IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1974    OF 2009 (Arising out of S.L.P.(Crl.)NO.1502 of 2009)

PRABIR MONDAL & ANR.    … Appellants Vs.

STATE OF WEST BENGAL       … Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.   

2. The appellants herein and one Mongal Das were  

tried  for  an  offence  punishable  under  Section  

307/34 Indian Penal Code in Sessions Trial No.2 of  

March  1987  arising  out  of  a  First  Information  

Report lodged with Berhampore Police Station in the  

District of Murshidabad, West Bengal.  The learned

Sessions Judge convicted the three accused under  

Section 307/34 I.P.C. and sentenced each of them to  

suffer rigorous imprisonment for 10 years and to  

pay  a  fine  of  Rs.1,000/-,  and,  in  default,  to  

suffer rigorous imprisonment for one more year.

3. Aggrieved  by  the  judgment  of  conviction  and  

sentence passed by the learned Sessions Judge, the  

appellants, along with Mongal Das, filed an appeal  

before the High Court, being C.R.A.No.343/87.  By  

its judgment dated 30th June, 2008, the High Court  

dismissed the appeal and confirmed the judgment of  

the learned Sessions Judge.  Although, there were  

no eye-witnesses to the incident and the conviction  

was  based  on  circumstantial  evidence,  the  High  

Court  was  of  the  view  that  the  circumstantial  

evidence, and in particular, the evidence of the  

victim  would  conclusively  show  that  the  accused  

were involved in the incident.  Even the fact that  

the victim had not informed the doctor, who was  

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examined as “P.W.7”, as to how the incident had  

happened, was not given much importance by the High  

Court.   

4. Appearing for the appellants, Mr. Pradip Ghosh,  

learned  Senior  Advocate  submitted  that  while  

disposing of the appeal, the Hon’ble Judges of the  

High Court did not deal with the evidence adduced  

on behalf of the prosecution and disposed of the  

appeal on a general reference to the same.  Mr.  

Ghosh submitted that the evidence adduced on behalf  

of  the  prosecution,  including  the  evidence  of  

P.W.1,  the  victim,  would  clearly  establish  the  

absurdity of the prosecution case.  Mr. Ghosh urged  

that even the evidence of the doctor (P.W.7) had  

not been considered by the High Court, although,  

the same had a significant bearing on the veracity  

of the prosecution case.

5. Mr. Ghosh urged that although the incident is  

said to have occurred at about 11.00 p.m. in the  

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night of 6th September, 1982, the same was reported  

to the Berhampore Police Station only at 9.45 a.m.  

on 7th September, 1982, after the lapse of about 11  

hours.   From  the  First  Information  Report,  Mr.  

Ghosh also pointed out that although the complaint  

was lodged on 7th September, 1982 at 9.45 a.m., the  

same was dispatched to the learned Magistrate the  

next day at 8.00 a.m., after an interval of one  

day.   According  to  Mr.  Ghosh,  such  delay  spoke  

volumes of the manner in which the prosecution had  

built  up  its  story,  which  in  itself  belied  the  

prosecution case.   

6. Turning to the evidence of P.W.1, Kashem Sk.,  

the victim, Mr. Ghosh pointed out that according to  

the  said  witness  he  had  gone  to  the  Berhampore  

General  Hospital  for  treatment  immediately  after  

the  incident  between  1.00  and  1.30  a.m.  on  7th  

September,  1982.   From  the  hospital,  instead  of  

going to the police station for lodging the First  

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Information Report, he claimed to have gone home  

and went to the police station for the said purpose  

at 8.00 a.m., which gave him sufficient time to  

involve and implicate the appellants and Mongal Das  

in the incident on account of previous enmity.   

7. Mr. Ghosh also pointed out from the evidence of  

P.W.1 that the incident as narrated was hard to  

believe since it was the case of the victim that  

while he was sleeping in the pump room in question,  

the Appellant No.1 pressed his mouth with his hand  

while Mongal Das held two ends of the knife to cut  

the throat of the victim.  In cross-examination,  

P.W.1 also deposed that he had caught hold of the  

middle portion of the knife with both hands and  

that on account of the same he had sustained cut  

injuries on the palm of his left hand.  Mr. Ghosh  

submitted that the said story was not consistent  

with the injury report which was prepared by P.W.7  

on  7th September,  1982.   According  to  the  said  

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report, P.W.7 had examined Kashem Sk. at 1.45 a.m.  

in  the  Berhampore  General  Hospital  where  he  was  

posted as Medical Officer.  According to him, there  

was one incised wound on the left side of cheek 2½”  

x 1/6” skin deep starting from the left half of the  

upper lip.  He also found one minor abrasion over  

the right palm ½” x 1/6” and was of the view that  

the first injury may have been caused by a sharp  

edged weapon while the latter injury over the right  

palm might have been caused by a blunt object.  Mr.  

