Joymalya Bagchi, J.@mdashThe appeal is directed against the judgment and order dated 11.05.1987 passed by the learned Additional Sessions Judge, 1st Court, Bankura in Session Case No. 7 of October, 1985 (Session Trial No. 3 of January, 1986) convicting the appellants for commission of offence punishable under Section 307/ 34 of the Indian Penal Code, Section 324/ 34 of the Indian Penal Code and Section 323/ 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for three years and to pay fine of Rs. 500/- and in default to suffer further rigorous imprisonment for six months for the offence punishable under Section 307 of the Indian Penal Code, to suffer rigorous imprisonment for one year for the offence punishable under Sections 324/ 34 of the Indian Penal Code and under Sections 323/ 34 of the Indian Penal Code respectively, all the sentences to run concurrently.
2. Prosecution case, as alleged, against the appellants is to the effect that on 01.02.1985 at about 8/9 a.m. Snehalata Mahato, P.W. 4, her sister-in-law Gita Rani Mahato, P.W. 5, and mother-in-law Smt. Mithila Mahato, P.W. 6 were transplanting paddy seedlings on a portion of plot No. 100, Kastura Mouza which their family had acquired by purchase. The appellants being armed with bows, arrows, lathis and other weapons attacked them and inflicted serious injuries on each of the three women by shooting arrows and striking lathi blows on them. The incident was reported to the police station by Bibhuti Mahato, P.W. 1, husband of Snehalata Mahato, resulting in registration of first information report being Simlipal P.S. 1/6 dated 01.02.1985 under Section 147/ 307/ 149/ 323/ 324 of the Indian Penal Code against the appellants and one Mithila Mahato. Charge sheet was filed against the appellants and Mithila Mahato under the aforesaid sections. The case being a sessions triable one was committed to the Court of Sessions, Bankura and transferred to the Court of the learned Additional Sessions Judge, 1st Court, Bankura for trial and disposal. Charge under Section 147 of the Indian Penal Code and under Section 307/ 149 in respect of the assault upon P.W. 4 and P.W. 5 and under Section 324/ 149 of the Indian Penal Code and 323/149 of the Indian Penal Code respectively for the assault upon P.W. 6 was framed. The appellants pleaded not guilty and claimed to be tried. In the course of trial the prosecution examined as many as sixteen witnesses and exhibited a number of documents. The defence of the appellants was one of false implication and innocence. It was the specific defence of the appellants that plot No. 100 was under the bargadarship of the appellant, Satish Mahato and the victims had no right to transplant paddy on the said land. In support of such defence, D.W. 1 was examined who exhibited the record of rights in respect of the said plot. In conclusion of trial the learned Trial Judge by judgment and order dated 11.05.1987 convicted the appellants for commission of offence punishable under Section 307/ 34 of the Indian Penal Code, Section 324/ 34 of the Indian Penal Code and Section 323/ 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for three years and to pay fine of Rs. 500/- and in default to suffer further rigorous imprisonment for six months, for the offence punishable under Section 307 of the Indian Penal Code, to suffer rigorous imprisonment for one year for the offence punishable under Section 324/ 34 of the Indian Penal Code and under section 323/ 34 of the Indian Penal Code respectively, all the sentences to run concurrently. By the selfsame judgment the learned Trial Judge acquitted Mithila Mahato.
3. Ms. Sinha, learned Counsel, appearing as amicus curiae, submits that the most vital witnesses viz. P.Ws. 4, 5 and 6 were not interrogated during investigation. They deposed for the first time in Court and bearing in mind the pending land dispute between the families of the victims and that of the appellants there is every likelihood that they had falsely implicated the appellants as the accused persons. She further submits that there was inconsistency in the evidence of the said witnesses in regard to the manner and course of commission of the alleged offence. She also submits that the victims had not narrated the names of the appellants before the doctors. She submits that the purported eye witnesses P.Ws 3 and 13 could not have been seen to the incident in view of the fact that they were at a far-off distance from the place of occurrence. She further submits that there is confusion as to the time of registration of the first information report as P.W. 1, in his cross-examination, stated that the written complaint was handed over to the police when they had come to the village pursuant to this salish.
