Full Judgment Text
NONREPORTABLE
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 D G M E N T
N. V. R AMANA , 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
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and order dated 13.01.1990 passed by the 2 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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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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although, P.W. 3 and 4, have not supported the case of the
11. Lastly,
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 )
EW ELHI
N D ,
CTOBER
O 10, 2018
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