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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2147  OF 2009

Gyaneshwar Shyamal      …     Appellant  

versus

State of West Bengal              …  Respondent

WITH

CRIMINAL APPEAL NO.2295 of 2009

J U D G M E N T

C. NAGAPPAN, J.  

1. These  two  appeals  are  preferred  against  the  judgment  

dated 9.2.2009 passed by  the High Court of Judicature at  

Calcutta in CRA No.7 of 1991.

2. The  appellants  in  Criminal  Appeal  No.7  of  1991  are  

accused Nos.1 to 5, 10 and 25 in Sessions Trial Case No. XIV

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of March 1987 on the file of 5th Additional Sessions Judge at  

Midnapore.  They along with 28 other accused were tried for  

the alleged offences under Sections 148, 364/149, 302/149  

and 307/149 of the Indian Penal Code.  The Sessions Court  

found accused Nos.1 to 5, 10 and 25 guilty of charges under  

Sections 148,  324/149 and 364/149 and not  guilty  of  the  

charge  under  Section  302/149  of  the  Indian  Penal  Code.  

Accused Nos.1 to 5, 10 and 25 were sentenced to undergo  

rigorous  imprisonment  for  10  years  each  with  fine  of  

Rs.1,000/- each and in default to undergo further rigorous  

imprisonment for six months each for the conviction under  

Section  364/149  IPC;  sentenced  them to  undergo  rigorous  

imprisonment  for  one  year  each  for  the  conviction  under  

Section  148  IPC  and  further  sentenced  them  to  undergo  

rigorous imprisonment for  one year each for  the conviction  

under Section 324/149.  At the same time the Sessions Court  

acquitted remaining 28 accused of all the charges.

3. Aggrieved by this conviction and sentence accused Nos.1  

to 5,  10 and 25 preferred Criminal  Appeal  in CRA No.7 of

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1991 before the High Court of Judicature at Calcutta.  The  

High  Court  by  its  judgment  dated  9.2.2009  dismissed  the  

appeal.  Accused Nos. 2, 3 and 4 died during the pendency of  

the  appeal.   Challenging  the  impugned  judgment  accused  

No.25  Ganeshwar  Shyamal  preferred  Criminal  Appeal  

No.2147  of  2009  and  accused   No.1  Manik  Mondal,  No.5  

Amar  Mondal  and  No.10  Mihir  Patra  preferred  Criminal  

Appeal No.2295 of 2009 before this Court.  These two appeals  

are heard together.

4. Briefly  the  prosecution  case  is  as  follows  :   PW2  

Jitobahan is the husband of PW3 Smt. Khiroda.  Deceased  

Satyaban is their elder unmarried son and PW8 Manoranjan  

Mondal is their  younger son.  All  of  them lived together in  

Karthnala village.  PW4 Muralidhar Kuila is friend of deceased  

Satyaban.  On 9.10.1983 between 9 and 10 a.m., the cattle of  

accused Hariram Mondal caused damage to the Kundri plants  

grown  on  the  back  side  of  the  house  of  PW2  Jitobahan.  

Satyaban  drew  away  the  cattle  and  this  enraged  Manik  

Mondal, son of Hariram Mondal, who retaliated with the bow

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and arrow in his hand.  Satyaban came inside the house. It  

was also alleged that there was political rivalry between them.  

Around noon time on the same day all the accused including  

the  appellants  armed with  lathis,  tangis,  bows  and arrows  

assembled  in  the  house  of  Golak  Mondal,  situated  at  a  

distance of 30 cubits from the house of Satyaban.  At about  

1.30  p.m.  PW4  Muralidhar  Kuila  came  to  the  house  of  

Satyaban and was talking to him in his house.   At that time  

all  the  accused  with  arms  in  their  hands  came  there  and  

surrounded Satyaban and Muralidhar.  Accused No.1 Monik  

Mondal hit Satyaban with tangi, a sharp cutting weapon and  

he  also  attacked PW4 Muralidhar  above  the  right  eye with  

tangi.  PW4  Muralidhar  fled  away.   The  accused  persons  

assaulted  Satyaban  and  took  him  to  the  house  of  Golak  

Mondal. Satyaban was thereafter never found either alive or  

dead.   PWs  2  and  3,  parents  of  Satyaban  and  PW8  

Manoranjan, brother witnessed the occurrence.  Fearing for  

life PW8 Manoranjan fled to the house of his brother-in-law at  

Satma village and narrated the occurrence to PW1 Ardhendu  

Satpati who rushed to the police station  in his motor-cycle

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which  was  at  a  distance  of  about  44  kilometers.   PW1  

Ardhendu Satpati lodged Exh.1 written complaint and PW10  

Sub-Inspector Mriganka Sekhar Misra received the same and  

registered Exh.1(a) First Information Report at 6.15 p.m. on  

the same day.   The police had to requisition a vehicle and  

ultimately reached the place of occurrence at about 5.00 a.m.  

in the morning on the next day. PW10 Sub-Inspector searched  

for  the  accused  persons  but  they  were  not  found.   He  

searched the house of  accused Golak Mondal and seized a  

large number of  blood-stained articles  by preparing  Exh.6  

and 6-A Mahazars.  He sent PW4 Muralidhar to Gopiballavpur  

primary health centre, though PW4 was given first aid by Dr.  