4. Mr. Ghose, learned Junior Standing Counsel for the State submits that the evidence of the injured eye-witnesses viz. P.W. 4, 5 and 6 was unshaken in cross-examination. Their evidence were corroborated by the eye-witnesses i.e. P.Ws 3 and 13. He also submits that the ocular version of the said witnesses were corroborated by the medical evidence viz. P.Ws. 10, 11 and 15. The conviction and sentence of the appellants, therefore, did not call for any interference.
5. P.W. 1, Bibhuti Mahato, is the de facto complainant in the instant case. He is the husband of P.W. 4, the victim. He stated that he was not present at the time of incident. Upon returning he heard the incident. He along with others had removed the victims to the Simlipal Public Hospital and thereafter Bankura Sammilani Medical College and Hospital. On the way to PHC, they alighted at the police station. Dhirendranath Rana, P.W. 9, scribed the first information report as per his instruction which was lodged at the police station. P.W. 2, Harasundar Satpati, was declared hostile. He however stated that he found that the victims viz. P.Ws. 4, 5 and 6 were injured by arrows and were lying at the place of occurrence. He could not name the assailants. P.W. 3, Sudhir Kumar Rana, is an eyewitness to the incident. He stated that he saw the incident. While he was returning home, his brother''s daughter told him that a number of persons were going towards the field being armed with bows and arrows. He saw that the appellants had assembled around the paddy field and were shooting arrows at P.Ws. 4, 5 and 6. Thereafter, the miscreants left the place of occurrence. Then he went to the place of occurrence and found that arrows had pierced the flesh of the victims viz. P.Ws. 4 and 5. He also found that bleeding injury on the body of the Mithila but did not find any arrow in her body. He stated that the place was visible from his house. P.W. 4, Snehalata Mahato, is the victim and one of the most vital witnesses of the case. She stated that she was transplanting the paddy in the field. At that time the appellants assembled at the place and started shooting arrows at them. The arrow shot by the appellant No. 1, Satish, struck her in the flesh. P.Ws. 5 and 6 were also struck by arrows. She was not able to say whose arrow had hit PW 5 and 6. In cross-examination, she denied the suggestion that the arrows came from the side of Bamon para. She stated that there is a village pathway on the West of their house about 40/50 cubits away. She stated Mahantapara was one bigha away from the land where they were working.
6. P.W. 5, Gita Rani Mahato, was also working at the field with Snehalata, P.W. 4 and Mithila, P.W. 6 on the fateful day. They were transplanting paddy. She deposed that the appellants came to the place of occurrence and started shooting arrows at them which penetrated their flesh. Thereafter the appellants ran away. She stated that they were removed to Simlapal Public Health Centre and thereafter to Bankura Medical College. In cross-examination, she stated that between the place of occurrence and the village there are 15/20 big plots of land. There is a ''doba'' after those plots near the dwelling house. After the ''doba'' there is a village pathway. The house of Sudhir Rana, (P.W. 2) and Dhiren Rana (P.W. 9) are situated by the side of their house. She stated that there was a ''salish'' in the village over the incident. She was not present at the ''salish''
7. P.W. 6, Mithila Mahato, is another injured victim. She deposed that she was transplanting paddy along with P.Ws. 4 and 5. She stated that she was hit by arrow as well as by ''lathi'' blow. She fell down on the land. She stated that the appellant No. 3, Habu, dealt the lathi blow on her. She could only identify Habu. In cross-examination, she stated that land where they were transplanting paddy, Prahlad, Satish and her sons were co-sharers.
8. P.W. 7, Tarapada Mahato, is the husband of Gita Rani Mahato, P.W. 5. He is a post-occurrence witness. He along with P.W. 1 removed the victims to Simlapal P.H.C. in a cart.
9. P.W. 8, Kishori Mahato was tendered for cross-examination.
10. P.W. 9, Dhirendranath Rana, is the scribe of the First Information Report. He has stated that he went to the place of occurrence and found that the victims had been struck by arrows while they were transplanting paddy. He stated that he saw the appellants running away from the place of occurrence with bows and arrows. He helped victims to be taken to the hospital in his bullock cart. He also accompanied them. They took the cart first to the police station at Simlapal and thereafter as directed by the police officer to Pubic Health Centre. They reported the incident to the Officer-in-Charge. He proved the written complaint which was scribed by him and handed over to the Officer-in-Charge of the police station as Ext. 3. He stated that S. I. of police went to the village on that day and seized bows and arrows from the house of the appellant No. 1, Satish Mahato. He signed on the seizure list. In cross-examination, he stated that there was ''salish'' in the village. All the matters involved in ''salish'' were written by him in a piece of paper. He could not recollect whether that document was handed over to the Investigating Officer.
