HARADHAN DASversusSTATE OF WEST BENGAL

                     [2012] 13 S.C.R. 981


                       HARADHAN DAS                               A
                               v.
                  STATE OF WEST BENGAL
              (Criminal Appeal No. 148 of 2007)
                    DECEMBER 13, 2012
                                                                  B
   [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]

        Penal Code, 1860 - ss. 3021149 - Murder - Five
  accused including the appellant-accused entering the house
  of the victims - Causing death of one and injuries to two - C
  Eyewitnesses to the incident - Appellant-accused identified
  by the witnesses including injured witnesses - Three
  witnesses declared hostile - Accused charged u/ss. 148, 3021
   149, 3261149 and 460 /PC - One of the accused died during
  trial and hence the case against him abated - Trial court D
  acquitted three accused and convicted the appellant-accused
  uls. 3021149 - The order of trial court was confirmed by High
  Court - On appeal, held: Prosecution proved its case beyond
  reasonable doubt - Presence of eye-witnesses (two of them
  injured) at the place of occurrence is not doubtful - Their E
  evidence is also corroborated by the three hostile witnesses
  - The evidence of injured witnesses were also corroborated
  by medical evidence and evidence of Investigating Officer -
  Other accused even if acquitted uls. 3021149 on account of
  lack of evidence for having pre-determined mind and for not F
  having been identified, appellant accused could be convicted
  uls. 302 as there was direct evidence against him - Appellant-
  accused could also have been convicted with the aid of s. 149
  - If five or more accused are charged uls. 302 rlw s. 149 and
  if identification, role and object in participation against some G
  accused not proved, still others against whom the case is
· proved, can be punished with the aid of s.. 149 - s. 149 would
  include the acquitted persons - Conviction affirmed.

      Witness - Hostile witness - Evidentiary value - Held:
                             981                                  H
    982     SUPREME COURT REPORTS               [2012] 13 S.C.R.


A Evidence of such witness, so far as it supports the prosecution
    case, is admissible.

         Administration of Criminal Justice - Criminal case -
    Investigation took 4 years and trial took 14 years - Advice to
    the State and the courts to gear up administrative machinery,
8
    so that at least trial of heinous offence gets concluded within
    reasonable period.

      Five accused, including the appellant-accused, were
  prosecuted for house-breaking and causing death of one
C and causing injuries to two. Son of the deceased, who
  was an eye-witness lodged FIR. However, he could not
  be examined in the court as he died during trial. Two of
  the witnesses were injured. The appellant-accused was
  duly identified by the injured witnesses as well as the
D other witnesses present in the house at the time of the
  occurrence. The accused were charged u/ss. 148, 302/
  149, 326/149 and 460 IPC. Trail against one of the accused
  abated because of his death. Trial court acquitted three
  accused on the ground that they were not identified and
E there was no direct evidence implicating them. The
  appellant-accused was convicted by trial court u/s. 302/
  149 IPC. The order of trial court was confirmed by High
  Court.

       In appeal, the appellant contended that as there was
F common evidence against all the accused, the courts
  below could not have convicted him having acquitted
  other accused; that no specific role was assigned to him;
  that he was entitled to benefit of doubt as PWs 1, 3 and
  5 were declared hostile; and that conviction with the aid
G of s. 149 IPC was not permissible.

       The State contended that even if a case is not made
  out against the accused u/s. 302/149 IPC, still he could
  be convicted u/s. 460 IPC for which he was charged and
H tried.
  HARADHAN DAS v. STATE OF WEST BENGAL                  983


    Dismissing the appeal, the Court                           A

HELD: Per Swantanter Kumar, J:

     1. The statements of PWs 1, 3 and 5, though declared
hostile, do provide support to the case of the
prosecution. They suggest that an incident of dacoity          B
had taken place at the house of the deceased who was
badly injured and taken to the hospital. There was a
bomb blast at the house and the presence of these
witnesses at the stated places cannot be doubted. It is a
settled principle of law that the statement of a witness       C
who has been declared hostile by the prosecution is
neither inadmissible nor is it of no value .in its entirety.
The statement, particularly the examination-in-chief, in so
far as it supports the case of the prosecution, is
admissible and can be relied upon by the Court. [Paras         D
13 and 14] [993-H; 994-A-C]

    Bhajju @ Karan v. State of Madhya Pradesh (2012) 4
sec 327 - relied on.
     2. PW8, PW9 and PW10, the eye-witnesses are the           E
witnesses whose presence at the place of occurrence
cannot be doubted as they were sleeping in their own
house at such late hour of night. Out of these three
witnesses, PW9 and PW10 were injured. These witnesses
have c;;itegorically stated that a number of people had        F
gathered there and had taken their injured parents to the
hospital. These facts are duly corroborated even by the
hostile witnesses PW1, PW3 and PW5. In face of this
evidence, it cannot be said that these witnesses are not
reliable or truthful. Their statement cannot be doubted        G
merely by the virtue of their close relationship with the
deceased. At such late hour of the night, their presence
in their own house was normal. In fact, these witnesses
lost their close relation and had suffered serious injuries
                                                               H
      984     SUPREME COURT REPORTS           [2012) 13 S.C.R.


