Khairuddin & Ors. v. State of West Bengal
T.S. THAKUR, J. 1. This appeal by special leave arises
out a judgement and order dated 24th December, 2008,
passed by the High Court of Calcutta, whereby Criminal Appeal E
No.291 of 1990 filed by the appellants has been dismissed, in
the process confirming the conviction and sentence of
imprisonment for life awarded to them by the trial Court for
offences punishable under Section 302 read with Section 149
of the IPC, and Sections 148 and 323/149 of the IPC. A fine F
of Rs.2000/- was also imposed on each one of the appellants,
in default of payment whereof the appellants were. sentenced
to undergo further imprisonment for a period of one year. Half
of the amount realised towards fine was directed to be paid to
the legal heirs of the deceased in equal share. G
2. Facts giving rise to the commission of the offence and
the registration of the case alleged against the appellants, as
also their eventual conviction and sentence have been stated
at length by the trial Court in its judgment and recapitulated
even by the High Court in the order under appeal before us. H
A We need not, therefore, recount the same over again except
to the extent it is absolutely necessary to do so for the disposal
of this appeal.
3. The prosecution case precisely is that one Akalu was
B in cultivating possession of a parcel of agricultural land
admeasuring 21 bighas situated in village Fatehpur, Mouza
Lakhipur. Akalu, it appears, was helped by his tillers colloquially
called adhiars. Some of the appellants claim to be the
pattadars of the said parcel of land. A dispute regarding
possession and the right to cultivate had embittered the
C relations between the appellant-pattadars on the one hand and
Akalu and his adhiars on the other. The prosecution story is that
on 3rd November, 1978, at about 10.00 a.m., Akalu, along with
Budhu Md. (PW-1) and deceased Dabaru and lmamuddin,
accompanied by a few others, namely, Jharu, Monglu, Bholu
D and Lal Khan were working in the disputed parcel of land when
twenty four named persons including the appellants and some
unnamed persons came to the spot, armed with sharp weapons
like bows and arrows, knives, daggers, khapa-ballams and
lathis. An altercation ensued between the two parties when the
E appellants tried to obstruct Akalu and his men from ploughing
the land in question. The altercation escalated into a murderous
assault by the appellants upon the persons in cultivation of the
land who sustained grievous injuries with sharp edged weapons
which the appellants' party was carrying with them. While
F Dabaru succumbed to his wounds and died on the spot,
deceased-lmamuddin breathed his last within an hour
thereafter. Other members of the complainant party also
sustained several injuries on their bodies.
4. A First Information Report about the incident was lodged
G by Budhu Md. in which several persons including some of the
appellants were named as the assailants. It was also alleged
that apart from the persons named in the First Information
Report, there were 15-16 unnamed persons who participated
in the assault. C.R. Case No.1352n8, corresponding to Case
KHAIRUDDIN & ORS. v. STATE OF WEST BENGAL 485
[T.S. THAKUR, J.]
No.4 dated 3rd November, 1978 was accordingly registered A
by the police at Chopra P.S. and the investigation started, in
the course whereof the investigating officer conducted an
inquest and got the dead bodies of the deceased subjected
to post-mortem examination, apart from making recoveries of
the weapons of offence used by the assailants. A chargesheet B
was eventually filed by the police before the committal Court
against as many as 26 persons including the appellants herein.
The case was, in due course, committed to the Court of
Additional Sessions Judge, lslampur, before whom the
appellants pleaded not guilty and claimed a trial. c
5. At the trial, the prosecution examined as many as 19
witnesses in support of its case. By its judgment dated 30th
May, 1990, the trial Court found 21 out of 26 accused persons
guilty of the offence of murder punishable under Section 302
read with Section 149 IPC, and by its order dated 31st May, D
1990, sentenced each one of them to undergo imprisonment
for life besides payment of fine as already indicated earlier. The
trial Court also found the said 21 persons including the
appellants herein guilty of commission of the offences
punishable under Sections 148 and 323 read with Section 149 E
IPC but did not separately award any sentence for those
offences in view of the fact that the accused had already been
sentenced to undergo life imprisonment for the main offence
punishable under Section 302/149 IPC. Out of the remaining
five accused persons the trial Court acquitted Yusuf Amin, F
Jabbar and Abdul Rahman giving them the benefit of doubt,
while the other two having died during the pendency of the trial,
the case against them was held to have abated.
