Sambhu Sardar vs State Of West Bengal
2023 Latest Caselaw 4186 Cal

Item No. 116 & 117




                     IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL APPELLATE JURISDICTION


Present:

The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Ajay Kumar Gupta

                              CRA 491 of 2015

                                Sambhu Sardar
                                      -Vs-
                               State of West Bengal

                                        With

                                 CRA 391 of 2018

                                Pagla Barui alias Pagal
                                        Vs.
                               The State of West Bengal

For the Appellant
(CRA 491 of 2015)        : Mrs. Nasra Ali Rahman


For the Appellant
(CRA 391 of 2018)        : Mr. Fazlur Rahman
                           Mr. Argha Banerjee


For the State            : Mr. Neguive Ahmed, learned APP
                           Ms. Amita Gaur


Heard on                 : 13.07.2023

Judgment on              : 13.07.2023


Joymalya Bagchi, J. :-

       1.

Appeals are directed against the judgment and order dated

29.08.2013 and 31.08.2013 passed by the learned Additional District &

Sessions Judge, Fast Track Court No. 1, Barrackpore in Sessions Trial No.

2(1)2012 FTC-1 arising out of Sessions Case No.237 of 2011 convicting the

appellants for commission of offence punishable under Sections 302/34 of

the Indian Penal Code and under Sections 25(1-A) and 27 of the Arms Act

and sentencing them to suffer rigorous imprisonment for life and to pay a

fine of Rs.5,000/- in default to suffer simple imprisonment for six months for

the offence punishable under Sections 302/34 of the Indian Penal Code, to

suffer rigorous imprisonment for seven years and to pay a fine of Rs.2000/-

in default to suffer simple imprisonment for three months for the offence

punishable under Section 25(1-A) of the Arms Act and sentence to suffer

rigorous imprisonment for seven years along with fine of Rs.2000/- each in

default to suffer simple imprisonment for three months for the offence

punishable under Section 27 of the Arms Act. All the sentences shall run

concurrently.

2. The prosecution case, as alleged against the appellants, is to the

effect that at 9:00P.M. on 07.04.2017 appellants with one Babai and others

had came to the residence of Subhash Yadav, a milk vendor (PW 1) and

called his son Puglu @ Lalu. They took him to a pond near Gosala Math.

Soon thereafter, Subhash Yadav heard sound of bullets. He along with

others came to the pond and found his son Lalu lying with bleeding injuries.

His younger son, Raju Yadav and others shifted to the victim to Ghola

Hospital where he was declared dead. One Babu Yadav, his brother's son,

was near the place of occurrence and had witnessed the incident. He knew

the miscreants who committed the crime.

3. On the written complaint of Subhash Yadav (PW 1) Khardah Police

Station Case No. 202 of 2011 dated 08.04.2011 under Sections 302 of the

Indian Penal Code along with Sections 25/27 of the Arms Act was registered

against Pagla Barui, Sambhu Sardar and one Babai. In the course of

investigation the appellants i.e. Pagla Barui and Sambhu Sardar were

arrested. It is alleged Pagla Barui made a disclosure statement leading to

the recovery of an improvised shorter pipegun and an empty cartridge from

Amarabati playground. Postmortem report showed that the victim had died

due to gunshot injury. Ballistic expert opined the pipegun was in working

condition and cartridge could have been fired from the said arms. Babai

could not be arrested and was declared as an absconder.

4. Charge-sheet was filed against the appellants and the case was

committed to the court of sessions. Charges were framed under Sections

302/34 of the Indian Penal Code against the appellants and under Sections

25/27 of the Arms Act. They pleaded not guilty and claimed to be tried.

Prosecution examined 15 witnesses to prove its case and exhibited a number

of documents. The defence of the appellants was one of innocence and false

implication.

5. In conclusion of trial, the learned Trial Judge by the impugned

judgment and order dated 29.08.2013 and 31.08.2013 convicted and

sentenced the appellants, as aforesaid.

6. I have considered the evidence on record.

7. PW 1 (Subhash Yadav) is the father of the deceased. He deposed on

07.04.2011 at around 9.00 to 9.15 P.M. his son Lalu had been called to

Gosala Math by the appellants and one Babai. Soon thereafter, he heard

sound of firing of bullets. He rushed to Gosala Math and found his son lying

beside the tank known as Satish Pukur. He along with his two sons Raju

and Gopal and his wife Asha shifted the victim to Ghola Hospital. There he

was declared dead. Police was intimated. He lodged written complaint

which was scribed by PW 7, Subhendu Bhattacharya. He signed the inquest

report.