  A themselves. Thus, there is no occasion for them to
    falsely implicate the accused persons. As per the
    statement of the doctor and the investigating officer, the
    chain of events, as stated by the prosecution stands
    proved beyond reasonable doubt. These facts to some
  B extent are even corroborated by the statement of hostile
    witnesses. [Paras 20 and 21) [999-B-G]

         3. The evidence of the injured witnesses has to be
    examined in light of the statement of the doctors and the
  C investigating officers. The doctor specifically stated that
    the wounds on the person of the deceased were
    sufficient to cause death and that the injuries were
    caused by a sharp weapon. To complete the chain of
    events, the prosecution had examined the investigating
    officer who conducted the investigation after it was
  D marked to him for investigation. He had gone to the spot,
    prepared the site sketch map, sent the dead body for
    post mortem examination and seized ruminants of the
    crackers from the spot, blood-stained earth and other
    articles under the seizure list. He recorded the statement
· E of various witnesses who stated that they could identify
    the dacoits .. The statement of these witnesses read
    together clea.rly show that the prosecution has been able
    to prove its case beyond reasonable doubt. [Paras 21
    and 23) [999-G; 1000-E-G]
  F
         4. The. trial court acquitted the accused persons
    except the appellant, since there was no evidence of pre-
    determined mind of the accused persons to commit such
    an offence and except the appellant, other accused were
  G not even identified. Even if other accused were acquitted
    in the above circumstances for an offence under Section
    302/149 IPC, still there was direct evidence involving the
    appellant in committing the offence and particularly for
    causing the vital injuries to the deceased. The appellant
  H had duly been identified by PW9, wife of the deceased
   HARADHAN DAS v. STATE OF WEST BENGAL                   985


who was present in the room itself. There is no reason           A
to disbelieve her statement. The injuries were caused
with the intention to kill the deceased a·nd they were
caused on the vital parts of the body. From the medical
evidence on record itself, it is clear that the ribs of the
deceased were fractured, the abdominal wall was injured          B
and on the head there was an injury which continued to
bleed till death of the deceased. Due identification of role
attributable to the appellant clearly establishes the
ingredients of Section 302 IPC and thus, makes him liable
to be punished for the s~id offence. [Para 25) (1001-D-H]        c
     5. If five or more accused are charged with an offence
under Section 302 read with Section 149 IPC and the
Court finally finds that the person's identification, role and
object in participation against some of those accused is
not proved, still other persons forming the unlawful             D
assembly and against whom the prosecution is able to
prove its case beyond reasonable doubt can be
punished for an offence under Sections 302/149 IPC. The
statutory principle provided under the provision of
Section 149 IPC will include the persons who were                E
acquitted because that is the case of the prosecution.
The conviction recorded by the trial court cannot be
vitiated on that ground. (Para 26) (1002-A-C]

    Khem Karan and Ors. v. The State of U.P. and Anr. AIR        F
1974 SC 1567: 1974 (3) SCR 863- relied on.
     6. The accused persons were charged for the
offence u/s. 460 IPC and were tried for the same·offence.
The trial court has not returned any finding as to the guilt
of the accused under Section 460 IPC and found the               G
accused persons guilty of the offence under Section 302
read with Section 149 IPC. Even the High Court has not
dwelled upon this discussion. The bare reading of s. 460
IPC shows that every person who is jointly concerned in
                                                                 H
    986      SUPREME COURT REPORTS             [2012] 13 S.C.R.

A committing the offence of lurking house trespass by night
  or house breaking by night is to be punished with life
  imprisonment where death has been caused or with
  imprisonment which may extend to ten years where
  grievous hurt has been caused to any person. This joint
B liability is based upon the principle of constructive
  liability. Thus, the person who has actually committed the
  death or grievous hurt would be liable to be punished
  under the relevant provisions i.e. Section 302 or Section
  326, as the case may be, while committing the offence of
c lurking house trespass by night. It is possible that
  common intention or object be not the foundation of an
  offence under Section 460 IPC. Thus, to establish an
  offence under Section 460, it may not be necessary for
  the prosecution to establish common intention or object.
0 Suffice it will be to establish that they acted jointly and
  committed the offences stated in Section 460 IPC. The
  principle of constructive liability is applicable in
  distinction to contributory liability. Thus, the conviction
  of the accused under Section 302 IPC itself would be
  sustainable and the accused would be liable to be
E punished accordingly. [Paras 27, 28 and 29) [1003-A-B,
  F-H; 1004-A-B, DJ

          Abdul Aziz v. State of Rajasthan (2007) 10 SCC
    283: 2007 (5)   SCR 1166 - relied on.
F
          Per Madan B. Lokur, J: (Supplementing)

       In the present case, the investigation took almost four
  years to complete, despite eye-witnesses who knew the
  appellant. The trial concluded after another 14 years or
G about 18 years after the murder. This is a rather unhappy
  state of affairs. It is high time that the State and the Courts
  gear up their administrative machinery so that at least a
  trial for a heinous offence gets concluded within a
  reasonable period. [Para 2] [1004-G-H]
H
       HARADHAN DAS v. STATE OF WEST BENGAL                987


                        Case Law Reference:                        A
        c2012) 4 sec 321           Relied on          Para 14
        1974 (3) SCR 863           Relied on          Para 26
        2007 (5) SCR 1166          Relied on          Para 28      B
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
   No. 148 of 2007.

      From the Judgment & Order dated 20.05.2005 of the High
  Court of Calcutta in Criminal Appeal No. 280 of 2001.            c
        Rohit Minocha for the Appellant.

