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2010 DIGILAW 66 (CAL)

STATE OF WEST BENGAL v. Swapan Singh

2010-01-28

AMIT TALUKDAR, RAGHUNATH RAY

body2010
JUDGMENT Talukdar, J. 1. DEATH would have perhaps, given him an ultimate healing touch instead fate ordained that he will live to tell the tale of a living death and the story of his being dismembered at the hands of the respondents in the manner and fashion, which to our utmost horror we will note while he had taken his two wards for a bath in the River Damodar. 2. The narration of the background facts leading to this appeal are gut-wrenching and the sequence are horrendous in nature. Instantly, a Court would be propelled to pose a question - is it dealing with a set of human beings or pre-historic cannibals, who delight on devouring human flesh. Walking down through the long alleys of time, we have to reach the bank of River Damodar, which flows by the side of Hijalna village under Raina Police Station in the District of Burdwan in a mid summer evening of April 7, 1984 at about 17-30 Hrs. 3. ONCE upon a time there lived in the said village, a person known as Bholanath Santra (P.W.6), an otherwise contented man blessed with two sons and a daughter, who unlike other days, perhaps, after experiencing a hot and dusty afternoon had taken his children towards Damodar River for the purpose of ablution and to have some cool and seek some relief from the April Sun. 4. WHILE he was in the water, little did he know that death punctuated by a life long agony awaited him on the bank of the River Damodar. He found the messengers of death (read the Respondents), who fell short of their ultimate mission and in the process did not do complete Justice to the poor soul (P.W.6, Bholanath Santra), who has to eke out his existence bereft of his limbs. The Respondent No.1 armed with a tangi, the Respondent No. 5 with a katari and the Respondent No. 4 with a lathi threatened him that if he did not withdraw the case against them, he would be dealt with severely. 5. WHAT a helpless sight petrified by the avengers of death, he took his little son in his lap and was trying to make good his escape from the clutches of a pack of blood thirsty, blind, revengeful killer and calculated settlers of score. The Respondent No. 2 caught hold of him. 5. WHAT a helpless sight petrified by the avengers of death, he took his little son in his lap and was trying to make good his escape from the clutches of a pack of blood thirsty, blind, revengeful killer and calculated settlers of score. The Respondent No. 2 caught hold of him. Thereafter the Respondent No. 4 assaulted him on his leg with a lathi followed by the blow of Respondent 1 on his left leg with a tangi as a result of which, his little child felt down from his lap. Respondent No.1 severed his left leg by repeatedly assaulting him with tangi. Seeing his ghastly incident, the little daughter ran away home. The unfortunate victim, P.W.6, Bholanath Santra was still not spared. Respondent No. 5 took his hand and used the katari to cut off his right hand. 6. REELING in excruciating pain, the shrieks of this unfortunate man attracted his son P.W.2, Barun Santra, whose presence made the Respondents evaporate from the scene. Followed by his son P.W.2, Barun Santra, .P.W.3, Golak Hazra and P.W.4, Jitendra Nath Mondal also came to the Place of Occurrence, who heard the incident from him and thereafter he was shifted to the Hospital and he also made a statement before the learned Magistrate. After we have seen the grotesque incident, as said by P.W.6, Bholanath Santra, the victim himself, we would visit P.W.2, Barun Santra, who was the elder son of the victim. At the relevant time he had been to the Damodar River for bathing his buffaloes. After hearing a noise he found his Father was being assaulted by Respondent No. 4 with a lathi and by Respondent No. 5 with a katari and also by Respondent No.1 with a tangi. 7. HE immediately, went to the place and found his younger brother Arjun was weeping and what a sight for a son to see that his father (P.W.6, Bholanath Santra) lying on the bank of River Damodar with his right hand and right leg severed and bleeding profusely ! 8. HE heard from his father that as he did not want to withdraw the case, the Respondent No. 2 and 3 caught hold of him while Respondent No. 4 hit him with a lathi and Respondent No.1 chopped off his leg and Respondent No. 5 cut his hand with a katari. 8. HE heard from his father that as he did not want to withdraw the case, the Respondent No. 2 and 3 caught hold of him while Respondent No. 4 hit him with a lathi and Respondent No.1 chopped off his leg and Respondent No. 5 cut his hand with a katari. P.W.2, Barun Santra further deposed that P.W.3, Golak Hazra and P.W.5, Gobardhan Ghosh and others took his father to the Hospital. 9. Then comes P.W.3, Golak Hazra and P.W.5, Gobardhan Ghosh, who were also drawn to the theatre of blood. They heard the incident from P.W, 6, Bholanath Santra, the victim himself and shifted him to the Hospital. 10. P.W. 1, Jiten Santra, younger brother of the victim lodged the Written Complaint (Ext.1) on 16/04/1984 after hearing about the incident. P.W.8, Parameshwar Bhattacharya, who at the relevant time of incident was Officer- in-Charge of Raina Police Station registered the formal F.I.R. (Ext.3). P.W.4, Jitendra Nath Mondal and P.W.7, Debkumar Chakraborty were tendered. 