8. PW 2 (Gopal Kumar Yadav) is the son of PW 1 and the brother of the

deceased. He corroborated his father that the appellants and one Babai had

come to their house and had taken away his brother. Soon thereafter he

heard sounds of bullets. He went to the spot and found his brother was

lying in bleeding condition. They took him to Panihati GeneralHospital. On

the way his brother stated the appellant and Babai had killed him.

9. PW 3 (Asha Devi Yadav) is the mother of the deceased. She stated

that on the way to the hospital her son stated appellants had killed him.

She, however, was silent with regard to the fact that the appellants had come

to their residence and taken away the victim. She stated that one Babu

Yadav came to their house and informed them about the incident. He did

not disclose the names of the appellants.

10. P.W 4 (Rana Yadav) is the wife of the deceased. She corroborated

PWs 1 and 2 and stated that the appellants had taken away the victim.

11. P.W 5 (Raju Yadav) is another brother. He stated he was in Gosala

Math and heard the sounds of firing. He saw the appellants run away from

the spot. He returned to his residence and informed the incident to his

parents and sister-in-law.

12. PW 6 (Dinonath Yadav) is a reported witness.

13. PW 13 (Deb Narayan Ganguly) is the ward Master attached to

Panihati General Hospital. He deposed on 07.04.2011 the Emergency

Medical Officer had noted that a dead body was brought to the hospital.

Police was informed. The relations identified the body as that of Lalu Yadav.

Police came to the spot and prepared inquest.

14. PW 12 (Sukumar Ghosh) is an ASI of police who conducted inquest

over the body of Lalu Yadav. He proved the inquest report. After inquest

body was sent for postmortem examination.

15. PW 10 (Dulal Krishna Das) conducted postmortem over the body of

the deceased Lalu Yadav. He found the following injuries :

1. One abrasion ½ inch x ½ inch on the back of the right elbow.

2. One bruise 2 and half inch x 1 inch on the back of the left wrist.

3. One abrasion ½ x ½ on the back of the left elbow.

4. One abrasion 1/3 x ¼ inch on the left side of the lower neck.

5. One gun shot wound of entry ¾ x ½ inch into bone immediately

below the route of the left ear line 5 and half inch to the left from the

anterior mid line, 6 and ½ inch below the top of the head and 62 and

½ inch below the left heel. The wound track goes upward and

backward and to the right to a wound of exit. 4x1 and half inch into

bone in the right side of the occipital area lying 2 inch in front of the

post mid line, 6 inch below the top of the head and 63 inch above the

right heel associated with echymosis of the scalp around the wound.

The wound of entry is associated with blakish discolouration of the

margin and associated with echymosis scalp around the wound.

16. He opined death was due to the effect of ante mortem injuries

homicidal in nature. He further opined the injury nos. 1 to 4 may have been

caused by fall from height or physical assault. The injury no. 5 may have

been caused by firearm.

17. PW 14 (Brojo Gopal Sharma) is the investigating officer. He

deposed one GDE No. 621 dated 07.04.2011 was lodged by Officer-in-Charge

of Khatra Police Station. In the General Diary it was noted some unknown

persons fired at Puglu Yadav at Gosala and he was taken to Ghola Hospital.

He went to the place of occurrence. He prepared sketch map with index. He

recorded statement of the witnesses. He seized blood stained earth and

sample earth. He arrested the appellants. He could not arrest Babai Yadav.

He recorded the statements of the accused persons. On 15.04.2011 he

again recorded statements of Pagla Barui. Pursuant to his statement he

conducted raid at Amarabati Playground and as per the identification of the

accused he recovered an improvised shutter pipegun loaded with empty

cartridge. He prepared seizure list. He obtained postmortem report and

inquest report. He submitted charge-sheet.

18. PW 15 (Dr. S. Dhabal) is the Assistant Director, FSL, Belgachia. He

proved the ballistic report. The report stated the improvised firearm was in

working condition and had been fired previously. The empty cartridge was

fired through the firearm.

19. Evidence on record shows there is no direct evidence implicating

the appellants in the murder. It has been strongly urged that the best

evidence in the case i.e. Babu Yadav was withheld. It is contended in the

FIR that he has been cited as an eye-witness. On the other hand, learned

Counsel for the State submits Babu Yadav did not disclose the names of the

miscreants and his examination has not affected the unfolding of the

prosecution case.