       Kabir Shankar Bose, Abhijit Sengupta, Satish Vig for the
   Respondent.
                                                                   D
        The Judgments of the Court was delivered by

       SWATANTER KUMAR, J. 1. The present appeal is
  directed against the concurrent judgment of conviction dated
  29th June, 2001 and order of sentence dated 30th June, 2001
  passed by the learned Additional Sessions Judge, Cooch           E
  Behar affirmed by judgment of the High Court dated 20th May,
  2005.

      2. The investigative machinery of the police was put into
 motion by one Shri Somnath Mukherjee son of Shri Barindra         F
 Nath Mukherjee, the deceased, by lodging a written complaint
 at about 8.00 a.m. on 9th October, 1983. According to the
 complainant at about 12-.00 a.m. a dacoity took place in the
 house of Barindra N{th Mukherjee. It was further stated that
 3-4 persons armed with weapons, criminally trespassed into        G
 the house, committed dacoity and also hurled bombs. First,
 they entered into the room of Barindra Nath Mukherjee and his
,wife Anuva Mukherje~;.,PW9, assaulted them and demanded
 the documen. ts relating'~~heir land-property. Thereafter, they
 entered into the room "\f th~ daughter of Barindra Nath           H



·I '
    988      SUPREME COURT REPORTS                [2012] 13 S.C.R.


A Mukherjee and searched for their only son, Somnath
  Mukherjee. The miscreants then attacked the room of the
  brother of Barindra Nath Mukherjee, Jiten Mukherjee, PW10
  and even threw a bomb causing injury to the said Jiten. Barindra
  Nath Mukherjee, his wife, Anuva and brother Jiten were taken
B to the hospital the next morning. Due to the injuries inflicted by
  the miscreants upon Barindra Nath Mukherjee, he succumbed
  to his injuries in the hospital.

       3. On the basis of the written complaint, the Police
C completed its investigation and submitted a charge sheet
  against five accused persons, namely, Chandra Kumar Das,
  Ram Kumar Das Rabindra Nath Sil, Haradhan Das and
  Krishna Kumar Das under Sections 458, 459, 326, 302 and
  1208 of the Indian Penal Code, 1860 (for short 'IPC').
  However, charge against the accused persons were framed
D under Sections 148, 302/149, 326/149 and 460 of the IPC.
  The accused persons were committed to the Court of Sessions
  to face trial on these charges.

          4. It may be noticed here that during the trial, one of the
E   accused, namely, Krishna Kumar Das, died. Thus, the case
    against him came to be closed as having been abated. The
    prosecution examined as many as 18 witnesses including the
    daughter, injured witnesses, investigating officer, etc. The
    accused persons did not lead any defence and took up the plea
F   of complete denial in their statement under Section 313 of the
    Code of Criminal Procedure, 1973 (for short 'CrPC'). The
    learned Trial Court, after discussing the ocular and the
    documentary evidence noticed that there was a long standing
    civil litigation between the parties and also found certain
G   discrepancies in the case of the prosecution. It acquitted three
    accused persons, namely, Chandra Kumar Das, Ram Kumar
    Das and Rabindra Nath Sil of all the charges and directed their
    discharge. However, the Trial Court convicted the accused
    Haradhan Das for an offence punishable under Section 302/
H   149 IPC and sentenced him to life imprisonment and to pay a
   HARADHAN DAS v. STATE OF WEST BENGAL                      989
           [SWATANTER KUMAR, J.)

fine of Rs.10,000/- and in default to suffer imprisonment for one   A
year under the said provision.

     5. At this stage, I may usefully refer to the discussion of
the Court as under:

    "I think on the facts and evidence of the witnesses as 8
    discussed above coupled with the medical evidence that
    there were no serious discrepancies between the
    testimonies of P.Ws.8 to 10, 14 and 15 and the story of .
    the F.1.R. regarding the time, place and manner of
    occurrence and the name of the assailants as disclosed C
    by P.Ws.8 to 10, 14 and 15 and duly corroborated by
    P .Ws.2 and 4, the evidence as it was held in a reported
    decision that the evidence of an eye witness were held to
    be true and reliable and it was further held that some
    discrepancies, deviating and embellishment a minor. This D
    part of argument of learned lawyer for the defence since
    rather hallow to me as because there are many occasions
    where Haradhan and the accused persons have chances
    to meet the family members of Sarin Muherjee. Now, from
    the side of the defence the certified copy of the plaint of E
    T.S. 23/62 (Ext.A), certified copy of judgment of decree of
    Title Appeal no.20/63 (Ext.B), certified copy of judgment
    and decree of T.S. 23/62 (Ext.C) and certified copy of
    Appeal (Ext.D) are filed but all these exhibits do not at all
    help the accused persons. These only show that there are F
    long standing Civil litigation in between the accused
    persons and the family member of Sarin Mukherjee but
    pendency of these civil litigation or result does not give any
    person right to commit murder. If the witnesses who are
    near relation to Sarin Mukherjee have hatred for the G
    accused persons then they promptly named or identified
    all the four accused persons facing trial in the instant case.
    But Anuva Mukherjee and her three daughters and Daor
    have only stated that they have been able to identify
    Haradhan Das among the other miscreants. The presence H
    990       SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A         of Anuva Mukherjee at the spot cannot be doubted. After
          perusing the evidence of Anuva Mukherjee and her
          daughters there is no such confimrity (sic) which may call
          upon the testimony of these witnesses doubtful or
          untrustworthy. It was held in a Calcutta decision that when
B         there was no serious discrepancy between the testimony
          of eye witness and the story in the F.l.R. regarding the time,
          place and manner of the occurrence and the name of the
          assailants, the testimony of eye witness were also
          corroborated by medical evidence, the evidence of eye
c         witness was held to be true and reliable and it was further
          held that some discrepancies deviation and embellishment
          in minor details do not warrant rejection of the entire
          testimony. May be I pointed earlier that according to
          settled position of law the evidence of injured witnesses
          as in this case Anuva Mukherjee (P.W.9) cannot be easily
D
          discarded and disbelieved because their presence at the
          time of occurrence remains doubted. Merely because their
          relation to each other, their evidence cannot be thrown
          overboard on that ground alone when there are convincing
          reason to accept them.
E
                 Thus, it is established from the evidence adduced
          from the prosecution side as well as from the defence that
          the injury upon Barin Mukherjee is done by Haradhan Das.
          Thus, I have no hesitation to hold that Haradhan Das is
F         responsible for the murder of Barin Mukherjee but there
          is no sufficient evidence to show who assaulted Anuva
          Mukherjee (P.W.9) and Jiten Mukherjee (P.W.10) have not
          stated anything against other three accused persons and
          so they are entitled to get reasonable benefit of doubt.
G         Thus, the prosecution has been able to bring home the
          charge under Section 149/302 IPC against the accused
          Haradhan Das and the accused Chandra Kumar Das,
          Ram Kumar Das and Rabindra Nath Sil are entitled to get
          reasonable benefit of doubt in the instant case.
H
    HARADHAN DAS v. STATE OF WEST BENGAL                      991
            [SWATANTER KUMAR, J.]

