Nipu Sk. @ Taslim vs The State Of West Bengal
2023 Latest Caselaw 1884 Cal

                   IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL APPELLATE JURISDICTION
                           APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
            And
The Hon'ble Justice Md. Shabbar Rashidi

                           C.R.A.295 of 2021
                         IA NO. CRAN 1 of 2021

                            Nipu Sk. @ Taslim
                                   VS.
                        The State of West Bengal
                                  With
                          C.R.A.(DB) 60 of 2022
                       Azad Sk @ Abul Kalam Azad
                                   Vs.
                        The State of West Bengal
For the Appellants       :     Mr. Milon Mukherjee, Sr. Advocate
                               Mr. Ramdulal Manna,
                               Mr. Rana Mukherjee,
                               Mr. Sayan Mukherjee

For the State            :     Mr. Neguive Ahmed, Ld. A.P.P.
                               Mrs. Trina Mitra

Hearing concluded on     :     22.03.2023

Judgement on             :     22.03.2023


DEBANGSU BASAK, J.:-

1.

Two appeals are taken up for analogous hearing as they

emanate out of same police case resulting in the same

impugned judgment of conviction and order of sentence.

2. The appeals are directed against the judgment of

conviction dated September 9, 2021 and order of sentence

dated September 10, 2021 passed by the learned Additional

District and Sessions Judge, 5th Court, Malda, in Sessions

Case No.303 of 2018.

3. By the impugned judgment of conviction both the

appellants were found guilty under Section 302/34 of the

Indian Penal Code 1860.

4. Both the appellants were sentenced by the impugned

order of sentence to suffer rigorous imprisonment for life and

to pay a fine of Rs.10,000/- each in default to suffer further

rigorous imprisonment for six months each.

5. A written complaint was lodged by the P.W.2 on July 14,

2015 with respect to an incident of murder dated July 13,

2015 of her husband. In her written complaint, she stated

that, on July 13, 2015, at about 10 a.m., one person called

her husband near wooden furniture shop at Kaliachak of

Rathmela. After receiving a phone call her husband went there

at once, when the appellant of Criminal

Appeal No.295 of 2021 (Nipu Sk. @ Taslim) shot her husband

on the upper side of the left eye causing serious bleeding

injury. The local people took her husband to Sujapur Health

Centre in serious condition. The doctor on duty examined her

husband and declared him dead. P.W.7 witnessed the

incident. She got information from P.W.1. P.W.2 stated that,

due to she being busy in the burial ceremony of her late

husband, she was late in lodging the written complaint.

6. On the basis of the written complaint, police registered

First Information Report being Kaliachak Police Station F.I.R.

No.373/2015 dated July 14, 2015, inter alia, under Section

302/34 of the Indian Penal Code, 1860 and under Section

25(1)(a)/27/35 of the Arms Act.

7. On conclusion of the investigation, police submitted

charge-sheet. Court framed charges on January 3, 2019

against the appellants before us under Sections 302/34/120B

of the Indian Penal Code, 1860 as also under Section 27 of the

Arms Act. The appellants pleaded not guilty to the charges

framed. They claimed to be tried.

8. At the trial, prosecution examined 14 witnesses.

Prosecution relied upon various documentary and material

exhibits at the trial. On conclusion of the examination of the

witnesses of the prosecution, the appellants were examined

under Section 313 of the Criminal Procedure Code.

9. Learned Senior Advocate appearing for the appellants

refers to the Post Mortem Report being Exhibit-7. He submits

that, Post Mortem Report does not classify the death as

homicidal. He refers to the deposition of the Post Mortem

doctor being P.W.11. He submits that, P.W.11, in his

deposition admits that, there is a possibility of death being

suicidal in nature.

10. Learned Senior Advocate appearing for the appellants

submits that, the appellants were exonerated of the charge

framed under Section 27 of the Arms Act. He refers to the

Post Mortem Report being Exhibit-7. He submits that, the Post

Mortem doctor found a bullet injury on the deadbody of the

victim. Therefore, the doctor opined that, the death was due to

the bullet injury suffered by the victim. According to him,

once, the appellants stood exonerated of the charge under

Section 27 of the Arms Act, the question of the appellants

being found guilty of an offence under Section 302 of the

Indian Penal Code, 1860 does not arise.

