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2014 DIGILAW 950 (CAL)

Ramnarayan Sharma v. State of West Bengal

2014-09-26

JOYMALYA BAGCHI

body2014
Judgment : Joymalya Bagchi, J. The appeal is directed against Judgement and order dated 06.08.2008 convicting the appellant for commission of offence punishable under Section 304 (Part II) of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 5 years and to pay fine of Rs.1,000/-, in default, simple imprisonment for 6 months. Prosecution case against the appellants is as follows : On 06.03.2007 at about 10.30 a.m. one Anil Mishra (PW 2) lodged a written complaint against the appellants and other accused persons alleging that on 06.03.2007 at about 8.30 a.m. they brutally assaulted his brother Dilip Mishra (deceased), his wife Mina Mishra and his other brother Sunil Mishra by iron rod. Consequently his brother Dilip sustained serious injuries and was admitted at Purulia Sadar Hospital and thereafter transferred to higher medical centre, namely, K. M. Memorial Hospital at Chas. On the basis of the written complaint of Anil Mishra, first information report being Purulia P.S. case No. 23/2007 dated 06.03.1997 under Sections 147/148/149/326/304 of Indian Penal Code was registered for investigation. As the victim died, Section 304 of Indian Penal Code was added. On completion of investigation, charge sheet was filed against the appellants and seven other accused persons for commission of offences under sections 147/325/304/149 of the Indian Penal Code. The case being a sessions triable one was committed to the Court of Sessions, Purulia and transferred to the Court of the Additional Sessions Judge, First Track Court no.2, Purulia for trial and disposal. Charges were framed under Section 147/325/304/149 of the Indian Penal Code against the appellants and other accused persons namely Ashok Sharma, Manoj Sharma, Dilip Sharma, Santosh Sharma, Sabita Sharma, Rekha Sharma and Sushila Sharma. The appellants and other accused persons pleaded ‘not guilty’ and claimed to be tried. In the course of trial prosecution examined as many as ten witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. It was the specific defence of the appellants that the defacto complainant and his witnesses had assaulted them and as a result co-accused Manoj Sharma and Ashok Sharma had sustained injuries and criminal case being GR no.137/2007 had been started against the defacto complainant and other witnesses of this case over such incident. It was the specific defence of the appellants that the defacto complainant and his witnesses had assaulted them and as a result co-accused Manoj Sharma and Ashok Sharma had sustained injuries and criminal case being GR no.137/2007 had been started against the defacto complainant and other witnesses of this case over such incident. The defence also exhibited the evidence of appellant no.1, Manoj Sharma and Ashok Sharma in the said case which they claimed to be a counter case to the present one. Such evidence was exhibited as Exhibit A, B and C. The said case had been started against J. Mishra (PW1), Anil Mishra (PW2), Sunil Mishra and Gourishankar Bhagat (PW3). It is pertinent to note that in the course of trial PW6 Dr. Dipak Kr. Basak was recalled by the trial Judge and examined as a Court witness. The defence also cross examined the said witness with regard to the injuries sustained by Ashok Sharma and Manoj Sharma. In conclusion of trial, the Trial Court by Judgement and order dated 06.08.2008 convicted the appellant numbers 1 and 2 for commission of offence punishable under section 304 (Part II) of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for 5 years and to pay fine of Rs.1,000/-, in default, simple imprisonment for 6 months. By the self same Judgement and order, the other accused persons were acquitted of the charges levelled against them. PW 1, Jaganath Mishra, is the father of the victim. He stated that he has a shop at Anjir Bagan beside one at Old Manbazar Road. On 06.03.2007 at about 8.30 a.m he was in his shop at Old Manbazar Road. He heard voices. At that time, Hriday Narayan Tewari (PW4) was with him. Following the voice, he went to the place from where the noise was coming and found appellant no.1 was complaining to his son Anil Mishra (P.W. 2) about the conduct of his grand son, Vishal Mishra (P.W. 7). His grand son had removed his pant and made obscene gestures to appellant no. 1. P.W. 1 and Anil Mishra (P.W. 2) requested appellant no. 1 to pardon the child. There was an altercation. In the course of altercation the appellants, Deonarayan, Dilip Sharma, Ashok Sharma, Santosh Sharma and Monoj Sharma assaulted Sunil. Sunil fell down on the ground. His grand son had removed his pant and made obscene gestures to appellant no. 1. P.W. 1 and Anil Mishra (P.W. 2) requested appellant no. 1 to pardon the child. There was an altercation. In the course of altercation the appellants, Deonarayan, Dilip Sharma, Ashok Sharma, Santosh Sharma and Monoj Sharma assaulted