DEBASHIS DAW & ORS.versusSTATE OF WEST BENGAL

                       [2010] 9 S.C.R. 654


A
                    DEBASHIS DAW & ORS.
                                v.
                   STATE OF WEST BENGAL
               (Criminal Appeal No. 1679 of 2005)
B
                        AUGUST 5, 2010

      [B. SUDERSHAN REDDY AND SURINDER SINGH
                     NIJJAR, JJ.]

c      Penal Code, 1860 - ss. 148, 3241149 ands. 304 Part II
  149 - Accused armed with deadly weapons forming unlawful
  assembly and causing injury to one and death of another -
  Conviction and sentence u/ss. 148, 3241149 ands. 304 Part
  11149, by courts below - Interference with - Held: Each of the
D accused was part of unlawful assembly and armed with deadly
  weapons, together indulged in indiscriminate beating and
  freely used weapons in their hands causing severe injuries
  on the body of deceased - Evidence of injured witness and .
  PWs 5 and 8-father and mother of deceased was reliable -
E Medical evidence not at variance with the version given by
  father and mother of deceased - Minor contradictions in the
  evidence of Investigating officer and injured witness would not
  affect the prosecution case - Thus, conviction of accused
  upheld but sentence reduced to the period already undergone
F - Evidence.

      According to the prosecution case, the appellants
  formed themselves into an unlawful assembly and armed
  with deadly weapons caused injuries to PW 2 and
G assaulted SG, resulting in his death. The trial court
  convicted and sentenced the appellants u/ss. 148, 324/
  149 and s. 304 Part 11149 IPC. The High Court upheld the
  order. Hence these appeals.


H                              654
   DEBASHIS DAW & ORS. v. STATE OF WEST               655
                 BENGAL
    Disposing of the appeals, the Court                      A

     HELD: 1. The conviction of the appellants is upheld
but having regard to the peculiar facts and circumstances
of the case, the sentence is reduced to that of the period
already undergone. The appellants may be released from
                                                             8
the jail forthwith provided they are not required in any
other case. [Para 22) [669-C-D]

     2.1 There is no reason to disbelieve the evidence of
PW 2. It is in his evidence that the deceased was a very
close friend of his and both of them were on visiting        C
terms. It is clearly stated in his evidence that on 30th
March, 1986, at about 6.00 in the evening, that when PW
2 and the. deceased reached the culvert near the licensed
country liquor shop, the appellants encircled him and the
deceased with deadly weapons in their hands. RD (since       D
died) hit the deceased with a lathi on his· head and the
deceased fell down, then RD hit PW 2 with a lathi on his
right leg. Thereafter, all the appellants attacked them at
random with different weapons. He could see the
deceased somehow managed to save himself from the            E
hands of the appellants and ran towards the east but all
the appellants were chasing him with the weapons in
their hands. He named only four persons in his statement
made to the Doctor-PW 7 who treated him in the hospital.
He must have been under terrible shock as he along with      F
the deceased was encircled by a riotous mob with deadly
weapons in their hands. The mere fact that he did not
mention the names of all the accused is no reason to
disbelieve his evidence. There is no particular reason
suggested in the cross examination as to why he should       G
depose falsely against the appellants. Admittedly, the
deceased and PW 2 were bosom friends and meeting
almost everyday. His presence at the scene of offence
along with the deceased cannot be doubted. In the
circumstances, the courts below rightly placed reliance
                                                             H
   656     SUPREME COURT REPORTS               [2010] 9 S.C.R.


