court.   Five  persons  had  got  together  to  commit  the  

offence  of  lurking house  trespass and  causing  the  death  of  

Barindra Nath Mukherjee.  Since there was no evidence of pre-

determined mind of the accused persons to commit such an  

offence and except the appellant other accused were not even  

identified, the Trial Court acquitted the accused persons except  

the  appellant.   Even if  other  accused were  acquitted  in  the  

above circumstances for an offence under Section 302/149 IPC,  

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still  there  was  direct  evidence  involving  the  appellant  in  

committing the offence and particularly  for  causing the vital  

injuries  to  the  deceased.   The  appellant  had  duly  been  

identified by PW9, wife of the deceased who was present in the  

room itself.    There is no reason to disbelieve her statement.  

The injuries were caused with the intention to kill the deceased  

and they were caused on the vital parts of the body.  From the  

medical evidence on record itself, it is clear that the ribs of the  

deceased were fractured, the abdominal wall was injured and  

on the head there was an injury which continued to bleed till  

death of the deceased.    Due identification of role attributable  

to the appellant clearly establishes the ingredients of Section  

302 IPC and thus, makes him liable to be punished for the said  

offence.

26. If five or more accused are charged with an offence under  

Section 302 read with Section 149 IPC and the Court  finally  

finds  that  the  person’s  identification,  role  and  object  in  

participation against some of those accused is not proved, still  

other  persons  forming  the  unlawful  assembly  and  against  

whom  the  prosecution  is  able  to  prove  its  case  beyond  

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reasonable  doubt  can  be  punished  for  an  offence  under  

Sections 302/149 IPC.  The statutory principle provided under  

the provision of Section 149 IPC will include the persons who  

were acquitted  because that  is  the  case  of  the  prosecution.  

The conviction recorded by the Trial Court cannot be vitiated on  

that ground.   This Court in the case of Khem Karan and Others  

v.  The State of  U.P.  and Another [AIR 1974 SC 1567],  while  

discussing somewhat similar circumstances and dealing with an  

offence under Section 307 read with Section 149 IPC, applied  

the principle of constructive liability and held as under:-

“7. What remains is the question of sentence.  It  is  true  that  those  assailants  who  did  not  receive injuries have escaped punishment and  conviction has been clamped down on those  who have sustained injuries in  the course of  the clash.   It is equally true that those who  have  allegedly  committed  the  substantive  offences have jumped the gauntlet of the law  and the appellants have been held guilty only  constructively.   We also notice that the case  has been pending for around ten years and the  accused must have been in jail for some time,  a  circumstance  which  is  relevant  under  the  new  Criminal  Procedure  Code  though  it  has  come into operation only from April  1,  1974.  Taking  a  conspectus  of  the  various  circumstances in the case, some of which are  indicated above, we are satisfied that the ends  of  justice  would  be  met  by  reducing  the  sentence to three years rigorous imprisonment  

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under S. 307, read with S. 149, and one year  rigorous imprisonment under S. 147, IPC, the  two  terms  running  concurrently.   With  this  modification  regarding  sentence,  we  dismiss  the appeal.”  

27. There is another perspective from which the present case  

can be examined.   As already noticed, the accused persons  

were charged for the offence under Section 460 IPC and were  

tried for the same offence.  The Trial Court has not returned  

any finding as to the guilt of the accused under Section 460 IPC  

and  found  the  accused  persons  guilty  of  the  offence  under  

Section 302 read with Section 149 IPC.   Even the High Court  

has  not  dwelled  upon  this  discussion  in  the  judgment  

impugned.    The provisions of Section 460 IPC read as follows:-

“460. All  persons  jointly  concerned  in  lurking  house-  trespass  or  house-  breaking by night punishable where death  or grievous hurt caused by one of them.— If,  at  the  time  of  the  committing  of  lurking  house- trespass by night or house- breaking by  night,  any person guilty  of  such offence shall  voluntarily cause or attempt to cause death or  grievous  hurt  to  any  person,  every  person  jointly  concerned in  committing  such  lurkking  house- trespass by night or house- breaking by  night, shall be punished with  imprisonment for  life, or with imprisonment of either description  for a term which may extend to ten years, and  shall also be liable to fine.”  

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28. The bare reading of the above provision shows that every  

person who is jointly concerned in committing the offence of  

lurking house trespass by night or house breaking by night is to  

be  punished  with  life  imprisonment  where  death  has  been  

caused or with imprisonment which may extend to ten years  

where grievous hurt has been caused to any person.   This joint  

liability  is  based  upon  the  principle  of  constructive  liability.  

Thus,  the  person  who  has  actually  committed  the  death  or  

grievous hurt would be liable to be punished under the relevant  

provisions i.e. Section 302 or Section 326, as the case may be,  

while  committing  the  offence  of  lurking  house  trespass  by  

night.  It is possible that common intention or object be not the  

foundation  of  an  offence  under  Section  460  IPC.   Thus,  to  

establish  an  offence  under  Section  460,  it  may  not  be  

necessary for the prosecution to establish common intention or  

object.   Suffice it will be to establish that they acted jointly and  

committed  the  offences  stated  in  Section  460  IPC.   The  

principle of constructive liability is applicable in distinction to  

contributory liability.  This Court in the case of  Abdul Aziz v.  

State of Rajasthan [(2007) 10 SCC 283], clearly stated that if a  

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person  committing  housebreaking  by  night  also  actually  

commits  murder,  he  must  attract  the  penalty  for  the  latter  

offence  under  Section  302  and  the  Court  found  it  almost  

impossible to hold that he can escape the punishment provided  

for murder merely because the murder was committed by him  

while he was committing the offence of housebreaking and that  

he can only be dealt with under Section 460.   

29. Viewed  from  this  angle,  the  conviction  of  the  accused  

under Section 302 itself would be sustainable and the accused  

would be liable to be punished accordingly.

30. For  the  reasons  afore-recorded,  I  see  no  reason  to  

interfere with the judgments impugned in the present appeal.  

Consequently, the appeal is dismissed.

………...….…………............J.                                      (Swatanter Kumar)

New Delhi, December 13, 2012  

REPORTABLE

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 148 OF 2007

Hardhan Das   …..Appellant

Versus

State of West Bengal   …..Respondent

J U D G M E N T  

Madan B. Lokur, J.

1. While agreeing with Brother  Swatanter  Kumar,  I  would  

like to add that the murder was committed on the intervening  

night of 8th and 9th October, 1983. A charge sheet was filed  

sometime in 1987 and the Trial Court delivered its judgment  

on 29th June, 2001. These time gaps are telling.  

2. The  investigation  took  almost  four  years  to  complete  

despite  eyewitnesses  who  knew  the  appellant.  The  trial  

concluded after another 14 years or about 18 years after the  

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murder. This is a rather unhappy state of affairs. It is high time  

that  the  State  and  the  Courts  gear  up  their  administrative  

machinery so that at least a trial for a heinous offence gets  

concluded within a reasonable period.  

..…………………….....J.

       (Madan B. Lokur)

New Delhi;

December 13, 2012

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