6. Aggrieved by the judgement and order pronounced by
the trial Court, the convicts including the appellants filed Criminal G
Appeal No.291 of 1990 before the High Court of Judicature at
Calcutta. During the pendency of the said appeal, five of the
convicts passed away. The appeal qua them was accordingly
held to have abated. The High Court heard the appeal on .
merits qua the remaining sixteen convicts/appellants before it H
A and upon a reappraisal of the evidence came to the conclusion
that the appellants had been rightly convicted and sentenced
by the trial Court to undergo imprisonment for life as the
prosecution had proved the charges framed against them
beyond a reasonable doubt. The present appeal by special
B leave assails the correctness of the said judgment and order
of the High Court.
7. Learned counsel for the appellants contended that the
Courts below had failed to properly appreciate certain glaring
features of the prosecution case that cast a cloud over the
C truthfulness of the prosecution story and, thereby, resulted in
gross miscarriage of justice. In particular, it was urged that out
of sixteen appellants found guilty and condemned to undergo
imprisonment for life, only five were named in the FIR and
attributed specific roles in the incident that led to the killing of
D the deceased Dabaru and lmamuddin. The remaining eleven
appellants were not either named in the FIR or if named no
specific role was attributed to them in the evidence that was
adduced at the trial. Three of the appellants viz Monglu,
Hafijuddin and Motilal Motin were also not named in the FIR
E and yet given a role in the oral evidence adduced at the trial.
This, according to the learned counsel, rendered the entire
prosecution case suspect entitling the appellants to an acquittal.
It was further contended that there were several contradictions
in the depositions of the prosecution witnesses as to the
F genesis of the incident and the actual sequence of events that
resulted in the death of two of those who were present and
participated in the same. The appellants were on that count
also entitled to the benefit of doubt arising from the deficiencies
in the prosecution case, argued the learned counsel.
G 8. Mr. Anip Sachthey, learned counsel for the respondent,
per contra, contended that the appreciation of evidence by the
two Courts below was proper and did not, therefore, call for any
interference, especially, when there was no demonstrable
miscarriage of justice in the appraisal of the evidence by the
H Courts below.
KHAIRUDDIN & ORS. v. STATE OF WEST BENGAL 487
[T.S. THAKUR, J.]
9. We have given our anxious consideration to the A
submissions made at the Bar who have taken us through the
evidence led at the trial. It is trite that appreciation of evidence
is essentially the duty of the trial Court, and the first Appellate
Court. But in cases, where, the Courts below are shown to have
faltered and ignored material aspects resulting in miscarriage B
of justice, this Court can and has interfered to grant relief. That
is because even when this Court may not be an ordinary Court
of appeal, the width and the plentitude of the powers available
to it under Article 136 would permit a reappraisal even at the
apex stage in cases of manifest injustice. The legal position c
as to the powers of this Court under Article 136 of the
Constitution is well-settled by pronouncements :;,f this Court to
which a detailed reference is in our view unnecessary.
Reference can all the same be made to the decisions of this
Court in Radha Mohan Singh v. State of UP. (2006) 2 SCC D
450, Bhagwan Singh v. State of Rajasthan (1976) 1 SCC 15,
Kirpa/ Singh v. State of Uttar Pradesh AIR 1965 SC 712 etc.
10. Coming to the case at hand, we find that the First
Information Report named as many as twenty four persons who,
according to the first informant, were responsible for the E
commission of several offences including murder of the
deceased Dabaru and lmamuddin. The evidence adduced at
the trial comprising the depositions of PW-1 Budhu, PW-4
Samsul, PW-5 Monglu Mohd., PW-6 Lal Khan and PW-17
Bholu Mohd., attributed overt acts of assault to only five of the F
appellants viz. Khairuddin, Nazrul Haq, Nasir Md. Munshi,
Bhoka @ Jarifuddin and lswahaque only. Appellant No.11-
lshwahaque expired during the pendency of this appeal. The
depositions of the above witnesses have been carefully
perused by us with the assistance of learned counsel for the G
parties. We are of the, opinion that the appellants above
mentioned were not only named in the FIR but were in specific
terms named even at the trial by the witnesses examined by
the prosecution, some of whom were themselves injured in the
incident, thereby, proving their presence on the spot beyond any
A doubt. The Courts below have also appreciated their
depositions in the right perspective and in our opinion rightly
held that the presence and participation of the above-mentioned
five appellants in the incident was established by the
prosecution beyond any reasonable doubt. To that extent,
B therefore, we see no reason to interfere with the findings
recorded by the trial Court and affirmed by the High Court.