Pushpa  Ranjan  Ghose.   PW9  Dr.  Bepari  examined   PW4  

Muralidhar  Kuila at  the primary health centre and found  

1½” x ¼”   sharp cut wound over right eye and ½”  x ¼” sharp  

wound below the right eye.  The injury report given by him is  

Exh.3.  PW10 Sub-Inspector on completing the investigation  

filed chargesheet against 35 accused.  The Sessions Court on  

framing of charges conducted the trial in which prosecution  

examined 10 witnesses and marked documents.  No evidence

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was adduced by the defence.  The trial court convicted only  

seven  accused  and  sentenced  them  as  stated  supra.   On  

appeal the High Court confirmed the conviction and sentence.  

Aggrieved by the same the present appeals have been filed.   

5.   Mr. P.K. Ghosh, learned senior counsel appearing on  

behalf  of the appellants would urge:

a) the  prosecution case  must  be  held  to  have  not  

been  proved  since  the  family  members  are  the  eye-

witnesses;

b) Whether  the  occurrence  took  place  inside  the  

house or outside is not established;

c) two of the appellants belong to different villages  

and their presence in the occurrence place is doubtful  

and they have been implicated falsely  due to political  

rivalry and the courts below committed error in passing  

the judgments;

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d) in  any event  most  of  the  appellants  having  not  

taken any active part, benefit of doubt should be given  

to them.  

The  learned  senior  counsel  in  support  of  his  submission  

mainly placed reliance on the decision of this Court in Akbar  

Sheikh and Ors. vs. State of West Bengal  [(2009) 7 SCC  

415].

6. Mr.  Joydeep  Mazumdar,  learned  counsel  appearing  on  

behalf  of  the  State,  on  the  other  hand,  supported  the  

impugned  judgment  contending  that  the  appellants  armed  

with  deadly  weapons  attacked PW4 Muralidhar  Kuila   and  

abducted Satyaban to murder him and thereafter Satyaban  

was never found alive or dead and each one of the appellants  

had  the  requisite  common  object  and  the  conviction  and  

sentence imposed on them are sustainable.

7. The prosecution case is that the accused armed with  

deadly weapons indulged in rioting and abducted Satyaban  

from his residence and murdered him.  The trial court held

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that Satyaban was murdered in the house of accused  Golak  

Mondal was not proved since his dead body was not found  

despite vigorous search and it is a case of untraceability of the  

corpus  delicti  and  hence  the  charge  of  murder  was  not  

proved.  The State did not prefer appeal against the acquittal  

of the accused on the said charge and it became final.  At the  

same time the trial court held that the appellants indulged in  

rioting  by  causing  injury  to  PW4  Muralidhar  Kuila  and  

abducted Satyaban  by assaulting him with intent to commit  

murder and found the appellants guilty of the charges stated  

supra. PW2 Jitobahan and his wife PW3 Smt. Khiroda were  

living with their sons Satyaban and PW8 Manoranjan in their  

house in Karthnala village.  According to PWs 2, 3 and 8 on  

the occurrence day in the morning cattle of accused Hariram  

caused damage to the Kundri plants grown on the back side  

of  their  house  and  Satyaban  drew  away  the  cattle  and  

enraged by this accused No.1 Monik Mondal retaliated with  

bow and arrow and Satyaban came inside the house.  It  is  

their further testimony that by noon time on the same day all  

the accused including the appellants assembled in the house

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of Golak Mondal which was situated near their house and at  

that  time  they  were  armed  with  lathis,  tangis,  bow  and  

arrows.   PWs 2,  3  and 8  have  testified  further   that  PW4  

Muralidhar Kuila came at about 1.30 p.m. to their house  to  

meet Satyaban and both of them were talking in their house  

and at that  time all  the accused with arms in their  hands  

came  to  their  house  and  surrounded  Satyaban  and  PW4  

Muralidhar Kuila.  Accused No.1 Monik Mondal hit Satyaban  

with tangi and he also attacked PW4 Muralidhar Kuila above  

right eye with tangi and  all the accused assaulted  Satyaban  

and  took  him to  the  house  of  accused  Golak  Mondal  and  

Satyaban  was  never  found  thereafter  alive  or  dead.   PW4  

Muralidhar Kuila has also testified that when he was indulged  

in  conversation  with  Satyaban  in  their  house  they  were  

surrounded  by  all  the  accused  and  he  was  attacked  by  

accused No.1 Monik Mondal with tangi resulting in injury in  

his right eye and he fled for life and Satyaban was abducted  

by them.  PW9 Dr. Bepari examined PW4 Muralidhar Kuila  

and found two sharp cut wounds over and below his right eye.  