11. P.W.10, Dr. A. Mondal, Medical Officer attached to the Orthopedics Department of the Burdwan Medical College and Hospital treated P.W.6, Bholanath Santra. He deposed with regard to arm and leg of the victim being severed. 12. P.W.12, Professor A.K. Gupta, Reader and Head of the Department of Forensic and State Medicine, Burdwan Medical College examined the limbs, which suffered detachment on account of the demonic designs of the Respondents and was of the opinion "............. Both the limb portions have been found to be chopped off by a heavy sharp cutting weapon and they may have curved cutting edge................" P.W.9, G. Chatterjee and P.W.11, Shyamapada Majhi investigated the case, which resulted in the arraignment of the Respondents before the learned Additional Sessions Judge, Third Court, Burdwan in Sessions Trial No. 20 of 1986 to answer a Charge in respect of the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. The Trial concluded on 13.5.1986 resulting in the acquittal of all the Respondents. 13. HENCE this appeal at the instance of the State of West Bengal. 14. SOMETIMES, as a First Court of Appeal we have to assess Convictions as it is against the weight of evidence and sometimes we have to appreciate an order of acquittal as being perverse. The Trial concluded on 13.5.1986 resulting in the acquittal of all the Respondents. 13. HENCE this appeal at the instance of the State of West Bengal. 14. SOMETIMES, as a First Court of Appeal we have to assess Convictions as it is against the weight of evidence and sometimes we have to appreciate an order of acquittal as being perverse. Of course, all these within the contours of Section 386, Cr.P.C. Even in our wildest dream we could not have visualised a situation where a pack of ghouls can earn an Order of acquittal simply on the ground that "..........But P.W.11 the 1.0. has stated in the cross-examination that he seized blood stained sand only from one place and that there is no note in his case-diary regarding trailing of blood noticed by him is a very strong circumstantial evidence which demolishes the prosecution case of cutting off hand and leg of Bholanath Santra on the bed of river Damodar..................". 15. SOMETIMES in course of management of a Criminal Trial certain situations which bubble up, if not taken care of at the appropriate time and fashion as known to Law; results in equally strange and boisterous situation before the Appeal Court. But no matter how strange is the situation, we are dealing with a stranger bundle of facts in the strangest trajectory of a group of persons relieving another person, with whom they nursed a grudge, of his limbs in front of his children in a very placid manner. 16. The State of West Bengal is in Appeal against the said Judgment and Order of acquittal recorded by the learned Trial Court. Since none appeared on behalf of either of the parties, we recorded an order on 10.12.2009 incorporating the fact that the erstwhile learner Counsel for the appellant was no more amongst us and the Office Report reflected none appeared for the Respondents. As such, we requested a Panel Lawyer to appear for the appellant(The State of West Bengal) and requested Shri Sourav Bhagat to assist us as Amicus Curiae since a Criminal Appeal cannot be decided ex parte [SEE: 1) Bani Singh v. State of Uttar Pradesh, AIR 1996 SC 2439 : 1996 C Cr LR (SC) 367 and 2) Rishi Nandan Pandit v. State of Bihar, AIR 1998 SC 3804] and proceeded to hear the appeal. 17. 17. SHRI Ganguly submitted that the finding of the learned Trial Court, which resulted in the acquittal, was not correct as it suffered from non appreciation of the evidence and other material facts. 18. SHRI Ganguly further submitted that the scope of the injury in the light of the medical evidence of P.W.10, Dr. A. Mondal was not taken into account by the learned Trial Court and on flimsy ground the order of acquittal was recorded. Shri Ganguly referred to the decision of Valson and Anr. v. State of Kerala, (2009)2 SCC (Cr) 208 and submitted that as irrelevant facts and conjectures were relied upon by the learned Trial Court for arriving at its conclusion, the same was liable to be set aside. 19. SHRI Bhagat, who assisted us as an Arnicas, and we must say with great competence, has submitted that since the learned Trial Court had adopted a particular view - this Court before upsetting the same by way of interference with the order of acquittal should satisfy itself whether the same was unreasonable and not possible in the domain of evidence. 20. LEARNED Amicus placed the evidence and submitted that P.W.1, Jiten Santra, was the younger Brother of the victim P.W.6, Bholanath Santra; P.W.2, Barun Santra was the son of the victim and P.W.3, Golak Hazra as well as P.W.5, Gobardhan Ghosh were closely connected with the victim. As such, they were highly interested witnesses. He submitted that there were backdrop of previous enmity and P.W.1, Jiten Santra, P,W.2,Barun Santra, P.W.3, Golak Hazra and P.W.5, Gobardhan Ghosh could not be stated to be Eye Witnesses. 21. Furthermore learned Amicus argued that neither the son nor the daughter of the victim, who were purported Eye Witnesses to the incident were examined nor even the independent villagers, who came to the spot were cited as witnesses. 