Kumar Mondal Vs. State of West Bengal  INSC 544 (26 July 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1247
of 2008 Bipin Kumar Mondal ...Appellant Versus State of West Bengal
This appeal has been preferred against the judgment and order
dated 13th July, 2005, passed in Criminal Appeal No. 352 of 2001 by the High
Court of Calcutta, by which the High Court dismissed the application filed by
the appellant and upheld the conviction and sentence passed by the Trial Court
Mondal) under Sections 302 and 307 of the Indian Penal Code, 1860 (hereinafter
called as the `IPC').
Facts and circumstances giving rise to this appeal are that one
Sujit Mondal, PW-1, lodged an Ejahar with Raninagar Police Station on 6.12.1999
stating that his father Bipin Kumar Mondal, appellant herein, came to their
house at about midnight on 5.12.1999 and attacked his mother, Usha Rani Mondal,
with a knife and inflicted severe injuries on her person. When he went to save
his mother, he was also attacked by his father. He received injuries on his
head and hands and he had to escape out of fear. His younger brother, Ajit
Mondal, was also severely injured with a knife by his father. On hearing the
hue and cry made by Sujit Mondal, PW- 1, his neighbours came and in the
meantime his father ran away.
On the basis of the said Ejahar, the police investigated the case
and submitted the charge sheet against the appellant under Section 302/307 IPC.
Appellant pleaded not guilty and hence, he was put to trial.
In support of its case, the prosecution examined 11 witnesses to
bring home the charge against the appellant. An Ejahar was lodged by the son of
the appellant and other witnesses had been close neighbours and relatives
residing in the same village. The Trial Court considered the evidence of
prosecution witnesses and came to the conclusion that petition of complaint had
been written by Saidul Islam, PW-10, on the instructions of Sujit Mondal, PW-1,
and both of them supported the prosecution case in Court. Saidul Islam, PW- 10,
was a resident of another village and had gone to Raninagar Public Health
Centre in connection with the treatment of his relation and there he was
requested by Sujit Mondal, PW-1, to write the said Ejahar (Exh.-1). Sujit
Mondal, PW-1, had deposed that he had gone to the same Public Health Centre at
Raninagar and was admitted for treatment for one day. The other witnesses who
were close neighbours had supported the prosecution case and deposed that all
of them reached the place of occurrence after hearing the shouts by Sujit
Mondal and when they reached there, they were told by Sujit Mondal, PW-1, that
his father had killed his mother 3 and brother and inflicted injuries on his
person. After considering the entire evidence on record and taking it into
consideration along with the defence taken by the appellant, which had been
only to the extent that he was innocent, the trial Court held that the prosecution
had succeeded in proving its case beyond reasonable doubt. However, the
injuries on the person of Sujit Mondal, PW-1, were found not to be so serious
and he has failed to produce any certificate from Raninagar Public Health
Centre or any other proof that he was admitted there. The appellant was
convicted under Sections 302 and 323 IPC. Thus, he was awarded the sentence of
life imprisonment under Section 302 IPC and 6 months' RI under Section 323 IPC,
however, it was held that both the sentences would run concurrently vide
judgment and order dated 12.6.2001.
The appellant preferred Criminal Appeal No.352 of 2001, which has
been dismissed by the High Court vide impugned judgment and order dated 13th
July, 2002. Hence, this appeal.
Shri Seeraj Bagga, learned Amicus Curiae, has submitted that the
appellant is innocent and has been falsely implicated in the crime. Sujit
Mondal, PW-1, was not sure as to who had committed the offence. There was no
motive for committing the crime and the weapon with which the offence had been
committed has never been recovered. The depositions made by PWs 2 to 8, the
so-called related persons or neighbours are merely based on hearsay as none of
them had seen the commission of offence.
There are material contradictions in their depositions.
Kumar, PW-4, had deposed that when he reached the place of occurrence, Ajit
Mondal died within a short time after his arrival. However, none of the other
witnesses have stated that when they reached the place of occurrence after
hearing the hue and cry of Sujit Mondal, PW-1, Ajit Mondal was alive and had
died after some time. All the three persons had been sleeping in the same room
which was open. Therefore, it was possible for any outsider to enter into the
house and the possibility that an outsider entered the house and committed 5
the offence could not be ruled out. The appellant was an anti- social element
and many persons had a grudge against him.
other person could have committed the crime. The evidence to the effect that at
the time of commission of offence, the lamp was burning and there was
sufficient light, is also not free from doubt. Therefore, the appeal deserves
to be allowed.