11. P.W. 10, Dr. Bikash Chandra Roy, was the Medical Officer who treated the victims at Bankura Medical College. He stated that injury on Mithila Mahato (PW 6) could be caused by sharp cutting weapon including sharp edge of arrow. He stated that injury on Snehalata (PW 4) was on the vital part of her body and might have caused death in the ordinary course of nature. Injury on Gita (PW 5) was not of such nature. All the patients were admitted in the surgical ward of the hospital. In cross-examination, he stated that history of assault was noted in the report as clash over a plot of land between two groups of people but he did not note the name of the person who stated it.
12. P.W. 11, Dr. Sanatan Mondal, was the doctor who treated the victims at Simlapal P.H.C. He referred the victims to Bankura Medical College.
13. P.W. 12, Chittaranjan Satpati, was tendered for cross-examination. In cross-examination, he stated that the appellants had disputes with P.W. 1 and P.W. 6 over landed property.
14. P.W. 13, Kamalakanta Mahato, claims to be an eyewitness. He stated that on 1.2.1985 at about 8 to 9 A.M., he was seated by the side of a ''doba'' along the village pathway. About four bighas away, victims were transplanting paddy in plot No. 100 of Mouza Kastora. At that time, the appellants being armed with bows, arrows, lathi etc. went to the place of occurrence and started shooting arrows at the victims. As a result, victims, Snehalata and Gita, were struck by arrows. He rushed to the place of occurrence and found the victims were lying there. Victims were lifted and placed in a cart and removed to Simlapal P.H.C. In cross-examination, he stated that the pathway is 20/25 cubits away from the house of P.W. 1. He was standing by the side of the ''doba''. It is about 10 cubits away from his house.
15. P.W. 14, Ajit Kumar Ray, is the Ward Master of Bankura Medical College. He stated that on 4.6.1995, the Investigating Officer seized three arrows from the office of Bankura Medical College under the seizure list. He proved his signature Ext. 5/1 in the seizure list.
16. P.W. 15, Dr. Satya Ranjan Dey, is the Medical Officer attached to Bankura Medical College. The victims were admitted under him in the Female Surgical Ward of the hospital. He stated as follows:
"I examined the patient Snehalata Mahato and found that she had the following injury:--
1) An arrow inserted in the abdominal cavity from the left lateral side in the posterior axillary line at tenth intercostal space - direction of the arrow having been found to be inward downward and towards the back of the patient."
17. He stated that he operated on Snehalata and extracted the arrow. He stated that that nature of injury was grievous and it endangered the life of the victim. The victim was discharged on 11.2.1985 and actually left the hospital on 14.2.1985. He also stated that he examined the victim, Gitarani Mahato and found the following injuries:
"1) One arrow injury on the lower part of the left arm through and that the arrow was found to have perforated that portion of the arm of the patient completely.
2) An arrow injury in the left buttock size of the injury not noted. The arrow was found penetrated surgical operation had to be found said two places to extricate the arrows."
18. He stated that injuries were simple and the victim was released from the hospital on 9.2.1985. Arrow extracted from the victim was sent to the office of the Ward Master. He also found the following injuries on the victim, Mithila Mahato:
"1) One incise injury 1" in length and 1/2" deep on the side of the left buttock.
2) Swelling over right thigh.
3) Small abrasion and bruise over right arm."
According to him, injuries were simple in nature. He stated that the injury No. 1 was caused by sharp cutting weapon and might have been caused by the blade of an arrow. The patient was discharged on 4.2.1985.
