SADANANDA MONDALversusSTATE OF WEST BENGAL

                       (2013] 7 S.C.R. 854

A                    SADANANDA MONDAL
                                v.
                    STATE OF WEST BENGAL
                (Criminal Appeal No.1555 of 2009)

B                       AUGUST 05, 2013
      [P. SATHASIVAM, CJI AND J. CHELAMESWAR, J.]

        PENAL CODE, 1860:

C      s. 302134 - Death of victim by gunshot injury - Out of 14
  accused, 13 acquitted by counts below - Conviction of
  appellant and sentence of life imprisonment - Held: Out of
  the two brothers of deceased, evidence of one was disbelieved
  by High Court as he made inconsistent statements u/s 161
o Cr.P. C. and before court - The other brother introduced
  names of other accused persons whom he did not name in
  FIR - There was also no explanation as to the discrepancy
  in the father's name of appellant, though he was a neighbour
  - Besides, there was no recovery of gun used in the crime
E or of any pellet - Courts below, having disbelieved the entire
  case of prosecution as regards 13 out of 14 accused, on the
  basis of the same evidence should not have convicted the
  appellant when there was no clinching evidence or
  incriminating circumstance against him - Further, appellant
F did not abscond, which fact proves his defence that he has
  nothing to do with the crime - Prosecution has failed to
  establish its case beyond reasonable doubt - Conviction and
  sentence imposed on appellant, set aside.

      The appellant was prosecuted along with 13 others
G for causing the death of the brother of PW1. The
  prosecution case was that during a picnic, a dispute
  arose between some of the persons on the accused side
  on the one hand and the complainant party on the other,
  which was settled by the intervention of mediators.
H                          854
    SADANANDA MONDAL v. STATE OF WEST                  855
                BENGAL

However, when the complainant party reached near the         A
house of appellant's father, the appellant came out of the
house and fired at the brother of PW1. The injured was
taken to the hospital, where he died on the following day.
The trial court convicted 6 accused u/s 302/34 IPC. The
High Court maintained the conviction and sentence of         B
the appellant and acquitted the other 5 convicts.

    Allowing the appeal, the Court

     HELD: 1.1. From the evidence of PW-1, it is seen that
the appellant is the next door neighbour of the deceased. C
This witness introduced the names of other accused
persons whom he did not name in the FIR. PW-2 turned
hostile. PW-3, another younger brother of the deceased,
though deposed before the court that he saw that the
appellant fired a shot at the deceased, the Investigating D
Officer, PW-12, admitted in his cross-examination that
PW-3 had not stated anything in his statement u/s. 161
Cr.P.C. In such circumstance, no weightage need be
given to his statement made in the court. The High Court
itself has rightly concluded that his evidence is unreliable. E
[Para 8) [861-B-E]

     1.2. The courts below, having disbelieved the entire
case of the prosecution as regards 13 out of 14 accused
persons, on the basis of the same evidence, should not F
have convicted the appellant when there was no other
cogent and convincing evidence or incriminating
circumstance against him. The High Court committed an
error in convicting him solely on the basis of the evidence
of PW-1, who was one of the brothers of the deceased
when the other brother viz., PW-3 did not corroborate him. G
[Para 10) [861-G-H; 862-A]

   1.3. Admittedly, there was no recovery of the alleged
weapon used in the incident. The pellet alleged to have
emanated from the gun also was not recovered. There          H
    856      SUPREME COURT REPORTS               [2013) 7 S.C.R.


A was also no explanation as to the discrepancy in the
  father's name of the appellant and the de facto
  complainant being a neighbour of the appellant could not
  have made such a vital mistake. Another important
  circumstance which goes against the case of prosecution
B is the conduct of the accused. He was very well available
  before and after the incident and did not abscond which
  factor proves his defence that he has nothing to do with
  the crime. [Para 11-12] [862-C-F]

c      1.4. Thus, the prosecution has failed to establish its
  case beyond reasonable doubt even against the
  appellant and he is also entitled to the benefit of doubt
  along with the other accused. Accordingly, the conviction
  and sentence imposed on the appellant is set aside. [Para
D 13] [862-F-H]
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1555 of 2009.

      From the Judgment and Order dated 11.04.2008 of the
E High Court at Calcutta in C.R.A.
                              I
                                   No. 155 of 2004.

        Pradip Ghosh, Rauf Rahim, Yadunandan Bansal for the
    Appellant.

