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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1421 OF 2007

Md. Ishaque and Others .. Appellants

Versus

State of West Bengal and Others ..Respondents

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1. This appeal arises out of a common judgment and order  

dated 14.8.2006 passed by the High Court of Calcutta in CRA  

No. 425 of 2001and CRA No. 463 of 2001, whereby the High  

Court confirmed the conviction and sentence awarded to the  

appellants.   

2. The prosecution version is that on 5.7.1983 at about 5 AM  

to 5.30 AM, some 200-250 villagers, which included the accused  

persons as well, armed with various weapons like Lathi, Ladna,  

Farsa, Hasua and Ballam surrounded the village Siktahar.  The

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accused  persons forced  out  a  number  of  persons from their  

houses, assaulted them in various ways and ultimately took four  

of them in tie-bound condition to a place called Hijul Pakur Field  

which is  some distance away from village Siktahar  and they  

assaulted them with various weapons causing serious injuries.  

The  injured  persons  were  admitted  to  Ratua  Public  Health  

Centre and later, shifted to Malda Sadar Hospital.  One of the  

injured,  namely  Azad  Ali,  succumbed  to  his  injuries.   The  

remaining injured persons, viz. the informant - Md. Yasin PW1,  

Hasan Ali  PW4 and Farjan Ali  PW2 sustained serious injuries.  

During  the  course  of  occurrence,  accused  persons  also  

assaulted  Mohammed Badaruddin  PW3,  Mohamed Sabiruddin  

PW5  and  Mohammed  Kalimuddin  PW6.    However,  those  

persons could escape from the clutches of the accused persons  

and flee from the place of assault.

3. Md.  Yasin  PW1  lodged  the  FIR  on  8.7.1983,  which  was  

recorded by N. N. Acherjee, S.I., C.I.D. and forwarded to Ratuna  

P.S.  and  a  case  was  registered  being  Crime  No.  9  dated  

5.7.1983 under Sections 147, 148, 149, 364, 307, 302 IPC at  

Ratuna P.S. and the investigation was taken up by the police.  

Later,  investigation was handed over to the C.I.D.  and,  after

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completion of the investigation, police submitted the charge-

sheet  against  31  accused  persons.   (Of  the  charge-sheeted  

persons,  accused  Ajahar  Moral  and  Tabjul  died  during  the  

course of trial and the accused No. 25 died during the pendency  

of the appeal before the High Court). Two other charge-sheeted  

persons, namely, Hafijuddina and Safijuddin, were not sent up  

and  discharged  by  S.D.J.M.  vide  his  order  dated  9.12.1993.  

Vide order dated 27.8.1983, the S.D.J.M. committed the case to  

the Court of Sessions.

4. Charges  were  framed  against  28  accused  persons  on  

10.4.1995,  which  were  read  over  and  explained  to  accused  

persons, to which they pleaded not guilty and claimed to be  

tried.   The prosecution examined 20 witnesses and produced  

various  documents.   On  defence  side,  one  witness  was  

examined and also produced few documents.    The defence  

took up the stand that the entire incident was stated to have  

taken place at Malo Para on 4.7.1983 and no occurrence, as  

alleged, took place either at village Siktahar or at Hajul Pakur  

Field on 5.7.1983.   Further, it  was stated that the case was  

falsely  foisted  due  to  political  rivalry  between  two  groups.

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Accused  persons  belong  to  the  Congress  party  and  the  

deceased and injured persons belong to CPM.    

5. The trial Court, after considering the oral and documentary  

evidence, found that the prosecution has succeeded in proving  

the case and convicted 27 accused persons (out of 28 accused  

persons)  and  one  Abdul  Taub  found  not  guilty  and  was  

acquitted.

6. Three appeals were filed against the order of conviction  

passed by the trial Court.   CRA No. 425 of 2001 was filed by  

Md.  Ishaque  and  another,  CRA  463  of  2001  filed  by  Hefjur  

Rahaman and 24 others and CRA N. 700 of 2006 was filed by  

Jinnatual Haque, son of deceased, appellant no. 22, Md. Nurul  

Islam under Section 394 CrPC.   The High Court took the view  

that  the  trial  Court  has  rightly  convicted  all  the  accused  

persons,  except  appellants  Yasin,  Daud  Hazi,  Mannan,  Islam  

Maulavi  and  Alauddin.   CRA  425  of  2002  and  CRA  463  of  

2001were, therefore,  allowed in part.  Since Islam Maulavi was  

acquitted, CRA 700 of 2006 was also allowed.

7. Aggrieved  by  the  same,  21  accused  persons  have  

preferred the present appeal.   This Court granted bail  to 14

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appellants  vide  its  orders  dated  19.8.2009  and  27.1.2012.  

While the appeal was pending, appellants Haji Md. Belal Hossain  

and Aaiyab Ali died.

