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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1421 OF 2007
Md. Ishaque and Others .. Appellants
Versus
State of West Bengal and Others ..Respondents
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. This appeal arises out of a common judgment and order
dated 14.8.2006 passed by the High Court of Calcutta in CRA
No. 425 of 2001and CRA No. 463 of 2001, whereby the High
Court confirmed the conviction and sentence awarded to the
appellants.
2. The prosecution version is that on 5.7.1983 at about 5 AM
to 5.30 AM, some 200-250 villagers, which included the accused
persons as well, armed with various weapons like Lathi, Ladna,
Farsa, Hasua and Ballam surrounded the village Siktahar. ThePage 2
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accused persons forced out a number of persons from their
houses, assaulted them in various ways and ultimately took four
of them in tie-bound condition to a place called Hijul Pakur Field
which is some distance away from village Siktahar and they
assaulted them with various weapons causing serious injuries.
The injured persons were admitted to Ratua Public Health
Centre and later, shifted to Malda Sadar Hospital. One of the
injured, namely Azad Ali, succumbed to his injuries. The
remaining injured persons, viz. the informant - Md. Yasin PW1,
Hasan Ali PW4 and Farjan Ali PW2 sustained serious injuries.
During the course of occurrence, accused persons also
assaulted Mohammed Badaruddin PW3, Mohamed Sabiruddin
PW5 and Mohammed Kalimuddin PW6. However, those
persons could escape from the clutches of the accused persons
and flee from the place of assault.
3. Md. Yasin PW1 lodged the FIR on 8.7.1983, which was
recorded by N. N. Acherjee, S.I., C.I.D. and forwarded to Ratuna
P.S. and a case was registered being Crime No. 9 dated
5.7.1983 under Sections 147, 148, 149, 364, 307, 302 IPC at
Ratuna P.S. and the investigation was taken up by the police.
Later, investigation was handed over to the C.I.D. and, afterPage 3
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completion of the investigation, police submitted the chargesheet against 31 accused persons. (Of the charge-sheeted
persons, accused Ajahar Moral and Tabjul died during the
course of trial and the accused No. 25 died during the pendency
of the appeal before the High Court). Two other charge-sheeted
persons, namely, Hafijuddina and Safijuddin, were not sent up
and discharged by S.D.J.M. vide his order dated 9.12.1993.
Vide order dated 27.8.1983, the S.D.J.M. committed the case to
the Court of Sessions.
4. Charges were framed against 28 accused persons on
10.4.1995, which were read over and explained to accused
persons, to which they pleaded not guilty and claimed to be
tried. The prosecution examined 20 witnesses and produced
various documents. On defence side, one witness was
examined and also produced few documents. The defence
took up the stand that the entire incident was stated to have
taken place at Malo Para on 4.7.1983 and no occurrence, as
alleged, took place either at village Siktahar or at Hajul Pakur
Field on 5.7.1983. Further, it was stated that the case was
falsely foisted due to political rivalry between two groups.Page 4
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Accused persons belong to the Congress party and the
deceased and injured persons belong to CPM.
5. The trial Court, after considering the oral and documentary
evidence, found that the prosecution has succeeded in proving
the case and convicted 27 accused persons (out of 28 accused
persons) and one Abdul Taub found not guilty and was
acquitted.
6. Three appeals were filed against the order of conviction
passed by the trial Court. CRA No. 425 of 2001 was filed by
Md. Ishaque and another, CRA 463 of 2001 filed by Hefjur
Rahaman and 24 others and CRA N. 700 of 2006 was filed by
Jinnatual Haque, son of deceased, appellant no. 22, Md. Nurul
Islam under Section 394 CrPC. The High Court took the view
that the trial Court has rightly convicted all the accused
persons, except appellants Yasin, Daud Hazi, Mannan, Islam
Maulavi and Alauddin. CRA 425 of 2002 and CRA 463 of
2001were, therefore, allowed in part. Since Islam Maulavi was
acquitted, CRA 700 of 2006 was also allowed.
7. Aggrieved by the same, 21 accused persons have
preferred the present appeal. This Court granted bail to 14Page 5
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appellants vide its orders dated 19.8.2009 and 27.1.2012.
While the appeal was pending, appellants Haji Md. Belal Hossain
and Aaiyab Ali died.