Sunil. Sunil fell down on the ground. He was taken away by Dilip Misra to their house and Dilip put him in a room and stood in front of room. PW1 accompanied by Gouri Shankar Bhagat (PW 3) and others also came to the place. Dilip was standing facing north. They were of the impression that the dispute was over. Five minutes later all the accused persons totalling about 15/16 in number armed with lathi and iron rod came to the place of occurrence and attacked Dilip. Appellant no.2 Sanjoy assaulted Dilip with rod. Thereafter appellant no.1 assaulted him with a wooden piece on his head. Dilip caught hold of his head and sat down. Thereafter all other accused persons assaulted Dillip. The accused persons went away. They raised alarm and remaining family members came out. As the accused persons were pelting stones towards the house, they were unable to go out from the front. Dilip was taken to the hospital through back portion of the house. He was taken to police station first and thereafter to hospital. Dilip was shifted to K. M. Memorial Hospital at Chas from Purulia Sadar Hospital where he succumbed to his injury. In cross examination, he denied the fact and stated that he did not state to the police that it was on hearing the noise he went to the P.O. and found accused persons assaulting Sunil and Dilip took Sunil to his house. PW1 stated that Dilip put all of them in a room and stood in front of the door. PW2 is the brother of Dilip and the de facto complainant in this instant case. He stated that on 06.03.2007 at about 8.30 a.m. the younger son Vishal Mishra (PW 7) went to buy pen from the nearby shop of Bablu Tiwary. At that time appellant no.1 armed with a lathi chased his son. His son disclosed such fact to him. He along with his wife and son went to appellant no.1 and asked the reason for chasing his son. At that time appellant no.1 armed with a lathi chased his son. His son disclosed such fact to him. He along with his wife and son went to appellant no.1 and asked the reason for chasing his son. Appellant no.1 stated that his son took off his pant and exhibited his private parts to him. He prayed for pardon on behalf of his son and altercation ensued. In the meantime, all family members of appellant no.1 came to the spot. Sunil also arrived at that spot. His father (PW1), Hriday Narayan Tiwari (PW4) and his mother (PW5) also came there. Dilip Mishra also came there. In the course of exchange of words, appellant no.1 and Debnarayan and their family members started assaulting them. Sunil fell down near the jam tree and he was assaulted. Sunil was rescued and taken to their house. All the accused persons came running towards the house. Dilip Mishra put all of them inside the house to avoid further dispute. Dilip stood in front of the door after closing the door from outside. Appellant no.2 assaulted Dilip with an iron rod on his forehead and Dilip leaned forward. Appellant no.1 then assaulted him with a wooden piece on the back portion of his head. Dilip fell down on the ground and the other accused person started assaulting him. PW1, Gouri Shankar Bhagat (PW3), Hriday Narayan Tiwari (PW4) tried to rescue him. The accused persons left the spot. The accused persons blocked the road. PW2 and others removed the injured Dilip from the backside of the house and took him to the police station. They found that the accused persons were present at the police station. They narrated the incident to the Police. Police advised them to take the injured to hospital. Dilip was taken to Purulia Sadar Hospital where the doctors advised him to be shifted to better centre. PW2 returned to police station. One Somnath Das wrote the written complaint as per his instruction. The written complaint was received at Purulia town police station and has been exhibited as Exhibit 1. He thereafter returned to hospital and took Dilip to Chas and got him admitted to K.M. Memorial hospital. On the next day, Dilip expired in the said hospital. Inquest was done at the hospital. He signed the inquest report. Wearing apparels of the deceased were seized. He signed on the seizure list. He thereafter returned to hospital and took Dilip to Chas and got him admitted to K.M. Memorial hospital. On the next day, Dilip expired in the said hospital. Inquest was done at the hospital. He signed the inquest report. Wearing apparels of the deceased were seized. He signed on the seizure list. In cross-examination, he stated that on the first occasion between 9.15 a.m. and 9.30 a.m. he was at the police station. Police interrogated him about the name of the injured and his name. He found appellant no.1 and accused Manoj and Ashok at the police station. He further stated that his father PW1 could not walk for last 10 years. He stated that at the time of assault on Dilip he and his family members were inside the room. PW3, Gouri Shankar Bhagat is a neighbour. He stated that on 06.03.2007 at about 8.30 am he heard a noise outside and went to Old Manbazar Road and found that appellants Dev Narayan