Calcutta High Court (Appellete Side)
Kanai Das @ Seru vs The State Of West Bengal on 16 September, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ajay Kumar Gupta
C.R.A. 182 of 2015
Kanai Das @ Seru
-Vs-
The State of West Bengal
With
C.R.A 187 of 2019
Gobinda Sarkar @ Alu
Vs-
The State of West Bengal
With
C.R.A 241 of 2015
Ganesh Das @ Prosenjit Das
Vs-
The State of West Bengal
With
C.R.A 419 of 2015
Gautam Halder @ Bachcha & Anr.
Vs-
The State of West Bengal
2
Mr. Ayan Basu, Adv.
Mr. Tanmay Biswas, Adv.
Mr. Sumit Routy, Adv.
... for the appellant in CRA 187/19 & CRA 419/15
Mr. Navanil De, Adv.
Ms. Ayantika Roy, Adv.
Mr. R Chakraborty, Adv.
Mr. S Ghosh, Adv.
Mr. S Dey, Adv.
... for the appellant in CRA 241 of 2015
Mr. Uday Sankar Chattopadhyay, Adv.
Ms. Singdha Saha, Adv.
Mr. Santanu Maji, Adv.
Ms. T Rakshit, Adv.
Mr. G Roy, Adv.
... for the appellant in CRA 182 of 2015
Mr. Sudip Ghosh, Adv.
Mr. Bitasok Banerjee, Adv.
... for the State in CRA 241/15 & 419/15
Heard on : 15.09.2022 & 16.09.2022.
Judgment on : 16.09.2022
Joymalya Bagchi, J. :-
Appeals are directed against the judgment and order dated
27.02.2015 and 02.03.2015 passed by the learned Additional
District & Sessions Judge, 2nd Court, Sealdah, South 24-
Paraganas in Sessions Trial Case No.1(7)09 arising out of Sessions
Case No.1(4)09 convicting the appellants for commission of offence
punishable under Sections 302/34 of the Indian Penal Code and
sentencing them to suffer rigorous imprisonment for life each and
3
to pay a fine of Rs.2,000/- each, in default, to suffer simple
imprisonment for two months more.
Prosecution case:-
Prosecution case against the appellants is to the effect that
on 1.9.2008 around 2.30 P.M. while the deceased namely Sk.
Binod was taking tea in a tea stall situated below Beliaghata
Bridge near Sealdah railway station appellants came to the spot
and burst bombs. Hearing the sound of bomb, Binod tried to run
away. The miscreants caught him and fired on his chest and other
parts of his body. He fell down.
Receiving intimation of commotion in the locality, police
officers attached to Sealdh GRPS arrived at the spot. At the place
of occurrence, a number of persons used to sell second hand
clothes. One of them was Parvin Bibi (PW 3). Her statement was
recorded by SI Abdul Hai Sarder (PW 1) which was treated as FIR
and Sealdah GRPS case no. 42 of 2008 dated 1.9.08 under section
302/34 IPC was registered for investigation. Sriram Singh (PW 2),
uncle of the deceased was intimated. He came to the spot and
identified the body. Inquest was held over the body by PW 1. Dead
body was sent for post mortem examination. Investigation of the
case was taken over by PW 14 who initially arrested one Arun
Sarkar and Sankar Sapui. On their statements the appellants were
arrested. On the leading statements of Gautam Halder @ Bachcha
4
and Kanai Das @ Seru one improvised pistol and a country-made
double barrel pistol and cartridges were recovered. Seized arms
and ammunitions were sent for examination by balletic expert (PW
11). He found the arms were in working condition. He opined that
the bullet recovered from the body of the deceased could be fired
from the double-barrel gun.
In conclusion of investigation, charge sheet was filed
against the appellants and co-accused Sankar Sapui and Arun
Sarkar under sections 302/34 IPC. Supplementary charge sheet
under section 25/27 of the Arms Act was also submitted.
Charges were framed against the accused persons under
Sections 302/34 of the Indian Penal Code. They pleaded not guilty
and claimed to be tried. In course of trial, prosecution examined
14 witnesses and exhibited a number of documents to prove its
case. Defence of the appellants was one of innocence and false
implication. In conclusion of trial, learned trial Judge by the
impugned judgment and order dated 27.2.2015 and 2.3.2015
convicted and sentenced the appellants, as aforesaid. Co-accuseds
Arun Sarkar and Sankar Sapui were acquitted of the charges
levelled against them.