11. Learned Senior Advocate appearing for the appellants

submits that the bullet was never recovered. Police did not

seize the alleged spent cartridge. No fire arm was recovered

from any of the appellants. Therefore, there was no case under

the fire arms as against the appellants. In such

circumstances, he contends that given the nature of evidence

led by the prosecution as against the appellants at the trial,

the question of finding the appellants guilty of murder of the

victim, by using a firearm does not arise.

12. Learned Senior Advocate appearing for the appellants

submits that, there are various lacuna in the investigations

and that, such lacuna should enure to the benefit of the

appellants. He submits that P.W.7, 8 and 10 claimed

themselves to be eyewitnesses to the incident of murder. They

claimed that there was a particular tea stall, although none of

them, claimed that they saw each other at the time of the

incident. However, the tea stall by itself was not found by the

investigating agency. In support of such contention, he draws

the attention of the Court to the sketch map of the place of

occurrence prepared by the police which was tendered in

evidence and marked as Exhibit.10.

13. Learned Senior Advocate appearing for the both the

appellants submits that two furniture shops were spoken of.

However, the tea stall spoken of by the so-called eye witnesses

is absent in Exhibit-10. Lack of such crucial piece of evidence,

according to him, vitiates the claim of the prosecution.

14. Learned Senior Advocate appearing for the appellants

submits that, the furniture shop owners were not examined.

They were best witnesses to adduce evidence. According to

him, non production of the best witnesses at the trial was fatal

to the case of the prosecution.

15. Learned Senior Advocate appearing for the appellants

submits that P.W.7 and 8, are full brothers. Apparently, they

did not speak with each other at the time of the incident. It is

unbelieveable that two eyewitnesses, who are full brothers, did

not speak to each other about the incident or did not speak

about the presence of each other at the relevant point of time.

P.W.8 recorded his statement under Section 164 of the

Criminal Procedure Code after three years. He submits that

these facts taken together casts serious doubts on the case of

the prosecution.

16. Learned Senior Advocate appearing for the appellants

submits that, the Investigating Officer was the police

personnel who conducted the inquest. He refers to the inquest

report being Exhibit-6. He submits that P.W.10 was a witness

to the inquest report. However, the inquest report does not

identify Nipu Sk. @ Taslim as an assailant.

17. Learned Senior Advocate appearing for the appellants

referred to the deposition of P.W.7 and 8 who claimed that,

Nipu Sk. fired the firearms. He refers to the deposition of

P.W.10 and submits that, in his deposition, P.W.10 claimed

that Azad shot the victim. Therefore, he submits that there is

inconclusive evidence as to the person who shot the victim.

18. Learned Senior Advocate appearing for the appellants

submits that, the evidence of P.W.10, according to him,

eliminates the presence of P.W.7 and 8 at the place of

occurrence. He submits that, neither the place of occurrence

nor the date and time of the occurrence was proved in

accordance with the law. Referring to the written complaint, he

submits that, the left thumb impression of the P.W.1 on the

written complaint was not proved in accordance with law.

19. Referring to the orders of the appropriate Court, learned

Senior Advocate appearing for the appellants submits that, the

there was unexplained delay in forwarding the First

Information Report as also the seizure list to the learned

Magistrate.

20. In the conspectus of the facts and circumstances of the

present case, according to the learned Senior Advocate

appearing for the appellants, the impugned judgment of

conviction and the order of sentence should be reversed. The

appellants should be acquitted. He submits that, four persons

were proceeded against, by the police in respect of the incident

forming the subject-matter of the First Information Report.

Out of such four persons, one died and one is still absconding.

Other two were convicted.

21. Learned Additional Public Prosecutor appearing for the

State submits that, there was no delay in the lodgement of the

First Information Report. In any event, the written complaint

being Exhibit-6 explains the delay. According to him, the

explanation offered in Exhibit-6 is sufficient.

22. Learned Additional Public Prosecutor appearing for the

State submits that the incident occurred on July 13, 2015

when an unnatural death case was registered. Police on

receipt of the written complaint, registered First Information

Report and commenced conducting the investigation. He refers

to the deposition of the Investigating Officer.

