Moniruddin Ahmd.@ Lalu Dealer & Ors vs State Of West Bengal

seized and sent for chemical examination. Meanwhile, the

available witnesses were examined by the Investigating Officer.

Finally, on examination of all available witnesses and

collection of the post-mortem report, injury report and

Analyst's report, the charge-sheet was submitted. Following

the commitment of the case to the Court of Sessions, charge

under Sections 108 and 302/149 of IPC were framed against

42 accused persons.

iii) The accused persons having pleaded innocence, the

prosecution examined 16 witnesses to prove their case.

iv) Relying heavily on the statements of the eye-witnesses

and the post-mortem report, the trial Judge convicted 12

accused persons under Sections 148 and 302/149 IPC. They

were sentenced to rigorous imprisonment for life and fine of

Rs.4,000/- each, in default, rigorous imprisonment for four

months for commission of offences under Section 302/149

IPC. They were also sentenced to rigorous imprisonment for

3 two years and fine of Rs.1,000/- each, in default, rigorous

imprisonment for two months for commission of offences

under Section 148 of IPC.

v) Aggrieved by the said judgment and order of conviction,

the appellants herein and 9 others moved the High Court in

C.R.A. No. 339 of 2002 and C.R.A. No. 354 of 2002. C.R.A.

339 of 2002 was preferred by Moniruddin Ahmed @ Lalu

Dealer and the other C.R.A. No. 354 of 2002 was preferred by

the other 9 accused and 2 of the appellants herein. The High

Court, by its judgment and order dated 08.02.2006, dismissed

C.R.A. No. 339 of 2002 moved by Moniruddin Ahmed @ Lalu

Dealer while allowing C.R.A. No. 354 of 2002 in part moved by

the other 9 accused and upheld the conviction of 2 of the

appellants herein viz., Rausan Sekh and Salim Sekh.

Aggrieved by the above conviction, the appellants have

approached this Court by way of special leave.

3) Heard Mr. K.N. Balagopal, learned senior counsel

appearing for the appellants and Ms. Radha Rangaswamy,

learned counsel appearing for the State.

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4) Learned senior counsel for the appellants submitted that

there should not be any conviction and sentence on disjointed

and scrappy evidence. The trial Court as well as the High

Court failed to take into account various infirmities that crept

into the evidence during the trial. He further submitted that

the Courts below committed an error in relying on the

evidence of PWs 7 and 8 as they had not seen the incident. In

the same manner, PW 9 who was at the relevant time in the

roof of the house, it was not possible for him to see the

incident from a long distance. On the contrary, learned

counsel for the State submitted that PWs 7 and 8 - injured

witnesses, PWs 9 and 12 who also witnessed the occurrence

clearly established the prosecution case. It is further

submitted that the statement of eye-witnesses being

consistent and coherent, the trial Court rightly relied on their

statements.

5) We have carefully perused the materials and considered

the rival submissions.

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6) Though, charge sheet was laid against 42 accused

persons, we are concerned about the role of three appellants

and whether prosecution has established their guilt beyond

doubt. Among the eye-witnesses present at the spot, PW 7

who sustained injuries in the incident narrated that the

appellants Moniruddin Ahmed @ Lalu Dealer, Salim Dafadar @

Sekh, Rausan Sekh, Ibrahim Sekh, Abu Siddiki, Motor Sekh,

Mantu Sekh and many others chased him and his associates

on seeing them near the Talsouri Tank. Frightened by their

aggressive look, PW 7 and other witnesses started fleeing

towards the field. He further asserted that he noticed Lalu

Dealer and Salim Sekh throwing bombs towards them. One of

the bombs struck Abdul Hasib, as a result he fell down on the

ground in the field of Abu Bakkar. At that time, all the

appellants and other accused surrounded him and Lalu Dealer

struck him with a `pathtangi', the other accused persons also

assaulted him with `lathi', `henso' and `bollom'.

7) The other injured witness PW 8 also narrated the

incident as explained by PW 7. According to him, on seeing

the aggressive mood of the accused, he and his associates

6 escaped through paddy fields. When they were on the move,

he saw accused Lalu Dealer and Salim Dafadar throwing

bombs towards Abdul Hasib. As explained by PW 7, PW 8 also

informed the Court that on encircling Lalu Dealer struck

Abdul Hasib with a spear, Rausan delivered a blow on him

with a `pathtangi'. In the same manner, as explained by PWs

7 and 8, PW 9 referred to the involvement of the appellants

and others, their overt act and the weapons used by them. He

also testified that by the merciless act of the appellants,

ultimately, it resulted in death of Abdul Hasib.

8) Another witness relied on by the prosecution is PW 12.

He was also present at the spot. Like PWs 7, 8 and 9, he also

narrated the incident how the accused chased and ultimately

caused the death of Abdul Hasib. As rightly observed by the

High Court, though the above-said witnesses did not place

their medical reports about their injuries, their presence at the

spot cannot be doubted and rightly believed their version. An

analysis of the prosecution witnesses clearly show that the

fatal blow with spear was delivered by Lalu Dealer - the first

appellant. It is also clear that the appellants and others

7 chased the deceased with deadly weapons in their hands. In

our view, among the several accused the role played by the

appellants had been analysed by the High Court and rightly

concluded that the appellants alone were responsible and

confirmed their conviction and sentence. On perusal and

analysis of the evidence of PWs 7, 8, 9 and 12, we are satisfied

that the prosecution has established the charge against the

appellants under Sections 148 and 302/149 of IPC.. Though

the first appellant took the plea of alibi, the same was not

substantiated. It is basic law that prosecution is to prove that

the accused was present at the scene and had participated in

the crime. The plea of the accused in such cases need be

considered only when the burden has been discharged by the

prosecution satisfactorily. However, once the prosecution

succeeds in discharging its burden, it is incumbent on the

accused, who adopts the plea of alibi, to prove it with certainty

so as to exclude the possibility of his presence at the place of

occurrence. It is also settled that when the presence of the

accused at the scene of occurrence has been established

satisfactorily by the prosecution through reliable evidence,

8 normally the court would be slow to believe any counter

evidence to the effect that he was elsewhere when the

occurrence happened. In the case on hand, we have already

noted the absolute evidence indicating the presence of Lalu

Dealer at the scene of occurrence. He was not only at the spot

but also caused the death of Abdul Hasib by a fatal blow with

spear. As rightly observed by the High Court, the stand taken

by the defence witnesses is unacceptable.

9) In the light of the above discussion, we are in agreement

with the conclusion arrived at by the High Court.

Consequently, the appeal fails and the same is dismissed.

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

...........................................J. (R.M. LODHA) NEW DELHI;

MAY 10, 2010

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