On the contrary, Shri Avijit Bhattacharjee, learned counsel for
the State, has opposed the appeal and vehemently submitted that Sujit Mondal,
PW-1, had no doubt or suspicion in his mind that his father had committed the
offence. The depositions made by PWs 2 to 8, who are close relatives and
neighbours who had reached the place of occurrence immediately after commission
of the offence, cannot be doubted as each of them has deposed before the Trial
Court that Sujit Mondal, PW-1, told them that the appellant, his father has
committed the crime. The recovery of knife used in the commission of offence
could not be made because the appellant remained absconding for a long time.
The conduct of 6 the appellant i.e. absconding for a long time itself
establishes the guilt of the appellant.
All the witnesses had been put to cross-examination and nothing
has been obtained to seek the credence of the evidence of any of them. The
appellant just pleaded innocence and nothing else. He did not even disclose as
under what circumstances he had absconded from his family home and had been
living somewhere else, where he had been at the time of commission of offence
and why did he not attend any ritual i.e. funeral etc. of the victims if he was
innocent. The appeal lacks merit and is liable to be dismissed.
We have considered the rival submissions made by learned counsel
for the parties and perused the record.
Sujit Mondal, PW-1, has lodged an Ejahar with Raninagar Police
Station on 6.12.1999 giving full details of the commission of the offence and
naming his father as the person who committed the offence. The said Ejahar had
been written by Saidul Islam, PW-10. On scrutiny of evidence of PW-10, it
becomes evident that he is an independent witness residing in another village
and could not have any grudge to support the 7 case of the prosecution by
deposing falsely. The conduct of Sujit Mondal, PW-1, remains very natural,
probable and convincing. During cross-examination, nothing could be elicited
from him seeking the credence of his statement. No reason came forward in the
cross-examination or otherwise as to why a son would depose against his father.
There is no suggestion by Sujit Mondal, PW-1, that he was not sure as to who
has committed the offence, as in cross-examination he denied such a suggestion
stating that it was not a fact that he told the name of the assailant as his
father by suspicion. The other witnesses who were close relatives and
neighbours of the appellant have supported the prosecution case. Sambhu Nath,
PW-2, had deposed that he reached at about mid-night when Sujit Mondal, PW-1,
shouted and he came out from his house and on enquiry from PW-1, he learnt that
his mother and brother had been murdered by the appellant with a sharp cutting
knife. PW-1 was also injured on his head and hands.
Kumar, PW-3, deposed that on reaching the place of occurrence, he interrogated
Sujit Mondal, who told him that his father had killed his mother, Usha Rani and
brother, Ajit 8 Mondal and there had been an attempt by his father to kill him
(Sujit Mondal) also with a sharp cutting knife. Dilip Kumar, PW-4, Binay
Mondal, PW-6, Anukul Chandra, PW-7 and Prasanna Kumar, PW-8, also deposed to
the same effect. All these witnesses had been cross-examined but there is
nothing on record to show that any part of their depositions could be doubted.
We do not find any force in the submissions made by Shri Seeraj Bagga that
there were material contradictions in their depositions as learned counsel for
the appellant had pointed out that Dilip Kumar, PW-4, had deposed that when he reached
the place of occurrence, Ajit Mondal was alive and he interrogated him as to
who had caused the injury and he told him that his father assaulted him and
left. He further deposed that Sujit Mondal told him that Ajit Mondal and Usha
Rani were also attacked by the appellant and Ajit Mondal died within a short
time and Usha Rani had died before his arrival.