             In the premises, on consideration of the facts,         A
      circumstances and materials on record the prosecution, as
      I find, has been able to bring home the charge under
      Section 149/302 IPC against the accused Haradhan Das
      beyond all reasonable doubt. As such, the said accused
      Haradhan Das is found guilty under Section 149/302 l.P.C.      B
      and the accused Chandra Kumar Das,· Ram Kumar Das
      and Rabindra Nath Sil are found not guilty of the charge
      labelled against them and as such they are acquitted from
      this case under Section 235(1) Cr.P.C. and be discharged
      from their respective bail bonds at once."                     c
       6. The High Court affirmed the judgment of the Trial Court.
  Aggrieved from the judgment of the High Court, Haradhan Das,
- the accused, has_filed the present appeal before this Court.

      7. The learned counsel appearing for the appellant has,        D
 with some vehemence, argued that :

       (a)   There was common evidence against all the
             accused persons and the learned Trial Court as well
             as the High Court having acquitted three other          E
             accused persons could not have returned a finding
             of conviction against the appellant. Conviction of
             the appellant was not even permissible with the aid
             of Section 149 IPC. The judgment under appeal,
             thus, suffers from a patent error of law and that of
             appreciation of evidence.
                                                                     F

       (b)   No specific role was assigned to the appellant and,
             therefore. he could not be convicted for the offence.

       (c)   PW1 , PW3 and PW5 had been declared hostile by          G
             the prosecution. This aspect seen in conjunction
             with the fact that no recoveries were made from the
             appellant, he was entitled to benefit of doubt and,
             thus, to an order of acquittal.
                                                                     H
    992     SUPREME COURT REPORTS               [2012] 13 S.C.R.


A       8. To the contra, the submission on behalf of the State is
  that the accused has rightly been convicted for an offence under
  Section 302/149 IPC. Even if, for the sake of argument, it is
  assumed that the said offence was not made out, still the
  appellant could be convicted for committing an offence under
B Section 460 IPC, the offence for which the accused was
  charged and tried.

       9. From the above version of the prosecution, it is clear
  that the miscreants had come to the house of Barindra Nath
  Mukherjee on 9th October, 1983. They had committed dacoity,
C injured persons including Barindra Nath Mukherjee very
  seriously and had even asked for the papers of the land-
  property for which a civil dispute was pending between the
  parties.

D       10. First and foremost, I may deal with the effect of the
  hostile witnesses. PW1, Bhiguram Sealsarama in his
  examination-in-chief has stated that he was sleeping on the
  night of occurrence at his house and after hearing the hue and
  cry, two persons namely Dhurjadhan Sarkar and Aloke had
E come to his house and told him that the condition of Somnath's
  father was serious. He made his statement 13-14 years
  subsequent to the date of event. He stated that one Khagen
  had taken father of Somnath on rickshaw to the hospital while
  he had taken Somnath and his mother to the hospital. After
F reaching the house of Barindra Nath Mukherjee, at about 1.00
  a.m. in the night he had heard that a dacoity had taken place
  in that house. He also heard that the dacoits had hurled bombs.
  However, he stated that he did not know who had committed
  the dacoity. Subsequently, he was declared hostile by the
G prosecution.

       11. PW3, Khagen Das, stated that at about 1.00 a.m. in
  the night a dacoity was committed in the house of Barindra Nath
  Mukherjee. There was a pucca road between his house and
  the house of Barindra Nath Mukherjee. He also rushed to the
H house of Barindra Nath Mukherjee after hearing the hue and
   HARADHAN DAS v. STATE OF WEST BENGAL                      993
           [SWATANTER KUMAR, J.]

cry from that house. He found Barindra Nath Mukherjee in            A
blood-stained condition with head injury. His wife had also
sustained serious injuries all over her body. Barindra Nath
Mukhrejee'!) younger brother had also received injury by bomb.
In his van he had taken Sima, Barindra Nath Mukherjee and
Hiru to MJN Hospital, Cooch Behar. He had heard from                B
members of the family of Barindra Nath Mukherjee that 6-7
persons had committed dacoity in their house. However, they
did not tell him who had committed the dacoity at that stage.
He was also declared hostile.

