Bipin Kumar Mondal Versus State of West Bengal

REPORTABLE


IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1247 of 2008

Bipin Kumar Mondal ...Appellant
Versus
State of West Bengal ...Respondent


JUDGMENT

Dr. B.S. CHAUHAN, J.






1. This appeal has been preferred against the judgment and

order dated 13th July, 2005, passed in Criminal Appeal No.

352 of 2001 by the High Court of Calcutta, by which the High

Court dismissed the application filed by the appellant and

upheld the conviction and sentence passed by the Trial Court

in Sessions Trial No. 4 of 2001 (State Vs. Bipin Kumar

Mondal) under Sections 302 and 307 of the Indian Penal

Code, 1860 (hereinafter called as the `IPC').
Factual Matrix :

2. Facts and circumstances giving rise to this appeal are

that one Sujit Mondal, PW-1, lodged an Ejahar with Raninagar

Police Station on 6.12.1999 stating that his father Bipin

Kumar Mondal, appellant herein, came to their house at about

midnight on 5.12.1999 and attacked his mother, Usha Rani

Mondal, with a knife and inflicted severe injuries on her

person. When he went to save his mother, he was also

attacked by his father. He received injuries on his head and

hands and he had to escape out of fear. His younger brother,

Ajit Mondal, was also severely injured with a knife by his

father. On hearing the hue and cry made by Sujit Mondal, PW-

1, his neighbours came and in the meantime his father ran

away.

3. On the basis of the said Ejahar, the police investigated

the case and submitted the charge sheet against the appellant

under Section 302/307 IPC. Appellant pleaded not guilty and

hence, he was put to trial.




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4. In support of its case, the prosecution examined 11

witnesses to bring home the charge against the appellant. An

Ejahar was lodged by the son of the appellant and other

witnesses had been close neighbours and relatives residing in

the same village. The Trial Court considered the evidence of

prosecution witnesses and came to the conclusion that

petition of complaint had been written by Saidul Islam, PW-10,

on the instructions of Sujit Mondal, PW-1, and both of them

supported the prosecution case in Court. Saidul Islam, PW-

10, was a resident of another village and had gone to

Raninagar Public Health Centre in connection with the

treatment of his relation and there he was requested by Sujit

Mondal, PW-1, to write the said Ejahar (Exh.-1). Sujit Mondal,

PW-1, had deposed that he had gone to the same Public

Health Centre at Raninagar and was admitted for treatment

for one day. The other witnesses who were close neighbours

had supported the prosecution case and deposed that all of

them reached the place of occurrence after hearing the shouts

by Sujit Mondal and when they reached there, they were told

by Sujit Mondal, PW-1, that his father had killed his mother


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and brother and inflicted injuries on his person. After

considering the entire evidence on record and taking it into

consideration along with the defence taken by the appellant,

which had been only to the extent that he was innocent, the

trial Court held that the prosecution had succeeded in proving

its case beyond reasonable doubt. However, the injuries on the

person of Sujit Mondal, PW-1, were found not to be so serious

and he has failed to produce any certificate from Raninagar

Public Health Centre or any other proof that he was admitted

there. The appellant was convicted under Sections 302 and

323 IPC. Thus, he was awarded the sentence of life

imprisonment under Section 302 IPC and 6 months' RI under

Section 323 IPC, however, it was held that both the sentences

would run concurrently vide judgment and order dated

12.6.2001.

5. The appellant preferred Criminal Appeal No.352 of 2001,

which has been dismissed by the High Court vide impugned

judgment and order dated 13th July, 2002. Hence, this appeal.




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Rival Submissions :

6. Shri Seeraj Bagga, learned Amicus Curiae, has submitted

that the appellant is innocent and has been falsely implicated

in the crime. Sujit Mondal, PW-1, was not sure as to who had

committed the offence. There was no motive for committing the

crime and the weapon with which the offence had been

committed has never been recovered. The depositions made by

PWs 2 to 8, the so-called related persons or neighbours are

merely based on hearsay as none of them had seen the

commission of offence.

7. There are material contradictions in their depositions.

Dilip Kumar, PW-4, had deposed that when he reached the

place of occurrence, Ajit Mondal died within a short time after

his arrival. However, none of the other witnesses have stated

that when they reached the place of occurrence after hearing

the hue and cry of Sujit Mondal, PW-1, Ajit Mondal was alive

and had died after some time. All the three persons had been

sleeping in the same room which was open. Therefore, it was

possible for any outsider to enter into the house and the

possibility that an outsider entered the house and committed


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the offence could not be ruled out. The appellant was an anti-

social element and many persons had a grudge against him.