Ghosh  submitted  that  there  was  no  mention  

whatsoever of any incised injury either on the left  

palm, as was claimed by the victim in his evidence,  

or in the right palm, which not only disproved the  

evidence of the victim but gave rise to serious  

doubts  as  to  whether  the  incident  had  at  all  

occurred  in  the  manner  suggested  by  the  

prosecution.   According  to  Mr.  Ghosh,  in  the  

opinion of P.W.7 even the injury on the left cheek  

of the victim could have been caused by a sharp  

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pointed bamboo strip.                            

 8. Mr.  Ghosh  then  referred  to  the  evidence  of  

P.W.1, the alleged victim, where he has said that  

Krishna was holding the handle of the knife and  

Mongal took the other end and both of them touched  

his throat in order to kill him and that in order  

to prevent them from doing so, he resisted and as a  

result, the knife touched his left cheek causing  

injuries  on  his  left  cheek,  as  indicated  

hereinabove.  Mr. Ghosh also referred to the cross-

examination of P.W.1, wherein he had mentioned that  

he had caught hold of the knife with the palm of  

his left hand and had sustained cut injury, which  

was contrary to the injury report which shows that  

P.W.1 had not received any cut injury on his left  

hand and the injury that had been caused on his  

right  palm  was  by  a  blunt  instrument.   Our  

attention was also drawn to the story made out by  

P.W.1  that  after  going  to  the  hospital  and  

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narrating the incident to the neighbours, he had  

left for home and in the early morning at about  

4.00 a.m. along with P.W.2, P.W.3, P.W.5, P.W.6 and  

one  Maniruddin,  he  had  gone  to  the  Berhampore  

Police Station and after giving the statement he  

also  deposited  a  knife with  the  police  station.  Mr. Ghosh drew our attention to the last portion of  

the cross-examination of P.W.1, wherein he stated  

that he had taken the knife which had been used to  

try and murder him to the hospital also.  From the  

hospital, P.W.1 stated that he went home with the  

said knife, and, thereafter, in consultation with  

the neighbours and relations, he again went to the  

police station with the said knife and deposited  

the same at the police station at 9.45 a.m.

9. For the purpose of proving the falsity of the  

prosecution case, Mr. Ghosh also referred to the  

deposition of P.W.2, Yeasin Sk., who was a seizure  

witness and claimed that the Investigating Officer  

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had seized one sword and after preparation of the  seizure list, he had signed the same.    

10. Reference was also made to the deposition of  

P.W.3, Shanti Bibi, the sister-in-law of the victim  

Kashem  Sk.,  whose  evidence  was  merely  hear-say  

evidence and besides stating that she found three  

persons fleeing away to the southern side,  she  

also  stated  that  she  did  not  find  anybody  

assaulting Kashem Sk. at the relevant time.  

11. Mr. Ghosh then referred to the evidence of Dr.  

Swapan Baral (P.W.7) to indicate contradictions in  

the  evidence  of  Kashem  Sk.  in  relation  to  the  

injuries alleged to have been inflicted on him by  

the appellants.

12. Mr. Ghosh lastly referred to the evidence of  

P.W.8,  Biswanath  Sarkar,  who  conducted  the  

investigation.  According  to  him,  he  visited  the  

shallow pump room and seized one blood stained pati  

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(a small mat made of date palm leaves), one old  

pillow and one  hanshua  with broken handle having  some cracks.  In answer to a query by the Court,  

the said witness also submitted that one big knife  

was seized from the complainant Kashem Sk. at the  

police  station.   The  said  witness  also  admitted  

that none of the seized items were sent to the  

forensic laboratory for examination and it was not  

possible  to  say  whether  the  said  mat  had  been  

stained  with  human  or  animal  blood.   He  also  

admitted  that  he  could  not  procure  the  original  

injury report signed by Dr. Swapan Baral.   

13. Mr. Ghosh urged that there was no explanation  

for the delay in lodging the FIR and that according  

to the evidence of P.W.1, he had gone home and  

consulted  the  neighbours  and  relations  and  had,  

thereafter, lodged the FIR, giving rise to serious  

doubts  about  the  genuineness  of  the  complaint.  

Mr. Ghosh referred to a decision of this Court in  

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Rajeevan vs.  State of Kerala [(2003) 3 SCC 355],  

where such a delay was held to cause sufficient  

doubt about the genuineness of the FIR.   