      12. PW5, Bidhan Das stated that about 17 years ago, an
                                                                    c
incident had taken place at Barindra Nath Mukherjee's house.
He was a member of the R.G. party who were patrolling from
village to railway over bridge of the pucca road. A jeep was
coming from Alipurduar side near the village and before they
could reach near the jeep, it went away towards the southern        D
direction. The jeep came back after 10-15 minutes when they
were on the pucca road. They heard the sound of door
breaking from a distance. There were sounds of hue and cry.
Some people came to them and after crossing the bridge they
heard the sound of a bomb blast. · People started walking           E
towards the house and on the way they saw that Barindra Nath
Mukherjee was being taken to the hospital by the rickshaw van.
They walked towards Barindra Nath Mukherjee's house.
According to this witness, Barindra Nath Mukherjee had three
daughters who were present in the house and the young               F
daughter Latu was his student. At their request PW5 along with
the members of his party stayed in the house of the deceased,
Barindra Nath Mukherjee, till the next morning but they did not
inform or disclose the identity of the miscreants. At this stage,
this witness was declared hostile.                                  G

     13. No doubt, these three witnesses were declared hostile
by the prosecution but still one fact remains that the
examination-in-chief and particularly the above recorded
portions of their statements do provide support to the case of      H
    994       SUPREME COURT REPORTS                  [2012] 13 S.C.R.


A the prosecution. They suggest that an incident of dacoity had
  taken place at the house of Barindra Nath Mukherjee who was
  badly injured and taken to the hospital. There was a bomb blast
  at the house and the presence of these witnesses at the stated
  places cannot be doubted. One of them was staying opposite
B to the house of Barindra Nath Mukherjee while the other was
  at some distance and PW5 was on R.G. Duty.

       14. It is a settled principle of law that the statement of a
  witness who has been declared hostile by the prosecution is
C neither inadmissible nor is it of no value in its entirety. The
  statement, particularly the examination-in-chief, in so far as it
  supports the case of the prosecution is admissible and can be
  relied upon by the Court. It will be useful at this stage to refer
  to the judgment of this Court in the case of Bhajju @ Karan v.
  State of Madhya Pradesh [(2012) 4 SCC 327] where this Court,
D after discussing the law in some elaboration, declared the
  principle as follows:-

          "33. As already noticed, none of the witnesses or the
          authorities involved in the recording of the dying
E         declaration had turned hostile. On the contrary, they have
          fully supported the case of the prosecution and have,
          beyond reasonable doubt, proved that the dying
          declaration is reliable, truthful and was voluntarily made by
          the deceased. We may also notice that this very judgment,
F         Munnu Raja (1976) 3 SCC 104 relied upon by the
          accused itself clearly says that the dying declaration can
          be acted upon without corroboration and can be made the
          basis of conviction.

          34. Para 6 of the said judgment reads as under: (Munnu
G         Raja case, sec pp. 106-07)
          "6 .... It is well settled that though a dying declaration must
          be approached with caution for the reason that the maker
          of the statement cannot be subject to cross-examination,
H         there is neither a rule of law nor a rule of prudence which
HARADHAN DAS v. STATE OF WEST BENGAL                      995
        [SWATANTER KUMAR, J.]

 has hardened into a rule of law that a dying declaration        A
 cannot be acted upon unless it is corroborated (see
 Khushal Rao v. State of BombayAIR 1948 SC 22). The
 High Court, it is true, has held that the evidence of the two
 eyewitnesses corroborated the dying declarations but it
 did not come to the conclusion that the dying declarations      B
 suffered from any infirmity by reason of which it was
 necessary to look out for corroboration."

 35. Now, we shall discuss the effect of hostile witnesses
 as well as the worth of the defence put forward on behalf
 of the appellant-accused. Normally, when a witness              C
 deposes contrary to the stand of the prosecution and his
 own statement recorded under Section 161 CrPC, the
 prosecutor, with the permission of the court, can pray to
 the court for declaring that witness hostile and for granting
 leave to cross-examine the said witness. If such a              D
 permission is granted by the court then the witness is
 subjected to cross-examination by the prosecutor as well
 as an opportunity is provided to the defence to cross-
 examine such witnesses, if he so desires. In other words,
 there is a limited examination-in-chief, cross-examination      E
 by the prosecutor and cross-examination by the counsel
 for the accused. It is admissible to use the examination-
 in-chief as well as the cross-examination of the said witness
 insofar as it supports the case of the prosecution.
                                                                 F
36. It is settled law that the evidence of hostile witnesses
can also be relied upon by the prosecution to the extent
to which it supports the prosecution version of. the incident.
The evidence of such witnesses cannot be treated as
washed off the records, it remains admissible in trial and       G
there is no legal bar to base the conviction of the accused
upon such testimony, if corroborated by other reliable
evidence. Section 154 of the Evidence Act enables the
court, in its discretion, to permit the person, who calls a
witness, to put any question to him which might be put in
                                                                 H
    996       SUPREME COURT REPORTS                [2012] 13 S.C.R.