8. Shri  Pradip  Ghosh,  learned senior counsel  appearing for  

the  appellants,  submitted  that  the  prosecution  has  failed  to  

establish the case beyond reasonable doubt and the appellants  

deserve acquittal.    Learned senior counsel pointed out that the  

accused persons were falsely implicated due to political rivalry  

and the case was framed as a counter-blast to the incident that  

took place on 4.7.1983, a day earlier, wherein 13 persons from  

the  village  of  the  accused  persons  were  brutally  murdered.  

Learned senior counsel submitted that, on cross-examination of  

the material witnesses namely PW1 to PW6, with reference to  

the statement of the investigating officer, it would appear that  

there  were  serious  omissions  and  contradictions  in  their  

statements, hence, the prosecution story cannot be believed.  

The  prosecution  had  also  failed  to  establish  the  place  of  

occurrence, time of the alleged assault and the manner of the  

alleged  assault  and  there  was  no  corroborative  medical  

evidence to support the various injuries alleged to have been  

sustained by few of the witnesses.  Further, it was pointed out

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that  the  doctor  who  conducted  the  post-mortem,  was  not  

examined.  Learned senior counsel also submitted that the High  

Court has rightly acquitted few of the accused persons and the  

reasoning adopted by the High Court equally applies in the case  

of the appellants as well.

9. Shri Bijan Ghosh, learned counsel appearing for the State,  

on  the  other  hand,  submitted  that  the  High  Court,  after  

examining  the  evidence  of  the  eye  witnesses  and  other  

corroborative evidence, has rightly come to the conclusion that  

the appellants are guilty and deserve the sentence awarded by  

the trial Court.  Learned counsel submitted that there is nothing  

on  record,  wherefrom,  it  can  be  gathered  that  the  place  of  

occurrence was not the village Siktahar and, thereafter, at Hijul  

Pakur Field, where the injured persons and the deceased were  

assaulted.  Learned counsel submitted that the prosecution has  

succeeded  in  proving  the  place  of  occurrence,  the  time  of  

occurrence  and  also  the  assault  on  injured  persons and  the  

cause of death of the deceased Azad Ali.

10. We  heard  the  parties  at  length  and  have  also  gone  

through the evidence, especially the evidence of PW1 to PW6

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and also minutely and meticulously examined the entire gamut  

of  the  prosecution  case.   PW1,  in  his  statement,  has  

categorically stated that the incident had occurred on 5.7.1983  

at  Siktahar  and that  his evidence finds full  support from the  

evidence  adduced  by  the  Investigating  Officer  PW20.   Facts  

indicate that an incident had taken place on 4.7.1983 at village  

Malopara coming under the same P.S. Ratua, which resulted in  

the death of 13 persons and due to that occurrence, there was  

an atmosphere of terror over the surrounding villages and also  

as a sequel of that massacre of Malopara, Siktahar village was  

attacked.    PWs1 and 6 were directly affected by the incident  

that had occurred at Siktahar, in which the involvement of the  

appellants was clearly established.  PWs 1 to 6, particularly PW1  

to PW4, who had deposed, narrating both the occurrences of  

Siktahar and Hizul Pakur Field, was subjected to lengthy cross-

examination,  but  nothing  significant  was  brought  out  to  

discredit  their  evidence.  Further,  there  is  nothing  in  the  

statement of PW18 to indicate that he found the injured persons  

of  this  case  at  Malopara  village,  on  the  contrary,  if  the  

statement of PWs 18 and 19 are considered together, it would  

indicate that the injured persons were found at a field, but not

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certainly at Malopara.  Injured persons, including the deceased  

Azad  Ali,  were  treated  at  Ratua  Primary  Health  Centre  and,  

subsequently, at Malda Sadar Hospital.  PW14 to 16 attended  

those injured  persons and from the reports  prepared by the  

doctors,  it  would  be  clear  that  on  5.7.1983  all  the  persons,  

including the deceased Azad Ali, who were injured, were treated  

at Ratua Primary Health Centre and thereafter at Malda Sadar  

Hospital.    Ex.14,  the  post-mortem  report  of  the  deceased  

indicates that the deceased suffered homicidal death and the  

injuries sustained by him were all ante-mortem in nature and  

that  was the result  of assault  by several  persons with sharp  

cutting weapons as well as the blunt weapons like Lathi.  

11. We also fully endorse the view of the High Court that the  

mere fact that some of the witnesses are interested witnesses,  

that  by itself  is  not  a  ground to  discard  their  evidence,  the  

evidence taken as a whole supports the case of the prosecution.  