14. Learned counsel lastly submitted that it was  

extremely surprising that when visiting the doctor  

for treatment, P.W.1 did not even mention about the  

incident to the doctor or as to how he had received  

the injuries on his person.  Mr. Ghosh urged that  

from the state of the evidence, it was not possible  

to find the appellants guilty of the offence under  

Section 307 read with Section 34 IPC and sustain  

the sentence imposed on the appellants on account  

thereof.   

15. Mr. Satish Vig, learned Advocate, who appeared  

for the State, submitted that the prosecution had  

successfully  proved  its  case  and  there  was  no  

reason  to  disbelieve  the  evidence  of  P.W.1,  the  

victim,  who  had  sustained  injuries  during  the  

attempt made by the appellants to kill him.  He  

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submitted that the very fact that the victim had  

sustained injuries on his left cheek was sufficient  

to indicate that the incident had, in fact, taken  

place.  Even as far as identification is concerned,  

Mr. Vig submitted that it was a moonlit night and  

it was not, therefore, difficult for P.W.3, Shanti  

Bibi, to identify the three people, she saw running  

away from the scene of the occurrence.  He also  

submitted  that  it  is  quite  possible,  after  a  

traumatic experience, for a victim to make a few  

mistakes  while  making  his  statement,  but  as  

observed by the Division Bench of the Calcutta High  

Court, such omission, including the question as to  

whether he had told the doctor about the incident  

or  not,  would  not  warrant  acquittal  of  the  

appellants  when  the  incident  was  proved  through  

other witnesses.  Mr. Vig also submitted that the  

delay of 12 hours in lodging the FIR could not be  

said to be fatal to the prosecution case, since the  

victim had to first attend the hospital to treat  

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his injuries, and, thereafter, on returning home  

and  resting  for  a  while,  he  along  with  several  

others left for the police station where the FIR  

was lodged.   

16. Mr. Vig submitted that no case had been made  

out on behalf of the appellants for interference  

with the judgment and order of the High Court.   

17. Having  considered  the  submissions  made  on  

behalf of the respective parties and after going  

through the materials on record, we are inclined to  

accept Mr. Ghosh’s submissions that the case made  

out by the prosecution appears to be improbable and  

the  conviction  of  the  appellants  was  not  in  

conformity with the evidence adduced on behalf of  

the prosecution.

18. The  main  pillar  of  the  prosecution  case  is  

P.W.1, Kashem Sk., the complainant himself.   

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19. As  pointed  out  by  Mr.  Ghosh,  the  manner  in  

which  the  alleged  incident  is  supposed  to  have  

taken  place  does  not  fit  in  with  the  injuries  

received  by  the  complainant.   The  most  glaring  

inconsistency  is  the  story  of  the  complainant’s  

having held the blade of the knife, alleged to have  

been used in the commission of the offence, with  

both hands and thereby suffering incised injuries  

on his left palm.  The injury report shows that the  

complainant did not have any incised injury or any  

other injury on his left palm and the injury to his  

right palm was not of an incised nature, but a  

bruise  which  could  have  been  caused  by  a  blunt  

instrument. Moreover, the knife, which was seized  

and  was  alleged  to  have  been  used  for  the  

commission  of  the  offence,  was  never  sent  for  

forensic examination so as to connect it with the  

offence.  Furthermore,  the  other  sharp-cutting  

implements, which were also seized, were also not  

sent for such examination.  Even the mat which had  

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blood  stains  on  it  was  not  sent  for  such  

examination and it could, therefore, not be proved  

as  to  whether  the  blood  stains  thereon  were  of  

human or animal origin.   Coupled with the above is  

the fact that on going to the hospital in the night  

for medical treatment, the complainant did not even  

disclose to the doctor as to how he had sustained  

the injuries.  The doctor was, therefore, not at  

all aware of any such incident, as presented by the  

prosecution, having been committed.   Coupled with  

the above is the fact of the delay in lodging the  

FIR after consultation with the local villagers.  

Therefore, chances of fabrication in the FIR cannot  

be ruled out.

20. Neither the Trial Court, nor the High Court,  

appears to have looked into these details properly.  

We, therefore, have no hesitation in setting aside  

the judgment of conviction and sentence imposed by  

the Trial Court and upheld by the High Court.    

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21. The  appeal  is,  accordingly,  allowed.  The  

appellants be released forthwith.      

…………………………………………J. (ALTAMAS KABIR)

……………………………………………J. (CYRIAC JOSEPH)

……………………………………………J. (ASOK KUMAR GANGULY)

New Delhi Dated:28.10.2009.

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