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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2036 OF 2009

Khairuddin & Ors. …Appellants

Versus

State of West Bengal …Respondent

J U D G M E N T

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 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  

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IPC, and Sections 148 and 323/149 of the IPC.  A fine 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.  

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. 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 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  

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be  the  pattadars  of  the  said  parcel  of  land.  A  dispute  

regarding  possession  and  the  right  to  cultivate  had  

embittered the 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 Imamuddin,  accompanied  by a  few  

others,  namely,  Jharu,  Monglu,  Bholu  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  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 Dabaru succumbed to his wounds  

and died on the spot, deceased-Imamuddin breathed his last  

within  an  hour  thereafter.  Other  members  of  the  

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complainant  party  also  sustained several  injuries  on their  

bodies.  

4. A  First  Information  Report  about  the  incident  was  

lodged  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.1352/78,  

corresponding to Case No.4 dated 3rd November, 1978 was  

accordingly registered 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 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,  

Islampur,  before  whom the  appellants  pleaded  not  guilty  

and claimed a trial.   

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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,  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 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, 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.            

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6. Aggrieved by the judgement and order pronounced by  

the  trial  Court,  the  convicts  including  the  appellants  filed  

Criminal  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 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  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 truthfulness of the prosecution story and, thereby,  

resulted in gross miscarriage of justice. In particular, it was  

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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  the  deceased  Dabaru  and  

Imamuddin.  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 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  

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.

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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 Courts below.   

9. We  have  given  our  anxious  consideration  to  the  

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 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 as to the powers of  

this  Court  under  Article  136  of  the  Constitution  is  well-

settled by pronouncements of this Court to which a detailed  

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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  U.P.  (2006)  2  SCC  450,   

Bhagwan Singh v.  State of  Rajasthan (1976) 1 SCC  

15, Kirpal 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 commission of several offences including murder of the  

deceased Dabaru and Imamuddin. 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  appellants  viz.  Khairuddin,  Nazrul  Haq,  Nasir  Md.  

Munshi, Bhoka @ Jarifuddin and Iswahaque only. Appellant  

No.11-Ishwahaque  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  parties.  We  are  of  the  opinion  that  the  

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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 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,  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,  Idrish,  

Nurul, Ibrahim, Khoka Md., Pasir @ Bishu, Kanchu and Asir  

@ Asiruddin. These appellants have no doubt been named in  

the 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  

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appellants.  At 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 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  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 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  

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unlawful assembly. There is no evidence worthy of credence  

to  prove  that  requirement  in  the  case  at  hand.  We  are,  

therefore,  inclined to give to the 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  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 consultations  to  cast  the  net  wider  and  

accuse even those who may not have been actually present  

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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 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 (4/5) before I had   sown  ‘Tisi’  in  my  lands.   On  the  day  of  the   occurrence  I  heard  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   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  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  

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in several pronouncements.  We may in this regard refer to  

the decision of this Court in Sanatan 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 other words, the use is permissible as   per  the  provisions  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   

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by the prosecution, however, such statements made  under  this  Section  should  not  be  considered  in   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 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  

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 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 at  

the  trial.  PW-4  Samsul  has  in  his  deposition  specifically  

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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. I also stated to the I.O. 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 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,  Ishahaque,  Nasiruddin,  Monglu  and  others   

assaulted Darbaru severely.”

16. It is evident from the above that the Appellant no.16-  

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  

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and Motilal who 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 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-Ishwahaque is  concerned,  shall  

stand 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- Rahimuddin, No.5-Idrish,  

No.6-Nurul, No.7-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  

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forthwith, unless otherwise required in connection with any  

other case.

……...………….……….…..…J.   (T.S. Thakur)

     …………………………..…..…J.          (Gyan Sudha Misra)

New Delhi May 7, 2013

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