8. Shri Pradip Ghosh, learned senior counsel appearing for
the appellants, submitted that the prosecution has failed to
establish the case beyond reasonable doubt and the appellants
deserve acquittal. Learned senior counsel pointed out that the
accused persons were falsely implicated due to political rivalry
and the case was framed as a counter-blast to the incident that
took place on 4.7.1983, a day earlier, wherein 13 persons from
the village of the accused persons were brutally murdered.
Learned senior counsel submitted that, on cross-examination of
the material witnesses namely PW1 to PW6, with reference to
the statement of the investigating officer, it would appear that
there were serious omissions and contradictions in their
statements, hence, the prosecution story cannot be believed.
The prosecution had also failed to establish the place of
occurrence, time of the alleged assault and the manner of the
alleged assault and there was no corroborative medical
evidence to support the various injuries alleged to have been
sustained by few of the witnesses. Further, it was pointed outPage 6
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that the doctor who conducted the post-mortem, was not
examined. Learned senior counsel also submitted that the High
Court has rightly acquitted few of the accused persons and the
reasoning adopted by the High Court equally applies in the case
of the appellants as well.
9. Shri Bijan Ghosh, learned counsel appearing for the State,
on the other hand, submitted that the High Court, after
examining the evidence of the eye witnesses and other
corroborative evidence, has rightly come to the conclusion that
the appellants are guilty and deserve the sentence awarded by
the trial Court. Learned counsel submitted that there is nothing
on record, wherefrom, it can be gathered that the place of
occurrence was not the village Siktahar and, thereafter, at Hijul
Pakur Field, where the injured persons and the deceased were
assaulted. Learned counsel submitted that the prosecution has
succeeded in proving the place of occurrence, the time of
occurrence and also the assault on injured persons and the
cause of death of the deceased Azad Ali.
10. We heard the parties at length and have also gone
through the evidence, especially the evidence of PW1 to PW6Page 7
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and also minutely and meticulously examined the entire gamut
of the prosecution case. PW1, in his statement, has
categorically stated that the incident had occurred on 5.7.1983
at Siktahar and that his evidence finds full support from the
evidence adduced by the Investigating Officer PW20. Facts
indicate that an incident had taken place on 4.7.1983 at village
Malopara coming under the same P.S. Ratua, which resulted in
the death of 13 persons and due to that occurrence, there was
an atmosphere of terror over the surrounding villages and also
as a sequel of that massacre of Malopara, Siktahar village was
attacked. PWs1 and 6 were directly affected by the incident
that had occurred at Siktahar, in which the involvement of the
appellants was clearly established. PWs 1 to 6, particularly PW1
to PW4, who had deposed, narrating both the occurrences of
Siktahar and Hizul Pakur Field, was subjected to lengthy crossexamination, but nothing significant was brought out to
discredit their evidence. Further, there is nothing in the
statement of PW18 to indicate that he found the injured persons
of this case at Malopara village, on the contrary, if the
statement of PWs 18 and 19 are considered together, it would
indicate that the injured persons were found at a field, but notPage 8
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certainly at Malopara. Injured persons, including the deceased
Azad Ali, were treated at Ratua Primary Health Centre and,
subsequently, at Malda Sadar Hospital. PW14 to 16 attended
those injured persons and from the reports prepared by the
doctors, it would be clear that on 5.7.1983 all the persons,
including the deceased Azad Ali, who were injured, were treated
at Ratua Primary Health Centre and thereafter at Malda Sadar
Hospital. Ex.14, the post-mortem report of the deceased
indicates that the deceased suffered homicidal death and the
injuries sustained by him were all ante-mortem in nature and
that was the result of assault by several persons with sharp
cutting weapons as well as the blunt weapons like Lathi.
11. We also fully endorse the view of the High Court that the
mere fact that some of the witnesses are interested witnesses,
that by itself is not a ground to discard their evidence, the
evidence taken as a whole supports the case of the prosecution.
In Hari Obula Reddy and Ors. v. The State of Andhra
Pradesh (1981) 3 SCC 675, this Court laid down certain broad
guidelines to be borne in mind, while scrutinising the evidence
of the eye-witnesses, in para 13 of the judgement, this Court
held as follows:Page 9
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“But it is well settled that interested evidence is
not necessarily unreliable evidence.
Even
partisanship by itself is not a valid ground for
discrediting or rejecting sworn testimony.
Nor can
it be laid down as an invariable rule that
interested evidence can never form the basis of
conviction unless corroborated to a material
extent in material particulars by independent
evidence.
