Holding

The convictions under Sections 307/34 IPC were unsustainable and are set aside due to the improbability of the prosecution case and material inconsistencies in the evidence.

Summary

The appellants Prabir Mondal, others and Mongal Das were convicted under Sections 307 and 34 of the Indian Penal Code for an alleged attempt to murder the complainant in a pump room. The prosecution claimed the victim was attacked with a knife, resulting in incised injuries to his left palm and cheek. The medical injury report, however, showed no incised wound on the left palm and only a bruise on the right palm, inconsistent with the victim's testimony. Crucially, the seized knife and other items were never subjected to forensic examination, and there was an 11‑hour delay in lodging the FIR, raising doubts about the genuineness of the complaint. The Supreme Court held that the prosecution case was improbable, the evidence did not support the convictions, and set aside the judgment of the trial and high courts, ordering the release of the appellants.

Issues considered

Whether the evidence, including the injury report and lack of forensic analysis, is sufficient to sustain convictions under Sections 307 and 34 IPC.
Whether the delay in lodging the FIR creates a reasonable doubt about the authenticity of the complaint.
Whether inconsistencies between the victim's testimony and the medical findings defeat the prosecution's case.

Legislation cited

Indian Penal Code, 1860s. 307, s. 34

Subjects

Attempt to murderCommon intentionForensic examinationInjury report inconsistencyDelay in FIRReasonable doubtConviction overturned

Judgment

[2009] 15 (ADDL.) $.C.R. 495

PRABIR MONDAL AND ANR. A
v.
,,,,
~
~
STATE OF WEST BENGAL
(Criminal Appeal No. 1974 of 2009)
OCTOBER 28, 2009
B
[ALTAMAS KABIR, CYRIAC JOSEPH AND ASOK
KUMAR GANGULY, JJ.]

~
Penal Code, 1860: ss.307134 - Conviction under -
Accused allegedly attacked complainant with a knife and tried c
to cut his throat - Deposition of complainant that he tried to
save himself and in the process sustained injuries on palm
- Conviction under ss.307134 by courts below - On appeal,
held: Injury report showed that complainant did not have
incised injury on palm but only a bruise which could be D
• caused with a blunt instrument - Knife and mat with blood
,. stains not sent for forensic examination - Delay in lodging
FIR - Chances of fabrication not ruled out - Prosecution case
improbable, thus conviction set aside.
E
Prosecution case was that while complainant was
sleeping in a pump room, appellant No.1 pressed his
mouth with his hand and one MD held two ends of a knife
to cut the throat of the complainant. The complainant
1 deposed that he caught hold of the middle portion of the
~
knife with both hands and on account of this he F
sustained cut injuries on the palm of his left hand. He
also sustained injuries on his cheeks. The trial Court
convicted the appellants and MD under ss.307/34 IPC.
High Court affirmed the same. Hence the present appeal.
G
Allowing the appeal, the Court
~-
HELD: The case made out by the prosecution
appears to be improbable and the conviction of the
495 H
496 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A appellants was not in conformity with the evidence
adduced on behalf of the prosecution. The manner in
which the alleged incident took place does not fit in with
,_ :_
the injuries received by the complainant. The most glaring
inconsistency is the story of the complainant's having
B held the blade of the knife, alleged to be used in the
')-c
c,ommission of the offence, with both hands and thereby
suffering incised injuries on his left palm. The injury report :1

showed that the complainant did not have any incised
injury or any other injury on his left palm and the injury
~
c to his right palm was not of an incised nature, but a t-
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
D sharp-cutting implements, which were also seized, were )

~
also not sent for such examination. Even the mat which
had blood stains on it was not sent for such examination __,_
'i

and it could, therefore, not be proved as to whether the ',
blood stains thereon were of human or animal origin.
E Coupled with that was 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, notat'allaware of any such incident. There was
F delay in lodging \the FIR after consultation with the local '-!
villagers. Therefore, chances of fabrication in the FIR
cannot be ruled out. Neither the Trial Court, nor the High
c·ourt,· appeared to have looked into these details
properly. The judgment of conviction and sentence
~-

G imposed by the Trial Court and upheld by the High Court
are set aside. [Paras 17, 19 and 20] (502-F-H; 503-A-F]

; Raje'evah· v. State of Kera/a 2003 3 SCC 355, referred -.+
.... .t··
ta:·
H
PRABIR MONDAL AND ANR. v. STATE OF WEST 497
BENGAL
Case Law Reference: A
2003 3 sec 355 referred to Para 13

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1974 of 2009.
B
From the Judgment & Order dated 30.6.2008 of the High
Court of judicature at Calcutta in C.R.A.No. 343 of 1987.