23. Learned Additional Public Prosecutor appearing for the

State submits that, the Post Mortem doctor stated that, the

death was homicidal in nature in his examination-in-chief at

the trial. He refers to the nature of injury suffered by the

victim. He submits that, three eyewitnesses saw the victim to

be shot at. Therefore, according to him, the death was

homicidal.

24. Learned Additional Public Prosecutor appearing for the

State submits that, there are cogent and sufficient evidence on

record to sustain the charge of murder as against both the

appellants. Consequently, he submits that the impugned

judgment of conviction and order of sentence be upheld.

25. P.W.1 is the scribe of the written complaint. He stated

that on July 14, 2015, he wrote the complaint as per the

statement of the wife of the victim, P.W.2. The written

complaint was written in his own handwriting and as per the

statement of P.W.2. After completion of the writing he read

over and explained the same to P.W.2 who after going through

its contents put her left thumb impression. He also signed the

document. The written complaint was tendered in evidence

and marked as Exhibit-1. His signature was marked as

Exhibit-1/a.

26. P.W.2 is the wife of the victim. She stated that, her

husband died due to gun shot injury. On the day, she and her

husband was in the house. At that time, Azad Sk @ Abul

Kalam Azad [the appellant in CRA (DB) 60 of 2022] called her

husband at Jalalpur Stand. At about 10 a.m., her husband

went to Subhash More near Jalalpur Stand. At that time,

Azad fired at her husband with firearms. Nabi Sk also fired on

her husband. She said that there were four persons in the

team namely, Azad Sk. Nipu, Alam and Bablu. After receipt of

the information, she went to the place of occurrence. She was

informed by P.W.8 over phone about the incident. She went to

the Sujapur Hospital and saw the dead body of her husband.

After completion of burial she lodged written complaint. She

identified both the appellants in Court. She stated that one

person wrote written complaint. She was not in a position to

recollect his name.

27. P.W.3, is a police Constable. He stated that, on July 13,

2017, Sub Inspector, Rana Saha held inquest examination of

the deadbody. Thereafter, such Inspector executed one

document and he took away the dead body at Malda Medical

College and Hospital. He identified his signature on the dead

body challan which was marked as Exhibit 2/a. He identified

the deadbody before the autopsy surgeon. The autopsy

surgeon after completion of the Post Mortem examination

handed over three articles namely, sample of nails, sample of

blood and sample of hair. He brought such articles to the

police station and handed over the same to Rana Saha. Sub

Inspector Rana Saha seized the same under seizure list. He

identified his signature in the seizure list which was marked

as Exhibit-3/a.

28. P.W.4 is an acquaintance of the deceased. He was

declared hostile by the prosecution. He denied suggestions

put to him on cross-examination by the prosecution. He

denied knowing any of the accused including the two

appellants. He also denied making any statement to the police.

29. P.W.5 is a seizure list witness. He identified his signature

on the seizure list dated July 14, 2015 which was marked as

Exhibit-4/a. He was declared hostile by the prosecution. On

cross-examination by the prosecution, P.W.5 denied making

any statement at the time of the interrogation on July 13,

2015. He denied knowing any of the accused including the

two appellants.

30. A co-villager of one of the appellants Azad Sk. deposed as

P.W.6. He denied knowing the victim. He was declared hostile

by the prosecution. On cross-examination by the prosecution,

he denied making a statement to the police on July 13, 2015.

31. P.W.7 is an acquaintance of the victim. He stated that, the

victim was murdered by gunshot injury. He stated that, on

the date and time of the incident, he was in a tea stall at

Jalalpur Subhasmore. While he was at the tea stall he saw the

victim come by a motorcycle. At that time, Azad Sk. asked

him to stop and thereafter, four persons, namely, Azad Sk,

Nipu Sk, Bablu and Alam started to push the victim.

Thereafter Nipu Sk. fired from the firearms at the victim in the

left side of his head. Thereafter, many persons shifted the

victim to Sujapur Hospital and the doctor of such hospital

declared him dead. He stated that he knew the four accused.