Exh.3 is the injury report issued by him. PW8 Manoranjan

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fled to the house of his brother-in-law at Satma village and  

narrated  the  occurrence  to  PW1  Ardhendu  Satpati   who  

lodged the written complaint in the police station.

8. The occurrence had taken place at about 2.00 p.m. on  

9.10.1983 and the complaint had been lodged at about 6.15  

p.m.  on  the  same  day,  on  which  the  case  came  to  be  

registered.  As mentioned in the FIR, the police station was  

situated at a distance of 54 kms.  from  the occurrence place.  

In  such  circumstances  there  is  no  delay  in  lodging  the  

complaint  and  it  assumes  significance.    Seven  accused  

persons have been named with their residential village in the  

complaint  and  it  includes  the  appellants  herein.  The  

complainant  PW1 Ardhendu Satpati  has  not  witnessed  the  

occurrence and on the instruction given by PW8 Manoranjan  

he had lodged the complaint.

9. PW4 Muralidhar Kuila in his testimony has stated that  

he saw Satyaban and his brother Manoranjan in front of the  

house and he started  talking to Satyaban and at that time  

the accused persons surrounded and attacked them.  PWs 2,

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3 and 8 have categorically stated that PW4 Muralidhar Kuila  

on the occurrence day at about 1.30 p.m. came to their house  

to meet  Satyaban and both of them were talking inside the  

house at  which point  of  time the  accused barged in.   The  

Investigation Officer PW10 in Exh.5 Sketch Map prepared by  

him  has  shown  the  occurrence  place  inside  the  house  of  

Satyaban.   We  also  perused  the  sketch  map  and  are  

convinced that the occurrence had taken place only inside the  

house  of  Satyaban.   In  the  same  way  we  are  unable  to  

appreciate  the  other  contention  that  the  eye-witnesses  are  

only the family members and their testimonies are interested  

ones.  The occurrence having taken place inside the house it  

is  only  the  family  members  who  could  witness  it.   PW4  

Muralidhar Kuila is an independent witness and he was also  

injured during the occurrence.   His testimony corroborates  

the testimonies of other eye-witnesses.

10. It is true that two of the appellants/A10 and A25 belong  

to different villages.  As already stated their names are found  

mentioned  with  their  residential  village  in  the  complaint

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which was lodged at the earliest point in time. PWs 2, 4 and 8  

have  testified  about  the  participation  of  both  the  above  

accused in   the  occurrence  and have  identified  them also.  

Nothing is  put in the  cross-examination of  the prosecution  

witnesses either denying their presence or absence of any role  

played by them in the assembly.  Not even a suggestion is  

made in this regard.   It is also relevant to point out that these  

accused in their replies made under Section 313 Cr.P.C.  have  

not denied their presence in the occurrence.   On the other  

hand their presence in the occurrence place is established by  

the  evidence available on record.

11. In the facts of the decision cited supra 29 accused had  

faced trial and the testimony of two eye-witnesses were found  

to be credible and those witnesses had not named some of the  

accused  in  their  testimonies  and  in  the  absence  of  any  

clinching evidence against those accused they were acquitted  

by this Court.

12.  The prosecution in a case of this nature was required to  

establish  :  i)  Whether  the  appellants  were  present;  and

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ii)  Whether  they  shared a  common object.   The  appellants  

undisputedly  raided  the  house  of  Satyaban and  they  were  

armed with deadly weapons  and they attacked Satyaban and  

PW4 Muralidhar  Kuila  and abducted  Satyaban in  order  to  

murder him.   The appellants right from the beginning viz.,  

when they  assembled in the house of Golak Mondal till the  

abduction  of  Satyaben,  shared  the  common  object  of  the  

assembly at all stages.  We are of the view that the impugned  

judgment of the High Court does not suffer from any infirmity  

to warrant interference.   

13. There  are  no  merit  in  the  appeals  and  the  same  are  

dismissed.

……….……..…………….J.  

(Jagdish Singh Khehar)

…………………………….J.

                                      (C. Nagappan)

New Delhi

March 29, 2016