NAZRUL MONDAL AND ORS.versusSTATE OF WEST BENGAL

                     NAZRUL MONDAL AND ORS.                                       A
                                v.
                      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 cross-
examination 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
    698                       SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

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)              [

D          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)

G         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 ATE OF WEST BENGAL [NANA VATI, 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.

                                                                                  B
      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
                                                                                  c
      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. 308of1984. The High Court has confirmed the conviction of the
six accused under Section 302 read with Section 149 IPC.
                                                                                  D
      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.                                        E

       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.
                                                                                  G
      The evidence of the eye witnesses was challenged on the ground that
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
    700                      SUPREME COURT REPORTS (1997] SUPP. 4 S.C.R.

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.                                F
      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
    702                      SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

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.      <