Jagannath Biswas and Others vs State

Girish Chandra Gupta, J.—This appeal is directed against a judgment dated 28th July 2008 by which all the eight appellants were found guilty of an offence punishable under sections 341, 326 and 307 read with Section 34 I.P.C. by the learned Additional Districts and Sessions Judge, 3rd Fast Track Court, Barrackpore, North 24 Parganas. By an order dated 29th July 2008 all the appellants were sentenced to rigorous imprisonment for 1 (one) month each as also to pay fine of Rs. 500/ each, in default to suffer rigorous imprisonment for a period of 10 days for the offence punishable under Sections 341/34 I.P.C. For the offence punishable under Sections 326/34 I.P.C each of the appellants was sentenced to rigorous imprisonment for a period of 10 years as also to pay fine of Rs. 5,00/- (five hundred) each, in default to suffer further rigorous imprisonment for a period of one year. Identical punishment was also inflicted for the offence punishable u/s 307/34 I.P.C. All the sentences were however directed to run concurrently. All the eight accused persons have come up in appeal.

The facts and circumstances of the case briefly stated are as follows:-

Gour Mohan Biswas, aged about 45 years, for a long time had political rivalry with Jagannath Biswas and there was an animosity between the two at a personal level also. They have been litigating against each other, both of a civil and criminal nature, for a long time. On 22nd June, 2005 the said Gour Mohan Biswas was attacked and assaulted with bomb and gun shot injury at about 9.35 am. He was taken to the local Bhatpara hospital for treatment. Considering the gravity of the injury he was referred to the R.G. Kar Hospital at Kolkata wherein he was admitted and discharged after 48 days. A written complaint appears to have been lodged on 22nd June, 2005 at about 10.45 hrs against all the appellants. They were ultimately charged, tried, convicted and sentenced as indicated above. Although a joint appeal was preferred by all the eight convicts, at the hearing of the appeal the appellant No.2 Chitto Sarkar, appellant No. 4 Rathin Roy and the appellant No. 5 Sripati Majumdar were separately represented by Mr. Milon Mukherjee. Rest of the appellants were represented by Mr. Sekhar Basu.

Mr. Basu, learned Advocate appearing for the appellant Nos.1,3,6,7 & 8 made the following submissions :-

(a) The written complaint and the consequent formal F.I.R were antedated or at any rate ante-timed documents. He contended that in the written complaint there is a clear indication that the victim was in the R.G. Kar Hospital. There is evidence to show that the victim reached at R.G. Kar Hospital at 11.10 hrs. on 22nd June, 2005. Whereas the written complaint purports to have been received at 10.45 hrs.. The distance between the Bhatpara Hospital and the Police Station was 16 km. The incident took place at 9.35 hrs. on 22nd June, 2005. He, therefore, contended that the written complaint could not have been lodged at 10.45 hrs. on 22nd June, 2005 as the same purports to have been done. The local Magistrate initialled the F.I.R. on 24th June, 2005 which again is a pointer to show that the written complaint may not actually have been lodged at 10.45 am on 22nd June, 2005. The wife of the victim was the complainant who, it is alleged, ascertained the names of the assailants from her husband at the Bhatpara Hospital and lodged the written complaint on the basis of what she had known from her husband. Mr. Basu contended that P.W.1 Sumati, wife of the victim, did not have any personal knowledge. The allegation that she ascertained from her husband as regards the incident including the names of the assailants is also belied by the fact that the names disclosed in the written complaint were not actually disclosed by the victim to the witnesses including the doctors. The scribe Rana was not even cited as a witness. He therefore contended that the very basis of the case has been knocked out.

(b) Mr. Basu contended that the victim (PW 2) during his examination-in-chief deposed that :

I had long standing dispute with the accused persons in respect of my landed property and nursery. I filed 10/12 cases against the accused persons which are still pending and accused persons threatened me to withdraw those cases. But I refused to withdraw the cases.

Mr. Basu argued that there is nothing to show that any threat was ever meted out to the victim to withdraw the cases allegedly filed by him.

(c) As to the person or persons who had actually removed the victim to the Bhatpara hospital there is an absolute uncertainty. The victim himself deposed during his cross examination that :-

I stated to police that two of the persons who were present at the spot took me to Goalghar Hospital by vehicle.

But the Police did not support that case of the victim. The I.O. (P.W.22) on the contrary deposed that the victim had told him that " He cannot remember how he came to the hospital.