A on the evidence of PW 2. [Para 13) [664-B-H; 665-A]

         2.2 There is no reason to reject the evidence of PWs
    5 and 8-father and mother of deceased. They clearly
    speak about the assault on the deceased by the
    appellants forming themselves into an unlawful assembly
8
    armed with deadly weapons. They did not realise as to
    who was the victim when the accused were actually
    assaulting the deceased. There is nothing unnatural in
    the evidence of PWs 5 and 8 that they have seen the
    actual assault on the victim inasmuch as the appellants
C having themselves formed into unlawful assembly armed
    with deadly weapons encircled the victim and it is for that
    reason they could not realize that the victim injured in the
    act of indiscriminate attack was none other than their own
    dear son. [Para 14) [665-D-G]
D
         2.3 The submission that the torch lights that were
  · seized and produced in the Court were without batteries
    and bulbs and therefore there was no possibility of PW
    5 identifying the appellants as the assailants at the place
E of occurrence that took place at about 9.00 p.m. cannot
    be accepted. The fact that the torch lights marked as
    material objects are without batteries and bulbs after so
    many years is of no consequence. They were perhaps
    missing for obvious reasons. [Para 15) [665-G-H; 666-A-
F B]
       2.4 The Sessions Judge in his judgment noted that
  the incident had taken place on 31st March, 1986 just after
  four days after the full moon and all the assailants were
  known to PWs 5 and 8 and it was not impossible for them
G to identify them at the relevant time. There is no reason
  not to accept the reasons given by the Sessions Judge
  in this regard. [Para 16) [666-B-C]

     2.5 There is no merit in the criticism levelled by the
H counsel about the absence of the parents of the
    DEBASHIS DAW & ORS. v. STATE OF WEST                657
                  BENGAL
deceased at the hospital and their not accompanying their      A
injured son to the hospital after being pulled out from the
drain. This, according to the counsel, makes the presence
of PWs 5 & 8 at the scene of occurrence doubtful. It is
clearly stated in the evidence of PWs 5 and 8 that their
request to accompany the injured to the hospital was           B
turned down for want of accommodation in the Jeep and
the LO.-PW 9 also supported the said version. The 1.0. in
his evidence clearly stated that all his effort was to shift
the injured quickly and take him for the treatment and in
the process did not bother as to who should accompany          c
the victim in the jeep. There was mud all over the body
of the victim with the multiple injuries. [Para 17] [666-D-
F]

      2.6 The submission that the scene of occurrence has
been deliberately shifted to the vicinity of the residence     D
of PW 5 to conveniently press the parents of the victim
into service to speak falsely cannot be accepted. The
failure to collect control earth from the scene of
occurrence by the 1.0. may be a lapse on the part of the
1.0. but the same would not make the presence of PWs 5         E
and 8 doubtful at the scene of occurrence. There is no
particular reason suggested to PWs 5 and 8 as to why
they should speak falsely against the appellants. Once
the evidence of PWs 5 and 8 is accepted minor
contradictions if any in the evidence of the 1.0. and PW 2     F
fail to persuade to take a different view. [Para 18] [666-G-
H; 667-A-B]                                                .

     2.7 The evidence of Medical Officers-PWs 6 and 7 is
of some importance. The medical evidence is not at             G
variance with the version given by PWs 5 and 8 who are
undoubtedly the eyewitnesses to the incident. [Para 19]
[667-C-E]
    2.8 The submission that mere fact that PWs 5 and 8
are consistent in their.say is not a sure guarantee of their   H
    658     SUPREME COURT REPORTS              [2010) 9 S.C.R.


