Suchand Pal v/s Phani Pal and Another

Introductions:

The paramount consideration of the Court is to ensure that miscarriage of justice is prevented.

A miscarriage of justice which may arise from acquittal of the guilty is no less than from the

conviction of an innocent. If the impugned judgement is clearly unreasonable and relevant

and convincing materials have been unjustifiably eliminated in the process, it is a compelling

reason for interference," the apex court has stated time and time again for the purpose of

ascertaining as to whether any of the accused really committed any offence or not.

Facts:

01-06-1977: Information was filed at Bindpur police station about murderous assault on one

Midnap Bhanumati and infliction of serious injuries on others.

In the morning the accused personals conspired to erect a fence inside the

courtyard while stating that if any from the complainant party caused

obstruction we should finish them.

07:30 AM: party led by Golok started digging holes for the fence, when protested by

Brindaban (PW1) Golok and Niranjan ordered to kill Brindaban Pal. The

accused rushed to the 1 st floor and brought out guns and bow and arrow from

their house. They fired at Brindaban but missed at first, then they reloaded and

took another shot, this time hitting Bhanumati, wife of Brindaban Pal who was

sweeping nearby. As the crowd of the villagers assembled after hearing the

commotion, all except Phani fled the scene who subsequently eloped after

threatening and waving a gun in face of villagers.

08:30 AM Police arrived at the spot and arranged sending the injured Bhanumati to local

Binpur Primary Health Centre, where she made her dying declaration before

succumbing to her injuries.

08-04-1978: One of the accused named Golok Pal died.

27-02-1979: Charge sheet was submitted as Golok Pal and his two sons, Phani Lal and

Niranjan Pal, and two more persons named Narendra Patra and Sawarn Dutta

were charged under Section 304/32 and 307/34 of IPC.

27-08-1980: Phani Lal was further charged under section 25(1)(a) of the Arms Act.

05-11-1981: Complainant party moved to honourable High court in criminal revision case

number 2270 of 1981. The four accused were further charged under section 447

of IPC.

02-02-1982: Before trial of the case started accused Narendra Patra died.

Background:

The additional sessions Judge,3 rd court, Midnapore had found the accused guilty of the

offence punishable under section 302 and 307 of the Indian Penal Code,1860 and also section

25 of the Arms Act,1959. Sentence of imprisonment of life, 7 years and one year respectively

was awarded. There were a total of 5 accused while two of them died during trail and two

were found not-guilty by the trial court, only respondent 1 who was found guilty and

convicted.

Conviction was challenged before the Calcutta High Court.

The division bench directed acquittal by stating defence version was way more probable. The

bench noted that not only the gunshot injuries received were impossible to be sustained in the

manner the prosecution was suggesting but the prosecution even tried to improve upon its

version by making a departure from the scenario as projected from beginning and tried to

reconcile the oral evidence by indicating a new background. Furthermore, the dying

declaration was not acceptable as the person recording the declaration admitted that the

deceased only affirmed what her husband (PW1) stated in response to the queries put up by

the officer recording the dying declaration. Thus, High court found the prosecution version to

be untrustworthy and not capable of acceptance.

Supreme court stated “We do not find any infirmity in the judgment of the High Court to

warrant interference. The appeal fails and is dismissed.”

Analysis:

It is quite clear that the way bench has approached the issue is quite erroneous as the dying

declaration should not have been discarded just because of a technicality that wife didn’t give

the answers herself and agreed to husband’s answers. I believe that the victims agreement and

consent to the husband’s answers should have the equal weightage and should be considered

as a proper and valid dying declaration. It is because the key elements remain the same the

victim was on her deathbed with no surety of living further and must be in extreme pain due

to the bullet wounds hence an assistance by the husband should’ve not tampered the validity

of the dying declaration. In Queen Empress v/s Abdullahit it was held that there is no

particular form of recording a dying declaration. It can be by way of gestures, conduct or

signs as well. Also the sheer number of eye witness that was held obsolete merely because of

a medical evidence is astounding. Even the learned counsel for the respondent accepted that