Sharma, Ashok Sharma, Dilip Sharma, Sanjoy Sharma were pushing Sunil towards the Jam tree and assaulted him. He intervened when appellant no.1 assaulted him also. He along with Dilip and others rescued Sunil and took Sunil to the house of PW2. At that time the appellants and other accused persons rushed to the house of PW2. Dilip put Anil and Sunil inside the house and positioned himself near the door. Appellant no.1 assaulted Dilip on the head with an iron rod and when he leaned forward appellant no.2 assaulted him with a lathi. Dilip became senseless and fell down on the ground. The accused persons blocked the road. PW2 and Sunil took Dilip through the rear of the house to the police station. P.W. 3 stated that there was a window in the room where Anil and Sunil were kept by Dilip. Outer portion of the said road was visible through the window. In cross examination, he clarified that he was standing on the road in front of the house and had not gone inside the room. He however admitted that he was an accused in the case filed by appellant no.1. PW4, Hriday Narayan Tiwari, stated that on 06.03.2007 at about 8.30 a.m he was in the shop of PW1 and talking with him and his wife PW5. At that time grand son of PW1 came and appellant no.1 was following him with a lathi. He however admitted that he was an accused in the case filed by appellant no.1. PW4, Hriday Narayan Tiwari, stated that on 06.03.2007 at about 8.30 a.m he was in the shop of PW1 and talking with him and his wife PW5. At that time grand son of PW1 came and appellant no.1 was following him with a lathi. PW1 enquired about the matter when appellant no.1 disclosed that his grand son had taken off his pant and made obscene gesture at him. PW1 and PW2 tried to appease appellant no.1. In the meantime other accused persons came to the spot. They assaulted Sunil, another son of PW1 who fell down near the tubewell. They separated them. Dilip Mishra, the victim, took Anil and Sunil to his house and put them inside the house and stood in front of the door. At that time appellant no.1 armed with lathi and appellant no.2 armed with iron rod and others came to the said house. Appellant no.2 assaulted Dilip on the forehead. Appellant no.1 assaulted him on the back of the head with a lathi. Dilip fell down and later succumbed to his injuries. PW5 is the mother of the victim and wife of PW1. She has corroborated the evidence of PW1. She also stated that PW1 was helped by PW5 to come to the place of occurrence. PW6 is the doctor who treated Dilip at Purulia Sadar Hospital. He found that the injuries were suggestive of intracranial haemorrhage. PW6 was recalled under section 311 CrPC. In cross examination by defence he stated that he also examined Manoj Sharma and Ashok Sharma who were also treated as indoor patient in the hospital. They stated that they were assaulted by Dilip and Anil. PW7, Vishal Mishra is the son of PW2. He deposed that he misbehaved with appellant no.1 and appellant no.1 chased him. He has corroborated the prosecution case. PW8 is another son of Akash Mishra of PW2. He has also corroborated the prosecution case. PW9 is a constable who was attached to Purulia (I) police station. He signed on the seizure list relating to seizure of wearing apparels of the victim. PW10 is the daughter of PW 3. She has narrated the entire incident in details and has wholly corroborated the prosecution case. PW11 is the doctor who treated the victim at K.M. Memorial Hospital at Chas. He signed on the seizure list relating to seizure of wearing apparels of the victim. PW10 is the daughter of PW 3. She has narrated the entire incident in details and has wholly corroborated the prosecution case. PW11 is the doctor who treated the victim at K.M. Memorial Hospital at Chas. He stated that the victim died in the said hospital on 07.03.2007. PW12 is the investigating officer of the case. He has proved the first information report. He prepared a rough sketch map of the place of occurrence which was exhibited as Exhibit 7. In cross examination, he was examined with regard to the previous statements of the prosecution witnesses. Post mortem report was exhibited as Exhibit 7 on admission. Mr. Mukherjee, Senior Counsel appearing for the appellants argued that although charge in the instant case was framed under section 304/149 of the Indian Penal Code the appellants have been convicted under section 304(part II) of the Indian Penal Code. He submitted that no charge under section 304 (part II) simpliciter had been framed and therefore the conviction on such count was untenable. He relied on AIR 1955 SC 274 in support of his contention. He submitted that the first information report was an afterthought as P.W.2 himself had admitted that he went to the police station earlier and was interrogated by the police. He argued that the evidence of the purported eye witnesses suffered from gross embellishments. A new case was made out for the first time in Court wherein specific role was attributed to appellant nos.1 and 2. Such