In  Hari  Obula Reddy  and Ors.  v.  The State of  Andhra  

Pradesh (1981) 3 SCC 675, this Court laid down certain broad  

guidelines to be borne in mind, while scrutinising the evidence  

of the eye-witnesses, in para 13 of the judgement, this Court  

held as follows:

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“But it is well settled that interested evidence is  not  necessarily  unreliable  evidence.  Even  partisanship  by  itself  is  not  a  valid  ground  for  discrediting or rejecting sworn testimony. Nor can  it  be  laid  down  as  an  invariable  rule  that  interested evidence can never form the basis of  conviction  unless  corroborated  to  a  material  extent  in  material  particulars  by  independent  evidence.  All  that  is  necessary  is  that  the  evidence  of  interested  witnesses  should  be  subjected  to careful  scrutiny and accepted with  caution.  If  on  such  scrutiny,  the  interested  testimony is  found to be  intrinsically  reliable  or  inherently probable, it may, by itself, be sufficient,  in  the  circumstances  of  the  particular  case,  to  base a conviction thereon. Although in the matter  of appreciation of evidence, no hard and fast rule  can be laid down, yet, in most cases, in evaluating  the evidence of an interested or even a partisan  witness,  it  is  useful  as  a  first  step  to  focus  attention on the question, whether the presence  of the witness at the scene of the crime at the  material  time  was  probable.  If  so,  whether  the  substratum of the story narrated by the witness,  being  consistent  with  the  other  evidence  on  record, the natural course of human events, the  surrounding  circumstances  and  inherent  probabilities of the case, is such which will carry  conviction with a prudent person. If the answer to  these  questions  be  in  the  affirmative,  and  the  evidence of the witness appears to the court to be  almost flawless, and free from suspicion, it  may  accept it, without seeking corroboration from any  other  source.  Since  perfection  in  this  imperfect  world is seldom to be found, and the evidence of a  witness,  more  so  of  an  interested  witness,  is  generally  fringed  with  embellishment  and  exaggerations,  however  true  in  the  main,  the  court  may look for  some assurance,  the  nature  and  extent  of  which  will  vary  according  to  the  circumstances  of  the  particular  case,  from

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independent  evidence,  circumstantial  or  direct,  before finding the accused guilty on the basis of  his  interested  testimony.  We  may  again  emphasise that  these are only broad guidelines  which may often be useful in assessing interested  testimony, and are not iron-cased rules uniformly  applicable in all situations.”

12. PW1, PW2, PW4 in case sustained serious injuries,  their  

evidence was believed by the  court.   It  is  trite  law that  the  

testimony of injured witnesses entitled to great weight and it is  

unlikely that they would spare the real culprit and implicate an  

innocent  person.   Of  course,  there  is  no  immutable  rule  of  

appreciation of evidence that the evidence of injured witnesses  

should be mechanically accepted, it also be in consonance with  

probabilities (Refs:   Makan Jivan and Ors. v. The State of   

Gujarat (1971)  3  SCC 297; Machhi Singh and Ors. v. State  

of Punjab  (1983) 3 SCC 470; Jangir Singh and Chet Singh  

and Ors. v. State of Punjab  (2000) 10 SCC 261.   

13. In this respect, reference may be made to the judgment of  

this  Court  in  Jaishree v.  State of  U.P. (2005)  9  SCC 788,  

wherein this Court held that whether witnesses are interested  

persons and whether  they had deposed out  of  some motive  

cannot be the sole criterion for judging credibility of a witness,

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but the main criterion would be whether their physical presence  

at the place of occurrence was possible and probable.

14. We are of the view that the prosecution has succeeded in  

proving the place of occurrence, the time of occurrence as well  

as the manner of assault made on injured persons who are all  

examined by the Court and their evidence fully corroborates the  

prosecution  case.   We  notice,  in  this  case,  that  there  is  

sufficient evidence to show that the incident had happened on  

5.7.1983, as projected by the prosecution.  The prosecution has  

successfully proved that it was the appellants and others who  

had committed the crime, so found by the trial Court as well as  

the High Court.

15. Large number of persons were involved in the incident that  

occurred  on  5.7.1983.   Several  injuries  were  caused  by  the  

appellants on the vital parts of the deceased and the injured  

persons, with dangerous weapons and the injuries are sufficient,  

as certified by the doctor, in the ordinary course of nature to  

cause death and the accused persons intended to inflict  the  

injuries  that  were found on the person of the deceased and  

injured  persons.   Appellants  caused  the  injuries  with  deadly

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weapons,  therefore,  intention  can  be  presumed  regarding  

causing injuries as are likely to cause death, which falls under  

Section 304 Part I IPC and hence the conviction ordered by the  

trial court under Section 302 IPC is converted to Section 304  

Part I IPC.

16. Consequently,  the  appellants  are  found  guilty  under  

Section 304 Part I IPC and are sentenced to undergo rigorous  

imprisonment  of 10 years with a  fine of Rs.5,000/-each.   On  

default  of  payment  of  fine,  they  will  undergo  rigorous  

imprisonment  for  another  six  months.    50%  of  the  money  

recovered as fine has to be paid to the wife of the deceased as  

compensation.  We further order that if any of the appellants  

had already undergone sentence of 10 years, they would be let  

free, on payment of fine and the remaining accused appellants  

would serve the balance period of sentence and bail granted to  

them would, therefore, stand cancelled and they will surrender  

within a week.   Appeal is disposed of accordingly.  

…………………………..J. (K.S. Radhakrishnan)

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…………………………..J. (Dipak Misra)

New Delhi, May 3, 2013