A truthfulness and the courts below ought to have
  considered all the circumstances and taken their version
  as a whole instead of relying on their evidence in the
  examination-in-chief, is untenable. The trial court as well
  as the appellate court did consider their evidence in its
B entirety including the cross examination and found
  nothing in it to discard their evidence for any reason
  whatsoever. It is not a case where the courts found the
  case of the prosecution doubtful or incredible but
  convicted the appellants merely on the basis that the
c evidence of PWs 5 and 8 was consistent. The High Court
  critically scrutinized the evidence in detail and
  discharged its responsibility as a final Court of fact. [Para
  20] [667-F-H; 668-A-B]
       Badam Singh Vs. State of M.P. 2003 (12) SCC 792 -
D referred to.
      2.9 Mere presence of the persons at the scene of
  offence itself would not be enough to convict them and
  punish under section 149 IPC unless it is established that
E each one of them was part of the unlawful assembly and
  committed the offence in prosecution of the common
  object of that assembly. In all such cases, the question
  who had committed the overt act is of no consequence.
  [Para 21] [668-B-D]
F        Akbar Sheikh Vs. State of WB. 2009 (7) SCC 415 -
    relied on.
       2.10 The trial court and as well as the High Court,
  found that all the stated ingredients were present for each
  of the appellants was found to be part of the unlawful
G assembly armed with deadly weapons and shared
  common object with that intention participated in the
  commission of offence. The evidence available on record
  clearly suggests that each of the appellants was part of
  the unlawful assembly and armed with deadly weapons,
H together indulged in indiscriminate beating and freely
   DEBASHIS DAW & ORS. v. STATE OF WEST               659
                 BENGAL
used weapons in their hands causing severe injuries on       A
the body of the deceased. [Para 21] [668-E-G]
    2.11 The courts have to be very careful in case where
general allegations are made against a· large number of
persons and the courts should categorically scrutinize       8
the evidence and hesitate to convict the large number of
persons if the evidence available on record is vague.
There must be reasonable circumstances which lend
assurance to the story of the prosecution. [Para 21] [668-
G-H; 669-A]
                                                             c
    Sherey and Ors. vs. State of U.P. 1991 Supp. (2) SCC
437 - relied on.
     2.12 In the instant case, there are no circumstances
to doubt the presence of the appellants as well as their     D
membership of the unlawful assembly. This is clear from
the evidence of PWs 5 and 8 which the Courts below
accepted for good and cogent reasons. It is not
necessary to undertake a detailed scrutiny of the
evidence of PWs 5 and 8 in view of the concurrent
findings by the Courts below upon proper appreciation        E
of evidence. There is no reason to disturb the concurrent
findings of the courts below holding the appellants guilty
of the charged offences. [Para 21] [669-A-C]
                    Case Law Reference:                      F
    2003 (12) sec 192       Relied on.          Para 20
    2009 (7) sec 415        Relied on.          Para 21
    1991 Supp. (2) SCC 437 Referred to.         Para 21      G
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1679 of 2005.
    From the Judgment and order dated 21.04.2005 of the
High Court at Calcutta in Criminal Appeal No. 414 of 1989.   H
    660      SUPREME COURT REPORTS                [2010] 9 S.C.R.


A                               WITH
    Criminal Appeal No. 1680 of 2005.

    Criminal Appeal No. 924 of 2006.

B       Pradip Kumar Ghose, Rauf Rahim, Rakesh Garg (A.C.),
    Tara Chandra Sharma, Neelam Sharma, Kishan Datta, Avijit
    Bhattacharya and Ananya Kar for the appearing parties.

          The Judgment of the Court was delivered by

C         B. SUDERSHAN REDDY, J. 1. The appellants in these
  appeals and three others were tried in Sessions Trial Case No.
  XXVll of March 1987 by the Additional Sessions Judge,
  Midnapore for offences punishable under Sections 148, 324/
  149 and 304 part 1/149 of the Indian Penal Code. The learned
D Additional Sessions Judge, as per his judgment dated 26th
  September, 1989 convicted the accused persons under
  Sections 148 and 304 part I read with Section 149 and as well
  as under Section 324/149, IPC and sentenced them to suffer
  rigorous imprisonment for ten years each under Section 304
E part I read with Section 149, IPC only. No separate sentence
  has been awarded for the proven charges under Sections 148
  and 324/149 of the IPC. The appellants herein preferred
  appeals before the High Court at Calcutta. A Division Bench
  of the High Court, as per its judg111ent dated 21st April, 2005
F dismissed the appeal of the appellants.

        2. Against the said judgment of the High Court, the
    appellants have preferred the above noted three criminal
    appeals.

G        3. Brief facts necessary for disposal of these appeals are
    as follows:
        According to prosecution case, on 31st March, 1986, the
    appellants have formed themselves into an unlawful assembly
    and being armed with deadly weapons like bhoja/i, sword, tangi
H
    DEBASHIS DAW & ORS. v. STATE OF WEST                661
       BENGAL [B. SUDERSHAN REDDY, J.]
and lathi etc. had been at Rajagram Kharida T.O.P. under A
Kharagpur (town) P.S. and all of them being members of such
unlawful assembly, voluntarily caused hurt with a sharp cutting
weapon and injured Kalyan Seth (PW 2) and also assaulted
Subrata Ghosh (deceased) with deadly weapons and as a result
ol such assault, the said Subrata Ghosh succumbed to his B
injuries.

