NAZRUL MONDAL AND ORS.

STATE OF WEST BENGAL

OCTOBER 23, 1997

[G.T. NANAVATI AND V.N. KHARE, JJ.] B

Indian Penal Code, 1860 : S. 302 read with S. 149 : Murder by members of unlawful assembly-All eye witnesses related to the deceased- Their evidence-Admissibility of-Held : Courts below were right in placing C reliance on their evidence-Further, where accused are named in FIR as accomplices, it is not essential to ascribe specific allegation to them.

The appellants were alleged to be part of a group of persons which had assaulted and killed the deceased. The incident was said to have been witnessed by PW-1, brother of the deceased, PW-4, his daughter, PW-5, his son, PW- D 3 and PW-6. It was contended before the trial Court that these witnesses were all related to the deceased, that the presence of PW-4 and PW-5 with the deceased at that time was doubtful, that PW-1 had admitted in crossexamination that when he went to the place of incident his brother had already fallen dead, and that PW-3 was a chance witness. The trial court, however, relying on the evidence of these witnesses convicted six accused, including E the three appellants for the said offences. The High Court agreed with the appreciation of evidence by the trial court and confirmed conviction.

This Court granted special leave to the appellants only on the basis that their names did not appear in the F.l.R. _At the bar, the appellants contended that no specific allegation was made against them, that the evidence of PW-4 F and PW-5 ought not to have been accepted as no blood stains were noticed on their clothes since the injuries caused to the deceased had led to spurting of blood, more so as the sound of footsteps of 20 accused would have attracted their attention, that evidence of PW-3 should not have been accepted because he had stated in his evidence that he had on that day gone for bath in a doba, G and that the incident having taken place almost in the village itself, a number of independent persons would have witnessed the incident.

Dismissing the appeal, the Court

HELD : 1. There is no flaw in the appreciation c;.f evidence of eye- H 697

A witnesses by the courts below. The Trial Court believed the presence of PW- 1 as his house was only 100 feet away from the place of incident. It found that PW-Sand PW-4 were accompan}ing their father as he was going to the market for purchasing cloth for them. It also believed the presence of PW-3 as his evidence stood corroborated by PW-8, who on being informed by the former B soon after the incident, had in turn telephoned the police station. If also found corroboration of evidence of eye-witnesses in the find of case property from the place of incident and also by the medical evidence. The High Court had rightly agreed with these findings. (700-B-C)

2. The names of the appellants are mentioned as accused ii) the FIR at C Sr. Nos. 4, S and 6. That report contains an allegation that the df:eased was attacked by all the accused named therein. That would mean that there was an allegation against the appellants that they had assaulted the deceased and had thus taken part in killing the deceased. (700-G) [

3. The evidence on record clearly discloses that PW-4 and PW-S were walking ahead of the deceased by four or five steps. It is likely th3t they were at little distance from the deceased. Their attention, as stated by them, was drawn only when they had heard the cry raised by their father. The deceased was assaulted after he was surrounded by the accused. Therefore, there was no possibility of their being so near and their clothes becoming blood-stained.

E Further, it has not been brought out in the cross-examination of these witnesses as to how and in what manner the accused had reached that place.

It is possible that the accused had approached the deceased quietly. It cannot, therefore, be speculated that the footsteps of20 accused would have created sufficient noise to attract attention of these witnesses. (700-H; 701-A•C) F

4. PW-3 has stated in his cross-examination that when this incident had taken place besides him only PW-4 and PW-S were there and others came after he had raised cries. It was not established therefore that over and above the said eye-witnesses others had seen the incident. (701-F-E)

S. In his evidence the investigating officer clearly stated that there was a tank near the house of deceased. Merely because the tank is not shown in the site plan the evidence of the eye-witnesses and the investigating officer cannot be discarded. Therefore, the evidence of PW-3 that he had on that day gone to take bath in the 'doba' and that after taking bath he was proceeding H on the pathway behind the deceased cannot be disbelieved. (701-G-H)

NAZRUL MO ND AL v. ST A TE OF WEST BENGAL [NANA VA TI, J .] 699

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 232 A of 1988.

From the Judgment and Order dated 13.2.87 of the Calcutta High Court in Crl.A.No.308 of 1984.

S.N. Misra and P.K. Chakraborty for the Appellants.

Debasis Mohanty, K.N. Tripathy and J.R. Das for the Respondent.

The Judgment of the Court was delivered by

NANA VA TI, 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. 308of1984. 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 that 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-I) brother of the deceased, Kalam Biswas (PW-3), Sahida Khatun (PW-4) daughter of the deceased. Nasiruddin Biswas (PW-5) son of the F deceased and Firujtullah (PW-6). According to the prosecution he motive for killing Bahar 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 G

they were all relate 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. Evidence of PW- I was challenged on H

A the ground that the 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- I was believed as his house was only about I 00 feet away from the place of incident. It found that PW-3 and PW- 4 were accompanying their father as he was going to the market for purchasing B 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 C 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 charge sheeted, 9 were discharged by the learned Sessions Court before framing the charge and 5 were acquitted after the trial. The High Court confirmt:d the conviction of all the 6 accused as it agreed with the appreciation D 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 E of !hree 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 through their names are mentioned no specific allegation is made F regarding the part played by them in killing the deceased. In our opinion even this submission is not quite correct factually. It does contain an 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.

G I

The learned counsel for the appellants raised all the grounds which were 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 H noticed on their clothes. It was submitted that, if as stated by them, they

NAZRULMONDAL•· STATEOFWESTBENGAL [NANAVATl, J.] 701

were only two or four steps ahead of the deceased, then in all probability A 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 were at a little distance from B the deceased .. As stated by them their attention was drawn only when they had heard they cry raised by their father. The deceased was assaulted after he was surrounded by the accused. Therefore, there was no possibility of their being so near and their clothes becoming blood staine5i. It was also submitted that if they were really walking a few paces ahead of the deceased, the.n in that case they should have heard the sound of footsteps C of 20 accused who h;'.ve alleged to have assaulted the deceased. How and in what manner the accused had reached that place has not been brought out in cross-examination of these two witnesses. 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 D 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 E 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 PW-s-4 and 5 were there and others came after he had raised cries.

It was next contended that evidence of PW-3 ought not be 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 ofBabar

Ail and that after taking bath he was proceeding on the pathway behind Babar Ail. It was submitted that the site plan does not show that there G was any 'doba' near the house of Bahar Ail. In his evidence the Investigating Officer clearly stated that there was a tank near the house of Bahar Ali.

Merely because the tank is not shown in the site plan, the vidence of the eye witness and the Investigating Officer cannot be discarded. In our opinion the courts below were right in placing reliance on the evi<lence H

A of PW-s-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 B to custody to serve out the remaining part of their sentence.

vs Appeal dismissed.