A         cross-examination by the adverse party.

          37. The view that the evidence of the witness who has been
          called and cross-examined by the party with the leave of
          the court, cannot be believed or disbelieved in part and
          has to be excluded altogether, is not the correct exposition
B
          of law. The courts may rely upon so much of the testimony
          which supports the case of the prosecution and is
          corroborated by other evidence. It is also now a settled
          canon of criminal jurisprudence that the part which has
          been allowed to be cross-examined can also be relied
c         upon by the prosecution. These principles have been
          encompassed in the judgments of this Court in the following
          cases:

          a. Kofi Lakhmanbhai Chanabhai v. State of Gujarat
o         (1999) a sec 624

          b. Prithi v.State of Haryana (2010) 8 SCC 536

          c. Sidhartha Vashisht @ Manu Sharma v. State (NCT
          of Delhi) (201 O) 6 sec 1
E
          d. Ramkrushna v. State of Maharashtra (2007) 13 SCC
          525".

       15. Another important aspect of the case is that all these
  witnesses had appeared at the place of occurrence or near the
F place of occurrence or in the house of Barindra Nath Mukherjee
  only after the incident was over. Even if these witnesses were
  informed by some other persons as to how the incident had
  occurred or other persons including injured persons as to how
  the incident took place once they arrived at the place of
G occurrence, it may not have been a very valuable piece of
  evidence as ex facie it would be hearsay evidence. It is not
  the quantity but the quality of evidence which is of Court's
  concern.

H         16. Now, I should examine the above version stated by
   HARADHAN DAS v. STATE OF WEST BENGAL                    997
           [SWATANTER KUMAR, J.]

these hostile witnesses in conjunction with the statement of the A
 eye-witnesses and other crucial witnesses produced by the
 prosecution. Unfortunately, Somnath Mukherjee, son of the
deceased who was an eye-witness to the entire episode right
from the beginning to the end, died during the pendency of the
trial without appearing in the Court as a witness. According to B
 PW10, Jiten Mukherjee, Somnath Mukherjee, son of the
deceased on the relevant date, was sleeping in the western side
 room of southern viti with him. His four nieces along with their
maternal uncle Biswajit were sleeping in the eastern side of the
 room of the southern viti. According to this witness, at about  c
 12.30 a.m., he had heard hue and cry from the room of his elder
brother, late Barindra Nath Mukherjee. He had also heard a
 person demanding papers from his elder brother. Then there
was total silence. In the light of a torch which was in the hands
of the miscreants, he was able to identify Haradhan Das. He
                                                                  0
could even identify this accused from his voice. He stated that
he knew Haradhan Das prior to the incident. Then, the
miscreants entered into the room of his niece by breaking open
the door. They were looking for Somnath. Sima, his niece,
informed them that Somnath was out of station. He heard all
of this and saw the aycused Haradhan Das by peeping through · E
the wall made of bamboo. Sima offered articles to miscreants
but they refused to take anything. When the miscreants were
moving in the courtyard, PW1 Owas able to identify Ram Kumar
Das and Chandra Kumar Das in the light of the torch. They
were armed with bamboo sticks. The miscreants then hurled F
a bomb in the room where this witness was staying. He
suffered injuries on his leg as a result of the bomb. Thereafter,
they fled away and when PW10 came out of his room and
rushed to his elder brother's room, he found that his brother was
bleeding and was badly injured and that his sister-in-law had G
become unconscious. A lot of other people had also gathered
there. PW10 narrated the incident to them and shifted the
injured to the hospital. The inquest report, Ext.2 was prepared
in his presence and it bore his signatures. He identified the
accused persons in Court.                                         H
    998     SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A      17. PW8, Smt. Sima Mukherjee is the daughter of the
  deceased. According to this witness, she along with her sisters
  and maternal uncle, Biswajit Chatterjee, was sleeping in the
  eastern side of the room of southern viti. She heard sound of
  door of the room of her father breaking. She woke up and
B heard her parents crying. She also recognized Haradhan Das
  from his voice as well as the other accused. She confirmed
  that the accused were asking for her brother, Somnath. After
  the miscreants left the premises, they took their parents to
  hospital in two rickshaw vans and on the way, her mother told
c her that they were assaulted by Haradhan Das and that she had
  identified him in the torch light. The accused, Haradhan Das,
  Ram Kumar Das and Chandra Kumar Das were identified by
  Sima, her uncle, PW10, and her brother Somnath. On the next
  day, her father died of the injuries. In her statement, she
D categorically stated that there was a long standing dispute
  between the accused and her father which they had won and
  the judgment had been passed in their favour. She also stated
  that many people had assembled at the place of incident.

        18. PW9, Anuva Mukherjee, is an injured eye-witness and
E is wife of the deceased. She stated that there was dacoity in
  their house at about 12.30 a.m. on 8th October, 1983. She
  gave complete description of her family and stated that three
  miscreants had entered into their room by breaking open the
  door and after entering they demanded the deed of their land
F and other documents relating thereto. She told them that the
  papers were in Court but on hearing that they pulled down the
  deceased from the cot and started assaulting him with weapons.
  The deceased begged for mercy but to no avail. As a result
  of the assault, her husband Barindra Nath Mukherjee sustained
G serious injuries. Then they assaulted her by giving her a dagger
  blow on her head and even she sustained injuries. Thereafter
  she became unconscious. She could identify Haradhan Das
  in the light of the torch. She heard about the rest of the incident
  from her Devar, PW10, Jiten and her daughter.
H
   HARADHAN DAS v. STATE OF WEST BENGAL                        999
           [SWATANTER KUMAR, J.]