The aforesaid evidence of the victim and the I.O as regards the person who removed the victim to the Bhatpara Hospital becomes funnier when the evidence of the other witnesses is taken into consideration. Sushanto (P.W.4) was declared hostile and cross-examined. He was suggested that he had told the Police that he amongst others took the victim to the hospital which he denied. P.W. 6 Nimai claimed to have taken the victim to the hospital. P.W.8 Niranjan claimed to have taken the victim to the hospital along with Babar Ali and others. Babar Ali (P.W. 18) claimed to have taken the victim to the hospital along with four others. The evidence of these witnesses, according to Mr. Basu, is not at all believable because the victim himself during his cross- examination also admitted as follows: -

One Ramu and another took me to Bhatpara State General Hospital by vehicle No. 507. It was of red color. Those 2 persons are not the residents of my village.

(d) Dr. Lipi Mondal (P.W.16) admitted the victim to the RG Kar Hospital. She deposed that Shri Nikhil Ch. Biswas and Shri Dulal Krishna Biswas had taken the victim to the R. G. Kar Hospital which also appears to have been recorded in Ext. 6. But neither the said Nikhil Ch. Biswas nor the said Dulal Krishna Biswas was examined by the prosecution, which according to Mr. Basu is a serious lacuna in the case of the prosecution.

(e) With regard to the place of occurrence Mr. Basu contended that the victim appears to have disclosed to the P.W.21 Dr. Surajit Chattopadhyay that the incident took place when the patient was riding bicycle on the way whereas the patient (P.W.2) deposed in court that the incident took place while he was standing and waiting for a bus at Ucchegarh bus stand near Santra Nursery.

(f) Lastly as regards the identity of the assailants Mr. Basu contended that as per the evidence of the P.W.21 Dr. Chattopadhyay, the names of the assailants were not disclosed to him whereas the evidence of the P.W.2 the victim is that he " disclosed the name of the assailants to the doctor of Goalgarh hospital." Goalgarh hospital is also known as the Bhatpara hospital. P.W.1 the wife of the victim disclosed names of the 8 appellants in the written complaint, which she allegedly ascertained from the victim immediately after the incident while the victim was still in the Bhatpara Hospital whereas P.W.3 a brother of the victim deposed that the victim had told him that Jagannath and seven others had attacked him but he did not remember the names of the other assailants. Assailing the evidentiary value of the deposition of P.Ws 1 and 3 Mr. Basu contended that both of them deposed that they had at first come to know about the incident from Provas the P.W.5 but the said Provas did not utter a single word about the same. P.W.7 deposed that he had visited the victim at the R.G. Kar hospital when he was told by the victim that Jagannath was the assailant. He in any event was not examined u/s 161 of the Code of Criminal Procedure and, therefore, his evidence according to Mr. Basu is of no consequences. P.W.13 Sukumar deposed to have ascertained from the victim that Jagannath, Tapas, Swapan, Sripati, Rathin and Nitto committed the offence. Mr. Basu contended that the names disclosed by the P.W.13 are not in conformity with the case of the prosecution.

P.W.18, Babar Ali who claimed to have shifted the victim to the Goalgor hospital deposed that upon being asked the victim had told him that two unknown persons had assaulted. Mr. Basu contended that this witness (P.W.18) was not declared hostile and, therefore, the evidence adduced by him can be relied upon by the defence. He in support of his submission relied on a judgment in the case of Mukhtiar Vs. State reported in 2005 SCC (Criminal) 1037. Mr. Basu concluded by saying that there is utter uncertainty as regards the identity of the assailants. According to P.W.18 unknown persons had assaulted the victim. He, therefore, prayed for an outright acquittal.

Mr. Mukherjee appearing for the appellants No. 2,4 and 5 adopted the submissions made by Mr. Basu and also added that there was no reason why P.W.21 Dr. Chattopadhyay who had extended medical assistance to the victim at the first instance at the Bhatpara Hospital should be disbelieved. He also concluded by saying that the judgment and order under challenge should be set aside and the appeal be allowed.

Mr. Sur, learned Advocate appearing for the state, disputed the submissions made by Mr. Basu and Mr. Mukherjee. He contended that some amount of contradiction is bound to be there in any truthful case and the court has to remove the chaff from the grain in order to arrive at the truth so that justice can be done by punishing the guilty persons.

Mr. Haldar, learned Advocate appearing for the defacto complainant supported the judgment and prayed for dismissal of the appeal.

