GYANESHWAR SHYAMAL Vs. STATE OF WEST BENGAL

Tags Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2147 of 2009, Judgment Date: Mar 29, 2016

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 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 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 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 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 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;

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 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 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 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, 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 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 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

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