22. HE also wondered as to whether the charge framed during the Trial in respect of Section 307, I.P.C. was at all maintainable as the Respondents did not have the intention to commit the murder in view of the nature of injuries meted out. HE referred to the decision of Supreme Court in Sukhar v. State of Uttar Pradesh, AIR 1999 SC 3883 . According to the learned Amicus there were serious contradictions with regard to the medical evidence and the Eye Witnesses and he supported the judgment and order under Appeal. 23. HE referred to the decision of Supreme Court in Sukhar v. State of Uttar Pradesh, AIR 1999 SC 3883 . According to the learned Amicus there were serious contradictions with regard to the medical evidence and the Eye Witnesses and he supported the judgment and order under Appeal. 23. AS a part of his submission learned Amicus referred to the decisions of Supreme Court in Md. Ankoos and Ors. v. The Public Prosecutor, High Court of A.P. reported in (2009)7 Supreme 231 and Ghurey Lal v. State of Uttar Pradesh, (2008)10 SCC 450 : (2009)1 C Cr LR (SC) 193 outlining the power of the Appellate Court while hearing the appeal against an order of acquittal. 24. HE referred to the decision of the Apex Court in State of Uttar Pradesh v. Ram Bahadur Singh and Ors., (2004)9 SCC 310 and submitted when two views are possible, the one which enures to the benefit of the accused should always be taken and while hearing an appeal against and Order of acquittal, the presumption of innocence is further fortified with the Order of acquittal earned by the accused, it should not be disturbed in the absence of any glaring inconsistencies. Although, we still reel under the blood spattered sequence of events, we need not mull over the situation for long, before we can have a whole hog over the entire situation in the kaleidoscope of the submissions made at the Bar pitted against the Judgment and order under appeal. 25. A purposive endeavour should be taken by us before embarking on the fate of the appeal by way of adverting to our plenary powers vested under Section 386(a) of the Code of Criminal Procedure. 26. CLAUSE (a) of Section 386 of the Code of Criminal Procedure reads as follows : "Powers of the Appellate Court. 386. After perusing such record and hearing the appellant or his pleader, if appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may - (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law". A plain reading of the same reveals that while hearing the appeal from an order of acquittal, we can (A) reverse such order and direct that further inquiry be made; (B) accused be retried or committed for Trial as the case may be; (C) or find him guilty and pass sentence on him according to law. 27. IN other words, we have three options open before us. Since we have by now formed an opinion that the judgment and order under appeal at the instance of the State of West Bengal needs to be revisited, we will be utmost circumspective as to which of the three options we can exercise. The Law permits as a First Court of Appeal on facts to chose any of them. 28. The traditional concept is that when two views are possible while hearing an appeal against an order of acquittal, the Court should not adopt the other one by way of substituting its own reasoning. Credence should also be given to the finding of the Trial Court, which had the benefit of watching the demeanor of the witnesses. It is equally a trite position of law that unless the order of acquittal is either perverse or suffers from any manifest illegality and a possible view is available - the Court of Appeal in an order against acquittal should be the slowest in interfering with the same. [SEE::1) Luna Ram v. Bhupat Singh, (2009)3 SCC 749 and 2) Sailendra Pratap v. State of U.P., (2003)1 SCC 761 ]. 29. IT is also now equally a well-established principle of law that the presumption of innocence is strengthened by the order of acquittal and in the absence of compelling and substantial reasons, the same should not be upset. [See also State of Punjab v. Karnal Singh, (2003)11 SCC 271 ]. 30. IN the case of State of Goa v. Sanjay Thakran, (2007)3 SCC 755 : (2007)2 C Cr LR (SC) 131 the Supreme Court has laid down the principles that while hearing an appeal against acquittal, the Appellate Court can review the evidenced and interfere with the order of acquittal only if the approach of the Lower Court is vitiated by some manifest illegality or the decision is perverse and the Court has committed a manifest error of law and ignored the material evidence on Record. The Supreme Court in the said decision further reiterated the principle that mere possibility of two views would not be a ground for moving the Appellate Court, which would upset the decision of the Court below. 31. SIMILARLY, the Supreme Court in the decision of State Through SPE and CBI, Andhra Pradesh v. M. Krishnamohan and Anr., (2007)14 SCC 667 , dealing with an Appeal against acquittal also dealt with the theory of two views. It held : although Appellate Court ordinarily would not interfere with the finding of acquittal where both views are possible, but at the same time the Appellate Court is also entitled to consider the evidence brought on record by both, prosecution and defence and if on appraisal thereof, only one view is possible, certainly, the Appellate Court shall not hesitate to interfere with the judgment of acquittal. 