The first point of Mr. Basu indicated above appears to have a good deal of substance in it. The F.I.R on the touchstone of probability could not have been lodged at 10.45 am as the same appears to have been done. We, however, are enable to accept the submission that merely because of this incongruity the whole case of the prosecution has to be thrown overboard. P.W.1 the complainant deposed during her cross-examination that her statement was recorded by the police and she thereafter put her signature thereupon. That might be the reason why the so-called scribe Rana was not even cited as a witness. It is probable that the written complaint was recorded by the police on the basis of the statement made by the P.W.1.

The second point indicated above as regards falsity both of enmity and threat by the accused to the victim to withdraw the cases is not however acceptable. The deposition of the victim in examination-in-chief relied upon by the learned counsel, quoted above, was clarified by the victim himself in his cross-examination when he admitted that he had no enmity with the other accused persons beside Jagannath Biswas, as regards which there is no further cross-examination. The fact that 10 or 12 cases were filed by the victim against Jagannath Biswas and Jagannath Biswas had also lodged cases against him is also a fact which was not disputed during cross-examination of the victim. From the evidence of P.W.2 it also appears that he himself was a follower of Congress and the accused Jagannath was a follower of CPI(M). The accused Jagannath was also an elected member of the panchayat. During cross-examination of the P.W.1 the following important information was elicited.

Jagannath Biswas was contesting against my husband on last three panchayat Election and my husband was defeated by Jagannath Biswas. I do not know whether Jagannath is service holder or not.

During cross-examination of P.W.1, wife of the victim, the following had also transpired :-

Prior to the above incident once Jagannath Biswas was shot, as I have heard. In connection with that incident my husband was arrested and detained in custody.

Myself and my husband have/had enmity with Chitta Sarkar as he once ransacked our house along with other accused persons. That incident happened one year prior to the incident in respect of which I came to the Court. In connection with that incident Crl. was filed against Chitta Sarkar. I can not say the said relevant case number.

We have dispute with all the accused persons in respect of landed property. They also ransacked our house and demanded money. I do not know whether any case was started against my husband with the allegation of taking money alluring to provide a job.

Chitta Sarkar and accused Jagannath Biswas reside in the same locality Jagannath Biswas has good relation with Chitta Sarkar.

As regards enmity between the victim and the accused persons there should be no doubt because the following case was suggested to the P.W.1 :

Not a fact merely for the reason that we had enmity with the accused persons I have mentioned their names in FIR.

Considering the bulk of evidence as regards the enmity between the parties, the evidence as regards threat by the accused persons to the victim to withdraw the case does not appear improbable to us which finds further support from the following evidence of the victim during his cross-examination:

I lodged G.D against the incident of threatening by the accused persons to withdraw the case already lodged against them.

There is no denial of this fact during his further cross-examination. There is evidence to show that out of the 8 appellants 7 of them are the followers of the appellant Jagannath. In that regard the following evidence of the P.W.2 is material.

The other accused persons are the associates of Jagannath Biswas. I have enmity with Jagannath Biswas.

Not a fact that Jagannath Babu being a member of gram Panchayat and as other accused being co-villagers follow him I have falsely mentioned the names of these persons in my evidence.

The third point of Mr. Basu has not impressed us. There is no denial of the fact that P.W.2 received both gun shot and bomb injuries. If he told the I.O. that he did not know how he came to the hospital that would not in the least be discredited by the fact that he during his cross-examination deposed that two persons who were present at the spot had taken him to Goalghar hospital by a vehicle. It is likely that he may have subsequently recollected as to who had shifted him to the Goalghar hospital. He cannot by any stretch of imagination be said to have given an incorrect picture considering the evidence of the P.W.21 Dr. Chattopadhyay, who had attended him at Goalghar Hospital, that the victim was conscious and responding. The fact that 4 witnesses were examined by the prosecution, other than those two persons indicated above, who deposed that they had shifted the victim to the hospital does not also discredit the P.W.2. They might have accompanied or may have followed the victim and the latter may not have known that. The physical condition of the victim coupled with pain and anxiety were bound to have affected his faculties to know for certain as to who had, in fact, shifted him to the hospital. In any event this submission of Mr. Basu relates to a post occurrence incident and is not of much significance for the purpose of ascertaining who were the authors of the crime.

The fourth submission of Mr. Basu has also not impressed us. It is nobody''s case that either Nikil or Dulal was an eyewitness of the incident. They had taken the victim to R.G. Kar Hospital and that has been proved by the evidence of the P.W.16 as also by the ext. 6. We do not see how their presence or absence is material for the purpose of this case.

