SUPREME COURT OF INDIA
Bechara Kora Modi
Vs.
State of W.B.
Crl.A.No.1119 of 2003
(H.K.Sema and G.P.Mathur JJ.)
20.09.2005
H.K. Sema, J.
1. Five appellants before us, namely, Bechara Kora Modi, Patiram & Pokia,
Sitaram Modi, Hariram Modi and Lakshmiram Modi were convicted by the Trial
Court under section 302/34 IPC and were sentenced to undergo RI for life and
fine of Rs.1000/-, in default to undergo RI for one year. Their appeal has been
dismissed by the impugned order of the High Court, hence this appeal by special
leave.
2. The only eye witness on the sole basis of which appellants have been
convicted by the Trial Court and confirmed by the High Court is PW-6, Labanu
Barmen & Labanu. The evidence on record shows that when the witness heard
halla, he came out from the house of Akshay Barman (dead) and found that
Bechara, Sita Ram, Lakhiram, Hariram and Patiram surrounded the deceased Saifur
Rahamen in the paddy filed of Rabi Modi with shouting when Lakhiram, the accused,
struck spade blow on the head of Saifur Rahmen from his behind and all of them
ran away to the west of the field. PW-10, who appears to be material witness
corroborated the statement of PW-6 and stated that when he was at home, his
grand father shouted with loud voice that the aforementioned accused were
assaulting Saifur Rahamen and the Lakhiram struck a spade blow on his head. No
prosecution witnesses has stated that the other accused also had weapon in
their hands and assaulted Saifur Rahamen. No injury said to have been inflicted
on the body of the deceased Saifur Rahamen has been attributed to the other
accused, except accused Lakhiram. PW-15, Dr. D.P. Chatterjee conducted the
post-mortem and found the following eight injuries:-
“1. Three sharp cut wounds behind the left ear 1/2"× 1/2"× 1/4,
2"× 1/2"× 1" and 1"× 1/2"× 1" on the scalp.
2. One lacerated wound 1 1/2"× 1"× 1/2"
3. On lacerated wound 1 1/2"× 1"× 1/2"× 1 1/2 "on
the occipital region of the scalp.
4. One sharp cut wound 1"× 1/2"× 1 1/2" * on
the left shoulder.
5. One abrasion on left illiac creast 1"× 3/4"
6. One severely lacerated wound 13"× 4"× 5" from left temporal
region to right temporal region across vertex of the scalp resulting laceration
of brain matter.
7. One lacerated wound on the pina of the left year 1"× 1/2"× 1/4.
8. Fractures present on all the crenial bones, brain crashed and punched out
some portion.”
3. Injuries Nos. 3 and 6 corresponds to the blow inflicted by accused Lakhiram
with spade on the scalp of deceased.
4. So far as with regard to the accused Lakhiram is concerned, we found
sufficient evidence on record. The evidence of PW-6 has been corroborated by
PW-10 and PW-15, the medical evidence. In our view, therefore this appeal in
respect of Accused Lakhiram deserves to be dismissed. The High Court judgment
in respect of accused Lakhiram does not suffer from any infirmity and therefore
it is affirmed.
5. So far as with regard to other accused, namely, Bechara Kora Modi, Patiram
& Pokia, Sitaram Modi, Hariram Modi are concerned there is no sufficient
evidence on record to show that they participated in the assault of Saifur
Rahamen. There is also no evidence to show that they were carrying
incriminating materials with them or that they had prior meeting of the mind.
The prosecution failed to prove that the commission of criminal act was done in
furtherance to common intention. We are, therefore, of the view that they are
entitled to the benefit of doubt. This appeal filed by them is,
accordingly, allowed and the conviction and sentence passed by the Trial Court
and confirmed by the High Court are set aside in respect of the accused Bechara
Kora Modi, Patiram alias Pokia, Sitaram Modi and Hariram Modi.
6. This appeal is partly allowed. The conviction of the Accused Lakhiram is
converted to one under Section 302 simplicitor.
7. Having regard to the assistance rendered by the learned amicus curiae we fix
his fees at Rs.750/-.