     19. PW 14 and PW15, namely, Ketaki and Shipra, the               A
daughters of the deceased were also examined as witnesses
and they duly supported the case of the prosecution on similar
lines as PW8, PW9 and PW10. They had also identified
Haradhan Das in light of the torch.
                                                                      B
     20. All these three witnesses, PW8, PW9 and PW10 were
cross-examined at great length but nothing material or
damaging to the case of the prosecution could come out.
These are the witnesses whose presence at the place of
occurrence cannot be doubted as they were sleeping in their           C
own house at such late hour of night. Out of these three
witnesses, PW9 and PW10 were injured. These witnesses
have categorically stated that a number of people had gathered
there and had taken their injured parents to the hospital. These
facts are duly corroborated even by the hostile witnesses, PW1,
PW3 and PW5. In face of this evidence, the contention oflhe           D
appellant that these witnesses are not reliable or truthful is
without any substance. Their statement cannot be doubted
merely by the virtue of their close relationship with the deceased.
At such late hour of the night, their presence in their own house
was normal. In fact, these witnesses lost their close relation and    E
had suffered serious injuries themselves. Thus, there is no
occasion for them to falsely implicate the accused persons. As
per the statement of the doctor and the investigating officer, the
chain of events, as stated by the prosecution stands proved
beyond reasonable doubt. To this extent, the findings recorded        F
by the Courts do not call for interference.

     21. These facts to some extent are even corroborated by
the statement of hostile witnesses PW1, PW3 and PW5. The
evidence of the injured witnesses has to be examined in light         G
of the statement of the doctors and the investigating officers.
According to PW16, Dr. V. Kumar who had examined Barindra
Nath Mukherjee when he was brought to the hospital, the son
of the patient had disclosed to him that the patient was attacked
by some persons at his residence at about 12.30 a.m. with
                                                                      H
    1000     SUPREME COURT REPORTS               [2012] 13 S.C.R.


A   some sharp- weapon. The patient was extremely restless, his
    pulse was not recordable and respiration was 30 per minute.
    There was active bleeding from the left ear. The injuries on the
    deceased were noticed as follows:-

        "1. One sharp cut injury 3%" x 1" over deep encircling the
B
        base of left thumb & dorsal and palmar aspect of left palm.

        2. Another sharp cut injury 2%" x 1" over lateral aspect of
        lower 1/3rd of left arm."

c        22. According to PW16, the patient Barindra Nath
    Mukherjee died on the same day, i.e. 9th October, 1983. The
    post mortem on the body of the deceased was performed by
    PW11, Dr. S.C. Pandit, who noticed the above injuries and also
    stated in the Court that upon dissection, he noticed that the
    abdominal wall and the spleen were injured and there was a
0
    fracture in the left temporal.

       23. The doctor specifically stated that these kind of wounds
  were sufficient to cause death and that the injuries were caused
  by a sharp weapon. To complete the chain of events, the
E prosecution had examined PW18, the investigating officer who
  conducted the investigation after it was marked to him for
  investigation. He had gone to the spot, prepared the site sketch
  map, Ext.8, sent the dead body for post mortem examination
  and seized ruminants of the crackers from the spot, blood
F stained earth and other articles under the seizure list Ext. 4/1.
  He recorded the statement of various witnesses who stated that
  they could identify the dacoits. The statement of these
  witnesses read together clearly show that the prosecution has
  been able to prove its case beyond reasonable doubt. I see
G no reason to interfere with the findings of the Court, recorded
  in the judgments impugned in the present appeal.

      24. The accused persons were charged under Section 302
  read with Sections 149, 148 and 326 as well as Section 460
H IPC. The FIR had been lodged by Somnath Mukherjee, son
   HARADHAN DAS v. STATE OF WEST BENGAL                          1001
           [SWATANTER KUMAR, J.]

of the deceased who, as already noticed, expired during the A
course of the trial.     As per the statement of witnesses, the
miscreants were five in number. The present appellant had
duly been identified by the injured witnesses as well as by other
                                                             1