The fifth submission of Mr. Basu questioning the place of occurrence is also without substance. From the sketch map it appears that Uchhegar village road connects the Kalyani express way. The victim was coming through the Uchhegar village road in order to catch the bus at the Kalyani express way. From the sketch map it appears that near the junction of Uchhegar village road and the Kalyani Express way the Santra nursery is situated which has been shown in the sketch map by the letter F and the place where the victim was lying has been shown by the letter C which is in front of the bus stop indicated by the letter D. The Kalyani Express Way across the junction has been indicated by the letters ''B'' and ''C'' which is also shown as the place of occurrence. The seizure list marked ext 9 shows the place of seizure as follows:-

Western side of Kalyani express way at the crossing point of Uchagar village road near Santra nursery.

From the aforesaid place the splinters and the sample of blood was collected and seized. In the charges framed against the accused persons it has been indicated that the incident took place at Uchagar village road near Santra nursery bus stoppage.

The place of occurrence is not therefore uncertain. The incongruity if any is whether the victim at the time when the incident took place was standing at or near the bus stoppage or was still in the bicycle. The evidence of the victim in that regard is as follows :-

When I was shot I raised cry and I tried to flee away but no body came. When I was trying to flee away to my west bomb was hurled towards me which hit front side of my leg and I fell down.

P.W.21 Dr. Chattopadhyay deposed as regards the injuries as follows:-

Multiple lacerated wound splinter injuries over both legs. They may be associated fracture. I also saw fire arms entry wound over right abdomen with associated fracture, probably involvement of abdominal pariety. I also found bruise (sic) wound over lower abdomen. I opined that the bullet may be inside the abdomen.

We therefore hold that the attack was made from in front of the victim in the broad daylight when he was in bicycle and the attack was repeated when he was trying to escape by running away. He was thus both on his legs and in the bi-cycle when the assault took place. The fifth point of Mr. Basu is therefore rejected.

The sixth point raised by Mr. Basu is as regards the identity of the assailants. While dealing with the first point of Mr. Basu we already have indicated our mind that the P.W.1, wife of the victim, who lodged the written complaint involving the 8 appellants on the basis of what she ascertained from her husband did not appear to us to be the information contemporaneously received. P.W.21 Dr. Chattopadhyay is the first independent person who had occasion to extend the medical assistance to the victim and he also had occasion to interview the victim. He prepared both ext''s 12 and 13. In ext. 12 he recorded as follows :-

At about 1/2 hour ago when he was coming to Uchagor More by bicycle to catch the bus suddenly he was attacked by two or three miscreants by bomb and fire arms....

Ext. 12 is a document contemporaneously prepared and by that document the patient was referred to RG Kar hospital. Ext. 13 is the formal injury report appearing to have been prepared on 25th July, 2005 presumably on the basis of ext. 12. P.W. 21 who prepared both the exts. 12 and 13 deposed in court inter alia as follows :

At the time of the examination, the injured was conscious and able to speak but I did not record any statement of the patient in a separate sheet.

The aforesaid evidence of the P.W.21 was not challenged in cross-examination. There is in fact no cross-examination on that aspect of the matter. The aforesaid deposition of the P.W.21 establishes the fact he contented himself by recording a summary of the case. Therefore the evidence of the PW 2 that he disclosed the names of the assailants to the doctor of Goalgarh Hospital cannot be disbelieved.

The second independent person who examined the victim (P.W.2) within less than 2 hours from the incident is Doctor Lipi Mondal (P.W.16). she deposed in court as follows :-

The patient told me that he received gun shot and bomb injury on 22.6.2005 at 9.30 am and he told thagt he will be able to identify the assailants Jagannath Biswas, Chitta Ranjan Sarkar, Bhola Sarkar, Ashutosh Bairagi, Rabin Ray, Sripati Majumder, Narayan Biswas, Rafique Mondal.

From my injury report, this carbon copy of injury register was prepared by me.

This is the certified copy of the injury report issued by the Secretary of the R. G. Kar medical college and hospital. It is marked as Ext. 6.

Both from ext.6 as also from the evidence of P.W.16 it appears that the victim reached R.G. Kar Hospital and was examined by the P.W.16 at 11.10 hrs. on 22nd June, 2005. P.W.16 was not suggested that she interpolated the names of the assailants.

