Mondal & Ors Vs. The State of West Bengal  INSC 794 (23 October 1997)
NANAVATI, V.N. KHARE
23RD DAY OF OCTOBER, 1997 Present;
Mr. Justice G.T. Nanavati Hon'ble Mr. Justice V.N. Khare S.N. Misra, Sr.Advs.,
P.K. Chakraborty, Adv. with him for the appellants.
Mohanty, K.N. Tripathy and J.R. Das, Advs. for the Respondent
following Judgment of the Court was delivered:
appeal by the convicted accused is directed against the judgment and order
passed by the High Court of Calcutta in Criminal Appeal No. 308 of 1984. The
High Court has confirmed the conviction of the six accused under Section 302
read with section 149 IPC.
the six convicted accused had applied to this Court for special leave to appeal
against the judgment of the High Court. This Court dismissed the application of
accused Jamiruddin, Hanif and Jirafat and leave was granted to the present
three appellants as it was submitted that their names were not mentioned in the
First Information Report.
was alleged against the accused was the on October 11, 1980 at about 3.00 p.m. they along with 14 other accused had assaulted and Killed Babar
Ali. According to the prosecution this incident was witnessed by Malin Hossain
(PW-1) brother of the deceased, Kalam Biswas (PW-3), Sahida Khatun (PW-4)
daughter of the deceased, Nasiruddin Biswas (PW-5) son of the deceased and Firujtullah
to the prosecution the motive for killing Babal Ali was that accused Niamat had
filed a criminal case against Babar Ali. After remaining into custody he had
come out of the jail 7 days before the incident.
evidence of the eye witnesses was challenged on the ground that they were all
related to the deceased. The evidence of PW-4 Sahida Khatun and PW-5 Nasiruddin
was also challenged on the ground that it was doubtful if they were really with
the deceased at that time. PW-3's presence near the place of incident was
challenged for the reason that he had no reason to be there and thus was a chance
of PW-1 was challenged on the ground that he could not have seen the incident
as he has admitted in his cross examination that when he went to the place of
incident his brother had already fallen down dead. The trial court did not find
any substance in these contentions. The presence of PW-1 was believed as his
house was only about 100 feet away from the place of incident. If found that
PW-3 and PW- 4 were accompanying their father as he was going to the market for
purchasing cloth for them. It also believed the presence of PW-3 as he stood
corroborated by Hasem Ali (PW- 8) who has deposed that soon after the incident
he was informed by PW-3 about the incident and on the basis of that information
he had made a telephone call to the Karimpur Police Station and informed the
police. The trial court also held that the evidence of eye witnesses was
corroborated by the find of cycle and 20 kg. of jute from the place of incident
and also by the medical evidence. It, therefore, convicted the six accused
named by the witnesses.
be stated that out of 20 accused who were charged sheeted, 9 were discharged by
the learned Sessions Court before framing the charge and 5 were acquitted after
the trial. The High Court confirmed the conviction of all the 6 accused as it
agreed with the appreciation of evidence by the trial court and the findings
recorded by it.
stated earlier, even though all the 6 convicted accused had applied to this
Court for special leave, the same was granted to only present three appellants.
Leave was granted on the basis that the names of three appellants did not
appear in the First Information Report. We find after going through the First
Information Report that they are mentioned as accused in the First Information
names appear in it at serial Nos. 4, 5 and 6. What was now contended by the
learned counsel was that though their names are mentioned no specific
allegation is made regarding the part played by them in killing the deceased.
opinion even this submission is not quite correct factually. it does contain
and allegation that the deceased was attacked by all the accused named in the
First Information Report. That would mean that there was an allegation against
accused Nos. 4 5 and 6,. the appellants herein, that they had assaulted the
deceased and had thus taken part in killing the deceased.
learned counsel for the appellants raised all the grounds which ere urged
before the courts below. Besides that the learned counsel also contended that
the evidence of the daughter and son, PWs-4 and 5 respectively, ought not to
have been accepted as no blood stains were noticed on their clothes. It was
submitted that, if as stated by them, they were only two or four steps ahead of
the deceased, then in all probability their clothes would have been stained
with blood because the injuries caused to the deceased were such that they had
led to spurting of blood. the evidence on record clearly discloses that they
were walking ahead of the deceased. Even though they have said that they were
walking ahead by four or five steps, it is likely that they wee at a little
distance from the deceased. As stated by them their attention was drawn only
when they had heard the cry raised by their father. The deceased was assaulted
after he was surrounded by the a accused. Therefore, there was no possibility
of their being so near and their clothes becoming blood becoming blood stained.
It was also submitted that if they were really walking a few paces ahead of the
deceased, then in that case they should have heard the sound of footsteps of 20
accused who have alleged to have assaulted the deceased. How and n what manner
the accused had reached that place has not been brought out in
cross-examination of these two witness. It is possible that the accused had
approached the deceased quietly and their foot steps had not created sufficient
noise to attract the attention of PWs-4 and 5. In absence of any cross
examination on that point it would be sheer speculation to say that foot steps
of 20 persons would have created sufficient noise and that ought to have
attracted the attention of PWs-4 5.
also submitted that as the incident had taken place almost in the village
itself, number of independent persons would have witnessed the incident. In our
opinion this is not a permissible submission. it was not established that over
and above these witnesses others had seen the incident. PW-3. on the contrary,
in his cross- examination has stated that when this incident had taken place
besides him only PWs-4 and 5 were there and others came after he had raised
next contended that evidence of PW-3 ought not to have been accepted because he
has stated in his evidence that he had on that day gone to take bath in the 'doba'
(a small tank) near the house of Babr Ali and that after taking bath he was
proceeding on the pathway behind Babr Ali. It was submitted that the site plan
does not show that there was any 'doba' near the house of babar Ali. In his
evidence the Investigating Officer clearly stated that there was tank near the
house of Babar Ali. Merely because the tank is not shown in the site plan, the
evidence of the eye witness and the Investigating Officer cannot be discarded.
In our opinion the courts below were right in placing reliance on the evidence
of PWs-1, 3, 4 and 5. They have given good reasons for believing them and
rejecting the contentions raised on behalf of the defence. We do not find any
flaw in the appreciation of evidence of those witnesses.
appeal is, therefore, dismissed. The accused are ordered to surrender to
custody to serve out the remaining part of their sentence.