“the credible ocular evidence is not to be discarded when it is somewhat at variance with the

medical evidence.” As clearly stated prior in Kamaljit Singh v. State of Punjab. As during the

trial, the prosecution examined twenty-one witnesses while the accused persons who pleaded

guilty and false implication examined only two. And since among the twenty-one witnesses

the majority were from the general villagers with no interest or motive in the case nor they

had any grudge or previous altercations with either of the parties of the case it is quite well

established that the witnesses were not fraudulent. It is quite possible that a doctor can make

error in judging the bullet wounds as he derives his info from only the wounds inflicted on

the anatomy of victim’s body while he is unaware from the heavily manipulative aspects of

the knowledge of arms and ammunition, it is easily possible that the accused were using guns

of high calibre which can cause fatal injury even from a distance of 1st floor. Also the fact

that the accused fired multiple rounds after reloading shows clear malicious intent to grievous

injury or death opposite for firing in the air for deterrence. Also in Khushal Rao v/s State of

Bombay, The Supreme Court adopted the principles laid down by the Privy Council in the

case of Pakala Narayan Swami v/s Emperor, which includes inter alia the following: A dying

declaration is not a weaker kind of evidence and the necessity of corroboration doesn’t arise

from inherent weakness of a dying declaration but from the fact that in a particular case the

particular declaration is not free from infirmities and lastly the supreme court itself has stated

that the testimony of eyewitness will have precedence over the medical report for deciding

criminal cases. Over dependence on medical opinion to discard testimony of an eyewitness is

not conducive for the administration of criminal justice system. In Mahavir Singh v. State of

M.P it is clearly put down that ocular evidence may be disbelieved only in situation where the

medical evidence goes so far that it completely rules out the possibility of the ocular evidence

being true. Even in Solanki Chimanbhai Ukabhai v. State of Gujarat it was held that the

eyewitnesses account should be preferred unless the medical evidence completely rules it out.

This discussion, no doubt, leads to a conclusion that in case of minor variances between the

oral and medical evidence,oral evidence can be given primacy over the other.

Conclusion:

It is evident that the accused who were all well-armed constituted an unlawful assembly. The

common object of the assembly and that it was shared by all of them with awareness is also

evident from their conduct in having firing rounds again after missing and reloading. When

the acquittal by the trial court was found to be on the basis of unwarranted assumptions and

manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence

(twenty-one eye-witnesses) resulting in serious and substantial miscarriage of justice, the

High Court can in this case be found at fault for its ill merited interference.

Reference:

[1] Sections 302:  Punishment for murder—Whoever commits murder shall be punished with death, or

1[imprisonment for life], and shall also be liable to fine.

[2]307 of the Indian Penal Code: Attempt to murder.—Whoever does any act with such intention or knowledge,

and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be

punished with imprisonment of either description for a term which may extend to ten years, and shall also be

liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to

1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts. -

2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is

caused, be punished with death.] 

[3] Section 25 of the Arms act,1959- Punishment for certain offence, (1) Whoever,

(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or

has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in

contravention of section 5

[4] Section 34 - Acts done by several persons in furtherance of common intention—When a criminal act is done

by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the

same manner as if it were done by him alone.

[5] Sections 447 IPC - Punishment for criminal trespass - Whoever commits criminal trespass shall be punished

with imprisonment of either description for a term which may extend to three months, with fine or which may

extend to five hundred rupees, or with both.

[6] https://economictimes.indiatimes.com/news/politics-and-nation/eyewitnesses-score-over-medical-

report/articleshow/2905604.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[7] https://www.latestlaws.com/latest-news/despite-discrepancy-between-ocular-and-medical-evidence-apex-

court-sets-aside-the-order-of-acquittal/

[8] https://www.scconline.com/blog/post/2018/07/10/ocular-evidence-is-to-be-disbelieved-where-the-medical-

evidence-rules-out-possibility-of-it-being-true/

[9] http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=6767

credit: YASHASVI,

Clg name:LLOYD LAW COLLEGE