The I.O. (P.W.22) deposed during his cross-examination that on 22nd June, 2005 he recorded the statement of the victim in the hospital at 19.45 hrs. The I.O. during his cross-examination was not suggested that the victim during his examination at 19.45 hrs on 22nd June, 2005 had involved any one other than the eight appellants before us.

The difficulty arises from the fact that these eight appellants were not named by the victim before the P.W.16 as would appear from her evidence quoted above. The appellant no. 3 Swapan Biswas, appellant no. 7 Nitto Biswas, appellant no. 8 Tapan do not appear to have been named before the P.W.16. Therefore there is no reason to suspect that there has been improvement. But the suspicion evaporates from the fact that the defence did not take the risk of confronting the victim with the divergent statements appearing to have been made by him to the witnesses including the doctors. Mr. Basu contended that cross-examination of PW 2 was already over and there was no scope to confront him. This is not an acceptable excuse. The PW 2 in that case could have been recalled at the instance of the defence for the aforesaid purpose. Reference in this regard may be made to the judgment of the Privy Council in the case of Naba Kumar Das vs. Rudra Narayan Jana reported in 28 Calcutta Weekly Notes 589. At page 592 Their Lordships opined as follows:-

But however this may stand, there is another objection which their Lordships think fatal to the entries in the rent-roll being relied on as evidence which could outweigh the direct testimony of the witnesses who say that the stipulated eighth part had not been adequately cleared by April 1906. Mr. Sunder went into the witness box and stated that he had seen the property and, as the result, had advised that, as he had found that the clearing stipulated for had not been performed, the Government should resume the property leased, as was actually done. Nothing was put to him in his cross-examination about the rent-roll or the entries in it. If, as was suggested at the Bar, this was because the documents were tendered by the Government, a Defendant at the trial, as part of its case, only after Sunder had been in the box, an application might have been made to recall him for further cross-examination. There is, however, no suggestion that there was any such application. Sunder was not even cross-examined on the alleged perfunctory character of his inspection. The learned Subordinate Judge relied largely on the circumstance that he did not measure. His evidence was that he could see and saw that the proper quantity of land had not been cleared. If this statement was challenged it should have been challenged by cross-examination directed to the impracticability of forming a judgment by mere inspection, even with the aid of glasses, as the proportion of area cleared.

Mr. Basu relying on the evidence of P.W.18 Babar Ali Mondal, who deposed that the victim had told him that unknown persons had assaulted him, submitted that the case of the prosecution should be rejected outright. This course is not open to us because the victim did not refer to Babar Ali as a person who had shifted him to the Goalgarh Hospital nor did he say that he disclosed that the names of the assailants to PW 18. PW 2 was never confronted with what was deposed by PW 18. PW 18 could be a busy body. Reference in this regard may be made to the judgment in the case of State of West Bengal Vs. Orilal Jaiswal and another, wherein their lordships relied on an earlier judgment which reads as follows :-

In Gurbachan Singh Vs. Satpal Singh Mr Justice Sabyasachi Mukharji (as he then was) has very rightly indicated that the conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.

(Emphasis supplied)

The evidence of Dr. Chattopadhyay (P.W.21) who examined the victim within minutes after the incident is preferrable to that of the evidence adduced by the P.W.18. The question of the defence deriving any benefit from any deposition of the prosecution witness no.18 may legitimately arise when Court is inclined to believe his evidence. PW 18 is not believable. The question of any benefit being given on that basis does not arise. In the case of Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi) (Supra) cited by Mr. Basu the appellant had been convicted under the Arms Act and TADA. He already had undergone punishment for the offence under the Arms Act. What remained pending was conviction under TADA, which was untenable because the requisite permission/approval had not been obtained. Therefore acquittal was a foregone conclusion. The case of recovery of arms also became doubtful when the witness whose car had allegedly been used for the purpose of apprehending the appellant did not support the aforesaid case of the police. Their Lordships in this case referred to the judgment in the case of Raja Ram vs. State of Rajasthan reported in 2005 (5) SCC 272. That was a case in which sole evidence was a dying declaration the credibility whereof was seriously impaired by the doctor examined on behalf of the prosecution who deposed that the victim had been tutored into make the dying declaration.

It would thus appear that the so-called rule relied upon by Mr. Basu is a rule for those cases where the evidence of the witness not declared hostile is believable or in a case where by reason of such evidence the case of the prosecution becomes doubtful. The rule can have no application to the facts and circumstances of the case in hand.

P.W.3, as regards the name of the assailants ascertained from the victim, deposed as follows :

I heard the incident from my brother. He told me that Jagannath Biswas and seven other had attacked him. Disclosed the names of other but I cannot remember their names now.