11. That leaves us with appellants Rahimuddin, ldrish, Nurul,
Ibrahim, Khoka Md., Pasir @ Bishu, Kanchu and Asir @
Asiruddin. These appellants have no doubt been named in the
C FIR but, as rightly pointed out by learned counsel for the
appellants, there is no evidence showing that they were either
present on the spot or participated in the occurrence. The
depositions of the eye-witnesses, reliance upon which was
placed by Mr. Sachthey do not incriminate these appellants. At
D any rate, in the absence of any cogent and reliable evidence
proving that the above-mentioned appellants were either
present on the spot or that they had committed any overt act
that could show that they shared the common object of the
unlawful assembly comprising those who had come to the spot
E armed with weapons and actually carried out the assault, it is
not possible to support their conviction. There is, it is well
known, a general tendency in incidents of the kind we are
dealing with in this case, to implicate as many members of the
opposite party as is possible. That the villagers in the vicinity
F of the disputed land were divided into factions is evident from
the depositions of the witnesses examined at the trial. It is not,
therefore, unnatural that a very large number of persons were
named in the FIR but when it came to giving them a role in the
incident, the prosecution witnesses fell short of words. It is true
G that the commission of an overt act may not always be
necessary to prove that a member of an unlawful assembly
shared the common object of the assembly, but then, the
minimum that the prosecution must prove is that the persons
concerned were members of the unlawful assembly. There is
no evidence worthy of credence to prove that requirement in
11
KHAIRUDDIN & ORS. v. STATE OF WEST BENGAL 489
[T.S. THAKUR, J.]
the case at hand. We are, therefore, inclined to give to the A
appellants named above the benefit of doubt which in our view
they deserve in the facts and circumstances of the case.
12. That brings us to the cases of three other appellants
viz. Monglu, Hafijuddin and Motilal Motin. None of them
admittedly was named in the FIR, which was lodged by PW-1
Budhu Md. who was present on the spot and claims to have
witnessed the occurrence. Absence of the names of these
three appellants from the FIR which gave details of the incident
and named several others who were allegedly participating in
the occurrence assumes importance and would require a C
cautious approach towards the evidence. That is because
omission of the names of those who are alleged to have
participated in the commission of the crime would be a
significant circumstance which cannot be lightly ignored.
Possible false implication by subsequent deliberations and D
consultations to cast the net wider and accuse even those who
may not have been actually present on the spot, cannot be
ruled out. No explanation is in any case coming forth from the
witnesses for the omission of the names of these accused
appellants. Having said that, we cannot ignore the fact that out E
of these three appellants, appellant Monglu Md. has in his
statement under Section 313 answered question No.14, as
under:
"I am also a Pattadar. A few days (415) before I had sown
'Tisi' in my lands. On the day of the occurrence I heard F
that the gang of Akalu was ploughing our land. Then Isa
Haque, myself, Hafij, Kusrat and Tamij went. We asked
them not to do so. There began fighting. I was assaulted
on my finger. Darbaru, Betu and Sudhu were ploughing.
Kusrat (my elder brother) had a great fighting with G
Darbaru. Then I also hit Darbaru. Then I fled away."
13. The above, shows that appellant Monglu Md. was
present on the spot at the time of the occurrence according to
his own admission. Not only that, he had according to his own
statement, participated in the incident and even assaulted the H
A deceased Dabaru, before fleeing from the spot, That the
statement of an accused made under Section 313 Cr.P.C. can
be taken into consideration is not in dispute; not only because
of what Section 313 ( 4) of the Code provides but also because
of the law laid down by this court in several pronouncements.
B We may in this regard refer to the decision of this Court in
Sana tan Naskar and Anr.. v. State of West Bengal (2010) 8
SCC 249, where this Court observed:
"21. The answers by an accused under Section 313 of
the Cr.PC are of relevance for finding out the truth and
examining the veracity of the case of the prosecution. . ..
22. As already noticed, the object of recording the
statement of the accused under Section 313 of the Cr.PC
is to put all incriminating evidence to the accused so as
to provide him an opportunity to explain such
incriminating circumstances appearing against him in
the evidence of the prosecution. At the same time, also
permit him to put forward his own version or reasons, if
he so chooses, in relation to his involvement or otherwise
in the crime . ... Once such a statement is recorded, the
next question that has to be considered by the Court is
to what extent and consequences such statement can be
used during the enquiry and the trial. Over the period of
time, the Courts have explained this concept and now it
has attained, more or less, certainty in the field of criminal
jurisprudence.