Pradip Ghosh, Pijush K. Roy, Mithilesh Kumar Singh for
the Appellants.
c
Satish Vig for the Respondent.

The Judgment of the Court was delivered by

' . ALTAMAS KABIR, J. 1. Leave granted.

2. The appellants herein and one Mongal Das were tried ·
D.
> 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 E
learned Sessions Judge convicted the three accused under
Section 307/34 l.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. F
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 G
.J. .- of tbe 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 H
498 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A in the incident. Even the fact that the victim had not informed
).. ~
the doctor, who was 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
B
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 -I ;1,•
submitted that the evidence adduced on behalf of the
c 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.
D '4
5. Mr. Ghosh urged that although the incident is said to
have occurred at about 11.00 p.m. in the night of 6th September, -;c:
1982, the same was reported to the Berhampore Police Station ..
only at 9.45 a.m. on 7th September, 1982, after the lapse of
E about 11 hours. From the First Information Report, Mr. Ghosh
also pointed out that although the complaint was lbdged 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 ~

F 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
f
he had gone to the Berhampore General Hospital for treatment
G 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 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
H to involve and implicate the appellants and Mongal Das in the
PRABIR MONDAL AND ANR. v. STATE OF WEST 499
BENGAL [ALTAMAS KABIR, J.]

~ ~ incident on account of previous enmity. A

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
-l
B
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
c
report which was prepared by P.W.7 on 7th September, 1982.
According to the said 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 2'!/i" x 1/6" skin deep D-
> starting from the left half of the upper lip. He also found one
< minor abrasion over the right palm Yi" 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 E
there was no mention whatsoever of any incised injury either
on th!3 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 F
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 pointed bamboo strip .

8. Mr. Ghosh then referred to the evidence of P.W.1, the
G
alleged victim, where he has said that Krishna was holding the
.i -
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,
H
500 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 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 ~

B 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 narrating the
incident to the neighbours, he had left for home and in the early
':J'
morning at about 4.00 a.m. along with P.W.2, P.W.3, P.W.5,
c 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 •
D
stated that he went home with the said knife, and, thereafter,
in consultation with the neighbours and relations, he again went 4.

to the police station with the said knife and deposited the same --,,
at the police station at 9.45 a.m.

E 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 had seized one sword and after •-+
preparation of the seizure list, he had signed the same.
F
,
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
G
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 .-
H
PRABIR MONDAL AND ANR. v. STATE OF WEST 501
BENGAL [ALTAMAS KABIR, J.]
inflicted on him by the appellants. A
~ 4 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 (a small mat made of date palm leaves), one old 8
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
c
--{
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 D
• 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 Rajeevan vs. State E
of Kera/a [(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
F
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. G

~-
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 H
502 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A the attempt made by the appellants to kill him. He submitted
that the very fact that the victim had sustained injuries on his )... ~
left cheek was sufficient to indicate thc:t 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,
B 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
c 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 prosecutioff case, since the victim had to first attend the
D
hospital to treat 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
E 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 .,
F on record, we are inclined to accept Mr. Ghosh's submissions ·1·
that the case made out by the prosecution appears to be
·l-
improbable and the conviction of the appellants was not in
conformity with the evidence adduced on behalf of the
prosecution.
G 18. The main pillar of the prosecution case is P.W.1,
Kashem Sk., the complainant himself.
·-}._

19. As pointed out by Mr. Ghosh, the manner in which the
alleged incident is supposed to have taken place does not fit
H in with the injuries received by the complainant. The most
PRABIR MONDAL AND ANR. v. STATE OF WEST 503
BENGAL [ALTAMAS KABIR, J.]
glaring inconsistency is the story of the complainant's having A
.... ~ 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 B
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
c
such examination. Even the mat which had 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
'f D
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 E
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 F
hesitation in setting aside the judgment of conviction and
sentence imposed by the Trial Court and upheld by the High
Court.

21. The appeal is, accordingly, allowed. The appellants be
G
released forthwith.

--
-----i._

D.G. Appeal allowed.
,,

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