Nobody appeared for the appellant, Kanai Das @ Seru.
Mrs. Manasi Roy, empanelled lawyer with High Court Legal
Services Authority was requested to represent the said appellant.
5
Arguments at the Bar:-
Mr. Ayan Basu for Saidul Molla (in CRA 419 of 2015)_ and
Gobinda @ Alu (CRA 187 of 2015) submits registration of FIR is
shrouded in mystery. There is delay in forwarding the FIR to the
jurisdictional court. De facto complainant (PW 3) did not name the
appellants in the FIR or before police. Hence, identification of
Saidul by PW 3 in Court ought not be believed. PW 3 does not
speak of presence of PW 4 at the place of occurrence. PW 4 is an
unreliable witness. She cannot state the names of the garment
sellers in the area. She admitted she did not sell garments on that
day. PW 5 did not disclose the names of the appellants before
police officer. Presence of PW 5 at the place of occurrence is
doubtful. He is a porter who used to carry luggage in a different
direction. He does not have licence. Both PWs 4 and 5 have
criminal cases pending against them. They are pocket witnesses of
the police. So called eye-witnesses are associates of one Kelo Vola
and they falsely deposed at the instance of the police. Other local
witnesses have not been examined One Sivam Yadav, an eye-
witness examined during investigation but was not examined in
Court. Autopsy surgeon (PW 13) noted an incised wound on the
body of the deceased. This contradicts the ocular version of the
witnesses.
6
Mr. Navanil De for Ganesh Das (in CRA 241 of 2015)
adopts the submissions of Mr. Basu. In addition, he submits PW 4
was examined on 26.10.2008 i.e. 55 days after the incident.
Delayed examination of the said witness casts doubt with regard to
her truthfulness. His client is not named in the FIR. Only PW 4
speaks of his presence at the place of occurrence. Other witnesses
have not corroborated her. He was arrested after two months from
his place of business and falsely implicated in the case. He prays
for acquittal.
Mr. Chattopadhyay for Kani Das @ Seru in CRA 182 of
2015 submits PW 3, the de facto compliant and the most vital
witness has not identified his client. FIR was registered against
unknown persons. Presence of PWs 4 and 5 at the place of
occurrence is doubtful. Cases are pending against them. Apart
from PWs 3, 4 and 5 no other person from the area was examined.
Recovery of fire arms from the rented room of his client has not
been proved. Nothing is placed on record to show PW 7 is the
owner of the house. Tenancy agreement was also not been
produced. PW 7 admitted his client was not a tenant at the time of
recovery. Accordingly, he prays for acquittal.
Mrs. Roy adopted the submissions of Mr. Basu und Mr.
Chattopadhyay. She further submits opinion of scientific expert
PW 11 with regard to recovery of bullet is inconclusive. Autopsy
7
surgeon (PW 13) stated no identity card was placed before him and
identification of the dead body to the doctor has not been proved.
Incised wound on the body of the deceased has not been
explained. She further submits recovery of the fire arms on the
purported statement of his client is most artificial and ought not to
be believed.
In reply, Mr. Sudip Basu submits incident occurred in a
public place in the afternoon of 1.9.2008. PWs 3 and 4 were
garment sellers who used to sell garments under the Beliaghata
Bridge. They were present at the spot. PW 3 is also a signatory to
the seizure list and inquest report. Out of trauma, PW 3 was
unable to come out with the names of the accuseds in the FIR. In
court she identified Saidul as one of the assailants. PW 4 identified
all the appellants. PW 5 is a porter who used to carry luggage from
the nearby railway station. He was drinking tea at the tea stall. His
presence at the place of occurrence is most natural. He identified
Gautam Halder @ Bachcha, Kanai Das @ Shaw and Gobinda
Sarkar as the assailants. The appellants had come to the spot and
hurled bombs. Most people fled. Witnesses who saw the incident
were apprehensive of their own lives. Under such circumstances,
PWs 3 and 5 may not have been able to identify all the appellants.
This cannot improbabilise their versions. Autopsy surgeon found
two gunshot injuries on the body of the deceased and opined death
8
was due to gunshot injuries. His opinion substantially
corroborates ocular version of the eye-witnesses. On the leading
statements of Gautam @ Bachcha and Kanai Das @ Seru two guns
and ammunitions were recovered from the rented room of Kanai
Das. PW 7, owner of the house, proved the recovery.