He identified the two appellants in Court. He said that he

made a statement before the police station and that he also

made a statement before the learned Magistrate who recorded

his statement.

32. In cross-examination, he stated that, he and P.W.8 used

to reside at a separate mess. At the time of incident, he and

P.W.8 were residing at separate mess. Profession of P.W.8 and

him were separate and that he did not interfere with the

business of P.W.8 as also P.W.8 does not interfere into his

profession. He stated that, the tea stall was situated at

Jalalpur, Subhaspur and one female was the owner of such

tea stall. However, he did not know her name. He stated that,

at the material point of time other 8/10 persons were also

taking tea in such tea stall. He could not say about their

name and their place of residence. He described that, the tea

stall would be located on the left side, if one went to Farakka

from the Court by availing NH-34.

33. P.W.8 is another acquaintance of the victim. He stated

that, the victim was murdered. He stated that, while he was

going to Jalalpur Subhasmore to take tea. At that time, he saw

the victim to be coming towards Subhasmore by a motorcycle.

Thereafter, four persons gherowed the victim and started to

manhandle him. He identified such persons to be the two

appellants and Bablu and Alam. He said that, thereafter Azad

brought out one firearms from his waist and handed over the

same to Nipu Sk. Thereafter, Nipu Sk fired from such firearms

towards Nabi and Nabi sustained bullet injury at the back side

of his head. Thereafter, the victim fell down. Many persons

assembled there. Thereafter, the four persons fled away from

the place. Thereafter, he and others shifted the victim to at

Sujapur Hospital by a vehicle. Thereafter, the doctor at the

hospital declared the victim as dead. He said that, the

incident took place at 10 am. He saw the said incident. He

stated such fact before the learned Magistrate and the learned

Magistrate recorded the same. His statement recorded under

Section 164 of the Code of Criminal Procedure was tendered in

evidence and his signature thereon was marked as Exhibit-

5/a and Exhibit-5/b. The statement itself was marked as

Exhibit-5. He identified both the appellants in Court.

34. In cross-examination, he stated that, P.W.7 is his brother.

He said that, both the brothers do not go to any specific place

for taking tea in the early morning. He said that he made a

statement before the police on the next date of occurrence. He

denied the suggestions made to him in cross-examination.

35. The person who took the photographs of the victim at the

Malda District Hospital Morgue was examined as P.W.9. He

tendered the digital photographs which were marked as

Exhibit-6 collectively.

36. P.W.10 is the brother of the victim. He stated that, the

victim died 5/5 ½ years ago by gunshot injury. He was sitting

at the tea stall at 9 am near Jalalnagar. Victim came to

Subhashmore riding on a motorcycle. Victim stood his

motorcycle near a factory. Three accused persons started to

push and pull the victim. During that time, Azad shot the

victim by pistol at the back side of left side of his head and the

victim fell down and started to struggle in pain in bleeding

condition. Village people came there after knowing the facts.

They took the victim to Sujapur Hospital. Doctor declared him

brought dead. He is the witness to the seizure list dated July

14, 2015. He identified his signature thereon which was

marked as Exhibit-4/b. He identified Azad Sk. in the court

room. He was a witness to the inquest report. He identified

his signature thereon which was marked as Exhibit-6.

37. In cross-examination, P.W.10 stated that, the victim was

his brother. He was sitting at the tea stall at 9 pm(am) ? prior

to that incident. No one of his locality was present at that

time with him at the tea stall. He could not say the name of

the persons who were in the tea stall. He did not get any time

to save his brother as the incident happened within a second.

He along with others took his brother to the hospital. He

could not name the persons who accompanied him to the

hospital as he did not know the names. He stated that, he did

not tell the police that on that date he was sitting at the tea

stall and that during pushing and pulling Azad Sk fired at the

victim.

38. P.W.11 is the autopsy surgeon who conducted the post-

mortem on the dead body of the victim. He stated that, he

conducted the post-mortem of the victim in connection with

Kaliachak Police Station Unnatural Death Case No.391/15

dated July 13, 2015. The dead body was produced from

Sujapur Primary Health Centre. The dead body was identified

by a police constable. After conducting the post-mortem, he

opined that the death was due to the effects of the bullet

injury as described in the post-mortem report and ante-

mortem in nature. He tendered the post-mortem which was

marked as Exhibit-7. He stated that, probability of the death

due to the homicidal manner cannot be ruled out.