19. P.W. 16, Tarun Ghatak, is the Investigating Officer of the case. He received the written complaint from P.W. 1 at the police station and drew up formal First Information Report, Ext. 3/2. He took up investigation of the instant case. He visited the place of occurrence. He did not, however, draw sketch map of the place of occurrence. He recorded the statements of witnesses. He seized incriminating articles including bows, arrows etc. from the house of the accused persons. He collected the injury reports from Simlapal P.H.C. as well as Bankura Medical Centre. He also collected extracted arrows from the office of Bankura Medical Centre Ward Master. He filed charge sheet against the accused persons. In cross-examination, he admitted that he did not interrogate the victims or record their statements.
20. D.W. 1, Panchanan Mahato, exhibited the record of rights in respect of Plot No. 100 which was marked as Ext. A.
21. From the analysis of the evidence on record, it is evident that the prosecution has essentially founded its case on the evidence of injured witnesses, P.Ws. 4, 5 and 6 as well as the eye-witnesses, PW 3 and 13. The evidence of the injured witnesses have been criticised by Ms. Sinha on the score that they were not examined in the course of investigation and deposed for the first time in Court. It appears from the evidence on record particularly the trend of cross-examination, that the defence has not disputed the prosecution case that the victims, namely P.Ws. 4, 5 and 6, had suffered injuries on their persons by arrows as well as assault by hand blunt substance in plot No. 100 of Mouza Kustora on the date and time of occurrence. The defence, however, has strongly disputed the fact that the appellants were not the authors of such injuries. In that regard, Ms. Sinha criticised the evidence of P.Ws. 4, 5 and 6 as unreliable as they had deposed for the first time in court and it has come on record that there was enmity between the families of the victims and that of the appellants over land dispute. She has also argued that P.Ws. 3 and 13, who were in the village at that time, could not have seen the incident from a distance. I find that the evidence of P.Ws. 4, 5 and 6 the injured victims are corroborated by P.Ws. 3 and 13. P.W. 3 was returning to his house which is situated beside the house of P.W. 1 when he heard hue and cry. He saw the appellants going towards the place of occurrence being armed with bows, arrows and lathi etc. Thereafter he saw the appellants shot arrows at the victims and also assault them. It has been argued he could not have seen the incident because there 15/16 plots of agricultural land between the village Mahatopara and the place of occurrence. In cross-examination, P.W. 1 has stated that the place of occurrence was about one bigha away from his house. The house of P.W. 3 is situated besides that of the victims. PW 3 is a most natural witness to the occurrence who saw the incident after noticing that the appellants were proceeding to the paddy field being armed with bows, arrows, lathi, etc. There is nothing on record to establish that he could not have seen the incident from the place where he was standing. He stated that the P.O. was visible from his house. Similarly, P.W. 13 was sitting in the village pathway running opposite the ''Doba'' which is situated between the place of occurrence and their village. He has stated that the place of occurrence was about 4/5 bighas from the ''doba'' and he witnessed the incident from there. His evidence is unshaken in cross-examination. As the evidence of the injured witnesses have been corroborated by other eyewitnesses namely P.Ws. 3 and 13, I am of the opinion non-examination of the injured witnesses during investigation not to be treated as a fatal flaw in the prosecution case.
22. It is trite law that lapses in investigation ought not to be a ground to disbelieve the prosecution case particularly where the evidence of injured witnesses, P.Ws. 4, 5 and 6 had received corroboration from the evidence of independent eyewitnesses P.Ws. 3 and 13.
23. Ms. Sinha also criticised the evidence of P.Ws. 4, 5 and 6 on the ground that they are clearly inconsistent with one another. She stated that while P.Ws. 3 and 13 have stated that the incident occurred for about 5/7 minutes, P.W. 6 has stated that she was assaulted half an hour after the arrow was shot at P.W. 4. She further submitted that P.W. 6 stated that arrows was coming from the side of village Bamonpara and therefore, it is likely that the victims were attacked by the inhabitants of Bamonpara village.
