IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 1289 of 2012

SK. KHABIR                        Appellant(s)

VERSUS

STATE OF WEST BENGAL                        Respondent(s)

J U DGMENT

N. V. RAMANA, J.    

1. This appeal by special leave is directed against the judgment and

order  dated 24.12.2010 passed by  the  High Court  at  Calcutta  in

CRA No. 42 of 1990 wherein the High Court upheld the judgment

and order dated 13.01.1990 passed by the 2nd  Additional Sessions

Judge, Hooghly in Sessions Trial No.51 of 1983 convicting the

appellants for offences under Sections 148,307/149 and 302/149 of

IPC.

2. Brief facts of the prosecution case, necessary for the disposal of this

case is as follows. The de­facto complainant (PW­1), and his brothers

Abdul Sayed and Narul Islam were arrested sometime in May,1980

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NON­REPORTABLE

in connection with murder of one Saiful Islam of Nalitjole Village.

Even after getting released by bail, they could not go back to their

village as their residence was ransacked and damaged by the

enraged villagers. However, the accused persons along with others,

persuaded the complainant and his brothers, to return to their

village. Consequently, on their return to the village on 25.04.1981,

they found an assemblage of villagers near their house and

suspecting certain danger, they ran to save  their lives.  But, they

were chased by the accused persons, including the present

appellant, armed with deadly weapons like swords, spears and lathis

etc. This pursuit ended with the brutal killing of the brothers of PW

1­complainant at around 11:45 A.M, wherein the complainant

himself was grievously injured by the accused persons. Thereafter,

the FIR being  Case No.18/1981, dated 25.04.1981, came to be

registered under Sections 148,149,342,326,307,302 of IPC, wherein

around 26 persons, including the present appellant were named as

the accused persons. Subsequently, the chargesheet was submitted

under Sections 148/149/307/302, IPC against the appellant and 12

others. Thereafter, the accused persons were put on trial as they did

not plead guilty to the charges leveled against them.

3. After the conclusion of trial, the present appellant, and five others

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were found guilty and convicted under Sections 148/307, IPC read

with Section 149/302, IPC. Aggrieved, by the aforementioned

judgment of conviction the accused persons, including the appellant,

preferred an appeal before the High Court in Criminal Appeal No.123

of 1985, wherein they contended that, there has been irregularity in

framing of the charge and therefore, the conviction and sentence was

not sustainable on the basis of  such  irregular charge.  Vide order

dated 31.07.1981, the High Court allowed the appeal preferred by

the accused persons and remanded back the matter for retrial.

4. In furtherance of the above order, the trial court initiated the

retrial,  where  upon the examination of evidences on record, the

appellant along with five other accused persons were found guilty

under Section 148/307 read with Section 149/302 of IPC.

Accordingly, they were sentenced to suffer rigorous imprisonment for

life and also pay a fine of Rs.500/­ each and in default to undergo

further rigorous imprisonment for five months each for the offence

under Section 302/149 of IPC.  They were also directed to undergo

rigorous imprisonment for two years each for the offence  under

Section 307 IPC read with section 149 IPC and shall also pay a fine

of Rs.300/­ each and in default to suffer further rigorous

imprisonment for three months each. There were further directed to

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undergo rigorous imprisonment for six months for the offence under

Section 148 IPC and shall also pay a fine of Rs.100/­ each in default

to suffer further rigorous imprisonment for one month each.  All the

sentences were directed to run concurrently.

5. Aggrieved by the above order of conviction, the accused persons,

including the present appellant, again approached the High Court in

Criminal Appeal no.42 of 1990. The High Court dismissed the

appeals preferred by the accused persons and upheld the order of

conviction passed  by the trial court  qua  accused  no.2 (appellant

herein), accused no.3 and accused no.6.

6. Aggrieved by the impugned judgment and order passed by the High

Court, only accused nos. 2 and 3 had preferred the present appeal.

Since accused no.3 has expired, now only the accused no.2,

(Sk.Khabir) is before this Court.

7. The counsel on behalf of the accused­appellant submitted that, the

High Court has erred while upholding the order of conviction passed

by the trial court as heavy reliance has been placed on the testimony

of the eye witnesses who were closely related to the victim. Further,

the counsel submitted that, two other witnesses have turned hostile.

8. On the other hand, the counsel on behalf of the respondent­State

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while supporting the concurrent findings of the courts below, has

submitted that the present appeal being devoid of merits is liable to

be dismissed.

9. Having heard the counsels from both the parties and after perusing

the materials produced on record, we find that,  firstly,  the ocular

evidence of the two eye witnesses stands fully corroborated by the

medical evidence,  wherein it is proved that the  accused  persons

used blunt and sharp weapons to cause injuries on the deceased

persons and the P.W 1­complainant as well. Additionally, the

depositions of P.W 1 & 2 are in consonance with the contents of the

FIR. In light of the aforesaid facts, although P.W 1­complainant was

the brother  of the  deceased persons,  his  evidence  is found  to be

reliable after close scrutiny.  

10. Secondly,  the accused persons have not challenged the post­

mortem examination reports of the victims during the cross

examination wherein  it is  clearly  stated  that, the  victims had an

unnatural death pursuant to the injuries caused to them by means

of weapons such as tangi, sword, lathis etc.   Even P W 16­Doctor,

has opined that, the incision injuries on the neck and shoulders,

likely caused by weapons like a tangi or sword, were sufficient to

cause death in the ordinary course of event.

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11. Lastly, although, P.W. 3 and 4, have not supported the case of the

prosecution,  a  close  scrutiny  of their  evidence  would reveal that,

they  have  not denied the incident per se.  Whereas, it is clearly

implied from their statement that, they were present at the site of

occurrence and have expressed awareness about the death of

deceased persons.

12. Having observed the above facts and circumstances, we are of the

considered opinion that, both the Courts below have rightly

convicted the accused.   In our opinion, there exists no perversity in

the judgment of the High Court.  Hence, there is no reason to

interfere in the well­reasoned order of conviction and sentence.

13. The appeal is, accordingly, dismissed.

14. Pending applications, if any, shall also stand disposed of.

……………………………..J. (N. V. Ramana)

……………………………..J. (Mohan M. Shantanagoudar)  

NEW DELHI,

OCTOBER 10, 2018

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