          Chanchal Kr. Ganguli, Avijit Bhattacharjee, Soumi Kundu
F   for the Respondent.

          The Judgment of the Court was delivered by
      P. SATHASIVAM, CJI. 1. This appeal has been filed
G against the final judgment and order dated 11.04.2008 passed
  by the High Court of Calcutta in C.R.A. No. 155 of 2004
  whereby the Division Bench of the High Court dismissed the
  appeal filed by the appellant herein.

          2. Brief facts:
H
     SADANANDA fvlONDAL v. STATE OF WEST                      . 857
         BENGAL [P. SATHASIVAM, CJI.]

      (a) On 14.01.2002, Avik Monda! (PW-1) - the de facto             A
complainant and the cousin brothers of Sadananda Monda! (the.
appellant herein), namely, Newton Monda!, Manoj Monda!,
Brojen Monda! and others were holding picnic. At about 4 p.m.,
the complainant party had altercation with Newton Monda!,
Lalmohan Monda!, Brojen Monda! and Dilip Tarafdar. At the              B
relevant time, on the intervention of Madhu Ghosh, Mrinmoy
Chakraborty, Kartick Ghosh and Asish Sarkar, the dispute was
settled. and thereafter all of them left the place for their houses.
When Bharat Monda!, elder brother of the de facto complainant,
reached near the house of Narugopal Monda!, the son of                 c
Narugopal, namely, Sadananda Monda! (the appellant herein),
fired at him from his house which hit on his chest near the~lungs
and he fell down. PW-1 lifted Bharat Monda! with the help of
some villagers and took him in a Jeep to Berhampore Hospital
for treatment.                                                         o
      (b) T~e~after, at 9.00 p.m., Avik Monda! (PW-1) went to
the Tehatta Police Station and lodged a complaint. On the basis
of the said complaint, a First lhformation Report (FIR) being No.
                                    \

 10 of 2002 was lodged under Section 326 of the Indian Penal
Code, 1860 (in short "IPC"). On. the following day, i.e.,              E
 15.01.2002, Bharat Monda! succumbed to his injuries.
      (c) On the basis of the said report, Sadananda Mondal-
the appellant herein (A-1) along with 13 others viz., Prasanta
 Monda! (A-2), Sushanta Monda! (A-3), Sanatan Mondal (A-4),
 Nisith Monda! (A-5), Sukhen Monda! (A-6), Biswanath Mondal            F
(A-7), Manoj Mondal (A-8), Mahitosh Mondal (A-9), Brojen
 Mondal (A-10), Dilip Tarafdar (A-11), Newton Monda! (A-12),
 Lalmohan Mondal (A-13) and Dasarath Tarafdar (A-14) was
taken into custody. After investigation, a chargesheet was filed
 against the accused persons under Section 302 read with               G
Section 34, Section 120-B of IPC and the case was committed
to the Court of Additional Sessions Judge, Fast Track Court
1, Krishnanagar, Nadia and was numbered as Sessions Case
No. 2(10) of 2003.
      (d) Vide orders dated 17/19.02.2004, the Additional              H
    858      SUPREME COURT REPORTS                 [2013] 7 S.C.R.