24. I find that the gist of the narration of the incident by P.Ws. 4, 5 and 6 is consistent. It is their unequivocal evidence that they were transplanting paddy in plot No. 100, Mouza Kustora when the appellants had come in a body armed with bows, arrows and lathi etc. and started shooting arrows at them. P.Ws. 4 and 5 stated that all the appellants were shooting arrows and arrow shot by appellant No. 1, Satish Mahato, hit P.W. 4, Snehalata. P.W. 5, Gitarani, was unable to say arrow shot by whom hit her. She, however, corroborated Snehalata with regard to the fact that all the appellants who were armed and were shooting arrows at them. P.W. 6 is the mother-in-law of P.Ws. 4 and 5 and was aged about 78 years at the time of incident. She narrated only the incident of assault by appellant No. 3, Habu, with a lathi on her. She was unable to narrate the other parts of the incident as coming out from the deposition of P.Ws. 4 and 5. In view of the fact that P.W. 6 was an old septuagenarian lady who was suddenly assaulted with a lathi, it is possible that she was unable to narrate the incident in toto. In fact, such lack of clarity in her evidence has a ring of truth about it. It shows that the injured witnesses were not tutored and narrated the incident to the best of their respective faculties. One must appreciate that the comprehensive capacity of every witness varies particularly having regard to his/her age and the circumstances in which the incident occurred. P.W. 6 being an old lady aged about 77 years who was able to narrate only the incident of assault upon her. She was unable to corroborate P.Ws. 4 and 5 with regard to the assault upon them by the appellants. The variation in her evidence is most natural bearing in mind her ages and diminished comprehensive and recapitulative faculty of P.W. 6 owing to such advanced age. There is also some contradiction regarding the period for which the incident occurred. Victims narrated that the incident happened for half an hour whereas P.Ws. 3 and 13 it was occurred for 5/7 minutes. It is common knowledge that understanding and appreciation of the time span of an incident varies from person to person. Injured witnesses were not wearing watches and could not be expected to have noticed exactly the time span of their attack. It is possible that being taken aback by the sudden and brutal attack upon them while they were transplanting paddy, the injured persons who are rural womenfolk felt that the attack persisted for an interminably long period although it may have concluded within a much briefer time span as narrated by the eyewitnesses. Such subjective opinion of the witnesses of the time span of the incident ought not to be taken as a parameter for rejecting the evidence of the injured witnesses, P.Ws. 4, 5 and 6, particularly when the kernel of the incident of assault by arrows and lathi blows upon them by the appellants stands established beyond doubt. Defence suggested that the arrows were shot by inhabitants of Bamonpara was stoutly denied by the appellants. On the other hand, PW 3 stated that the men from Bamonpara assisted them in lifting the injured victims in a cart for transfer to hospital. This squarely millitates against the defence version that the men from Bamonpara had attacked the victims.
25. The evidence of injured witnesses have also been corroborated by the medical evidence in the instant case, namely P.Ws. 10, 11 and 15. It is consistent versions of the aforesaid witnesses who had treated the victims that victims had suffered injuries due to shooting of arrows and in respect of Mithila, P.W. 6, due to assault by a hard substance like lathi. Arrows were also extracted from the persons by P.Ws. 4 and 5 and seized in the course of investigation. Accordingly, ocular version of the injured witnesses received corroboration from the medical evidence in the instant case.
26. Coming to the issue of registration of First Information Report, it has been argued that the First Information Report was subsequently lodged when police had come to the place of occurrence after the ''salish''. P.W. 1 had stated that the First Information Report was written by P.W. 9 and was handed over to the Officer-in-Charge at the police station on the way of Simplipal PWC. P.Ws. 7 and 9 have corroborated such version. In course of cross-examination, P.W. 1 however stated that police had come to the village after ''salish'' and PW 1 also stated that written complaint was handed over to the police at that time. It was around 9 AM when such complaint was handed over. P.W. 16 stated the complaint was received from P.W. 1 at the police station in the morning around 10-00 A.M. Hence, it is clear the written complaint was handed over to the police around 10 AM at the police station. Version of PW 1 that police received written complaint at village at 9 AM is not probable and must be read in the light of his entire deposition as corroborated by other witnesses. In the light of consistent evidence on record it is evident that the information of the incident was given to the police authorities at 10-00 A. M. while P.Ws. 1, 7 and 9 were carrying the victims in bullock cart towards Simlapal Public Health Centre. Accordingly, I am of the opinion that the First Information Report was lodged at the earliest point of time naming the appellants as assailants in the instant case.