So, any other person could have committed the crime. The

evidence to the effect that at the time of commission of offence,

the lamp was burning and there was sufficient light, is also

not free from doubt. Therefore, the appeal deserves to be

allowed.

8. On the contrary, Shri Avijit Bhattacharjee, learned

counsel for the State, has opposed the appeal and vehemently

submitted that Sujit Mondal, PW-1, had no doubt or suspicion

in his mind that his father had committed the offence. The

depositions made by PWs 2 to 8, who are close relatives and

neighbours who had reached the place of occurrence

immediately after commission of the offence, cannot be

doubted as each of them has deposed before the Trial Court

that Sujit Mondal, PW-1, told them that the appellant, his

father has committed the crime. The recovery of knife used in

the commission of offence could not be made because the

appellant remained absconding for a long time. The conduct of




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the appellant i.e. absconding for a long time itself establishes

the guilt of the appellant.

9. All the witnesses had been put to cross-examination and

nothing has been obtained to seek the credence of the

evidence of any of them. The appellant just pleaded innocence

and nothing else. He did not even disclose as under what

circumstances he had absconded from his family home and

had been living somewhere else, where he had been at the

time of commission of offence and why did he not attend any

ritual i.e. funeral etc. of the victims if he was innocent. The

appeal lacks merit and is liable to be dismissed.

10. We have considered the rival submissions made by

learned counsel for the parties and perused the record.

11. Sujit Mondal, PW-1, has lodged an Ejahar with

Raninagar Police Station on 6.12.1999 giving full details of the

commission of the offence and naming his father as the person

who committed the offence. The said Ejahar had been written

by Saidul Islam, PW-10. On scrutiny of evidence of PW-10, it

becomes evident that he is an independent witness residing in

another village and could not have any grudge to support the


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case of the prosecution by deposing falsely. The conduct of

Sujit Mondal, PW-1, remains very natural, probable and

convincing. During cross-examination, nothing could be

elicited from him seeking the credence of his statement. No

reason came forward in the cross-examination or otherwise as

to why a son would depose against his father. There is no

suggestion by Sujit Mondal, PW-1, that he was not sure as to

who has committed the offence, as in cross-examination he

denied such a suggestion stating that it was not a fact that he

told the name of the assailant as his father by suspicion. The

other witnesses who were close relatives and neighbours of the

appellant have supported the prosecution case. Sambhu

Nath, PW-2, had deposed that he reached at about mid-night

when Sujit Mondal, PW-1, shouted and he came out from his

house and on enquiry from PW-1, he learnt that his mother

and brother had been murdered by the appellant with a sharp

cutting knife. PW-1 was also injured on his head and hands.

Swapan Kumar, PW-3, deposed that on reaching the place of

occurrence, he interrogated Sujit Mondal, who told him that

his father had killed his mother, Usha Rani and brother, Ajit


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Mondal and there had been an attempt by his father to kill

him (Sujit Mondal) also with a sharp cutting knife. Dilip

Kumar, PW-4, Binay Mondal, PW-6, Anukul Chandra, PW-7

and Prasanna Kumar, PW-8, also deposed to the same

effect. All these witnesses had been cross-examined but there

is nothing on record to show that any part of their depositions

could be doubted. We do not find any force in the submissions

made by Shri Seeraj Bagga that there were material

contradictions in their depositions as learned counsel for the

appellant had pointed out that Dilip Kumar, PW-4, had

deposed that when he reached the place of occurrence, Ajit

Mondal was alive and he interrogated him as to who had

caused the injury and he told him that his father assaulted

him and left. He further deposed that Sujit Mondal told him

that Ajit Mondal and Usha Rani were also attacked by the

appellant and Ajit Mondal died within a short time and Usha

Rani had died before his arrival.

12. The submissions made by Shri Seeraj Bagga is that none

of the other witnesses had deposed that when any of them

reached the place of occurrence, Ajit Mondal was alive. In fact,


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there is nothing on record to show as who was the person who

reached first at the place of occurrence. It cannot be presumed

that all of them reached the place of occurrence at the same

time/simultaneously. No other question had been put to Dilip

Kumar, PW-4, in his cross-examination. Therefore, it is quite

possible that he was the first man to arrive at the place of

occurrence and the statement made by him cannot be denied.

13. Bipin Mukherjee, PW-9, had been the Investigating

Officer at a later stage when the first Investigating Officer had

been transferred and he had deposed that he had submitted

the charge sheet against the accused under Sections 302/324

IPC on 13.4.2000 showing the appellant as absconder. The

appellant was given opportunity to cross-examine the said

I.O.; but the opportunity was not availed. In fact, he was the

best person to explain as to why there could not be any

recovery of the knife, the weapon used in the crime.