persons who were present in the house at the time of
occurrence. The Trial Court acquitted three accused primarily B
on the ground that they had not been identified and there was
no direct evidence implicating the said three accused in the
commission of the crime. This finding of the Trial Court had
attained finality as the State did not challenge the same. One .
accused died during the trial.                                    c
      25. The appellant alone has been found guilty and
punished by the Trial Court and his sentence stands confirmed
by the High Court. Five persons had got together to commit
the offence of lurking house trespass and causing the death of
Barindra Nath Mukherjee. Since there was no evidence of pre-            D
determined mind of the accused persons to commit such an
offence and except the appellant other accused were not even
identified, the Trial Court acquitted the accused persons except
the appellant. Even if other accused were acquitted in the
above circumstances for an offence under Section 302/149                E
IPC, still there was direct evidence involving the appellant in
committing the offence and particularly for causing the vital
injuries to the deceased. The appellant had duly been identified
by PW9, wife of the deceased who was present in the room
itself. There is no reason to disbelieve her statement. The             F
injuries were caused with the intention to kill the deceased and
they were caused on the vital parts of the body. From the
medical evidence on record itself, it is clear that the ribs of the
deceased were fractured, the abdominal wall was injured and
on the head there was an injury which continued to bleed till           G
death of the deceased. Due identification of role attributable
to the appellant cleaily establishes the ingredients of Section
302 IPC and thus, makes him liable to be punished for the said
offence.
                                                                        H
    1002    SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A       26. If five or more accused are charged with an offence
  under Section 302 read with Section 149 IPC and the Court
  finally finds that ttie person's identification, role and object in
  participation against some of those accused is not proved, still
  other persons forming the unlawful assembly and against whom
B the prosecution is able to prove its case beyond reasonable
  doubt can be punished for an offence under Sections 302/149
  IPC. The statutory principle provided under the provision of
  Section 149 IPC will include the persons who were acquitted
  because that is the case of the prosecution. The conviction
c recorded by the Trial Court cannot be vitiated on that ground.
  This Court in the case of Khem Karan and Others v. The State
  of U.P. and Another [AIR 1974 SC 1567], while discussing
  somewhat similar circumstances and dealing with an offence
  under Section 307 read with Section 149 IPC, applied the
  principle of constructive liability and held as under:-
0
        "7. What remains is the question of sentence. It is true that
        those assailants who did not receive injuries have escaped
        punishment and conviction has been clamped down on
        those who have sustained injuries in the course of the
E       clash. It is equally true that those who have allegedly
        committed the substantive offences have jumped the
        gauntlet of the law and the appellants have been held guilty
        only constructively. We also notice that the case has been
        pending for around ten years and the accused must have
F       been in jail for some time, a circumstance which is relevant
        under the new Criminal Procedure Code though it has
        come into operation only from April 1, 1974. Taking a
        conspectus of the various circumstances in the case,
        some of which are indicated above, we are satisfied that
G       the ends of justice would be met by reducing the sentence
        to three years rigorous imprisonment under S. 307, read
        with S. 149, and one year rigorous imprisonment under S.
        147, IPC, the two terms running concurrently. With this
        modification regarding sentence, we dismiss the appeal."
H
   HARADHAN DAS v. STATE OF WEST BENGAL                    1003
           [SWATANTER KUMAR, J.]

     27. There is another perspective from which the present        A
case can be examined. As already noticed, the accused
persons were charged for the offence under Section 460 IPC
and were tried for the same offence. The Trial Court has not
returned any finding as to the guilt of the accused under Section
460 IPC and found the accused persons guilty of the offence         B
under Section 302 read with Section 149 IPC. Even the High
Court has not dwelled upon this discussion in the judgment
impugned.       The provisions of Section 460 IPC read as
follows:-

    "460. All persons jointly concerned in lurking house-           C
    trespass or house- breaking by night punishable
    where death or grievous hurt caused by one of
    them.-lf, at the time of the committing of lurking house-
    trespass by night or house- breaking by night, any person
    guilty of such offence shall voluntarily cause or attempt to    D
    cause death or grievous hurt to any person, every person
    jointly concerned in committing such lurkking house-
    trespass by night or house- breaking by night, shall be
    punished with imprisonment for life, or with imprisonment
    of either description for a term which may extend to ten        E
    years, and shall also be liable to fine."

      28. The bare reading of the above provision shows that
every person who is jointly concerned in committing the offence
of lurking house trespass by night or house breaking by night       F
is to be punished with life imprisonment where death has been
caused or with imprisonment which may .extend to ten years
where grievous hurt has been caused to any person. This joint
liability is based upon the principle of constructive liability.
Thus, the person who has actually committed the death or
grievous hurt would be liable to be punished under the relevant     G
provisions i.e. Section 302 or Section 326, as the case may
be, while committing the offence of lurking house trespass by
night. It is possible that common intention or object be not the
foundation of an offence under Section 460 IPC. Thus, to
                                                                    H
    1004    SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A establish an offence under Section 460, it may not be
  necessary for the prosecution to establish common intention or
  object. Suffice it will be to establish that they acted jointly and
  committed the offences stated in Section 460 IPC. The
  principle of constructive liability is applicable in distinction to
8 contributory liability. This Court in the case of Abdul Aziz v.
  State of Rajasthan [(2007) 10 SCC 283], clearly stated that if
  a person committing housebreaking by night also actually
  commits murder, he must attract the penalty for the latter offence
  under Section 302 and the Court found it almost impossible to
C hold that he can escape the punishment provided for murder
  merely because the murder was committed by him while he
  was committing the offence of housebreaking and that he can
  only be dealt with under Section 460.

      29. Viewed from this angle, the conviction of the accused
D under Section 302 itself would be sustainable and the accused
  would be liable to be punished accordingly.

       30. For the reasons afore-recorded, I see no reason to
  interfere with the judgments impugned in the present appeal.
E Consequently, the appeal is dismissed.

      MADAN B. LOKUR, J. 1. While agreeing with Brother
  Swatanter Kumar, I would like to add that the murder was
  committed on the intervening night of 8th and 9th October,
  1983. A charge sheet was filed sometime in 1987 and the Trial
F Court delivered its judgment on 29th June, 2001. These time
  gaps are telling.

       2. The investigation took almost four years to complete
  despite eyewitnesses who knew the appellant. The trial
G concluded after another 14 years or about 18 years after the
  murder. This is a rather unhappy state of affairs. It is high time
  that the State and the Courts gear up their administrative
  machinery so that at least a trial for a heinous offence gets
  concluded within a reasonable period.

H K.K.T.                                        Appeal dismissed.