27. It was strenuously argued that the victims did not name their assailants before the doctors at Simlapal P.H.C. or Bankura Medical College. I find from the bed-head ticket of P.W. 4, Snehalata, maintained in ordinary course of business at Bankura Medical College and produced in the course of trial, that the appellant No. 1 Satish, has been named as the person who shot the arrow which struck her. That apart, in the instant case First Information Report was lodged at 10-00 A. M. prior to the victims have admitted at Simlapal P.H.C. In the First Information Report role of the appellants had been clearly delineated. In the light of such fact, the circumstance that the victims did not subsequently name the appellant at the medical centres does not militate against the truthfulness of the prosecution case.
28. Coming to the conviction of the appellants under section 307/ 34 of the Indian Penal Code on the score of assault upon the victim Snehalata, I am of the opinion that the appellants did not attempt to kill her. It has come on evidence that the family members of the appellants as well as the victims are the co-sharers of the plot of land where incident occurred. It was claimed by the appellants that they were ''bargadars'' of the land under Prahlad Mahato and record of rights was produced in support of such claim. In this backdrop, it appears that the appellants came to the place of occurrence being variously armed with the intention of assaulting the victims and thereby drive them away from the said plot of land. The appellants did not intend to kill the victims. Nonetheless the injury suffered by P.W. 4, Snehalata, is grievous in nature.
29. Hence, I scale down the conviction of the appellants to commission of offence punishable under sections 326/ 34 of the Indian Penal Code so far as it relates to the assault on victim Snehalata, P.W. 4. It appears that the injury upon the victim, Gitarani Mahato, as has come out on evidence is simple in nature. Accordingly, conviction of the appellants on the score of assault on the victim, Gitarani, P.W. 5, is scaled down to offence punishable under sections 324/ 34 of the Indian Penal Code. Injuring on P.W. 6, Mithila, is also simple in nature and it was caused by lathi alone. Accordingly, conviction of the appellants on such score is scaled down under sections 323/ 34 of the Indian Penal Code.
30. In the light of the aforesaid discussion, the appellants are convicted for commission of offence punishable under section 326/ 34 of the Indian Penal Code for assault upon P.W. 4, under section 324/ 344 of the Indian Penal Code for assault upon P.W. 5 and under section 323/ 34 of the Indian Penal Code for assault upon the victim P.W. 6.
31. On the issue of sentence, I find that the appellant No. 1, Satish, has been specifically named by Snehalata as the assailant whose arrow stuck her. The appellant No. 3, Habu, has been identified by PW 6 as to have assaulted her with a lathi blow causing simple injury. With regard to other appellants, there is no clarity in evidence as to whose arrow had hit the victims. However, all the appellants had come in a body and were shooting arrows at the victims. The incident occurred more than two decades ago and the appellants do not have any criminal antecedent. They are also co-sharers of the land and agnates of the victims.
32. Accordingly, I reduce the sentences imposed upon them and direct that appellant No. 1 shall suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for three months more for the offence punishable under section 326 read with section 34 of the Indian Penal Code and to suffer rigorous imprisonment for one month on each count for the offences punishable under sections 324/ 34 and sections 323/ 34 of the Indian Penal Code respectively, all sentence to run concurrently. With regard to the appellant Nos. 2, 3 and 4 I reduce their sentences to rigorous imprisonment for one month to pay fine of Rs. 500/- each in default to suffer rigorous imprisonment for 15 days more with regard to offence punishable under section 326/ 34 of the Indian Penal Code and to suffer rigorous imprisonment for one month on each count for the offences punishable under section 324/ 34 of the Indian Penal Code and under section 323/ 34 of the Indian Penal Code respectively, all the sentences to run concurrently.
33. Conviction and sentence imposed upon the appellants are, accordingly, modified. The appeal is allowed to the aforesaid extent. The bail bonds of the appellants are cancelled and they are directed to appear before the learned Trial Court to serve out the sentence and/or pay the fine as directed, failing which the learned Trial Court shall take appropriate steps for execution of sentence and/or realisation of fine, as aforesaid.
34. Period of detention undergone by the appellants during investigation/inquiry/trial shall be set off under section 428 Cr.P.C., 1973.
35. Lower court records along with a copy of the judgment be sent down to the court below at once.
36. I record my appreciation for able assistance rendered by Ms. Sinha, Amicus Curiae, for disposal of the appeal.