39. In cross-examination, P.W.11 stated that, he did not

mention regarding the distance from which the fire was done.

He did not mention regarding the manner of death as

homicidal in the post-mortem report. The investigating officer

did not ask his opinion regarding such fact. He stated that,

although there was a least chance but the possibility of

suicidal manner of death could not be ruled out.

40. P.W.12 is a Sub-Inspector of police who witnessed the

seizure made on July 13, 2020. He identified his signature on

such seizure list which was marked as Exhibit 3/b. He stated

that, the seized articles were destroyed when fire broke out in

the police station. He tendered the report with regard to such

fire which was marked as Exhibit-8.

41. P.W.13 is the Investigating officer who conducted the

investigations. He stated that, initially, Kaliachak Police

Station Unnatural Death Case No.39/2015 dated July 13,

2015 was started on July 13, 2015. Thereafter, on receipt of

the written complaint, on July 14, 2015 a formal First

Information Report was drawn up. The formal First

Information Report was tendered in evidence and marked as

Exhibit-9. He narrated about the process of the investigations.

He tendered various documents in evidence which was marked

as Exhibits.

42. In cross-examination, P.W. 13 stated that Dr. Saiful

Islam of Sujapur was the complainant of the unnatural death.

He stated that, the First Information Report in connection with

the unnatural death case does not bear the name of any of

accused persons. Neither in the First Information Report nor

in the statement of the de facto complainant is it mentioned

that Azad Sk. called the victim over the phone. He did not get

any mobile at the pocket of the deceased at the time of doing

the inquest report. He did not get empty cartridge from the

place of occurrence. Initially, he stated that, he examined

P.W.-8, on March 5, 2018 and then said that, he did not

examine and proceeded to say that the second Investigating

Officer examined P.W.-8. He said that, he could not recover

any gun in connection with the case.

43. The Second Investigating Officer deposed as P.W.-14. He

stated that, he was given the charge of investigations on

August 22, 2016. He conducted raids on several dates. He

arrested Azad Sk. on February 22, 2017. He examined P.W.-8

and Esraful under Section 161 of the Code of Criminal

Procedure. After completion of the investigations, he

submitted charge sheet against the accused persons. He

identified the appellants in Court.

44. In cross-examination, he stated that he examined P.W.-8.

P.W.-8 was placed before the learned Magistrate for recording

a statement under Section 164 of the Criminal Procedure Code

on March 5, 2018. He did not give any explanation regarding

examination of P.W.-8 after 3 years of the incident happening.

He stated that P.W.-7 and P.W.-8 are brothers of full blood.

45. On completion of the evidence of the prosecution, the

appellants were examined under Section 313 of the Criminal

Procedure Code where, they claimed to be falsely implicated

and innocent. They declined to adduce any evidence in respect

of their defence.

46. The victim died on July 13, 2015. A postmortem over the

dead body of the victim was conducted by Autopsy surgeon,

P.W.-11, on July 13, 2015.

47. The postmortem report of the victim, being Exhibit-7,

noted one bullet injury on the body of the victim. The note of

injury, in Exhibit-7 states that, ricocheting of bullet occurred

and bullet came out from the wound of entry only.

48. Police did not find any cartridge. Police also did not find

any bullet. The bullet entering into the body of the victim, was

explained in Exhibit-7 to entry and exit the victim from the

same wound. Death of the victim was classified in Exhibit-7 as

due to the effect of bullet injury, ante-mortem in nature.

49. P.W.-11, in his deposition, stated that the probability of

death due to homicidal manner could not be ruled out. He

admitted in his cross-examination that, he did not mention

that the manner of death was homicidal in the postmortem

report, being Exhibit-7. He also stated that, there was a least

chance, but the possibility of suicidal manner could not be

ruled out.