All that is necessary is that the
evidence of interested witnesses should be
subjected to careful scrutiny and accepted with
caution.
If on such scrutiny, the interested
testimony is found to be intrinsically reliable or
inherently probable, it may, by itself, be sufficient,
in the circumstances of the particular case, to
base a conviction thereon.
Although in the matter
of appreciation of evidence, no hard and fast rule
can be laid down, yet, in most cases, in evaluating
the evidence of an interested or even a partisan
witness, it is useful as a first step to focus
attention on the question, whether the presence
of the witness at the scene of the crime at the
material time was probable.
If so, whether the
substratum of the story narrated by the witness,
being consistent with the other evidence on
record, the natural course of human events, the
surrounding circumstances and inherent
probabilities of the case, is such which will carry
conviction with a prudent person.
If the answer to
these questions be in the affirmative, and the
evidence of the witness appears to the court to be
almost flawless, and free from suspicion, it may
accept it, without seeking corroboration from any
other source.
Since perfection in this imperfect
world is seldom to be found, and the evidence of a
witness, more so of an interested witness, is
generally fringed with embellishment and
exaggerations, however true in the main, the
court may look for some assurance, the nature
and extent of which will vary according to the
circumstances of the particular case, from
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independent evidence, circumstantial or direct,
before finding the accused guilty on the basis of
his interested testimony.
We may again
emphasise that these are only broad guidelines
which may often be useful in assessing interested
testimony, and are not iron-cased rules uniformly
applicable in all situations.”
12. PW1, PW2, PW4 in case sustained serious injuries, their
evidence was believed by the court. It is trite law that the
testimony of injured witnesses entitled to great weight and it is
unlikely that they would spare the real culprit and implicate an
innocent person. Of course, there is no immutable rule of
appreciation of evidence that the evidence of injured witnesses
should be mechanically accepted, it also be in consonance with
probabilities (Refs: Makan Jivan and Ors. v. The State of
Gujarat (1971) 3 SCC 297; Machhi Singh and Ors. v. State
of Punjab (1983) 3 SCC 470; Jangir Singh and Chet Singh
and Ors. v. State of Punjab (2000) 10 SCC 261.
13. In this respect, reference may be made to the judgment of
this Court in Jaishree v. State of U.P. (2005) 9 SCC 788,
wherein this Court held that whether witnesses are interested
persons and whether they had deposed out of some motive
cannot be the sole criterion for judging credibility of a witness,Page 11
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but the main criterion would be whether their physical presence
at the place of occurrence was possible and probable.
14. We are of the view that
the prosecution has succeeded in
proving the place of occurrence, the time of occurrence as well
as the manner of assault made on injured persons who are all
examined by the Court and their evidence fully corroborates the
prosecution case.
We notice, in this case, that there is
sufficient evidence to show that the incident had happened on
5.7.1983, as projected by the prosecution.
The prosecution has
successfully proved that it was the appellants and others who
had committed the crime, so found by the trial Court as well as
the High Court.
15. Large number of persons were involved in the incident that
occurred on 5.7.1983.
Several injuries were caused by the
appellants on the vital parts of the deceased and the injured
persons, with dangerous weapons and the injuries are sufficient,
as certified by the doctor, in the ordinary course of nature to
cause death and the accused persons intended to inflict the
injuries that were found on the person of the deceased and
injured persons.
Appellants caused the injuries with deadly
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weapons, therefore, intention can be presumed regarding
causing injuries as are likely to cause death, which falls under
Section 304 Part I IPC and
hence the conviction ordered by the
trial court under Section 302 IPC is converted to Section 304
Part I IPC.
16. Consequently, the appellants are found guilty under
Section 304 Part I IPC and are sentenced to undergo rigorous
imprisonment of 10 years with a fine of Rs.5,000/-each. On
default of payment of fine, they will undergo rigorous
imprisonment for another six months. 50% of the money
recovered as fine has to be paid to the wife of the deceased as
compensation. We further order that if any of the appellants
had already undergone sentence of 10 years, they would be let
free, on payment of fine and the remaining accused appellants
would serve the balance period of sentence and bail granted to
them would, therefore, stand cancelled and they will surrender
within a week. Appeal is disposed of accordingly.
…………………………..J.
(K.S. Radhakrishnan)Page 13
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…………………………..J.
(Dipak Misra)
New Delhi,
May 3, 2013