32. IT further held in the said decision that presumption of innocence is a human right and when an accused is acquitted by a Court, such presumption becomes stronger. While assessing an order of acquittal in exercise of our power vested under Section 386 of the Code of Criminal Procedure, our primary concern should be to prevent miscarriage of justice. The Court, in exercise of its appellate power, can review the evidence and interfere with an order of acquittal for compelling reasons such as where admissible evidence has been unreasonably and unjustifiably ignored. [See : Suchand Paly. Phani Pal, (2004) SCC (Cr) 220 : 2004 C Cr LR (SC) 106]. 33. LEARNED Amicus has referred to the decisions of Supreme Court in Md. Ankoos and Ors. v. The Public Prosecutor, High Court of A.P (supra) and Ghurey Lal v. State of Uttar Pradesh (supra). In the decision of Md. Ankoos and Ors. v. The Public Prosecutor, High Court of A.P. (supra) the Supreme Court has laid down the guidelines in respect of appeals directed against an Order of acquittal and primarily, relying on the decision of Ghurey Lal v. State of Uttar Pradesh (supra) and held : "................when two views are possible, the Appeal Court should not ordinarily interfere with the judgment of acquittal." The decision of Ghurey Lal v. State of Uttar Pradesh (supra) dealt with the question of presumption of innocence, which stands reinforced by the acquittal at the trial stage. 34. 34. The decision of the Supreme Court in State of Uttar Pradesh v. Ram Bahadur Singh and Ors. (supra) relied upon by the learned Amicus relates to a plausible view being taken by a Court, could not make it susceptible for interference. We have seen the kafkaesque details of the prosecution case. Our effort would be to cull out the nuggets and bring out the ring of truth so as to see as to whether the order of acquittal can be sustained on the basis of the various tests, which are required to be applied, as noticed by us hereinabove. 35. SIMPLY, the cold logic of Law and neither emotion nor sympathy would guide us to arrive at our decision. Neither we should be concluded by the horrific nature of the incident nor we should be morphed with the long passage of time from the time when the incident took place. We have to do just justice purely on the basis of the evidence and nothing else. Otherwise, we would be like the mourners without tears and shall be performing without any prayers. 36. IT is indeed true, that there are some bubbles, which have erupted in course of the evidence. We will be required to prick the same so as to see for ourselves whether any such fantasy has been created, which guided the learned Trial Court to arrive at its impugned finding or it rendered the evidence so improbable and so inconsistent with each other that it rendered itself as unbelievable. For this purpose we will be vising the living dead (P.W.6,Bholanath Santra), who has been awaiting a sentence of death by respondents to be suffered each moment of his life. As a First Court of Appeal, we can safely evaluate the evidence, of course, without either disturbing the basic tenor thereof or by way of substituting our own view. But as we have seen it must be just desert and while doing so we should not either be propelled by a sense of justice according to our concept or be guided by any of the situations, which we have noticed hereinabove. We would restrict ourselves purely to a sense of justice, which is not according to our own mind but it should be justice according to the law of the land. 37. We would restrict ourselves purely to a sense of justice, which is not according to our own mind but it should be justice according to the law of the land. 37. P.W.6, Bholanath Santra, the victim himself, have given a vivid description in the manner and circumstances in which he was incapacitated. The same finds credence from the supporting evidence of his elder son P.W.2, Barun Santra, who came soon thereafter to the place of occurrence and the other independent witnesses P.W.3, Golak Hazra and P.W.5, Gobardhan Ghosh. 38. The evidence of P.W.1, Jiten Santra, who after all, is the step brother of injured P.W.6, Bholanath Santra, is the author of the written complaint (Ext.1) which was scribed by P.W.4, Jitendra Nath Mondal (tender) on the basis of which F.I.R. (Ext.3) was recorded by P.W. 8, Parameshwar Bhattacharyya of the Raina Police Station. P.W.1, Jiten Santra's evidence shows that P.W.6, Bholanath Santra was their Step brother and they lived in separate mess from each other for the last eight or ten years. He gave the description of the blood curdling situation. After he came to the place of occurrence upon hearing the same from the little daughter of P.W.6, Bholanath Santra, who, we have noticed earlier, ran home from the place of occurrence. The basic tenor of the prosecution, as told by P.W.1, Jiten Santra, P.W. 2, Barun Santra, P.W.3, Golak Hazra and P.W.5, Gobordhan Ghosh only lends credence to the main theme of the saga of living death as spoken by P.W.6, Bholanath Santra. 