version is absent in the earlier statements of the witnesses recorded under section 161 CrPC by the I.O. before investigation. He further submitted that there was no finding with regard to the counter case which was tried along with the instant case. He submitted that as the other accused persons had been acquitted and the specific role of appellant nos.1 and 2 was introduced for the first time in Court the appellants ought to have been acquitted also. He sought to discredit P.W. 1 by referring to the deposition of P.W. 2 who in cross examination stated that his father (P.W. 1) could not walk. He stated that the version of the relation witnesses who are accused persons in the counter case ought not to be believed. He sought to discredit P.W. 1 by referring to the deposition of P.W. 2 who in cross examination stated that his father (P.W. 1) could not walk. He stated that the version of the relation witnesses who are accused persons in the counter case ought not to be believed. He relied on AIR 1984 SC 1622 paragraph 48 in support of such contention. Mr. Niladri Sekhar Ghosh, Ld. Counsel appearing for the State submitted that there were a number of eye witnesses who saw the incident and have consistently disclosed the role of the appellants in the murderous assault of the victim. He further submitted that the appellants were convicted with the aid of Section 34 of the Indian Penal Code. Section 34 of the Indian Penal Code being a rule of law and not a substantive offence need not be specifically stated in the charge when common intention of the accused persons is evident from the facts of the case. No prejudice on that score can be said to have been caused to the appellants. He further submitted that witnesses were not confronted with their earlier statements recorded during investigation to prove the contradictions and/or material omissions which amounted to contradictions. He further submitted that the injury report at Purulia Sadar hospital, Exhibit 4, clearly disclosed the name of the appellants as the assailant of the victim. He accordingly prayed for dismissal of the appeals. Let me examine the issue as to whether GR case no.137/2007 is a counter case to the present one relating to the incident of assault on Dilip Mishra resulting in his death. I find from the evidence on record that the incident on the fateful day i.e. 06.03.2007 occurred in 3 phases. Firstly, Vishal Mishra, PW 7 had misbehaved with appellant no.1. As a result, appellant no.1 chased him with a dang (lathi). Hearing such commotion, PW1, PW4 and PW5 came out from their shop at Old Manbazar Road and proceeded to the spot. PW2 father of Vishal and his wife also came to the spot. PW1 and PW2 tried to assuage the feelings of appellant no.1. In the meantime, other family members of appellant no.1 including appellant no.2 assembled at the spot. The other sons of PW10, namely, Dilip and Sunil also came to the spot. This spot is near a Jam tree beside a tubewell on the road. PW1 and PW2 tried to assuage the feelings of appellant no.1. In the meantime, other family members of appellant no.1 including appellant no.2 assembled at the spot. The other sons of PW10, namely, Dilip and Sunil also came to the spot. This spot is near a Jam tree beside a tubewell on the road. In the course of altercation appellants along with other accused persons pushed Sunil down on the ground near a Jam tree outside the tubewell near Old Manbazar Road and started assaulting him. He was rescued by Dilip and other prosecution witnesses and taken to the house of Anil Mishra at Anjir Bagan Road. This is the second phase of the incident. It is alleged that in the course of second phase of the incident, Ashok Sharma and Manoj Sharma suffered injuries on their persons at the behest of Dilip and Anil and were treated by PW6. After Dilip Mishra and others removed Sunil and took him to the house of Anil Mishra, PW2, at Anjir Bagan, the 3rd and final phase of the incident began. Dilip put Anil and Sunil inside the house and stood in front of the house after locking the door from outside. At this juncture, the appellants, and other accused persons rushed to the house and it appears from the prosecution evidence that appellant no.2 assaulted Dilip on his forehead with an iron rod and as he leaned forward appellant no.1 assaulted him with a lathi on the back of his head. Dilip sustained bleeding injuries and became unconscious and finally succumbed to his injuries in the hospital. The genesis of the aforesaid incident therefore makes it clear that the assault on Dilip resulting in his death, which is the subject matter of the instant case, occurred at a different place and time from where Manoj and Ashok were allegedly assaulted resulting in the registration of GR case number 37 of 2006. Such case therefore cannot be said to be a counter case to the present one where Dilip Mishra was assaulted by appellants resulting in his death. Hence, failure to explain injuries on Anil and Monoj who suffered such injuries in a mellee