REPORTABLE  

IN THE 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)

J U D G M E N T  

P. Sathasivam, J.

1) This  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.   

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2) Case of the prosecution in brief:

i) 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.  

Another accused called Rausan also struck him with a deadly  

weapon.  After seeing some residents of the locality crowding  

around, the miscreants stopped chasing the other witnesses.  

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 Police Station.  

ii) A  case  of  murder  was  instituted  by  Bharatpur  Police  

Station.   After  conducting  inquest  over  the  dead  body,  the  

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Investigating  Officer  sent  the  dead  body  to  the  hospital  for  

post-mortem and also prepared a sketch-map with an index.  

Some of the incriminating articles found at the spot were also  

seized  and  sent  for  chemical  examination.   Meanwhile,  the  

available witnesses were examined by the Investigating Officer.  

Finally,  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.   

iii) The  accused  persons  having  pleaded  innocence,  the  

prosecution examined 16 witnesses to prove their case.   

iv) 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  

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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.  

v) 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.  

339  of  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.  

Aggrieved  by  the  above  conviction,  the  appellants  have  

approached this Court by way of special leave.      

3) Heard  Mr.  K.N.  Balagopal,  learned  senior  counsel  

appearing  for  the  appellants  and  Ms.  Radha  Rangaswamy,  

learned counsel appearing for the State.                

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4) 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.   

5) We have carefully perused the materials and considered  

the rival submissions.   

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6) 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’.  

7) The  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  

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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.

8) Another witness relied on by the prosecution is PW 12.  

He was 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  

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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,  

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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.  

Consequently, the appeal fails and the same is dismissed.  

...…………………………………J.  (P. SATHASIVAM)                                  

....…………………………………J.   (R.M. LODHA)

NEW DELHI; MAY 10, 2010     

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