Ahmd.@ Lalu Dealer & Ors. Vs. State of West Bengal  INSC 384 (10 May
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 272
OF 2007 Moniruddin Ahmed @ Lalu Dealer & Ors. .... Appellant(s) Versus
State of West Bengal .... Respondent(s)
appeal is directed against the final judgment and order dated 08.02.2006 passed
by the High Court of Calcutta in C.R.A. Nos. 339 and 354 of 2002, in and by which
the High Court confirmed the conviction of the appellants herein under Section
302 and sentenced them to undergo life imprisonment.
1 2) Case
of the prosecution in brief:
According to the prosecution, on 21.10.1982, at about 1 p.m., the appellants
and few others armed with deadly weapons like spears, axes, bombs etc.,
launched an attack on the informant and his associates. Finding their lives at
stake, the witnesses scampered through the fields. While chasing the witnesses,
the miscreants viz., Lalu Dealer and Salim threw bombs at regular intervals. A
bomb hurled by them struck a person called Tulu. As he fell into the ground, he
was encircled by six persons. Finding the injured in helpless condition, Lalu
the first appellant struck him with a spear.
accused called Rausan also struck him with a deadly weapon. After seeing some
residents of the locality crowding around, the miscreants stopped chasing the
informant and other witnesses saved their lives, hiding in the paddy fields.
With the injured succumbing to his injury, the matter was reported to the local
case of murder was instituted by Bharatpur Police Station. After conducting
inquest over the dead body, the 2 Investigating Officer sent the dead body to
the hospital for post-mortem and also prepared a sketch-map with an index.
the incriminating articles found at the spot were also seized and sent for
chemical examination. Meanwhile, the available witnesses were examined by the
on examination of all available witnesses and collection of the post-mortem
report, injury report and Analyst's report, the charge-sheet was submitted.
Following the commitment of the case to the Court of Sessions, charge under Sections
108 and 302/149 of IPC were framed against 42 accused persons.
accused persons having pleaded innocence, the prosecution examined 16 witnesses
to prove their case.
Relying heavily on the statements of the eye-witnesses and the post-mortem
report, the trial Judge convicted 12 accused persons under Sections 148 and
302/149 IPC. They were sentenced to rigorous imprisonment for life and fine of
Rs.4,000/- each, in default, rigorous imprisonment for four months for
commission of offences under Section 302/149 IPC. They were also sentenced to
rigorous imprisonment for 3 two years and fine of Rs.1,000/- each, in default,
rigorous imprisonment for two months for commission of offences under Section
148 of IPC.
Aggrieved by the said judgment and order of conviction, the appellants herein
and 9 others moved the High Court in C.R.A. No. 339 of 2002 and C.R.A. No. 354
of 2002. C.R.A.
2002 was preferred by Moniruddin Ahmed @ Lalu Dealer and the other C.R.A. No.
354 of 2002 was preferred by the other 9 accused and 2 of the appellants
herein. The High Court, by its judgment and order dated 08.02.2006, dismissed
C.R.A. No. 339 of 2002 moved by Moniruddin Ahmed @ Lalu Dealer while allowing
C.R.A. No. 354 of 2002 in part moved by the other 9 accused and upheld the
conviction of 2 of the appellants herein viz., Rausan Sekh and Salim Sekh.
by the above conviction, the appellants have approached this Court by way of
Mr. K.N. Balagopal, learned senior counsel appearing for the appellants and Ms.
Radha Rangaswamy, learned counsel appearing for the State.
Learned senior counsel for the appellants submitted that there should not be
any conviction and sentence on disjointed and scrappy evidence. The trial Court
as well as the High Court failed to take into account various infirmities that
crept into the evidence during the trial. He further submitted that the Courts
below committed an error in relying on the evidence of PWs 7 and 8 as they had
not seen the incident. In the same manner, PW 9 who was at the relevant time in
the roof of the house, it was not possible for him to see the incident from a
long distance. On the contrary, learned counsel for the State submitted that
PWs 7 and 8 - injured witnesses, PWs 9 and 12 who also witnessed the occurrence
clearly established the prosecution case. It is further submitted that the
statement of eye-witnesses being consistent and coherent, the trial Court
rightly relied on their statements.
have carefully perused the materials and considered the rival submissions.