near a Jam tree situated near a tube well beside Old Manbazar Road cannot militate against the prosecution case of assault by the appellants on Dilip in front of house of P.W. 2 resulting in his death. Hence, failure to explain injuries on Anil and Monoj who suffered such injuries in a mellee near a Jam tree situated near a tube well beside Old Manbazar Road cannot militate against the prosecution case of assault by the appellants on Dilip in front of house of P.W. 2 resulting in his death. The incident near the Jam tree is a skirmish preceding the prosecution case and, at best, can be said to be a precursor thereto. As the two incidents occurred at different places and at different times one cannot be said to be a counter case to the other. It is trite law that evidence in one case cannot be used in another case. [See, Mithulal & Anr. Vs. State of M.P., 1975 SCC (Cri) 93]. Exhibit A, B and C is therefore of no use to determine the issues raised in this case. Charges were framed in the instant case under Section 147/325/304/149 of the Indian Penal Code. Conviction was however recorded under section 304 (Part II) of the Indian Penal Code. It has been strenuously argued that as the charges were framed under section 304/149 of the Indian Penal Code, conviction of the appellants under section 304/34 of the Indian Penal Code had prejudiced them. Section 34 is a rule of law and not a substantive offence whereas section 149 of the Indian Penal Code envisages a substantive offence. It has been further argued that under section 149 of the Indian Penal Code mere membership of an unlawful assembly would constitute offence whereas the pre-concert, presence and participation in the crime are essential pre-requisites for ingredients of existence of common intention under section 34 of the Indian Penal code. Reliance has been placed on Nanak Chand (supra) in this regard. In the said case, the Apex Court laid down distinction between 34 of the Indian Penal code and section 149 thereof. In the instant case the appellants came together to the place of occurrence being armed with weapons and assaulted the victim on the head due to a previous dispute. Pre-concert, presence and participation of the appellants in the crime are therefore clearly established. The appellants were fully conscious of the facts constituting the prosecution case levelled against them and have defended themselves. Pre-concert, presence and participation of the appellants in the crime are therefore clearly established. The appellants were fully conscious of the facts constituting the prosecution case levelled against them and have defended themselves. Hence, it cannot be said that they have been prejudiced by the conviction under section 304(Part II) of the Indian Penal Code with the aid of section 34 of the Indian Penal Code in the instant case. In Dhanna Vs. State of MP, (1996) 10 SCC 79 the Apex Court clarified the ratio in Nanak Chand (supra) by referring to Constitution Bench decision in Willi Williams Vs. State of MP. The Apex Court held as follows:- “8. Legal position on this aspect remained uncertain for a time after this court rendered a decision in Nanak Chand v. The State of Punjab. 1955 (1) SCR 1201 . But the doubt was cleared by a constitution bench of this court in Willie Slaney v. State of M.P., AIR 1956 SC 116 . Where this court observed at para 86, thus: “Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention: and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made put. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant.” 9. It is, therefore, open to the court to take recourse to Section 34 of IPC even if the said section was not specifically mentioned in the charge and instead Section 149 IPC has been included. Of course a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course. It is, therefore, open to the court to take recourse to Section 34 of IPC even if the said section was not specifically mentioned in the charge and instead Section 149 IPC has been included. Of course a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course. This view was following by this court in later decisions also, (Amar Singh v. State of Haryana. AIR 1973 SC 2221 . Bhoor Singh and Anr. v. State or Punjab, AIR 1974 SC 1256 ). The first submission of the learned counsel for the appellant has no merit.” Similar view is expressed in Annareddey Sambasiva Readdy & Ors. Vs. State of A.P., (2009) 12 SCC 546 (Para 53) PW1, 2, 5,6 and 7 are the relations of the victim. They have unequivocally stated that the victim was assaulted by the appellants on the head. Medical evidence has corroborated such version. It has been argued that the aforesaid witnesses being relations of the victim and some of them being accuseds in GR Case No. 137 of 2007 ought not to be believed. It has also been argued that it is doubtful as to whether the said witnesses could have seen the incident. It is true PW1 in his cross examination stated that Dilip put all of them in a room and stood in front of the