PW 11 (Ballistic expert) opined bullet recovered from the
body of the deceased matched with one of the fire arms. From the
aforesaid evidence, prosecution case against the appellants is fully
established. Hence, the appeals are liable to be allowed.
Evidence on record:-
PW 3 used to sell garments under Beliaghata bridge beside
Sealdah south railway station. There was a tea stall near her place
of business. She deposed on the day of occurrence around 2.30
p.m. there was a bomb explosion. People ran away. Binod was
sitting at the tea stall. He also tried to flee. 5/6 persons came and
stopped Binod. They fired at Binod who fell on the ground. She
identified Saidul who also ran business of selling old garments as
one of assailants. Police came to the spot. They seized blood
stained earth, identity card, two finger rings and a small note
book. She signed on the seizure list. She made statement to the
police. She also signed on the inquest report.
PW 2 (Sriram Singh) is the uncle of the deceased. He
deposed on 1.9.2008 he received phone call at 3.30 p.m. informing
9
him that Binod Singh was murdered. Hearing this he came to the
spot. He signed on the inquest report. He deposed. Binod stated
that he had dispute with Saidul, Sankar, Seru, Bachcha, Jeetu. He
had expressed apprehension they might kill him.
PW 1 is a police officer attached to Sealdah GRPS. He came
to the spot. He held inquest over the body of the deceased. He
proved the inquest report. He seized blood stained earth and other
articles from the place of occurrence. He prepared seizure list. He
recorded statement of Parveen Bibi (PW 3) which was treated as
FIR.
PW 4 (Padma Dey) is another seller of old garments. She
deposed she was at the tea stall when the incident occurred.
Parveen Bibi was with her. She saw 5/6 persons come towards
Binod. They shot at Binod who fell on the ground. He identified
Bachcha, Saidul, Ganesh, Seru and Alu as the miscreants.
Miscreants threw bombs. Thereafter they fled from the place. The
tea stall owner was not present at the time of occurrence. Police
interrogated her 2/3 days after the incident.
PW 5 (Bhuto Sardar) is a porter who use to carry luggage
from Sealdah station to Koley market. He deposed he was drinking
tea at the tea stall. Binod was sitting on a bench in the stall. 5/6
persons came to the spot and shot at Binod who fell on the
ground. He identified Bachcha, Seru and Gobinda as the
10
miscreants. They threw bomb and ran away from the spot. He also
stated PWs 3 and 4 were present at the spot.
PW 7 (Pintu Dutta) is a owner of a two storied building
being 95 Nilachal at Birati. He deposed police came to his house
with his tenant Kanai and his companion Bachcha. On the
showing of Kanai two guns and two cartridges were recovered. He
signed on the seizure list. He identified the guns in Court.
PW 10 is a constable who was attached to Sealdah GRPS.
He carried the dead body to NRS morgue.
PW 13 held post mortem over the dead body which was
identified by PW 10. He found two gunshot injuries on the body of
the deceased and one incised wound measuring ¼" x ¾" deep
chest below lateal end of left cavicle. He opined death was due to
gunshot injury ante mortem and homicidal in nature. PW 13
found improvised bullet head in the abdomen of the deceased. He
brought out the bullet head and handed it over to the police
personnel.
PW 11 examined the seized arms (Exts. A and B) as well as
the bullet (Ext. E) recovered from the body of the deceased. He
opined that arms were in working condition. He further stated the
bullet recovered from the body could have been fired from the
country made double-barrel pistol (Ext. B).
11
PW 14 is the investigating officer of the case. He deposed on
hearing information regarding disturbance near Beliaghta railway
station, IC of railway GRPS Pranab Kr Mitra and others went to
the place of occurrence. Prior to departure the information was
diarized. They saw the victim lying near a tea stall. PW 1 prepared
inquest repot. On the statement of PW 3, FIR was registered. He
was assigned the investigation. He arrested Arun Sarkar and
Sankar Sapui. They disclosed involvement of Bachcha, Saidul and
Seru. Eye-witnesses also disclose their involvement. Bachcha,
Saidul and Seru were arrested on 23.10.2008 from Sandeshkhali.