Though, charge sheet was laid against 42 accused persons, we are concerned
about the role of three appellants and whether prosecution has established
their guilt beyond doubt. Among the eye-witnesses present at the spot, PW 7 who
sustained injuries in the incident narrated that the appellants Moniruddin
Ahmed @ Lalu Dealer, Salim Dafadar @ Sekh, Rausan Sekh, Ibrahim Sekh, Abu
Siddiki, Motor Sekh, Mantu Sekh and many others chased him and his associates
on seeing them near the Talsouri Tank. Frightened by their aggressive look, PW
7 and other witnesses started fleeing towards the field. He further asserted
that he noticed Lalu Dealer and Salim Sekh throwing bombs towards them. One of
the bombs struck Abdul Hasib, as a result he fell down on the ground in the
field of Abu Bakkar. At that time, all the appellants and other accused
surrounded him and Lalu Dealer struck him with a `pathtangi', the other accused
persons also assaulted him with `lathi', `henso' and `bollom'.
other injured witness PW 8 also narrated the incident as explained by PW 7.
According to him, on seeing the aggressive mood of the accused, he and his
associates 6 escaped through paddy fields. When they were on the move, he saw
accused Lalu Dealer and Salim Dafadar throwing bombs towards Abdul Hasib. As
explained by PW 7, PW 8 also informed the Court that on encircling Lalu Dealer
struck Abdul Hasib with a spear, Rausan delivered a blow on him with a
`pathtangi'. In the same manner, as explained by PWs 7 and 8, PW 9 referred to
the involvement of the appellants and others, their overt act and the weapons
used by them. He also testified that by the merciless act of the appellants,
ultimately, it resulted in death of Abdul Hasib.
witness relied on by the prosecution is PW 12.
also present at the spot. Like PWs 7, 8 and 9, he also narrated the incident
how the accused chased and ultimately caused the death of Abdul Hasib. As
rightly observed by the High Court, though the above-said witnesses did not
place their medical reports about their injuries, their presence at the spot
cannot be doubted and rightly believed their version. An analysis of the
prosecution witnesses clearly show that the fatal blow with spear was delivered
by Lalu Dealer - the first appellant. It is also clear that the appellants and
others 7 chased the deceased with deadly weapons in their hands. In our view,
among the several accused the role played by the appellants had been analysed
by the High Court and rightly concluded that the appellants alone were
responsible and confirmed their conviction and sentence. On perusal and
analysis of the evidence of PWs 7, 8, 9 and 12, we are satisfied that the
prosecution has established the charge against the appellants under Sections
148 and 302/149 of IPC.. Though the first appellant took the plea of alibi, the
same was not substantiated. It is basic law that prosecution is to prove that
the accused was present at the scene and had participated in the crime. The
plea of the accused in such cases need be considered only when the burden has
been discharged by the prosecution satisfactorily. However, once the
prosecution succeeds in discharging its burden, it is incumbent on the accused,
who adopts the plea of alibi, to prove it with certainty so as to exclude the
possibility of his presence at the place of occurrence. It is also settled that
when the presence of the accused at the scene of occurrence has been
established satisfactorily by the prosecution through reliable evidence, 8
normally the court would be slow to believe any counter evidence to the effect
that he was elsewhere when the occurrence happened. In the case on hand, we
have already noted the absolute evidence indicating the presence of Lalu Dealer
at the scene of occurrence. He was not only at the spot but also caused the
death of Abdul Hasib by a fatal blow with spear. As rightly observed by the
High Court, the stand taken by the defence witnesses is unacceptable.
9) In the
light of the above discussion, we are in agreement with the conclusion arrived
at by the High Court.
the appeal fails and the same is dismissed.
..........................................J. (P. SATHASIVAM)
...........................................J. (R.M. LODHA)