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PETITIONER: NAZRUL MONDAL & ORS.

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT:       23/10/1997

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                THE 23RD DAY OF OCTOBER, 1997 Present;                Hon’ble 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. Debasis Mohanty,  K.N. Tripathy  and J.R. Das, Advs. for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: NANAVATI, J.      This  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.      All 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.      What 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  (PW-6). According 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.      The 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 witness.

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Evidence 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. It may  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.      As 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 Report. Their 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. In our  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.      The 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

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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.      It was  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 crises.      It was  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.      This appeal  is, therefore,  dismissed. The accused are ordered to  surrender to  custody to serve out the remaining part of their sentence.