Seru and Bachcha made disclosure statements marked Ext 16 and
17. He took them to the house of PW 7 where they were staying as
tenants. Kanai brought out two fire arms - an improvised pistol
and a double barrel country made pistol and cartridges. He
prepared seizure list. He received post mortem report. He sent the
seized fire arms, ammunitions and the bullet recovered from the
body of the deceased for examination by ballistic expert. He
received report from ballistic expert. He filed charge sheet.
From an analysis of the evidence on record it appears that
the prosecution case primarily hinges on-
(a) Eye-witness version of PWs 3, 4 and 5
(b) Recovery of fire arms on the leading statements of
Gautam Halder @ Bachcha (Ext 17) and Kanai Das @ Seru (Ext 16)
12
(c) Opinion of autopsy surgeon PW 13 and
(d) Opinion of the ballistic expert (Ext 11).
Delay in forwarding FIR:-
It is argued recording of first information report is shrouded
in mystery. There is delay in forwarding the report to jurisdictional
magistrate. PW 14, SI, Sealdah GRPS, Satyajit Banerjee
(investigating officer) deposed on 1.9.2008 they received
information with regard to commotion beneath Beliaghata bridge
due to throwing of bombs. IC, Sealdah GRPS with officers left for
the spot after diarizing the information as GDE 42 of 2008 dated
1.
9.2008. PW1, Md. Abdul Hai Sardar was one of the police
personnel who accompanied IC. At the spot, they found the body
of the deceased lying near a tea stall. PW1 held inquest over the
dead body and prepared inquest report. Inquest report was signed
by PW3, Parveen Bibi, PW2, Sriram Singh and one Rupsa Halder.
Statement of PW3 was recorded by PW1 which was treated as first
information report. He also drew up formal FIR, Ext.15.
The aforesaid evidence clearly establishes the circumstances
in which police received information about the incident and upon
coming to the spot had recorded the statement of PW3 which was
treated as first information report. The FIR was sent to the
jurisdictional Magistrate on 4.9.2008. In this backdrop, delay of
three days in sending the first information report to the
jurisdictional Magistrate appears to be an act of remissness on the
part of the investigating agency and does not affect the credibility
of the prosecution case. That apart, nothing is placed on record
that the delay had prejudiced the appellants or occasioned failure
of justice.1
Presence of PWs 3, 4 & 5 at the spot:-
PW3, Parveen Bibi, PW4, Padma Dey and PW5, Bhuto
Sardar are the eyewitnesses. PWs 3 and 4 are sellers of old
garments. Both the witnesses deposed a number of persons used
to sell old garments under Beliaghata bridge. They also stated
there was a tea stall at the spot. PW3 used to sell garments near
the tea stall. On the fateful day, she was present at the spot and
saw the incident. PW4 another seller of old garments also deposed
she was drinking tea at the tea stall when the incident occurred.
PW5 is a porter who used to carry luggage from Sealdah Railway
Station. He had also come to the tea stall for drinking tea. He is a
relation of PW4. He deposed he saw PWs3 and 4 at the spot.
Learned Advocates argued presence of PWs4 and 5 at the
spot is unlikely. PW3 had spoken of their presence at the spot.
During cross-examination PW4 could not disclose the names of
other sellers of old garments. She admitted she did not sell
garments on that day. PW5 used to carry luggage towards Koley
Pala Singh And Another vs. State of Punjab, (1972) 2 SCC 640 (para 8)
market--which is in a different direction from the place of
occurrence.
I have considered the aforesaid objections on behalf of the
defence. Evidence has come on record that a number of persons
used to sell old garments under the Beliaghata bridge. PW4 (Padma
Dey) is one of such seller. On the fateful day, she had come to the
spot around 12.30 PM and within a couple of hours the incident
occurred. It is possible she had not been able to sell any garment
prior to the occurrence. Failure of the said witness to name the
other sellers in the locality is also not fatal. PW5 is a porter who
used to carry luggage from the adjoining railway station had come
to the tea stall to drink tea. He is a relation of PW4. He stated he
had seen Padma Dey (PW4) along with Parveen Bibi (PW3) at the
place of occurrence. Presence of PW5 (Bhuto Sarder) at the place of
occurrence is quite probable. He used to stand outside the railway
station and carry luggage. In view of the nature of job carried by
PW5, it is not unnatural that he had come to drink tea from the tea
stall. At that time he identified his relation Bhuto Sarder (PW5) and
Parveen Bibi (PW3) at the spot.