14. Saidul Islam, PW-10, an independent witness belonging

to another village has successfully proved the Ejahar written

by him at Raninagar Public Health Centre. The ocular

evidence given by Sujit Mondal, PW-1, is duly supported by


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the post mortem report and by Dr. Tarun Kumar, PW-5,

examined by the prosecution, who had explained that several

stab injuries had been caused in the chest, neck and heart of

Usha Rani Mondal. He proved the post mortem report and

opined that the cardio respiratory failure due to shock and

haemorrhage due to injuries, had been the cause of death. He

also opined that injuries were caused by sharp cutting

weapon. Same remains the situation so far as the injuries on

the body of Ajit Mondal are concerned.

15. For every question put to the appellant under Section

313 of Code of Criminal Procedure, 1973, the same reply was

given that he was innocent and he submitted that he would

not adduce any evidence in his defence.

16. In view of the above, we reach the inescapable conclusion

that there is nothing on record to show that there could be any

reason for Sujit Mondal, PW-1, a son, to falsely implicate and

rope his father into such a gruesome murder or the other

witnesses, who had been so close relatives and neighbours of

the appellant, would support the prosecution case.




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17. During the cross-examination of all of the witnesses,

nothing had transpired for which their evidence may be

discarded. The witnesses were natural and most probable and

their presence at the place of occurrence immediately after the

commission of crime is expected, being close relatives and

neighbours. No reason could be given as to why such close

relations of the appellant would depose against him.

Undoubtedly, there is nothing on record to show as what

could be the motive behind the murder of his wife and son by

the appellant. However, it can be difficult to understand the

motive behind the offence. The issue of motive becomes totally

irrelevant when there is direct evidence of a trustworthy

witness regarding the commission of the crime. In such a

case, particularly when a son and other closely related persons

depose against the appellant, the proof of motive by direct

evidence loses its relevance. In the instant case, the ocular

evidence is supported by the medical evidence. There is

nothing on record to show that the appellant had received any

grave or sudden provocation from the victims or that the




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appellant had lost his power of self control from any action of

either of the victims.

Motive :

18. In fact, motive is a thing which is primarily known to the

accused himself and it may not be possible for the prosecution

to explain what actually prompted or excited him to commit a

particular crime. In Shivji Genu Mohite Vs. State of

Maharashtra, AIR 1973 SC 55, this Court held that in case

the prosecution is not able to discover an impelling motive,

that could not reflect upon the credibility of a witness proved

to be a reliable eye-witness. Evidence as to motive would, no

doubt, go a long way in cases wholly dependent on

circumstantial evidence. Such evidence would form one of the

links in the chain of circumstantial evidence in such a case.

But that would not be so in cases where there are eye-

witnesses of credibility, though even in such cases if a motive

is properly proved, such proof would strengthen the

prosecution case and fortify the court in its ultimate

conclusion. But that does not mean that if motive is not




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established, the evidence of an eye-witness is rendered

untrustworthy.

19. It is settled legal proposition that even if the absence of

motive as alleged is accepted that is of no consequence and

pales into insignificance when direct evidence establishes the

crime. Therefore, in case there is direct trustworthy evidence

of witnesses as to commission of an offence, the motive part

loses its significance. Therefore, if the genesis of the motive of

the occurrence is not proved, the ocular testimony of the

witnesses as to the occurrence could not be discarded only by

the reason of the absence of motive, if otherwise the evidence

is worthy of reliance. (Vide Hari Shankar Vs. State of U.P.,

(1996) 9 SCC 40; Bikau Pandey & Ors. Vs. State of Bihar,

(2003) 12 SCC 616; and Abu Thakir & Ors. Vs. State of

Tamil Nadu, (2010) 5 SCC 91).

20. In a case relating to circumstantial evidence, motive does

assume great importance, but to say that the absence of

motive would dislodge the entire prosecution story is giving

this one factor an importance which is not due. Motive is in

the mind of the accused and can seldom be fathomed with any


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degree of accuracy. (Vide Ujagar Singh Vs. State of Punjab,

(2007) 13 SCC 90).

21. While dealing with a similar issue, this Court in State of

U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73 held as under:


"The motive may be considered as a
circumstance which is relevant for
assessing the evidence but if the evidence
is clear and unambiguous and the
circumstances prove the guilt of the
accused, the same is not weakened even if
the motive is not a very strong one. It is also
settled law that the motive loses all its
importance in a case where direct evidence
of eyewitnesses is available, because even
if there may be a very strong motive for the
accused persons to commit a particular
crime, they cannot be convicted if the
evidence of eyewitnesses is not convincing.
In the same way, even if there may not be
an apparent motive but if the evidence of
the eyewitnesses is clear and reliable, the
absence or inadequacy of motive cannot
stand in the way of conviction."