The submissions made by Shri Seeraj Bagga is that none of the
other witnesses had deposed that when any of them reached the place of
occurrence, Ajit Mondal was alive. In fact, 9 there is nothing on record to
show as who was the person who reached first at the place of occurrence. It
cannot be presumed that all of them reached the place of occurrence at the same
time/simultaneously. No other question had been put to Dilip Kumar, PW-4, in
his cross-examination. Therefore, it is quite possible that he was the first
man to arrive at the place of occurrence and the statement made by him cannot
Bipin Mukherjee, PW-9, had been the Investigating Officer at a
later stage when the first Investigating Officer had been transferred and he
had deposed that he had submitted the charge sheet against the accused under
Sections 302/324 IPC on 13.4.2000 showing the appellant as absconder. The appellant
was given opportunity to cross-examine the said I.O.; but the opportunity was
not availed. In fact, he was the best person to explain as to why there could
not be any recovery of the knife, the weapon used in the crime.
Saidul Islam, PW-10, an independent witness belonging to another
village has successfully proved the Ejahar written by him at Raninagar Public
Health Centre. The ocular evidence given by Sujit Mondal, PW-1, is duly
supported by 10 the post mortem report and by Dr. Tarun Kumar, PW-5, examined
by the prosecution, who had explained that several stab injuries had been
caused in the chest, neck and heart of Usha Rani Mondal. He proved the post
mortem report and opined that the cardio respiratory failure due to shock and
haemorrhage due to injuries, had been the cause of death. He also opined that
injuries were caused by sharp cutting weapon. Same remains the situation so far
as the injuries on the body of Ajit Mondal are concerned.
For every question put to the appellant under Section 313 of Code
of Criminal Procedure, 1973, the same reply was given that he was innocent and
he submitted that he would not adduce any evidence in his defence.
In view of the above, we reach the inescapable conclusion that
there is nothing on record to show that there could be any reason for Sujit
Mondal, PW-1, a son, to falsely implicate and rope his father into such a
gruesome murder or the other witnesses, who had been so close relatives and
neighbours of the appellant, would support the prosecution case.
During the cross-examination of all of the witnesses, nothing had
transpired for which their evidence may be discarded. The witnesses were natural
and most probable and their presence at the place of occurrence immediately
after the commission of crime is expected, being close relatives and
neighbours. No reason could be given as to why such close relations of the
appellant would depose against him.
there is nothing on record to show as what could be the motive behind the
murder of his wife and son by the appellant. However, it can be difficult to
understand the motive behind the offence. The issue of motive becomes totally
irrelevant when there is direct evidence of a trustworthy witness regarding the
commission of the crime. In such a case, particularly when a son and other
closely related persons depose against the appellant, the proof of motive by
direct evidence loses its relevance. In the instant case, the ocular evidence
is supported by the medical evidence. There is nothing on record to show that
the appellant had received any grave or sudden provocation from the victims or
that the 12 appellant had lost his power of self control from any action of
either of the victims.
In fact, motive is a thing which is primarily known to the accused
himself and it may not be possible for the prosecution to explain what actually
prompted or excited him to commit a Maharashtra, AIR 1973 SC 55, this Court
held that in case the prosecution is not able to discover an impelling motive,
that could not reflect upon the credibility of a witness proved to be a
reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases
wholly dependent on circumstantial evidence. Such evidence would form one of
the links in the chain of circumstantial evidence in such a case.
would not be so in cases where there are eye- witnesses of credibility, though
even in such cases if a motive is properly proved, such proof would strengthen
the prosecution case and fortify the court in its ultimate conclusion. But that
does not mean that if motive is not 13 established, the evidence of an
eye-witness is rendered untrustworthy.
It is settled legal proposition that even if the absence of motive
as alleged is accepted that is of no consequence and pales into insignificance
when direct evidence establishes the crime. Therefore, in case there is direct
trustworthy evidence of witnesses as to commission of an offence, the motive
part loses its significance. Therefore, if the genesis of the motive of the
occurrence is not proved, the ocular testimony of the witnesses as to the
occurrence could not be discarded only by the reason of the absence of motive,
if otherwise the evidence Tamil Nadu, (2010) 5 SCC 91).
In a case relating to circumstantial evidence, motive does assume
great importance, but to say that the absence of motive would dislodge the
entire prosecution story is giving this one factor an importance which is not
due. Motive is in the mind of the accused and can seldom be fathomed with any
14 (2007) 13 SCC 90).