23. The statement of the accused can be used to test the
veracity of the exculpatory nature of the admission, if any,
made by the accused. It can be taken into consideration
in any enquiry or trial but still it is not strictly evidence in
the case. The provisions of Section 313(4) of Cr.PC
explicitly provides that the answers given by the accused
may be taken into consideration in such enquiry or trial
and put in evidence for or against the accused in any
other enquiry into or trial for, any other offence for which
such answers may tend to show he has committed. In
KHAIRUDDIN & ORS. v. STATE OF WEST BENGAL 491
[T.S. THAKUR, J.]
other words, the use is permissible as per the provisions A
of the Code but has its own limitations. The Courts may
rely on a portion of the statement of the accused and find
him guilty in consideration of the other evidence against
him led by the prosecution, however, such statements
made under this Section should not be considered in B
isolation but in conjunction with evidence adduced by the
prosecution.
24. Another important caution that Courts have declared
in the pronouncements is that conviction of the accused
cannot be based merely on the statement made under C
Section 313 of the Cr.PC as it cannot be regarded as a
substantive piece of evidence ..... "
14. To the same effect is the decision of this Court in
Ashok Kumar v. State of Haryana (2010) 12 SCC 350.
Reference may also be made to the decision Of this Court in D
Brajendra Singh v. State of Madhya Pradesh (2012) 4 SCC
289 where this Court said :
"15. It is a settled principal of law that the statement of
an accused under section 313 of Cr.P.C can be used as E
evidence against the accused, insofar as it supports the
case of the prosecution: Equally true is that the statement
under section 313 of Cr.P.C simpliciter normally cannot
be made the basis for conviction of the accused. But
where the statement of the accused under section 313
Cr. P. C is in line with the case of the prosecution, then
certainly the heavy onus of proof on the prosecution is,
to some extent, reduced. "
15. Time now to examine whether Monglu's participation
in the crime is proved by the prosecution evidence adduced G
at the trial. PW-4 Samsul has in his deposition specifically
stated that Monglu was one of those who had assaulted
deceased-Darbaru. Similarly, PW-5 Monglu Md., an injured
witness, has also implicated Appellant no.16, and stated
"Darbaru was assaulted by Yusuf, Bhaka, Monglu and Jabbar. H
492 SUPREME COURT REPORTS (2013] 3 S.C.R.
A I also stated to the 1.0. the fact regarding assault of Darbaru ... "
PW-6 Lal Khan is yet another injured witness who incriminates
Appellant no.16-Monglu. He stated, "At first Jabbar, Yusuf
Amin, Monglu assaulted Darbaru with a dagger, ballam etc.
who sustained multiple injuries on his person and succumbed
B to such injuries ... " PW-17 Bholu Md. is also an injured witness
who corroborated the version given by the other eye-witnesses
and stated "Sabdul, Khairuddin, lshahaque, Nasiruddin, Monglu
and others assaulted Darbaru severely."
16. It is evident from the above that the Appellant no.16-
C Monglu's presence on the spot and participation in the
commission of the offence is proved by the evidence led by the
prosecution and supported by his own statement recorded
under Section 313 Cr.P.C. That is not, however, true about the
remaining two appellants namely, Hafijuddin and Motilal who
D were neither named in the FIR nor is there any cogent evidence
to suggest their complicity or participation in the commission
of the offence. In the circumstances, therefore, while appeal
filed by Monglu shall have to be dismissed, that filed by
Hafijuddin and Motilal shall have to be allowed giving to the said
E two appellants also the benefit of doubt.
17. In the result, we dismiss this appeal qua Appellants No.
1-Khairuddin, No.3-Nazrul Haq, No.4-Nasir Md. Munshi, No.9-
Bhoka @ Jarifuddin and No.16-Monglu. The appeal in so far
as appellant No.11-lshwahaque is concerned, shall stand
F dismissed as abated. The rest of the appellants are given the
benefit of doubt and acquitted of the charges framed against
them. The appeal qua them is allowed and the judgments and
orders of the Courts below modified to that extent. The
appellants No.2- Rahimut.:din, No.5-ldrish, No.6-Nurul, No.7-
G Ibrahim, No.8- Motilal Motin, No.10 Asir@ Asiruddin, No.12-
Hafijuddin, No.13-Khoka Md., No.14-Pasir@ Bishu, and No.15-
Kanchu shall be released from custody forthwith, unless
otherwise required in connection with any other case.
R.P. Appeal partly allowed.