      4. The police officer of Kharagpur (town) P.S. having
received the information over telephone, made a G.D. entry and
rushed to the place of occurrence where he met Suphala Sau C
(PW 1) who narrated about the incident which was reduced into
writing at about 11.35 p.m. on 31st March, 1986. The injured
Kalyan Seth (PW 2) was taken to the hospital by the local
residents at about 11.00 p.m. on 31st March, 1986 and was
treated by Dr. Subrata Jana (PW 7). The First Information
Report (FIR) was despatched from police station on 1st April, D
1986 at about 10.00 a.m.

     5. The Investigating Officer recovered the body of the
injured Subrata Ghosh and sent to nearby hospital for
immediate medical treatment where he died. The Investigating    E
Officer conducted inquest over the dead body of the deceased
and witnesses were examined in ronnection with the case. The
1.0. completed the formalities and made charge sheet against
18 persons including one Rabin Dangua and Sibu Borua who
died before the commencement of sessions trial.                 F

     6. The prosecution altogether examined ten witnesses
including parents of the deceased victim Subrata Ghosh and
the injured person Kalyan Seth (PW 2). Dr. Madanmohan Das
(PW 6) is the Medical Officer who conducted post-mortem of G
the deceased.

    7. The trial Court upon appreciation of the evidence on
record, came to the conclusion that all the appellants were
members of the unlawful assembly and were present at the
place of occurrence armed with deadly weapons with the object   H
    662     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   of rioting and in the process, attacked and assaulted Subrata
    Ghosh (deceased) causing multiple injuries resulting in his
    death. The trial Court also came to the conclusion that Kalyan
    Seth (PW 2) also received injuries from the appellants who
    formed themselves into unlawful assembly. The trial Court
8   accordingly found all the appellants guilty for the offences pu
    nishable under Sections 148, 324/149 and 304 part 1/149, IPC
    and accordingly sentenced them as noted hereinabove.

         8. The High Court, upon reappreciation of the evidence
    available on record, concurred with the findings and conclusions
C   reached by the trial Court and accordingly dismissed the
    appeal.

         9. We have heard Shri Pradip Kumar Ghosh, learned
    senior counsel on behalf of the appellants and as well as MIS
D   Rauf Rahim and Rakesh Garg, learned counsel for the
    appellants in the connected appeals. We have also heard Shri
    T.C. Sharma, advocate on behalf of the State. ·

       10. The learned senior counsel for the appellants
E strenuously contended that the FIR in the present case is
  unreliable document because it was neither first in point of time
  nor truthful in its contents. The submission was that the maker
  of the FIR, Ms. Sufala Sau (PW 1) did not support her version
  given in the FIR while deposing in the Court. Learned senior
  counsel further contended that the injured Kalyan Seth (PW 2)
F gave entirely a different version implicating only Rabin Dangua,
  Dulal Khara, Mantu Santra and Chunki Santra when he made
  a statement to the Doctor (PW 7) who treated him at the
  hospital. It was mainly contended .that the prosecution
  deliberately shifted the place of occurrence from Rajagram
G Kharida to that at Gokulpur road with an obvious intention to
  introduce the parents of the deceased who were examined as
  PWs 5 and 8 in the trial Court. The learned senior counsel
  submitted that admittedly the police received a telephonic
  message to the effect that a disturbance was going on at
H Teghori near Madbhati liquor shop and to that effect made a
   DEBASHIS DAW & ORS. v. STATE OF WEST                       663
      BENGAL [B. SUDERSHAN REDDY, J.]