39. WE will be now required to switch over to the evidence of P.W.10, Dr. A. Mondal, Medical Officer attached to the Orthopedics Department of the Burdwan Medical College and Hospital. Dr. Mondal examined P.W.6, Bholanath Santra on the self same day. He found P.W.6, Bholanath Santra "with traumatic amputation of right fore-arm upper part and upper - part of left leg. The patient was detained in the hospital for 40 days." 40. P.W.11, Shyama Pada Majhi, Sub-Inspector of Police, who investigated the case stated that he found Golak Hazra (P.W.3) .........deposited the detached hand and leg of Bholanath Santra at Raina P.S." The same was noted by him in G.D. Entry No. 227 dated 7.4.1984. He thereafter sent him to the Forensic Department of Burdwan Medical College and Hospital for examination. P.W.11, Shyama Pada Majhi, Sub-Inspector of Police, who investigated the case stated that he found Golak Hazra (P.W.3) .........deposited the detached hand and leg of Bholanath Santra at Raina P.S." The same was noted by him in G.D. Entry No. 227 dated 7.4.1984. He thereafter sent him to the Forensic Department of Burdwan Medical College and Hospital for examination. P.W. 12, Professor A.K. Gupta, Reader and Head of the Department of Forensic and State Medicine, Burdwan Medical College, examined the detached limbs on and was of the opinion "................Both the limb portions have been found to be chopped off by heavy sharp cutting weapons and they may have curved cutting edges...................." 41. The ocular evidence, the surrounding circumstances and the medical opinion of P.W.10, Dr. A. Mondal and P.W.12, Professor Dr. A.K. Gupta, who held the post of Reader and Head of the Department of Forensic and State Medicine, Burdwan Medical College and Hospital, are all before us. 42. IN the event we once again advert to the evidence of P.W.12, Professor, Dr. A.K. Gupta, whom we have found to be no less than a person than holding the Rank of a Reader and Head of the Department of the Forensic and State Medicine of a premier Government Medical College and Hospital, has spoken about the limbs being severed in the manner, which finds consistency with the version of worst sufferer of the same, P.W.6, Bholanath Santra, who has given a tale tell description of the manner in which he was relieved of his limbs by a hound of blood thirsty savages (read the Respondents). At once, if we marinate the evidence of the injured P.W.6, Bholanath Santra with regard to the manner of the assault and that of P.W.12, Professor Dr. A.K. Gupta, Reader and Head of the Department of Forensic and State Medicine, Burdwan Medical College and Hospital, we can safely come to the conclusion that the description of assault in the prosecution case stands established. 43. A.K. Gupta, Reader and Head of the Department of Forensic and State Medicine, Burdwan Medical College and Hospital, we can safely come to the conclusion that the description of assault in the prosecution case stands established. 43. SO far as the ocular evidence of P.W.6, Bholanath Santra, the injured victim, is concerned vis- a- vis those of P.W 5, Gobardhan Ghosh, who rushed to the spot on being attracted by the incident, have stated that they had witnessed P.W.6, Bholanath Santra lying on the Place of Occurrence on the bed of Damodar River beefed up by the evidence of other son P.W.2, Barun Santra - we find that the prosecution case remains firm as the rock of Gibraltar. The same could not be shaken even by way of vigorous cross- examination. 44. TO countenance their fate, which they must have anticipated, the Respondents put up two defence witnesses, who we find is by way more of an apology than of any real help to the defence. D.W.1, Uttam Ghosh deposed that while he was having his afternoon siesta, at about 2-30 to 3-0 'Clock he found a noise from Bayenpara and found some persons carrying someone on a cot who was found to be P.W.6, Bholanath Santra. He was told about the nature of injuries received by P.W.6, Bholanath Sahtra and thereafter the cot was placed on the bed of Damodar where his wounds were being dressed and the bed of the river was soaked with blood. Thereafter, P.W.6, Bholanath Santra was carried across the river. 45. D.W. 2, Kamala Kanta Roy spoke in the same voice of D.W.1, Uttam Ghosh. His cross-examination shows that P.W. 6, Bholanath Santra was his recorded Bargadar. 46. OSTENSIBLY, D.W.1, Uttam Ghosh and D.W.2, Kamala Kanta Roy were projected on behalf of the defence to shift the Place of Occurrence and to impute some bad character of P.W.6, Bholanath Santra. A perusal of the two defence witnesses, even if the imagination of any prudent person is allowed to run amuck - would not persuade one to come to the conclusion either the incident did not happen in the manner which have been unfurled by the prosecution and took place at Bayenpara and the imputation of the character against P.W.6, Bholanath Santra had anything to do with the incident and has arty involvement with the residents of Bayenpara. 47. 47. The two defence witnesses are like two thin candle lights before a strong gusty and concerted gale raised through the evidence of P.W.1, Jiten Santra, P.W.2, Barun Santra, P.W.3, Golak Hazra, P.W.5, Gobardhan Ghosh and P.W.6, Bholanath Santra, the victim himself. They need not be given any importance whatsoever. 