While dealing with a similar issue, this Court in State of
"The motive may be considered as a circumstance which is relevant for
assessing the evidence but if the evidence is clear and unambiguous and the
circumstances prove the guilt of the accused, the same is not weakened even if
the motive is not a very strong one. It is also settled law that the motive
loses all its importance in a case where direct evidence of eyewitnesses is
available, because even if there may be a very strong motive for the accused
persons to commit a particular crime, they cannot be convicted if the evidence
of eyewitnesses is not convincing.
same way, even if there may not be an apparent motive but if the evidence of
the eyewitnesses is clear and reliable, the absence or inadequacy of motive
cannot stand in the way of conviction."
by Accused :
1050, this Court repelled the submissions made by the State that as after
commission of the offence the accused 15 had been absconding, therefore, the
inference can be drawn that he was a guilty person observing as under:
appellant's conduct in absconding was also relied upon. Now, mere absconding by
itself does not necessarily lead to a firm conclusion of guilty mind. Even an
innocent man may feel panicky and try to evade arrest when wrongly suspected of
a grave crime such is the instinct of self-preservation.
of absconding is no doubt relevant piece of evidence to be considered along
with other evidence but its value would always depend on the circumstances of
each case. Normally the courts are disinclined to attach much importance to the
act of absconding, treating it as a very small item in the evidence for
sustaining conviction. It can scarcely be held as a determining link in
completing the chain of circumstantial evidence which must admit of no other
reasonable hypothesis than that of the guilt of the accused. In the present
case the appellant was with Ram Chandra till the FIR was lodged. If thereafter
he felt that he was being wrongly suspected and he tried to keep out of the way
we do not think this circumstance can be considered to be necessarily evidence
of a guilty mind attempting to evade justice. It is not inconsistent with his
view has been reiterated by this Court in 16 Abscondance by a person against
whom FIR has been lodged, having an apprehension of being apprehended by the
police, cannot be said to be unnatural.
Thus, in view of the above, we do not find any force in the
submission made by Shri Bhattacharjee that mere absconding by the appellant
after commission of the crime and remaining untraceable for such a long time
itself can establish his guilt.
by itself is not conclusive either of guilt or of guilty conscience.
The defence did not even make a suggestion to Sujit Mondal, PW-1,
that he was not injured by the appellant with a knife. The evidence of PW-1,
therefore, cannot be ignored.
as the prosecution failed to produce any evidence to the effect that Sujit
Mondal, PW-1, remained admitted in PHC Raninagar. That part of the evidence has
been ignored by the Trial Court as well as by the High Court.
of Sole Witness :
Shri Bagga has also submitted that there was sole testimony of
Sujit Mondal, PW-1, and the rest, i.e. depositions 17 of PW-2 to PW-8, could be
treated merely as a hearsay. The same cannot be relied upon for conviction.
SCC 367, this Court repelled a similar submission observing that as a general
rule the Court can and may act on the testimony of a single witness provided he
is wholly reliable.
There is no legal impediment in convicting a person on the sole
testimony of a single witness. That is the logic of Section 134 of the Evidence
Act, 1872. But if there are doubts about the testimony the courts will insist
on corroboration. In fact, it is not the number, the quantity, but the quality
that is material. The time-honoured principle is that evidence has to be
weighed and not counted. The test is whether the evidence has a ring of truth,
is cogent, credible and trustworthy or otherwise.
Court re-iterated the similar view observing that it is the quality and not the
quantity of evidence which is necessary for proving or disproving a fact. The
legal system has laid emphasis on value, weight and quality of evidence 18
rather than on quantity, multiplicity or plurality of witnesses.
It is, therefore, open to a competent court to fully and
completely rely on a solitary witness and record conviction.
Conversely, it may acquit the accused in spite of testimony of
several witnesses if it is not satisfied about the quality of evidence.
1381, a similar view has been re-iterated placing reliance on various earlier
judgments of this court including
Thus, in view of the above, the bald contention made by Shri Bagga
that no conviction can be recorded in case of a solitary eye-witness has no
force and is negatived accordingly.
In view of the above, we are of the considered opinion that the
facts and circumstances of the case do not present special features warranting
the review of the judgments/orders of the courts below. Appeal lacks merit and
is accordingly dismissed.
Before parting with the case, we record our appreciation, thanks
and gratitude to Shri Seeraj Bagga in rendering full assistance to the Court
during the course of hearing.
.......................................J. (P. SATHASIVAM)