G.D. entry at 10.45 pm on 31st March, 1986. There is no A
explanation forthcoming as to why the police reached Rajagram
instead of village Teghori since the telephonic message
received by the police was regarding some disturbance at
village Teghori. It was submitted that there is no explanation
forthcoming as to why the police went to the house of Suphala B
Sau (PW 1) who is a resident of Rajagram which is a village
to the east of railway line and opposite to the side of village
Teghori. These factors, according to the learned senior counsel,
make the whole prosecution story doubtful. Learned senior
counsel made an attempt to point out certain contradictions in        c
the evidence of PWs 2, 5 and 8 who are stated to be the
eyewitnesses. The submission was that if PWs 5 and 8 are to
be disbelieved there is no other credible evidence at all to
convict the appellants. It was further submitted that Kalyan Seth
(PW 2) specifically pointed out and named only four persons D
as his assailants in his statement made to the Doctor (PW 7)
at the hospital. None of the appellants in Criminal Appeal No.
1679 of 2005 were named by him. He, however, named only
Mantu Santra being one of the appellants in Criminal Appeal
No. 1680 of 2005. Later on, he named others in Court but that E
was an improvement in his deposition.

      11. Learned counsel for the respondent submitted that the
trial Court and as well as the app€ .. 1te Court, upon appreciation
of evidence, found the appellants guilty of the charges framed
against them and there is no reason to interfere with concurrent      F
findings of fact arrived at by the Courts below. Learned counsel
submitted that there is absolutely no reason to disbelieve PWs
2, 5 and 8 who are material witnesses examined by the
prosecution in support of their case.
                                                                      G
     12. Suphala Sau (PW 1) is the maker of the FIR but was
declared hostile as she did not support the prosecution story.
Nothing much turns upon her evidence except that she
disclosed that there was an unlawful assembly of which some
of the appellants were members carrying deadly weapons but            H
    664     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   she did not state anything about the actual participation of the
    appellants either in inflicting the assault on PW 2 or on the
    deceased. She retracted from her version given in the FIR.
    Nothing much turns upon her evidence and the Courts below
    did not place any reliance on her evidence to convict the
B   appellants.

        13. We do not find any particular reason as to why the
  evidence of Kalyan Seth (PW 2) is to be disbelieved. It is in
  his evidence that the deceased was a very close friend of his
C and both of them were on visiting terms. It is clearly stated in
  his evidence that on 30th March, 1986, at about 6.00 in the
  evening, the deceased came to his house and after about three
  hours, both of them were proceeding towards the house of the
  deceased at Teghori which is at a distance of about 250 meters
  to the east of his house, when they have reached the culvert
D near the licensed country liquor shop, the appellants encircled
  him and the deceased with deadly weapons in their hands.
  Then all of a sudden,· Rabin Dangua (since died) hit the
  deceased with a lathi on his head and the deceased fell down,
  then Rabin Dangua hit PW 2 with a /athi on his right leg.
E Thereafter, all the appellants attacked them at random with
  different weapons. He could see the deceased somehow
  managed to save himself from the hands of the appellants and
  ran towards the east but all the appellants were chasing him
  with the weapons in their hands. Of course, he named only four
F persons in his statement made to the Doctor (PW 7) who
  treated him in the hospital. Obviously, he must have been under
  terrible shock as he along with the deceased was encircled by
  a riotous mob with deadly weapons in their hands. The mere
  fact that he did not mention the names of all the accused is no
G reason to disbelieve his evidence. There is no particular reason
  suggested in the cross examination as to why he should
  depose falsely against the appellants. Admittedly, the deceased
  and PW 2 were bosom friends and meeting almost everyday.
  His presence at the scene of offence along with the deceased
H
                                                                       I
    DEBASHIS DAW & ORS. v. STATE OF WEST                     665
       BENGAL [8. SUDERSHAN REDDY, J.]
cannot be doubted. In the circumstances, we hold that the Courts     A
below rightly placed reliance on the evidence of PW 2.