door. PW2 has also stated in cross examination that he was put inside the room and his family members were also there. On the other hand, it is the case of PW3 and PW5 that Anil and Sunil were only put into the room. There is confusion in the prosecution evidence as to whether all the family members were put inside the room or only Anil and Sunil were put inside the room by Dilip. PW3 has deposed that there was a window in the room and the outside road was visible from such window. However, such fact is not corroborated by PW2. P.W. 2 has stated that his father (P.W.1) could not walk for the last 10 years as stated by PW2. PW 1 has not been confronted with such fact and PW5 has clarified the position that PW1 came to the place of occurrence with the help of PW4. However, such fact is not corroborated by PW2. P.W. 2 has stated that his father (P.W.1) could not walk for the last 10 years as stated by PW2. PW 1 has not been confronted with such fact and PW5 has clarified the position that PW1 came to the place of occurrence with the help of PW4. However, in view of the confusion as to whether all the family members of P.W. 1 were inside the room or not at the time of assault on Dilip and also in view of the inimical relationship between the families of the appellants on one hand and that of PW1 on the other hand, I do not find it prudent to rely solely on the evidence of the aforesaid prosecution witnesses solely to bring home the guilt of the appellants. Apart from the aforesaid witnesses prosecution has also relied on the evidence of PW3, PW4 and PW10 to prove its case. PW3 is a neighbour of PW2, PW10 is his daughter. They are most natural witnesses to the occurrence. Hearing the noise, PW3 came out and intervened when Sunil was being assaulted under the Jam tree. It is true that he has been made an accused in the case registered by appellant no.1. However, such fact acknowledges the presence of PW3 at the time when scuffle was going on between the two groups under the Jam tree beside the tubewell near Old Manbazar Road. P.W. 3 thereafter came to the place of occurrence in front of the house of PW2 where the appellants assaulted Dilip Mishra. In cross examination, PW3 remained unshaken and has clarified that he was outside the room and had seen the incident. His evidence is corroborated by his daughter, PW10. PW4 is another independent witness who had come to the shop of PW1 at Old Manbazar Road to collect money. He accompanied PW1 to the place of occurrence and witnessed the incident. It has been criticised that he is a chance witness. I find that the witness has adequately explained the circumstances under which he was present at the place of occurrence. He has wholly corroborated the prosecution case as narrated by PW3 and PW10. PW4 cannot be said to be a person who is in any way inimical to the appellants or their family members. He is also not an accused in the case started by appellant no.1. He has wholly corroborated the prosecution case as narrated by PW3 and PW10. PW4 cannot be said to be a person who is in any way inimical to the appellants or their family members. He is also not an accused in the case started by appellant no.1. The evidence of the aforesaid witnesses namely PW3, PW4 and PW10 fully establishes the prosecution case of assault of the victim by the appellants resulting in his death. In view of the facts that prosecution case finds support from independent witnesses particularly P.W. 4 the ratio in Sharad (supra) has no manner of application. It has been forcefully argued that the prosecution case as to the specific role attributed to appellant nos.1 and 2 was developed for the first time in Court. Mr. Mukherjee has extensively taken me through the cross examination of PW12, IO, in order to show that such version has transpired for the first time in Court. He has argued that if the specific role, as attributed to the appellants in evidence in deposition, is discounted as embellishments they stand on the same footing as other accused persons. I find that the prosecution witnesses PW1, 2, 3, 4, 5, 6 and 7 were not confronted with their earlier statements recorded during investigation. It is trite law that in order to take advantage of contradictions the witnesses must be confronted with that portion of their previous statements which is in contradiction to their deposition in Court. In Tahsildar Singh & Anr. Vs. State of U.P. ( AIR 1959 SC 1012 ) the Apex Court laid down the meaning of ‘contradiction’ with a previous statement and also the procedure of proving the same. It held as follows:- “13. The learned Counsel’s first argument is based upon the words “in the manner provided by s. 145 of the Indian Evidence Act, 1872 "found in s. 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention reliance is placed upon the Judgement of this Court in Bhagwan Singh v. The State of Punjab (1). Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention reliance is placed upon the Judgement of this Court in Bhagwan Singh v. The State of Punjab (1). Bose, J., describes the procedure to be followed to contradict a witness under s. 145 of the Evidence Act thus at p. 819: " Resort to section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then section 145 requires that his attention must be drawn to those parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made. "It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under s. 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under s. 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts: the first part enables the accused to cross-examine a witness as to previous statement made by him in writing or reduced to writing to without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction : in other words, both parts deal with cross-examination; the first part with cross-examination other than by way of contradiction, and the (1) [1952] S.C.R. 812. second with cross-examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. second with cross-examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to s. 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by s. 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of s. 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of s. 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of s. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness-box that B stabbed C ; before the police he bad stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned Counsel may be illustrated thus: If the witness is asked "did you say before the police" officer that you saw a gas light ? "and he answers "yes", then the statement which does not contain such recital is put to him as contradiction. This procedure involves two fallacies: one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police-officer. If a police-officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police-officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of s. 162 of the Code. If a police-officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police-officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of s. 162 of the Code. The second fallacy is that by the illustration given by the learned Counsel for the appellants there is no self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police-officer and what he actually made before him. In such a case the question could not be put at all: only questions to contradict can be put and the question here posed does not contradict it leads to an answer which is contradicted by the police statement. This argument of the learned Counsel based upon s. 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of s. 162 of the Code of Criminal Procedure.” It further held, “19. "Contradict "according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police-officer-in the sense we have indicated and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other.” Such course had not been adopted in the instant case. Neither can the deposition of the witnesses be said to be so inherently inconsistent with their previous statements to tantamount to contradiction in law. In Jaswant Singh Vs. Neither can the deposition of the witnesses be said to be so inherently inconsistent with their previous statements to tantamount to contradiction in law. In Jaswant Singh Vs. State of Haryana, (2000) 4 SCC 484 the Apex Court observed that to take advantage of ‘material omissions’ amounting to contradictions, questions have to be put of the witness as to whether the specific question (answer of which is claimed to be omitted) was asked of the witness. The Apex Court observed, “47. Section 161(2) of the Code requires the person making the statements 'to answer truly all questions relating to such case, put to him by such officer....”. It would, therefore, depend on the questions put by the police officer. It is true that a certain statement may now be used under Section 162 to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. Previously, the law was as enunciated in Tehsildar Singh and Another v. The State of Uttar Pradesh, [1959] 2 SCR 875: as: “(i) “omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box.” 48. Now the Explanation to Section 162 provides that an omission to state a fact in the statement may amount to contradiction. However, the explanation makes it clear that the omission must be a significant one and “otherwise relevant” having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. 49. Reading Section 161(2) of the Criminal Procedure Code with the Explanation to S.162, an omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness. In this case the Investigating Officer, PW 13 was not asked whether he had put questions to Gurdeep Kaur asking for details of the injuries inflicted or of the persons who had caused the injuries. 