48. PRIMARILY, the finding of the learned trial Court was based with regard to the absence of trailing blood in view of the defence evidence of D.W.1, Uttam Ghosh and D.W.2, Kamala Kanta Roy that his wounds were dressed up on the bed of the river and P.W.6, Bholanath Santra was carried across the river for treatment; the inconsistency in the evidence of P.W.1, Jiten Santra that he did not take P.W.6, Bholanath Santra to the Hospital on the date of occurrence, which was contradicted by injured P.W.6 Bholanath Santra himself as well as by P.W.10, Dr. A, Mondal, who stated that the Bed Head Ticket indicates P.W.6, Bholanath Santra was brought to the Hospital by P.W.1, Jiten Santra, who gave consent for operating upon the injured P.W.6, Bholanath Santra. On the basis of the same, the learned trial Court, much to our chagrin, we find, came to the finding ".............So I find that the medical evidence on record and the evidence of the I.O. are sufficient to disprove the prosecution case. On the other hand, the defence case appears to be more probable in seizure of blood stained sand. So I find that the prosecution has failed to prove by satisfactory and cegent evidence beyond reasonable doubt that the accused persons on 7.4.84 corresponding 24th Chaitra 1390 B.S. at Hizalnain the bed of the River Damodar assaulted Bholanath Santra with intention to murder him and caused grievous hurt to him." 49. EVEN if there is no such immutable rule of appreciation of evidence that the evidence of an injured witness should be mechanically accepted, yet normally the Court should be loath to reject the same unless it is improbable and untrue. 50. IT is most unlikely that the injured person would deliberately spare the true assailant and implicate his other enemies. In the prism of the finding of the learned trial Court we have very carefully read the evidence with focus on P.W.6, Bholanath Santra. 51. WE feel the same not only inspires much confidence in our mind but it is compatible with the other evidence on record. 52. In the prism of the finding of the learned trial Court we have very carefully read the evidence with focus on P.W.6, Bholanath Santra. 51. WE feel the same not only inspires much confidence in our mind but it is compatible with the other evidence on record. 52. FINDING arrived at by the learned trial Court cannot be said to be a just decision. It in fact took into account irrelevant materials into consideration and arrived at its conclusion on the basis thereof. The decision cited by Shri Ganguly Valson and Anr. v. State of Kerala (supra) is fully applicable in this case. Since we cannot break bread with the finding of the learned trial Court, we have to necessarily, upset the apple cart, which have been enjoyed by the respondents by virtue thereof. While doing so, we are conscious of the fact ;a) there is a passage of twenty five years since the time when the blood was shed and the respondents earned their order of acquittal; b) the learned trial Court has come to a particular finding, which would be improper to destabilise in the absence of (1) perversity, (II) other primary incongruities and (III) ignoring admissible evidence. 53. IN the Merchant of Venice scripted by William Shakespeare, Shylock was after the pound of flesh of Antonio, who stood as a Warrantor for his friend Bassanio, who was a loanee from Shylock and the said claim of Shylock was very deftly countenanced by his Counsel Portia. 54. IN ACT IV SCENE I (Court scene) of Merchant of Venice by William Shakespeare, Antonio had stood guarantor for the money taken by his friend Bassanio from Shylock, for his pound of flesh Shylock petitioned the Duke of Venice, who described Shylock as a stony adversary, and inhuman wretched Uncapable of pity, void and empty From any Dram of mercy. Portia, the deft Counsel of Antonio agreed "a pound of that same merchant's flesh is thine. The Court awards it, and the law doth give if 55. ALTHOUGH this delighted Shylock, a spanner was thrown in by Portia, "shed thou no blood; nor cut thou less nor more. But just a pound of flesh" 56. WHILE Shylock was miffed as to whether it would be a drop of blood or a pound of flesh ? The Court awards it, and the law doth give if 55. ALTHOUGH this delighted Shylock, a spanner was thrown in by Portia, "shed thou no blood; nor cut thou less nor more. But just a pound of flesh" 56. WHILE Shylock was miffed as to whether it would be a drop of blood or a pound of flesh ? The respondents had no such qualms when they like a hoard of butchers pounced upon the flesh of P.W.6, Bholanath Santra and as Marcus Brutus would say " hew him as a carcass fit for hounds" in SCENE I ACT II of William Shakespeare's Julius Caesar. Flesh formed the subject matter of the respondent's decision to decapitate P.W.6, Bholanath Santra, the trail of blood haunted the mind of the learned Additional Sessions Judge. 57. IT is not that all defence witnesses does not tell the truth. The prosecution witnesses also sometimes does not come out with the actual truth [SEE : Dudhnath Pandey v. State of Uttar Pradesh, AIR 1981 SC 911 ]. But without suffering from the mind set, simply because D.W.1, Uttam Ghosh and D.W.2, Kamala Kanta Roy were Defence witnesses, they were coming to the rescue of the respondents - we find that their evidence cannot hold water. On the contrary, the evidence adduced by the prosecution are more acceptable. 