Presence of the aforesaid witnesses at the spot is, therefore,
most natural and probable and has been established beyond
doubt.
Credibility of PWs. 3, 4 and 5:-
Learned Advocates for the appellants have emphatically
deposed no reliance ought to be placed on PWs 3, 4 and 5. PW3 did
not name the miscreants in the FIR. She admitted in cross-
examination she did not disclose their names before police. In
Court, she only named Saidul Mollah and no one else. PWs3 and 4
were beside one another. As PW3 did not name any one, it is
contended identification by PW4 of the appellants is most
unnatural. PW5 also did not identify all the appellants.
Hence, the witnesses ought not to be believed. PWs 3 and 4
who used to sell old garments in the area. They were at the spot
when the incident occurred. Evidence has come on record Binod
was a anti-social. Miscreants came in a body and threw bombs.
There was a commotion. In the melee, the witnesses saw 5/6
persons confront Binod and shot at him. As a result, he fell down.
Due to the suddenness of the incident and ensuing panic it is
obvious PW3 was unable to name the miscreants in the FIR. In
Court, she identified one of the miscreants as Saidul Mollah, who
used to sell old garments with them. PW4 another garment seller,
however, identified all the appellants as the miscreants. PW5, a
porter who was drinking tea at the stall identified Gautam Halder @
Bachcha, Kanai Das @ Seru and Gobinda Sarkar as the
miscreants.
Capacity of every individual to recollect and narrate an
incident is not the same. Moreso, when an incident creates panic
and fear in the mind of the witness. Under such circumstances,
ability of every person to identify and name the perpetrators of
violence would vary from one another. While some of them may be
in a position to identify all the perpetrators, others may out of panic
and shock fail to name any of them. Hence, variation in the number
of persons identified by the eyewitnesses as miscreants do not
improbabilise their presence. Nor does it affect their credibility. On
the other hand, varying degrees of recollection regarding identity of
the miscreants show a ring of truth in their depositions.
As discussed earlier, there was widespread panic and commotion
due to throwing of bombs at the spot where Binod was murdered.
Out of panic and shock and fearing danger to her life, PW1 may
have kept quiet about the involvement of Saidul Mollah in the crime
at the time of registration of FIR. But in Court she disclosed his
involvement. PW4 also corroborated PW3 regarding role of Saidul
Mollah in the crime. In this background, identification of Saidul
Mollah by PW3 ought not to be discarded as an afterthought.
Hence, I am unwilling to discard the evidence of the aforesaid
witnesses on the score that they did not identify all the appellants
in court. I am also not willing to discard the identification of Saidul
Mollah by PW3 on the ground she was unable to state the names of
the miscreants before police immediately after the incident.
Delayed examination of witnesses:-
Learned Advocates for the appellants argued PWs 4 and 5
ought not to be believed as there was delay in their examination by
police. Drawing attention of this Court to the cross-examination of
investigating officer (PW14), he submitted PW4 was examined on
26.10.2008 i.e. about two months after the incident and PW5 was
examined on 6.9.2008 i.e. five days after the incident.
I am unable to accept such contention for the following
reasons.
Firstly, PW4 in her chief stated she was examined by police
2/3 days after the incident. Harmonious, reading of PW2 with
PW14 persuades me to hold that the said witness may have been
examined orally by the investigating officer 2/3 days after the
incident but her statement was formally recorded on 26.10.2008.
Even otherwise, mere delay in recording statement of a witness
does not improbabilise her version2. No material is placed before
this court to show that the deposition of PW4 is at variance with
her earlier statement to the police. Examination of PW5 was within
5 days of the incident and such time gap cannot said to be an
inordinate one. Referring to his cross-examination, it is contended
Ganeshlal vs. State of Maharashtra, (1992) 3 SCC 106 (para 10)
PW5 admitted he stated the facts for the first time in Court. A
solitary statement of a witness taken out of context is not sufficient
to demolish his deposition. PW14 the Investigating Officer deposed
he had examined PW5 on 6.9.2008. He also admitted that the
eyewitness examined on 6.9.2008 gave out the names of Gautam
Halder @ Bachcha and Kanai Das @ Seru. Hence, it is patently
absurd to suggest that PW5 had not named the accused persons
before police and had stated for the first time in Court.
