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The case of the prosecution is that on April 28, 1989 one Bibhuti Mondal, the de facto complainant (PW 1) was sleeping on a rope cot beneath a jack fruit tree in the open terrace attached to his partly completed residential house situated at Dwipchar village, District-Murshidabad, with his wife Bharati Mondal, (victim), daughter Pusparani Mondal, since deceased, and two sons, namely, Rupchand Mondal and Dasharath Mondal respectively. At late night, i.e. on April 29, 1989 at 01.00 hours, the de facto complainant awakened hearing the sound of a bomb blast. It was a moonlight night and the PW 1 put on his torchlight. The PW 1 found Ram Mondal (appellant no.1), Brojen Ghosh (appellant no.2) and one Chamatkar Mondal of Village-Teghari, District-Murshidabad and 2/3 other persons in front of them. They hurled another bomb causing serious injury to the wife of the PW 1 and his aforesaid children. A third bomb had been hurled by them but no further harm was caused. The condition of the wife of the PW 1 (the deceased) was critical. Subsequently, she breathed her last at the place of occurrence. PW 6 and PW 7 were initially treated at Teghori Block Primary Health Centre. Subsequently, they had to be transferred to Jangipur Sub-Divisional Hospital for their treatment as indoor patient.

It is submitted by Mr. Ranabir Roy Chowdhury, learned Counsel appearing of behalf of the State respondents, that according to the FIR, the appellants were identified in the light of torch of the de facto complainant (PW 1) and moonlight. According to the evidence adduced by the PW 6 and PW 7, the appellants, (accused persons) were recognised out of a number of accused persons at the place of occurrence in the moonlight as also with the help of torchlight of the PW 1. The appellants were known to them. The enmity of the appellant no.1 with the PW 1 was also established. With regard to non-production of the torchlight under reference, it is submitted by Mr. Roy Chowdury that the identification was made with the help of the torchlight of PW 1 as also in the moonlight. According to him, PW 1, PW 6 and PW 7 not only referred to the names of the appellants for commissioning of the offence but also they identified the appellants in Court. According to him, the above evidence was adduced by the aforesaid prosecution witnesses after laps of about 19 years from the date of occurrence.

A. Recognition / identification of the appellants at the place of occurrence at the material point of time and the non-production of the seized torchlight in Court :-
In analysing the evidence in a criminal trial the application of settled proposition of law always depends upon the facts and circumstances involved in a particular case. Slightest variation in the facts and circumstances changes the analysis of evidence of eyewitnesses in case of recognizing accused person/persons in the night. In the matter of Nathuni Yadav & Ors. vs. State of Bihar & Anr., reported in (1998) 9 SCC 238, the Hon'ble Supreme Court observed that in ascertaining whether identification of the assailants by the eyewitnesses in a night when there was no moonlight, the proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glow of stars and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. In doing so, the Hon'ble Supreme Court further observed that over and above the above factors, the Court must bear in mind the further fact that the assailants were no strangers to the inmates of the tragedy-bound house, the eyewitnesses being well acquainted with the physiognomy of each one of the killers. The relevant portion of the above decision is quoted below:-

(Emphasis supplied) The sustaining of injury by Bharati Mondal, the deceased, from the second bomb hurled on her by one of the appellants resulting in her death was evidence from the evidence of eyewitnesses PW 1, PW 6 and PW 7. The hurling of three (3) bombs by the appellants was also corroborated from the evidence adduced by the above eyewitnesses.

While considering the evidence on record, we find that according to the evidence of PW 1, presence of the appellants at the place of occurrence, hurling of bomb by the appellants concerned, assaulting him with the help of "kathi" by the appellants concerned, death of his wife and sustaining of injury of himself, PW 6 and PW 7 were evident. Though the recognition of the appellants by him was possible consequent upon the availability of the torchlight in a moonlight night, the evidence was corroborated by the evidence of PW 6 with further deposition that the appellants were recognised in the moonlight as also light available from the torch of his father. The sustaining of injury by PW 6 and PW 7 apart from the injury he himself sustained wherein corroboration with the evidence of PW 1. The evidence of PW 7 was also corroborated with that of the PW 1 and PW 6 with regard to hurling of three (3) bombs by the appellants assaulting PW 1 with the help of "kathi". PW 4 was not an eyewitness.