A   Sessions Judge, Fast Track Court-I, Krishnanagar, in Sessions
    Trial No. 111 of December, 2003 arising out of Sessions Case
    No. 2(10) of 2003 convicted 8 accused persons viz.,
    Sadananda Mondal (A-1), Sukhen Mondal (A-6), Biswanath
    Mondal (A-7), Manoj Mondal (A-8), Mahitosh Mondal (A-9),
B   Brojen Moridal (A-10), Dilip Tarafdar (A-11) and Newton Mondal
     (A-12) under Sections 302 read with 34 IPC and sentenced to
    undergo imprisonment for life along with a fine of Rs. 5,000/-
    each, in default, to further undergo rigorous imprisonment for
    one year. However, rest of the six accused persons, viz.,
c   Prasanta Mondal (A-2), Sushanta Mondal (A-3), Sanatan
    Mondal (A-4), Nisith Mondal (A-5), Lalmohan Mondal (A-13)
    and Dasarath Tarafdar (A-14) were acquitted of all the charges.
          (e) Being aggrieved of the above order, A-1 (the appellant
    herein), preferred an appeal being C.R.A. No. 155 of 2004 and
0   rest of the 7 accused persons filed an appeal being C.R.A. No.
    166 of 2004 before the High Court. The High Court, by order
    dated 11.04.2008 allowed C.R.A. No. 166 of 2004 and set
    aside the judgment and order dated 17/19.02.2004 passed by
    the Additional Sessions Judge. against the appellants therein
E   and dismissed C.R.A. No.. 155 of 2004 preferred by the
    appellant herein.                                        .
         (f) Aggrieved by the said order, the appellant has preferred
    this appeal by way of special leave before this Court.
         3. Heard Mr. Pradip Ghosh, learned senior counsel for the
F   appellant and Mr. Chanchal Kr. Ganguli, learned counsel for the
    respondent-State.
    Contentions:
         4. Mr. Pradip Ghosh, learned senior counsel for the
    appellant, after taking us through the entire materials, namely,
G   oral and documentary evidence, the decision of the trial Court
    as well as the High Court submitted that when the prosecution ·
    case was disbelieved by the courts below as regards 13 out
    of 14 accused persons, whether the High Court is right in
    confirming the conviction and sentence imposed on the
H   appellant alone on the basis of the same evidence which had
     SADANANDA MONDAL v. STATE OF WEST                      859
         BENGAL [P. SATHASIVAM, CJI.]
been found to be unreliable in respect of 13 accused persons.       A
He also submitted that whether the High Court was justified in
convicting the appellant solely on the basis of the evidence of
PW-1 who was one of the brothers of the deceased when the
other brother viz., PW-3 did not corroborate, more particularly,
when the evidence of PW-3 was found by the High Court to be         B
unreliable. He also submitted that the High Court should have
acquitted the appellant giving him the benefit of doubt as the
prosecution failed to prove its case beyond reasonable doubt.
On the other hand, Mr. Ganguli, learned counsel appearing for
the respondent-State submitted that in spite of acquittal of 13     c
out of 14 accused persons, it was the appellant herein who
came out of his house and fired a shot at Bharat Monda! (since
deceased) using a fire arm which hit him on his chest near the
lungs and he fell down. He further pointed out that though the
other accused managed to escape, the present appellant was          o
the person who fired a gun shot which resulted in the death of
one person, accordingly, he prayed for dismissal of the appeal.
       5. We have considered the rival contentions and perused
all the relevant materials.
Discussion:                                                         E
      6. It is relevant to point out that the prosecution charge
sheeted 14 accused persons including the appellant. Out of 14,
the trial Court acquitted 8 accused persons and the High Court
acquitted 5 out of 6 accused persons. In other words, after the
impugned order of the High Court, except A-1 (the appellant         F
herein), all were acquitted from the charge under Section 302
read with Section 34. In these circumstances, we have to
consider whether the prosecution has established the case
against the appellant beyond reasonable doubt.
      7. It is useful to refer the contents of FIR (Ex.P-1) which   G
reads as under:
      "To
      The O.C. Tehatta P.S.
      Sir,
      I, Avik Mondal son of Satyanranjan Mondal of Sahebnagar       H
    860     SUPREME COURT REPORTS                  [2013] 7 S.C.R.