58. The evidence on record clearly pinpoints the place of occurrence as the banks of River Damodar (see the evidence of P.W.1, Jiten Santra, P.W.3, Golak Hazra and P.W.5, Gobardhan Ghosh). Before moving on, we have also kept in mind the various submissions of the learned Amicus and the decisions placed by him. As we have found that the finding of the learned trial Court is based on legally inadmissible evidence and suffers from the vice of non-consideration of material evidence and irrelevant materials were taken into account, it can outright said to be perverse and only one view of the same can be adopted by the Appellate Court. As such, the decisions of the Supreme Court in 1) Md. Ankoos and Ors. v. The Public Prosecutor, High Court of A.P. (supra), 2) Gurey Lal v. State of Uttar Pradesh (supra) and 3) State of Uttar Pradesh v. Ram Bahadur Singh and Ors. (supra), referred to by learned Amicus, in our most humble view, would not be applicable in the present case. 59. Ankoos and Ors. v. The Public Prosecutor, High Court of A.P. (supra), 2) Gurey Lal v. State of Uttar Pradesh (supra) and 3) State of Uttar Pradesh v. Ram Bahadur Singh and Ors. (supra), referred to by learned Amicus, in our most humble view, would not be applicable in the present case. 59. ON the contrary, we feel that unless we interfere with the order of acquittal recorded by the learned trial Court, it would result in serious injustice. 60. PERSUADED by strong, compelling and substantial reasons and this being the rarer of the rare case, we are required to interfere with the order of acquittal. The decision of Supreme Court in Sukhar v. State of Uttar Pradesh (supra) cited by the learned Amicus to recuse the Respondents from the ambit of Section 307, I.P.C. also would be hardly of any help in view of the unimpeachable evidence of P.W.12, Professor A.K. Gupta, Reader and Head of the Department of Forensic and State Medicine, Burdwan Medical College and Hospital and P.W. 10, Dr. A. Mandal, Medical Officer attached to Orthopedics Department of Burdwan Medical College and Hospital. 61. FRAIL attempt of the defence to re-locate the scene from the banks of the River Damodar to Bayenpara by way of imputing some motive against P.W.6, Bholanath Santra, is not only absolutely unbelievable but does not either stand to reason or get support from the evidence on record. Applying the test laid down in the decision of Supreme Court reported in AIR 1997 SC 3255 (Ajit Savant Majagavi v. State of Karnataka) we have very carefully and with utmost deliberations scanned the evidence several times each time obliterating from our mind our earlier formation of opinion but every time we come across the same answer from our judicial conscience that the order of acquittal rendered by the trial Court is based on improper finding and there are very cogent and compelling reasons for us to arrive at the conclusion that admissible evidence has been unreasonably ignored and as the motto of a Court of Justice should be Justice at any cost even though the Heavens may fall (FIAT JUSTITIA RUAT COELUM), that our aim should be to prevent miscarriage of Justice. 62. 62. AS the Order of acquittal rendered by the learned trial Court is a evil child of miscarriage of Justice, the same is required to be set aside at any cost and it would not be Judicial heroism to perpetuate the same by way of adopting the formulas - passage of time and when two views are possible, the other one against the accused should not be adopted, as we have a call from our Judicial conscience that it is only one and it is perhaps, the sole view and that is the probable view that the order calls for interference. Accordingly, we set aside the Order of acquittal recorded by the learned Additional Sessions Judge, Third Court, Burdwan in Sessions Trial No. 20 of 1986. 63. SECTION 386 (a) of the Code of Criminal Procedure offers us three dimensional approach, which we have categorised in the foregoing paragraphs. Left with the triumvirate options, we will leave the first two, which, in a way mollify the situation and choose the harshest one i.e. we would pass sentence on the respondents here an now. 64. WE have mulled over the situation that after so many years we are setting aside an Order of acquittal earned by the respondents in their favour on the basis of a trial held by a competent Court of Law. WE are also abreast of the position that the years that have passed by in the meantime, perhaps, have seen these respondents curved out a station in life and perhaps, have created their family units with dependants. The age reflected from the examination of all the Respondents shows that they were in their early 20s and mid 30s. In the event we record an Order of Conviction after we have set aside the Order of acquittal - we can safely visualise the situation that it will affect the nucleus unit of their families, which they have built up in course of all these years. A Court presides over a trial not only to see that no innocent man is punished but it is also its duty to see that no guilty escapes the clutches of Law. 65. Justice is not unilateral and it cannot be Justice and all rights for the accused. The victim (P.W.6, Bholanath Santra) and his family members are also equal claimants of Justice. 65. Justice is not unilateral and it cannot be Justice and all rights for the accused. The victim (P.W.6, Bholanath Santra) and his family members are also equal claimants of Justice. The scales of Justice has to be so evenly balanced that while doing Justice to the accused, we should see the same is not denied in favour of the victim. 66. The Court cannot lose sight of the State in which P.W.6, Bholanath Santra has been pushed and suffered each moment a living death on account of the senseless act of the Respondents, who, we have seen, went to settle some grudge for the purpose of withdrawing a case instituted by P.W.6, Bholanath Santra. It is simply not an attack on a sudden impulse but we see that in a pre-concerted manner a pack of miscreants being armed accosted the helpless victim P.W.6, Bholanath Santra, who was having his bath with his minor child in the river driven by the grudge on account of filing a Criminal case against them, in a beastly manner attacked the helpless victim P.W.6, Bholanath Santra. Did they show even a grain of sympathy ? 