50. As already noted Gurdeep Kaur’s testimony in this regard was believed by both Courts. Both the trial Court as .well as the High Court were of the view that although Gurdeep Kaur had not given to the Police particulars of who had caused which injury she had not deviated from the actual occurrence and the manner in which it had happened. Both the trial Court as .well as the High Court were of the view that although Gurdeep Kaur had not given to the Police particulars of who had caused which injury she had not deviated from the actual occurrence and the manner in which it had happened. This Court has also held that: (SCC p. 197, para 12) “an incident where a number of persons assaulted three persons at one and the same time with different weapons, some contradictions as to who assaulted whom and with what weapon were not unlikely, and such contradictions could not be made a ground to reject the evidence of eyewitnesses, if it was otherwise reliable. (See : Satbir v. Surat Singh, [1997] 4 SCC 192.)” Omnibus statement that certain facts were not disclosed by witness to police is not enough. Question must be posed to the I.O. as to whether he had asked of the witnesses during interrogation the specific role of the accused persons in the incident more particularly when there are more than one accused persons in the case. When the assault is by more than one accused person failure to specific particular role in the previous statement of the witnesses can be said to be a ‘material omission’ in the facts of the case. No question querying about the specific role of the assailants appears to have been put to the witnesses by the I O (P W 12) and therefore it is difficult to infer whether particularisation of specific role in Court is in the nature of embellishment or a result of cryptic questioning during investigation where the witnesses were not quizzed about specific role of the accused persons particularly in the assault of the victim. In the face of cogent evidence on record specifically implicating the appellants in the assault of the victim, the prosecution case against the appellants cannot be disbelieved on the purported claim of contradiction or omission in the deposition of witnesses, which are neither material not proved in accordance with law. In the instant case the appellants cannot be treated at par with other acquitted persons for another reason. Apart from the specific roles attributed to them in deposition, their names also transpires as assailants in the bed head ticket (Exhibit 4) of the victim at Purulia Sadar Hospital where he was first admitted. In the instant case the appellants cannot be treated at par with other acquitted persons for another reason. Apart from the specific roles attributed to them in deposition, their names also transpires as assailants in the bed head ticket (Exhibit 4) of the victim at Purulia Sadar Hospital where he was first admitted. Although P.W. 6 states that he cannot recollect the name of the person who narrated the identity of the assailants to him, the fact that such document came into being immediately after the incident and even prior to FIR, the chance of false incorporation of the names of the appellants therein is virtually ruled out. Another accused Rekha is also referred in the said exhibit. No evidence however has transpired against her during trial and accordingly she has been rightly acquitted. In view of the specific role attributed to the appellants in the assault of the victim as transpiring from the evidence on record which stands corroborated by Exhibit 4 wherein their names appear as assailants, I am of the view that appellants cannot be said to stand on the same footing as the other acquitted accused persons. In the aforesaid discussion, I uphold the conviction of the appellants in the instant case. Coming to the issue of sentence, I find that the appellant no.1 is about 77 years of age. The incident occurred in the course of a quarrel between the two families where PW6 had misbehaved with the appellant no.1. Accordingly, I am of the opinion that the sentence imposed upon appellant no.1 may be reduced. I direct as the appellant no.1 shall suffer simple imprisonment for three years and pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for six months more and appellant no.2 shall suffer simple imprisonment for five years and pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for six months more. Period of detention of the appellants shall be set off against the period of detention they have already undergone under section 428 Cr.P.C. in accordance with law. The appellants are directed to surrender before the trial Court within one month from date to serve out their sentences and pay the fine, as aforesaid, failing which the trial Court shall take necessary steps for execution of the sentence and realisation of fine in accordance with law. The appellants are directed to surrender before the trial Court within one month from date to serve out their sentences and pay the fine, as aforesaid, failing which the trial Court shall take necessary steps for execution of the sentence and realisation of fine in accordance with law. Copy of the Judgement along with Lower Court Record be sent down to the trial Court at once.