A     Madhyampara Police Station, District Nadia arriving to this
      Police Station this day of 14.01.2002 at about 9.00 p.m.
      in the night, am submitting the complaint that today at noon
      in the Kash field, we and in the side of one place the sons
      of the uncle of Sadananda Mondal, i.e .. Newton Mondal, ·
B     Manoj Monda!, Brojen Monda! and others were taking part
      in a picnic. In the afternoon at about 4.00 p.m. there made
      a quarrel amongst Newton Mondal, son of Mantu Mondal,
      Lalmohan Monda! son of Sunil Mondal, Brojen Monda!, son
      of Mahadeb Mondal and Dilip Tarafdar son of Ratan
c     Tarafder and that quarrel was settled by mediator Madhu
      Ghosh, Mrinmoy Chakraborty, Kartick Ghosh and Asis
      Sarkar and after settling the dispute we set out towards
      our respective house and when my elder brother Bharat
      Mondal son of Satyanaranjan Mondal when came near the
D     house of Narugopal Monda!, then Sadananda son of
      Narugopal shot aiming my elder brother from his huse at
      about 5.00 p.m. in the afternoon.
      The bullet shot by him, hit my elder brother in his belly and
      wounded seriously and we sent him to the Bejrampore
E     Hospital th~n we came to Police Station and submit
      complaint.
      Therefore, Sir, after taking necessary steps the aforesaid
      matter according to law and to impose punishment upon
      the accused Sadananda Monda! and it is mentioned here
F     that the said Sadananda Mondal is a running Military
      Service man.
                                                  Submitted humbly
                                                    Sd. Avik Monda!
                                          Sd. Satya Ranjan Mondal
G                                                      (Sahebnagar)
                                                         (In Bengali)"
      It is seen from the FIR that it not only implicates Sadananda
  Monda!, the appellant herein, but also other accused who were
  acquitted by the trial Court and the High Court. No doubt, it
H
     SADANANDA MONDAL v. STATE OF WEST                     861
         BENGAL [P. SATHASIVAM, CJI.]
 states that the bullet hit Bharat Mondal (the deceased) in his A
 belly which resulted in fatal injury. The complaint was made by
 PW-1.
      8. From the evidence of Avik Mondal (PW-1), it is seen
 thaU,tie appellant is the next door neighbour of the deceased .
.This'witness introduced the names of other accused persons B
 whom he did not name in the FIR. Prasun Biswas (PW-2)
 turned hostile, however, prosecution relied on his statement to
 the extent that the incident took place near his house and he
 heard the sound of bomb explosion. Badal Monda! (PW-3),
 another younger brother ot' the deceased, also supported the C
 case of the prosecution. According to PW-3, when he was
 returning from the field, he saw that the appellant fired a shot
 at Bharat Mondal (since deceased) with a fire-arm below his
 chest.. He also stated that on seeing the same, he got frightened
 and fled away towards his house. It is relevant to point out that o
 the Investigating Officer, Kanchan Roy Mukherjee (PW-12), sub-
 Inspector of Police admitted in·his cross-examination that PW-
 3 had not stated anything whil~ recording the statement under
 Section 161 of the Code of Criminal Procedure, 1973 (in short
 'the Code'). In such circumstance, no weightage need be given E
 to his statement made in the Court. The High Court itself has
 rightly concluded that his evidence is unreliable.
      9. Dr. Ranjit Kumar Roy Chowdhury, the surgeon, who
 conducted the post-mortem of the deceased, was deposed as
 PW-11. After narrating all the injuries, he opined that death was F
 due to gun shot injury leading to shock which was ante mortem
 and homicidal in nature. The post-mortem report has been
 marked as Exh. 5.
       10. The courts below, having disbelieved the entire case
 of the prosecution as regards 13 out of 14 accused persons, G
 on the basis of the same evidence, as rightly pointed out by
 Mr. Ghosh, should not have convicted the appellant when there
 was no other cogent and convincing evidence against him. In
 other words, in the absence of any clinching evidence or
 incriminating circumstance against him, the High Court H
    862     SUPREME COURT REPORTS                  [2013] 7 S.C.R.


A committed an error in convicting the appellant solely on the
  basis of the evidence of PW-1, who was one of the brothers of
  the deceased when the other brother viz., PW-3 did not
  corroborate him, particularly, when the evidence of PW-3 was
  found by the High Court to be unreliable. Having disbelieved
B the alleged eye-witnesses while considering-the case of other
  accused persons, in the absence of any reason, the High Court
  is not justified in accepting the very same statement of the
  witnesses in the case of the appellant herein.
        11. Admittedly, there was no recovery of the alleged
C weapon used in the incident. The pellet alleged to have
  emanated from the gun also not got recovered and even no
  attempt was made to recover the same. It is also not known
  whether the pellet so fired was from the same weapon. We
  have already pointed out that PW-3 made inconsistent
o statements during the trial and while being examined under
  Section 161 of the Code. There was also no e~planation as to
  the discrepancy in the father's name of the appellant (Naan
  Gopal and Santosh) and the de facto complainant being a
  neighbour of the appellant could not have made such a vital
E mistake.
        12. Another important circumstance which goes against the
  case of the prosecution is the conduct of the accused. He was
  very well available before and after the incident. In other words,
  the appellant-accused did not abscond which factor proves his
F defence that he has nothing to do with the crime in question.
        13. In the light of the above discussion, we are satisfied
  that the prosecution has failed to establish its case beyond
  reasonable doubt even against the appellant and he is also
  entitled to the benefit of doubt along with the other accused.
G Accordingly, the conviction and sentence imposed on the
  appellant A-1 is set aside and he is ordered to be released
  forthwith if not required in any other offence. The appeal is
  allowed.
  R.P.                                            Appeal allowed.
H