Case Note & Summary
The appeal arose from the conviction of six accused persons for the murder of Babar Ali under Section 302 read with Section 149 of the Indian Penal Code, 1860. The present appellants were three of those convicted accused who had been granted special leave to appeal by the Supreme Court on the limited ground that their names were not mentioned in the first information report, though the Court later found that their names did appear at serial Nos. 4, 5, and 6. The incident occurred on October 11, 1980 at about 3.00 p.m., when Babar Ali was surrounded and assaulted by about twenty accused persons and died as a result. The motive alleged was that accused Niamat had filed a criminal case against Babar Ali, who had been released from jail seven days before the incident. The prosecution relied on the evidence of eyewitnesses, namely the deceased's brother Malin Hossain (PW-1), Kalam Biswas (PW-3), the deceased's daughter Sahida Khatun (PW-4), the deceased's son Nasiruddin Biswas (PW-5), and Firujtullah (PW-6). The trial court convicted six accused, after nine others were discharged before framing of charge and five were acquitted after trial. The High Court of Calcutta in Criminal Appeal No. 308 of 1984 confirmed the conviction and sentence of all six accused. All six applied for special leave to the Supreme Court; leave was granted only to the present three appellants on the ground that their names were not mentioned in the FIR, but the Court subsequently found that their names were indeed mentioned. The appellants contended that there were no specific allegations about the part played by them, that the eyewitnesses were relatives and therefore interested, that PW-4 and PW-5 could not have been present because no blood stains were found on their clothes and they should have heard the footsteps of twenty accused, that PW-3 was a chance witness whose claim of taking bath in a doba (small tank) was contradicted by the site plan, and that independent witnesses were not examined. The Supreme Court rejected all these contentions. It held that the FIR contained a general allegation that the deceased was attacked by all accused named therein, which included the appellants, and that absence of specific overt acts was not fatal. It found that the trial court and High Court had given good reasons for believing PWs 1, 3, 4, and 5. The presence of PW-1 was established as his house was only about 100 feet from the place of incident. The presence of PWs 3, 4, and 5 was accepted because they were accompanying the deceased to the market. The Court explained that the absence of blood stains on the children's clothes was plausible because they were walking ahead of the deceased and the accused had surrounded him. The Court noted that there was no cross-examination on the point of footsteps and speculation was not permissible. The omission of the tank in the site plan was not fatal because the Investigating Officer testified that a tank existed. Non-examination of independent witnesses was not a valid ground when it was not established that others had seen the incident. The Supreme Court found no flaw in the appreciation of evidence by the courts below and dismissed the appeal. The accused were ordered to surrender to custody to serve out the remaining part of their sentence.
Headnote
A) Criminal Law - Murder - Common Object - Indian Penal Code, 1860, Sections 302, 149 - The Supreme Court upheld the conviction and sentence of the appellants under Section 302 read with Section 149 IPC. The Court found that the names of all six accused, including the appellants, appeared in the first information report as accused at serial Nos. 4, 5, and 6, and there was a general allegation that all accused attacked the deceased. Absence of specific overt acts attributed to each accused was not fatal because the FIR alleged a joint assault. Held that concurrent findings of fact by the trial court and High Court do not warrant interference by the Supreme Court (Paras 1-3). B) Evidence - Witness Credibility - Related Witnesses and Minor Discrepancies - Indian Penal Code, 1860, Sections 302, 149 - The Court rejected challenges to the credibility of PWs 1, 3, 4, and 5 on grounds of relationship, chance witness, absence of blood stains, and failure to hear footsteps of twenty accused. It held that mere relationship is not a ground to disbelieve witnesses when their presence is established and testimony is corroborated by recovery of a cycle and 20 kg of jute and by medical evidence. The Court also held that absence of blood stains on the clothes of the daughter and son, who were walking ahead of the deceased, was not improbable because the accused surrounded the deceased and blood spurting was unlikely. Held that reliance on the eye-witnesses was proper (Paras 1-3). C) Criminal Procedure - Investigation - Omission in Site Plan - Indian Penal Code, 1860, Sections 302, 149 - The Court held that the non-mention of a tank (doba) in the site plan did not discredit the testimony of PW-3 and the Investigating Officer, who stated that a tank existed near the house of the deceased. The Court also held that non-examination of independent witnesses was not fatal when it was not established that other persons had witnessed the incident. Held that appreciation of evidence by the courts below was correct (Paras 1-3).
Issue of Consideration
Whether conviction under Section 302 read with Section 149 IPC is sustainable based on the testimony of related eye-witnesses when the names of the appellants were mentioned in the FIR with a general allegation of assault but no specific overt acts; whether the High Court was justified in confirming the conviction despite challenges to witness credibility, absence of independent witnesses, and omission in site plan.
Final Decision
Appeal dismissed. Conviction and sentence of the appellants under Section 302 read with Section 149 IPC confirmed. Accused ordered to surrender to custody to serve out the remaining part of their sentence.
Law Points
- Conviction under Section 302 read with Section 149 IPC upheld based on credible eye-witness testimony of relatives
- names in FIR sufficient despite absence of specific overt acts
- general allegation of assault against all accused named in FIR is sufficient
- related witnesses cannot be disbelieved merely due to relationship
- minor discrepancies like absence of blood stains or omission in site plan are not fatal
- non-examination of independent witnesses not fatal when not established others witnessed incident
- concurrent findings of trial court and High Court not interfered