      14. PW 5 is the father of the deceased. On the fateful day
 at about 9.00 p.m. he was at his house at Teghori. He came
 out of the house along with his wife after hearing an alarm and     B
 went towards the railway line to ascertain the cause as the
 alarm was coming from the eastern side of the railway line. After
 crossing rail line, he saw a group of persons. He was having a
 torch light with him and clearly saw the appellants armed with
 deadly weapons encircling and assaulting somebody. At that
 time he did not realize that his son was the victim because the     C
 victim was encircled by the mob. Only after the mob left, he
 searched for the unfortunate victim subjected to assault by the
 appellants and to his utter shock and dismay, realized that the
 victim was none other than his son Subrata Ghosh lying in the
 drain with multiple injuries. The injured was pulled out from the   D
 drain. In the meanwhile, the police reached there and took the
.injured to hospital. This version has been fully corroborated by
 the evidence of PW 8 who is none other than the mother of the
 deceased. We do not find any reason to reject the evidence of
 PWs 5 and 8. They clearly speak about the assault on the            E
 deceased by the appellants forming themselves into an unlawful
 assembly armed with deadly weapons. It is true that they did
 not realise as to who was the victim when the accused were
 actually assaulting the deceased. There is nothing unnatural in
 the evidence of PWs 5 and 8 that they have seen the actual          F
 assault on the victim inasmuch as the appellants having
 themselves formed into unlawful assembly armed with deadly
 weapons encircled the victim and it is for that reason they could
 not realize that the victim injured in the act of indiscriminate
 attack was none other than their own dear son.                      G
      15. Further, the comment by the learned senior counsel
that the torch lights that were seized and produced in the Court
were without batteries and bulbs and therefore there was no
possibility of PW 5 identifying the appellants as the assailants
                                                                     H
    666      SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A   at the place of occurrence that took place at about 9.00 p.m.,
    does not impress us. The fact that the torch lights marked as
    material objects are without batteries and bulbs after so many
    years is of no consequence. They were perhaps missing for
    obvious reasons.
B
        16. Be it noted that the learned Sessions Judge in his
  judgment noted that the incident had taken place on 31st March,
  1986 just after four days after the full moon and all the assailants
  were known to PWs 5 and 8 and it was not impossible for them
C to identify them at the relevant time. We do not find any reason
  not to accept the reasons given by the learned Sessions Judge
  in this regard.

         17. We do not find any merit in the criticism levelled by the
   learned senior counsel about the absence of the parents of the
D deceased at the hospital and their not accompanying their
   injured son to the hospital after being pulled out from the drain.
 · This, according to the learned senior· counsel, makes the
   presence of PWs 5 & 8 at the scene of occurrence doubtful. It
   is clearly stated in the evidence of PWs 5 and 8 that their
E request to accompany the injured to the hospital was turned
   down for want of accommodation in the Jeep and the 1.0. (PW
   9) also supported the said version. The 1.0. in his evidence
   clearly stated that all his effort was to shift the injured quickly
   and take him for the treatment and in the process did not bother
F as to who should accompany the victim in the jeep. Be it noted,
   there was mud all over the body of the victim with the multiple
   injuries. The parents of the victim were told by the 1.0. that it
   was not possible to accommodate them in the jeep since there
   was no sufficient space available for them to accompany the
G victim in such a condition with mud all over the body.

         18. Likewise, we do not find any merit in the submission
    that the scene of occurrence has been deliberately shifted to
    the vicinity of the residence of PW 5 to conveniently press the
  r parents of the victim into service to speak falsely. The failure
H to collect control earth from the scene of occurrence by the 1.0.
      DEBASHIS DAW & ORS. v. STATE OF WEST                     667
         BENGAL [B. SUDERSHAN REDDY, J.]
may be a lapse on the part of the 1.0. but the same would not          A
make the presence of PWs 5 and 8 doubtful at the scene of
occurrence. There is no particular reason suggested to PWs
5 and 8 as to why they should speak falsely against the
appellants. Once we accept the evidence of PWs 5 and 8,
minor contradictions if any in the evidence of the 1.0. arid PW        B
2 fail to persuade us to take a different view.    /

      19. The evidence of Medical Officers (Pws 6 & 7) is of
some importance. Dr. Subrata Jana (PW 7), the Medical Officer
of Kharagpur State General Hospital who initialJy attended on          C
the deceased Subrata Ghosh and noted a number of injuries
on the body of the victim including one lacerated injury over the
skull and further noticed that brain matter was protruding through
it. The size of that injury, according to him was 6"x4"x2". He also
found three other incised wounds on the body of the victim. Of
course he highlighted in his cross examination about the injury        D
on the head which was on the midline. However, PW 6 Dr.
Madanmohan Das who held post-mortem found sharp cut 'x'
type injury over scalp measuring 4" x %" x ¥»' deep and another
of same dimension. He also noticed as many as eight sharp
cut wounds on the body of the deceased. The medical evidence           E
in our considered opinion is not at variance with the version
given by PWs 5 and 8 who are undoubtedly the eyewitnesses
to the incident.