20. It may be profitable to set out the relevant portion of the FIR with

reference to Babu Yadav. In the FIR Subhash Yadav (PW 1) stated as follows:

"At the time of the incident, Babu Jadav, my brother's son was near the place of incident and he witnessed all. He knew well three of the persons mentioned above who killed my son. He can recognise the others of that gang."

21. The aforesaid contents of the FIR would give an impression that

Babu Yadav had witnessed the incident and was aware of the identity of the

appellants.

22. PW 3, mother of the victim, deposed the said Babu Yadav had

come to their house and disclosed the incident. She stated Babu Yadav did

not disclose the names of the miscreants. Investigating officer (PW 14) had

examined Babu Yadav and recorded his statement under Section 161 of the

Code of Criminal Procedure.

23. In the light of the aforesaid materials on record it appears Babu

Yadav was near the place of occurrence and had witnessed the incident.

Immediately thereafter, he rushed to the residence of the victim and

intimated his relations regarding the incident. Though the said witness was

examined during investigation for reasons best known to the prosecution he

was withheld. In this backdrop, this Court is inclined to draw an adverse

inference against the prosecution for withholding a vital witness who as per

FIR appears to be an eye witness.

24. Instead of relying on the deposition of Babu Yadav, prosecution

sought to prove its case through circumstantial evidence. Even there the

prosecution suffers a setback. One of the most vital incriminating

circumstance, namely, oral dying declaration of the victim appears to rest on

shaky ground. It is the prosecution case that the victim Lalu Yadav while

being taken to the hospital had implicated the appellants in the murder but

(PW 1) who had accompanied his son to the hospital is completely mum with

regard to this vital circumstance. Even in his FIR there is no reference to an

oral dying declaration made by the victim.

25. It is true other witnesses namely PWs 2, 3 and 5 who

accompanied the victim to hospital have spoken about the dying declaration.

But PW3 has stated about the dying declaration for the first time in Court.

She was silent with regard to such fact in her earlier statement to police.

Version of PWs 2 and 5, brothers of the deceased with regard to so-called

dying declaration are inconsistent to one another vis a vis its contents.

While PW 2 claimed deceased named appellants and one Babai as the

miscreants, PW 5 claimed he had only named Pagla Barui and no one.

26. In view of the aforesaid contradictory and inconsistent nature of

evidence with regard to dying declaration and its significant absence in the

FIR and deposition of PW 1, I am of the opinion prosecution has not proved

this circumstance beyond doubt.

27. Another circumstance relied by the prosecution namely recovery of

weapon of offence i.e. improvised pipe gun and empty cartridge on the

leading statement of Pagla Barui has also not been proved. Investigating

officer PW 14 claimed Pagla Barui made a disclosure statement leading to

the recovery of the aforesaid arms and ammunitions from Amarabati play

ground. But the said disclosure statement has not been exhibited. PWs 8

and 9 independent witnesses to the seizure have not identified the

appellants as the accused persons who were present at the time of recovery.

Recovery of the fire arm and cartridge was made from a different place than

the place of occurrence i.e. pond situated in Gosala Math. These sketchy

evidences on record does not inspire us to hold that the fire arm and the

cartridge was recovered from the leading statement of Pagla Barui or that

the same was used for the commission of offence.

28. The only circumstance which the prosecution could claim to be of

substance is that the appellants and one Babai had called the victim from

his residence immediately prior to the incident. This fact was deposed by the

family members namely father PW 1, brother PW 2 and wife PW 4.

Strangely, mother of the victim (PW 3) who was also present in the house is

completely silent with regard to such fact.

29. I am also not convinced with the version of PW 5 that he was

present at the Gosala Math and had seen the appellants run away. He

claimed he returned home and informed the incident to his parents and

sister-in-law. None of the said relations corroborated him. On the other

hand, the mother of the victim (PW 3) claimed they had heard about the

incident from Babu Yadav who has not been examined in the case.

30. For the aforesaid reasons we are of the opinion prosecution has

not been able to establish the vital and incriminating circumstances beyond

doubt. Babu Yadav who appears to have been cited as an eye-witness to the

incident has been withheld. Accordingly, we are of the opinion prosecution

has not produced the best evidence and has failed to prove its case beyond

reasonable doubt. Appellants are entitled to the benefit of doubt and are

acquitted.

31. The appeal is, accordingly, allowed.

32. The appellants namely Sambhu Sardar and Pagla Barui alias Pagal

shall be released from custody, if not wanted in any other case, upon

execution of a bond to the satisfaction of the trial court which shall remain

in force for a period of six months in terms of section 437A of the Code of

Criminal Procedure.

33. Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

34. 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.)