Medical evidence on record:-
Autopsy Surgeon (PW13) deposed he found two gunshot
injuries on the deceased as well as an incised wound. He opined
death was due to gunshot injuries, ante mortem and homicidal in
nature. Learned Advocates for the appellants argued eyewitnesses
have not explained how the victim suffered incised wound. Hence,
there is dichotomy between medical and ocular evidence. It is also
argued that the identity of the dead body has not been established.
PWs. 3, 4 and 5 deposed miscreants came in a body and threw
bombs. Thereafter, they accosted Binod and shot at him. As a
result, he fell on the ground. There was commotion in the area and
most people fled away. Naturally, the witnesses were afraid and
apprehensive of harm to them. Though they saw the gun shot
injuries, it is possible that they may have failed to notice a further
assault on the victim.
It is trite law ocular evidence of an eyewitness if reliable
would prevail over medical evidence. Only, when the medical
evidence wholly contradicts ocular evidence would the prosecution
case be rendered vulnerable3. In the present case autopsy surgeon
deposed that the victim had suffered gunshot injuries which were
the cause of his death. Eye-witnesses have unequivocally deposed
that the victim had suffered gunshot injuries. Hence, their ocular
version is substantially corroborated by medical evidence. A
number of miscreants had thrown bombs causing commotion. In
the milieu they attacked the victim and fired at him. In this
situation the witnesses may have failed to notice a further assault.
This does not improbabilse the prosecution case that the victim
had been accosted by the miscreants and fired at, resulting in his
death.
Recovery of fire arms and ballistic report:-
Credibility of the prosecution case is further strengthened by
recovery of two guns i.e. improvised pistol and country made
double barrel pistol from the rented room of Kanai Das @ Seru.
PW7 (Pintu Dutta @ Babu), owner of the house deposed Kanai Das
@ Seru was a tenant in the house. Gautam Halder @ Bachcha also
stayed with him. Police brought them to the house and Kanai Das
Anwar And Others vs. State of Haryana, (1997) 9 SCC 766 (para 10)
@ Seru brought out the arms and ammunitions from his
belongings. He proved his signature on the seizure list.
PW 14 (Satyajit Banerjee), investigating officer, deposed after
arrest of Kanai Das @ Seru and Gautam Halder @ Bachcha, they
made statements before him marked as Exbts.- 16 and 17. On the
basis of their statements they were taken to the house of PW7 and
the aforesaid recovery was made. PW 14 proved the seizure list.
Learned defence Counsel submits no document with regard
to tenancy was produced. Date of recovery is doubtful. Tenancy
had been surrendered prior to the recovery of the fire arms. I find
little substance in the aforesaid submissions. Seizure list has been
marked as Exbt.-4/A. From this exhibit it appears that the
recovery was made on 03.11.2008 at 1:15 hours. This finds
corroboration from the oral deposition of PW 7. PW 14, by slip of
tongue, stated recovery was made on 02.11.2008 which does not
demolish the prosecution case which is established through the
evidence of independent seizure witnesses (PW7) and the seizure
memorandum. From the reading of the evidence of PW 7, as a
whole, it is clear that the aforesaid appellants i.e. Kanai Das @
Seru and Gautam Halder @ Bachcha were occupying the room as
tenants in the premises. After the incident, both of them
absconded. However, their belongings remained in the room let out
to them. They were arrested from Sandeshkhali on 23.10.2008
and the firearms were recovered from their belongings as per
disclosure statements made by them.
In the light of the aforesaid evidence on record, I am of the
opinion that recovery of the firearms and ammunitions, on the
leading statements of the Kanai Das @ Seru and Gautam Halder @
Bachcha has been proved beyond doubt.
Seized firearms and ammunitions along with bullet
recovered from the body of the deceased were seen for ballistic
examination. Opinion of ballistic expert, PW 11 (Ardhendu
Sengupta) marked as Exbt.-9 shows that the seized bullet head
recovered from the body of the deceased (Exbt.-E) could have been
fired from the double barrel improvised pistol marked as Exbt.-B.
This circumstance further strengthens the prosecution case
against Kanai Das @ Seru and Goutam Halda @ Bachcha from
whom the offending firearm was recovered.