P.W.4 who eventually turned hostile during his examination u/s 161 Cr.P.C made statement to the I.O. and the I.O. deposed in that regard as follows :-

On the date of the incident he was sowing the seeds and at that time he found Chittya Sarkar, Swapan Biswas, Nittaya Biswas, Sripati Bobin Ray, Ashu Bairagi to flee away and he also saw Jagannath Biswas to flee away with a motor cycle towards the Kalyani more and thereafter he heard the shouting of the para people and he heard them to say that those persons were fleeing away by killing Gour Babu and thereafter they chased the accused persons but did not apprehend them and thereafter they took Gour babu to the Goalghar Hospital and at that time said Gour babu was telling us that Jagannath, Swapan, Chitta, Nittya, Sripati, Rabi, Ashu, Tapu injured him by gun shot and bomb and seeing the serious condition the doctor referred him to the R.G. Kar Hospital.

P.W.6 Nimai an eye witness deposed as follows :

At the time of the incident I was observing my lands at the west of the north of the Uchhagar Bus Stand. At that time I heard sound of firing and hearing the said sound. I went to the Kalyani road and saw jagannath Biswas to flee away by a motor cycle in my presence. Then I took Gourmohan Biswas to the Jagaddal Hospital and he was referred to the RG Kar Hospital later on. Police asked me about the incident. I saw Gourmohan Biswas to struggle in pain in the hospital. In the hospital said Gourmohan Biswas told me that all 8 accused persons injured him by gun shot and bombing.

P.W.8, a hostile witness, deposed as regards what he had experienced by his own senses as follows :-

At the time of the incident I was by the side of the P.O. and hearing a sound I went there and saw gun shot injury on his belly and bomb injury in his leg.

P.W.13 deposed as regards what he had been able to ascertain from the victim as follows :

I heard that Gourbabu was shot. On the next date in the hospital Gourbabu told me that Jagannath Biswas, Tapas Biswas, Swapan Biswas, Sripati Majumdar, Rabin Ray, Nitya Biswas committed the mischief.

Considering the evidence indicated above we can safely proceed on the following basis: -

(a) The incident took place in the broad day light.

(b) The attack was made from in front of the victim.

(c) There was no difficulty for the victim to see the assailants.

(d) According to the PW 21 the victim disclosed that two or three assailants had attacked him. But the P.W.21 presumably out of his anxiety to refer the patient to the appropriate hospital for proper treatment did not record the statement of the victim for which the Doctor (PW 21) cannot be blamed. In the case of Bhargavan vs. State of Keral reported in AIR 2004 SC 1058 the following view was expressed in paragraph 20:

So far as non-disclosure of names to the doctor, same is really of no consequence. As rightly pointed out by the Courts below his primary duty is to treat the patient and not to find out by whom the injury was caused.

(e) The statement of the victim was recorded only by the P.W.16 doctor Lipi Mondal wherein 5 out of the 8 appellants were named.

(f) If we proceed on the basis that the figure given to the P.W.21 is the correct figure as regards the number of the assailants then we can safely proceed on the basis that at least three assailants had attacked the victim.

(g) From the statements of the victim recorded by the PW 16, the I.O. (PW 22) and the evidence of other witnesses it is clear that Jagannath Biswas the appellant No.1 was named by almost each of the witnesses except for the P.W.18 whose evidence is not at all credible.

(h) As regards the complicity of the accused Jagannath we have further assurance from the fact that P.W.6 deposed that after hearing a sound he rushed towards the place of occurrence and saw the accused Jagannath escaping from the place of the occurrence. P.W.3 brother of the victim deposed that he had ascertained from the victim that Jagannath and seven others had committed the crime.

We can therefore safely confirm the conviction and the sentence passed by the learned Trial Court against the appellant no.1 Jagannath Biswas. The rest of the appellants are entitled to the benefit of doubt for reasons already discussed.

In the result the appeal partly succeeds.

The appellant Jagannath Biswas is directed to forthwith surrender at once in order to serve out the sentence passed by the learned trial Court. In case he does not surrender within four weeks the learned trial Court shall take coercive measure to secure his presence. Rest of the appellants are discharged of the bail bonds furnished by them.

Lower Court Records with a copy of this judgment be sent down to the learned Trial Court forthwith for information and necessary action.

Urgent xerox certified copy of this judgment, be delivered to the learned Advocate for the parties, if applied for, upon compliance of all formalities.