67. TIME has stood still for the victim P.W.6, Bholanath Santra since April 7th, 1984, when he proceeded to River Damodar for a bath and was assaulted in the manner, which has left him bereft of an arms and leg. 68. MUCH water has flown down River Damodar since then but time for P.W.6, Bholanath Santra stood still. He is dead for all intent and purpose and simply carries his story of death as a gruesome reminder of the cruel April day of 1984. It is not simply an assault on the body of P.W.6, Bholanath Santra but it is an onslaught on the minds and cognitive faculty of the two little children, who went to take bath along with their Father. They have perhaps, by now grown up and become useful citizens of today but can they wipe out from their memory the macabre scene that they witnessed in their adolescence year ? The devastating effect of the same must be chasing them eroding their mental peace and haunts them like a nightmare. 69. P.W.6, Bholanath Santra suffers from the untold agony of living the life of a person, who was proscribed to endless death. Evidence shows that he used to til! the land. The devastating effect of the same must be chasing them eroding their mental peace and haunts them like a nightmare. 69. P.W.6, Bholanath Santra suffers from the untold agony of living the life of a person, who was proscribed to endless death. Evidence shows that he used to til! the land. Act of the Respondents have made him devoid of his earning. A Court of Law has to do compact Justice and in the process, we feel, if we show any leniency to the Respondents, it would be a misplaced sympathy. 70. WHEN this appeal matured for hearing before us, we found none appeared on behalf of the Respondents. Communication No. 415 dated Burdwan the 11th March, 1987 from the learned Chief Judicial Magistrate, Burdwan reflects that the notice was duly issued upon the Respondents and they surrendered on 10/03/1987 and were released on bail in terms of the direction passed by the Division Bench admitting the Appeal on 10/09/ 1986. Since a Criminal Appeal should not be disposed of in the absence of learned Counsel for the accused persons in terms of the decisions of the Supreme Court in Bani Singh v. State of Uttar Pradesh (supra) and Rishi Nandan Pandit v. State of Bihar (supra), we sought the assistance of an Amicus to place the case on behalf of the Respondents, who, we have found, have rendered not only able assistance to us but has placed the case in a marvellous fashion. We record our deep appreciation of his services. 71. IT is an accepted fact that in exercise of our appeal order for reversing an order of acquittal, we are proceeding to impose Sentence by way of exercising our third option within the ambit of Clause (a) of Section 386, Cr.P.C. Necessarily, the scope as provided under sub-Section 2 of Section 235, Cr.P.C. in favour of the accused remains defunct. 72. WE have before ourselves this question that what would be the appropriate sentence and what could have been the say of the Respondents on the proposed sentence had they been given the availability of being heard on the question of their sentence. Imposing a proper sentence is a very difficult decision. More so, in a case directed against an Order of Acquittal, where as an Appeal Court we are required to impose the sentence directly. 73. Imposing a proper sentence is a very difficult decision. More so, in a case directed against an Order of Acquittal, where as an Appeal Court we are required to impose the sentence directly. 73. AT the time of arriving at the quantum of sentence, while the long passage of time is required to be kept in mind, the plight of the victim, which we have seen earlier, cannot be lost sight of. The sentence should be such that it balances both equations. 74. KEEPING in mind the dastardly nature of the crime, in our opinion, it would be appropriate to direct that the Respondents would suffer Ten years Rigorous Imprisonment. Having regard to the impairment of P.W.6, Bholanath Santra, we are of the considered view that even though it may add insult to his injury, he should be properly rehabilitated. 75. ACCORDINGLY, we would also direct the Respondents to pay Rupees Forty Thousand each, which, if realised, would be paid in favour of P.W.6, Bholanath Santra or to the next of his kin; in default of which the Respondents will undergo further Rigorous Imprisonment for a period of Two years. 76. The appeal accordingly stands allowed. The Judgment order dated 13/05/1986 passed by the learned Additional Sessions Judge, Third Court, Burdwan in Sessions Trial No.20 of 1986 is set aside. 77. The Respondents upon being convicted in respect of the charge of Section 307/34 of the Indian Penal Code are each directed to suffer Rigorous Imprisonment for Ten years and to pay a fine of Rupees Forty Thousand each, which has to be paid in favour of P.W.6, Bholanath Santra or to the next of his kin; in default of which they will undergo further Rigorous Imprisonment for a period of Two years. 78. APPEAL accordingly allowed. Respondents must surrender to their bail bonds forthwith. Bail bonds stand cancelled. In default whereof the learned C.J.M. would be at liberty to issue W/A against convicts who are to serve out sentence.