Non-examination of other witness:-
Another issue raised by the appellants is that other local
witnesses have not been examined. It is contended, owner of the
tea stall and other local witnesses including one Siva Yadav who
was interrogated by the police have not been examined. Evidence
has come on record that owner of the tea stall was not present on
the day of occurrence. It is open to the prosecution to choose its
witnesses to prove the case. Only when the best evidence is
withheld or non-examination of a witness affects the unfolding of
the prosecution case an adverse inference may be drawn. PWs. 3,
4 and 5 have clearly proved the circumstances leading to the
murder of the deceased. Hence, non-examination of Siva Yadav or
other local witnesses do not affect the unfolding of the prosecution
case.
Analysis of the eye-witnesses qua each of the appellants:-
Eye-witnesses PWs 3, 4 and 5 did not identify in Court.
Saidul Mollah has been identified by PWs. 3 and 4. Kanai Das @
Seru, Gautam Halder @ Bachcha and Gobinda Sarkar @ Alu have
been identified by PWs. 4 and 5. But Ganesh Das @ Prosenjit Das
has been identified only by PW 4.
I have no doubt with regard to the presence of the aforesaid
eye-witnesses at the place of occurrence. Their depositions also
have a ring of truth. Arguments advanced that PWs. 4 and 5 had
criminal cases and, therefore, were under pressure of the police to
depose is of little substance. If they were tutored witnesses they
would have narrated the incident in a parrot like manner and
named all the appellants. Minor variations and/or discrepancies in
their depositions are the hallmark of truthful witnesses since
recollective faculty of every individual vary from one to another. It
is also relevant to note there was commotion in the area when the
miscreants fired at the victim. Most of the people had run away. In
this atmosphere of fear and trauma PWs 3,4 and 5 had seen the
incident and deposed in Court. Hence, there is some variation with
regard to the persons identified by them as the miscreants. As the
chaotic circumstances prevailing at the spot may have affected the
capacity of the witnesses to identify the miscreants, it may not be
prudent to rely on the version of a sole witness to come to a
finding of guilt. I am not unmindful that conviction may be
recorded on the basis of the evidence of a sole eye-witness. To do
so, the said witness must be of sterling quality and his/her
deposition must be wholly reliable. Otherwise it is safe to look for
some corroboration before one comes to a finding of guilt on the
deposition of a sole eye-witness. Applying this proposition of law to
the factual backdrop of the case which discloses widespread
commotion prevailing at the place of occurrence, I am of the view it
may not be safe to convict on the basis of identification by a sole
eye-witness. Hence, I am inclined to extend the benefit of doubt to
Ganesh Das @ Prosenjit Das who has been identified by PW 4
alone. No other incriminating circumstance has also come to the
fore against the said appellant. No incriminating article was
recovered from him and evidence on record shows he had not
absconded and was arrested from his place of business.
Accordingly, Ganesh Das is acquitted of the charge leveled against
him.
On the other hand, the other appellants viz. Kanai Das @
Seru, Gautam Halder @ Bachcha, Saidul Mollah and Gobinda
Sarkar @ Alu have been identified by two of the eye-witnesses.
Firearm used for murdering the victim was recovered on the
leading statements of Kanai Das @ Seru and Gautam Halder @
Bachcha.
In view of the reasons recorded above, I hold as follows:-
(i) Conviction and sentence of Ganesh Das @ Prosenjit
Das are set aside;
(ii) Conviction and sentence of Kanai Das @ Seru,
Gautam Halder @ Bachcha, Saidul Mollah and Gobinda Sarkar
@ Alu are upheld.
(iii) Bail bonds of Kanai Das @ Seru, Gautam Halder @
Bachcha, Saidul Mollah and Gobinda Sarkar @ Alu are
cancelled. They are directed to surrender forthwith and serve
out their sentences in accordance with law, failing which, the
trial Court shall issue appropriate processes for their
apprehension and execution of sentence in accordance with law.
(iv) Ganesh Das @ Prosenjit Das shall stand discharged
from his bail bond after expiry of six months in terms of Section
437A of the Code of Criminal Procedure.
The appeal being CRA 241 of 2015 is allowed.
The appeals being CRA 182 of 2015, CRA 187 of 2019 and
CRA 419 of 2015 are dismissed.
Period of detention suffered by the convicted appellants
during investigation, enquiry and trial shall be set off against the
substantive sentences imposed upon them in terms of Section 428
of the Code of Criminal Procedure.
Let a copy of this judgment along with the lower court
records be forthwith sent down to the trial Court at once.
Photostat certified copy of this judgment, if applied for, shall
be made available to the appellants upon completion of all
formalities.
I agree.
(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.)
tkm/as/sdas/PA