 ,,   20. Learned senior counsel for the appellants placed             F
reliance upon the decision of this Court in Badam Singh Vs.
State of M.P. to contend that the mere fact that PWs 5 and 8
are consistent in their say is not a sure guarantee of their
truthfulness and the Courts below ought to have considered all
the circumstances and taken their version as a whole instead           G
of relying on their evidence in the examination-in-chief. This
contention is untenable for the trial Court as well as the appellate
Court did consider their evidence in its entirety including the
cross examination and found nothing in it to discard their
evidence for any reason whatsoever. It is not a case where
                                                                       H
    668      SUPREME COURT REPORTS                  [2010] 9 S.C.R.

A the Courts found the case of the prosecution doubtful or
  incredible but convicted the appellants merely on the basis that
  the evidence of PWs 5 and 8 was consistant. The High Court
  critically scrutinized the evidence in detail and discharged its
  responsibility as a tinal Court of fact.
B
          21. The learned senior counsel for the appellants relying
    on the decision of this Court in Akbar Sheikh Vs. State of WB.
    submitted that where large number of persons are implicated
    collectively, the Courts must insist for something more than their
    being cited as an accused I n order to convict them for the
C   charge of the offence. It is well settled and needs no restatement
    at our hands that mere presence of the persons at the scene
    of offence itself would not be enough to convict them and pt.1nish
    under Section 149, IPC unless it is established that each one
    of them was part of the unlawful assembly and committed the
D   offence in prosecution of the common object of that assembly.
    In all such cases, the question who had committed the overt act
    is of no consequence. This Court in Akbar Sheikh (supra)
    observed that the prosecution in a case of this nature is
    required to establish: (i) whether the appellants were present;
E   and (ii) whether they shared a common object. The trial Court
    and as well as the High Court, in the present case, found that
    all the stated ingredients were present for each of the appellants
    was found to be part of the unlawful assembly armed with
    deadly weapons and shared common object with that intention
F   participated in the commission of offence. The evidence
    available on record clearly suggests that each of the appellants
    was part of the unlawful assembly and armed with deadly
    weapons, together indulged in indiscriminate beating and freely
    used weapons in their hands causing severe injuries on the
G   body of the deceased. It is true as held by this Court in Sherey
    & Ors. Vs. State of UP. that the Courts have to be very careful
    in case where general allegations are made against a large
    number of persons and the Courts should categorically
    scrutinize the evidence and hesitate to convict the large number
H   of persons if the evidence available on record is vague. There
       DEBASHIS DAW & ORS. v. STATE OF WEST                 669
          BENGAL [B. SUDERSHAN REDDY, J.]
must be reasonable circumstances which lend assurance to the       A
story of the prosecution. But in the present case, there are no
circumstances to doubt the presence of the appellants as well
as their membership of the unlawful assembly. This is clear from
the evidence of PWs 5 and 8 which the Courts below accepted
for good and cogent reasons. It is not necessary for us to         B
undertake a detailed scrutiny of the evidence of PWs 5 and 8
in view of the concurrent findings by the Courts below upon
proper appreciation of evidence. We see no reason to disturb
the concurrent findings of the Courts below holding the
appellants guilty of the charged offences.
                                                                   c
     22. We accordingly uphold the conviction of the appellants
but having regard to the peculiar facts and circumstances of
the case, reduce the sentence to that of the period already
undergone. The appellants may be released from the jail
forthwith provided they are not required in any other case.        D

       23. The appeals are accordingly disposed of.

N.J.                                     Appeals disposed of.