Abscondance by Accused :

22. In Matru @ Girish Chandra Vs. The State of U.P., AIR

1971 SC 1050, this Court repelled the submissions made by

the State that as after commission of the offence the accused




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had been absconding, therefore, the inference can be drawn

that he was a guilty person observing as under:


"The appellant's conduct in absconding was also
relied upon. Now, mere absconding by itself does
not necessarily lead to a firm conclusion of guilty
mind. Even an innocent man may feel panicky and
try to evade arrest when wrongly suspected of a
grave crime such is the instinct of self-preservation.
The act of absconding is no doubt relevant piece of
evidence to be considered along with other evidence
but its value would always depend on the
circumstances of each case. Normally the courts are
disinclined to attach much importance to the act of
absconding, treating it as a very small item in the
evidence for sustaining conviction. It can scarcely
be held as a determining link in completing the
chain of circumstantial evidence which must admit
of no other reasonable hypothesis than that of the
guilt of the accused. In the present case the
appellant was with Ram Chandra till the FIR was
lodged. If thereafter he felt that he was being
wrongly suspected and he tried to keep out of the
way we do not think this circumstance can be
considered to be necessarily evidence of a guilty
mind attempting to evade justice. It is not
inconsistent with his innocence."


A similar view has been reiterated by this Court in

Rahman Vs. State of U.P. AIR 1972 SC 110; and State of

M.P. Vs. Paltan Mallah & Ors. AIR 2005 SC 733.




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Abscondance by a person against whom FIR has been

lodged, having an apprehension of being apprehended by the

police, cannot be said to be unnatural.

Thus, in view of the above, we do not find any force in the

submission made by Shri Bhattacharjee that mere absconding

by the appellant after commission of the crime and remaining

untraceable for such a long time itself can establish his guilt.

Absconding by itself is not conclusive either of guilt or of guilty

conscience.

23. The defence did not even make a suggestion to Sujit

Mondal, PW-1, that he was not injured by the appellant with

a knife. The evidence of PW-1, therefore, cannot be ignored.

However, as the prosecution failed to produce any evidence to

the effect that Sujit Mondal, PW-1, remained admitted in PHC

Raninagar. That part of the evidence has been ignored by the

Trial Court as well as by the High Court.

Testimony of Sole Witness :

24. Shri Bagga has also submitted that there was sole

testimony of Sujit Mondal, PW-1, and the rest, i.e. depositions




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of PW-2 to PW-8, could be treated merely as a hearsay. The

same cannot be relied upon for conviction.

25. In Sunil Kumar Vs. State Govt. of NCT of Delhi,

(2003) 11 SCC 367, this Court repelled a similar submission

observing that as a general rule the Court can and may act on

the testimony of a single witness provided he is wholly reliable.

There is no legal impediment in convicting a person on the

sole testimony of a single witness. That is the logic of Section

134 of the Evidence Act, 1872. But if there are doubts about

the testimony the courts will insist on corroboration. In fact, it

is not the number, the quantity, but the quality that is

material. The time-honoured principle is that evidence has to

be weighed and not counted. The test is whether the evidence

has a ring of truth, is cogent, credible and trustworthy or

otherwise.

26. In Namdeo Vs. State of Maharashtra, (2007) 14 SCC

150, this Court re-iterated the similar view observing that it is

the quality and not the quantity of evidence which is

necessary for proving or disproving a fact. The legal system

has laid emphasis on value, weight and quality of evidence


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rather than on quantity, multiplicity or plurality of witnesses.

It is, therefore, open to a competent court to fully and

completely rely on a solitary witness and record conviction.

Conversely, it may acquit the accused in spite of testimony of

several witnesses if it is not satisfied about the quality of

evidence.

27. In Kunju @ Balachandran Vs. State of Taml Nadu, AIR

2008 SC 1381, a similar view has been re-iterated placing

reliance on various earlier judgments of this court including

Jagdish Prasad Vs. State of M.P., AIR 1994 SC 1251; and

Vadivelu Thevar Vs. State of Madras, AIR 1957 SC 614.

28. Thus, in view of the above, the bald contention made by

Shri Bagga that no conviction can be recorded in case of a

solitary eye-witness has no force and is negatived accordingly.

29. In view of the above, we are of the considered opinion

that the facts and circumstances of the case do not present

special features warranting the review of the

judgments/orders of the courts below. Appeal lacks merit and

is accordingly dismissed.




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30. Before parting with the case, we record our appreciation,

thanks and gratitude to Shri Seeraj Bagga in rendering full

assistance to the Court during the course of hearing.



.......................................J.
(P. SATHASIVAM)



.......................................J.
(Dr. B.S. CHAUHAN)

New Delhi,
July 26, 2010




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