50. Prosecution produces three eye-witnesses at the trial to

press the point that the death was homicidal in nature and,

caused by the bullet injury inflicted on the victim. Such eye-

witnesses are P.W-7, P.W.-8 and P.W.-10. All the eye-

witnesses, being P.W.-7, P.W.-8 and P.W.-10 stated in

deposition that, the victim was fired upon. P.W-7 and P.W.-8

stated that Nipu Sk. fired at the victim while, P.W.-10 stated

that, Azad shot the victim. All the three witnesses spoke of

four persons being present including two appellants before us

in the crowd of persons who accosted the victim on his

motorcycle.

51. The narrative of the three eye-witnesses of the

prosecution is that, the victim was on his motorcycle when he

was accosted by four persons including the two appellants. A

sort of scuffle took place whereupon, a firearm was taken out

and the same was utilized to shoot at the victim.

52. The injury suffered by the victim corroborates this claim

of the eye-witnesses, being P.W.-7, P.W.-8 and P.W.-10. The

victim suffered a bullet injury. The victim died out of the

bullet injury.

53. Death by a bullet injury, therefore, established that the

victim died an unnatural death. The narrative of the three

eye-witnesses states that a firearm was shot at the victim to

inflict a bullet injury on the victim. Therefore, the nature of

injury suffered by the victim together with the description of

the incident by which, the victim suffered such bullet injury

leads to the irresistible conclusion that, the victim was shot at

in order to kill him. Therefore, the victim was murdered.

54. Both the appellants were involved in the incident of

scuffle leading up to the murder of the victim. Both the

appellants were charged, inter-alia, under Sections 302/34 of

the Indian Penal Code, 1860. In the facts and circumstances

of the present case, therefore, both the appellants are guilty of

murdering the victim.

55. Place of occurrence of the incident is doubted on behalf

of the appellants on the basis that tea stall which P.W.-7,

P.W.-8 and P.W.-10 spoke of was not shown in the sketch map

relating to place of occurrence. The incident of murder was

seen by three eye-witnesses. The incident of murder did not

take place inside any tea stall for the absence of the tea stall in

the sketch map of the place of occurrence to assume any

significance. All that the prosecution witnesses were saying

were that they were in and around a tea stall. Significantly,

elaborate cross-examinations were made with regard to the tea

stall spoken of the prosecution eye-witnesses. One of them

described the location of the tea stall in cross-examination.

Existence of the tea stall, therefore, cannot be doubted.

56. Acquittal of the two appellants in respect of a charge

under the Arms Act was canvassed as a ground to contend

that, since the appellants stood acquitted of such charge, the

appellants should not be found guilty of murder by inflicting

an injury by a gunshot. We are, however, unable to accept

such contention of the appellants. The victim suffered a bullet

injury. The bullet injury was the cause of death. Eye-

witnesses implicated both the appellants, in the incident of the

victim ultimately suffering a gunshot injury and succumbing

to such injury. Therefore, the acquittal of the appellants, from

a charge under the Arms Act, in the facts of the present case,

is not material.

57. The learned Trial Judge acquitted the appellants on the

charge of the Arms Act on returning a finding that, no firearm

was recovered. Therefore, according to the learned Trial

Judge, the prosecution failed to prove the ingredients of the

offence under Section 27 of the Arms Act. We are not in a

position to agree with such conclusion of the learned Trial

Judge with regard to acquittal of the appellants under the

charge in respect of the Arms Act. However, the State did not

prefer any appeal against such finding returned by the learned

Trial Judge. We, therefore, propose not to enter into such

arena.

58. Delay in recording the statement of P.W.-6 under Section

164 of the Criminal Procedure Code was one of the grounds

canvassed on behalf of the appellants. We are not shown that

the P.W.-8 made any statement which was contrary to his

claims made in his statement recorded under Section 164 of

the Criminal Procedure Code.

59. The delay in lodging the written complaint was explained

by P.W-2 on the ground that she was busy with the burial of

her husband. An unnatural death case was commenced by

the police immediately on receipt of the information and

finding the dead body. The delay, according to us, between

the incident of murder and the lodgment of the written

complaint was not such so as to fatally affect the case of the

prosecution. The written complaint was lodged at the behest

of the wife of the victim. She was, busy with the burial ritual

of her husband. Therefore, it cannot be said that, she delayed

the lodgment of the First Information Report with the police

unreasonably or that the delay remained unexplained.

60. The seizure made by the police on July 13, 2015 was in

respect of unnatural death case which the police registered.

Therefore, we do not find any material incongruity in the police

acting in the manner as done in the facts and circumstances

of the present case.

61. P.W.7, in his deposition, used the words that "on the

aforesaid date and time" to describe the date and time of the

incident. The date and time of the incident, however, was not

specifically mentioned before the user of such words. He was

cross-examined with regard to the date and time of the

incident. In his cross-examination, he said that, at the

relevant date and time of the occurrence of the incident, he

was engaged in his profession. Therefore, there was no

ambiguity with regard to the date and time of the occurrence

of the incident. The defence understood the date and time of

the incident spoken of by P.W.-7 and cross-examined P.W-7 at

length thereon. Therefore, the contention that P.W.-7 did not

specify the date and time of the incident and consequently the

same remained not proved is unacceptable.

62. The answer of P.W-8 to a question in cross-examination

that, he made a statement before the police on the next day of

occurrence is highlighted in contradiction of the statements of

the two Investigating Officers. P.W-8 who recorded a

statement under Section 164 of the Criminal Procedure Code

but the same was on a later point of time than claimed in his

cross-examination. The claim made by P.W.-8 in his cross-

examination that he made a statement on the next day of

occurrence is not borne out by the materials placed on record.

It is also not borne out by the deposition of the two

Investigating Officers.

63. However, such mis-statement in our view, does not

fatally effect the case of the prosecution. As noted above, the

defence did not bring to our attention anything in the

statement which P.W.-8 recorded under Section 164 of the

Criminal Procedure was contrary to or inconsistent with his

deposition at the trial.

64. It is contended on behalf of the appellants that

prosecution witnesses No.7 and 8 are chance witnesses and

that prosecution witness no.10 eliminated the presence of

prosecution witnesses no.7 and 8. Consequently, the entirety

of the evidence of prosecution, through the so-called eye

witnesses of the prosecution should be disbelieved.

65. With the deepest of respect, we are unable to subscribe to

such view. P.W.7 and 10 stated that hey were at the tea stall

while P.W.8 stated he was going to take tea from the tea stall

when they witnessed the incident. All of the prosecution

witness no.s.7, 8 and 10 stated that apart from them there

were others in the tea stall at the relevant point of time.

Therefore, in our view P.W.10 did not eliminate the presence of

P.W.7 and 8 at the relevant point of time. Describing the

witnesses as chance witnesses does not denude the evidences

of such witnesses of creditability or rehability unless the

creditability is otherwise suspect.

66. P.W.2 is the wife of the victim who lodged the written

complaint. P.W.1 is the scribe of the written complaint.

Written complaint itself was tendered in evidence and marked

as Exhibit-1.

67. P.W.1 proved his signature and he established that P.W.2

dictated the contents of the written complaint which he wrote

down. P.W.2 corroborated P.W.1 and stated that she dictated

the complaint which was written down by P.W.1 and was

proved in accordance with Section 67 of the Indian Evidence

Act. He stated that she got the information from P.W.7 over

phone.

68. Therefore, we find no substance in the contention that the

left thumb impression of the maker of the written complaint

that is P.W.2 not being proved in accordance with the law at

the trial, the written complaint stood vitiated.

69. In such circumstances, we find no merit in the present

appeals. CRA 295 of 2021 and CRA (DB) 60 of 2022 are

dismissed.

70. In view of the dismissal of the two appeals, nothing

survives in the interim application filed in CRA 295 of 2021. IA

No: CRAN 1 of 2021 is also dismissed.

71. The sentences awarded will run concurrently. Period of

detention suffered by the appellants, pre and post trial would

be set off against the sentences awarded.

72. A copy of this judgment and order along with the all trial

Court's records be sent to the appropriate Court forthwith.

73. Urgent photostat certified copy of this order, if applied

for, be given to the parties on priority basis on compliance of

all formalities.

(Debangsu Basak, J.)

74. I agree.

(Md. Shabbar Rashidi, J.)

CHC/AD/DD