WWW.LIVELAW.IN Form No.J(1) IN THE HIGH COURT AT CALCUTTA Criminal Appellate Jurisdiction Appellate Side Present: The Hon’ble Justice Nadira Patherya And The Hon’ble Justice Debi Prosad Dey Death Reference No.05 of 2016 The State of West Bengal……………Appellant Versus Sri Shyamal Karmakar and Ors. ……….Respondents (in Jail) With C.R.A. 350 of 2016 Amal Barui@ Kuche, Suman Das @ Bhuban & Tapas Biswas Versus The State of West Bengal With C.R.A. 341 of 2016 Suman Sarkar Versus The State of West Bengal With C.R.A. 342 of 2016 Shyamal Karmakar Versus The State of West Bengal With C.R.A 386 of 2016 Somnath Sardar, Ratan Samaddar & Tarak Das Versus The State of West Bengal With C.R.A. 333 of 2016 Poly Maity & Sisir Mukherjee @ Sanku Versus State of West Bengal

For the Appellant in CRA 350 of 2016

:Mr. Kaushik Gupta

For the Appellant in CRA 386 of 2016

:Mr. Niladri Sekhar Ghosh

WWW.LIVELAW.IN :Mr. Mujibar Ali Naskar :Mr. Sutanuka Chowdhury For the Appellant in CRA 341 & 342 of 2016 For the Appellant In CRA 333 of 2016

:Mr. Prodip Kar :Ms. Sangeeta Roy : Mr. Prodip Kar : Mr. Asok K. Sarkar

For the State :Mr. Saswata Gopal Mukherjee, Present Ld. P.P. :Mr. Manjit Singh, Former Ld. P.P. :Mr. Prasun Kr. Dutta :Mr. Pawan Kumar Gupta :Mr. Pratick Bose :Mr. Anand Keshri :Mr. Ranabir Roy Chowdhury :Mr. Ashok Das. Heard on

:08.09.2016, 15.09.2016, 19.09.2016, 20.09.2016, 21.09.2016, 22.09.2016 23.09.2016, 26.09.2016, 27.09.2016 28.09.2016, 29.09.2016, 04.10.2016 07.11.2016, 08.11.2016, 10.11.2016, 11.11.2016, 06.01.2017, 13.01.2017 11.08.2017 and 07.09.2017.

Judgment on

: 09.02.2018

Debi Prosad Dey, J. :-

The death reference being no. 05 of 2016 arises out of the judgment, order of conviction and sentence dated 15th April, 2016 and 19th April, 2016 respectively in sessions trial no. 02(09) of 2014 passed by learned Additional District and Sessions Judge, Barasat corresponding to Sessions case no. 03(09) of 2014 whereby and whereunder the learned Trial Court has sentenced the appellants to death for the offence under Section 302/34 of Indian Penal Code and has also convicted the appellants for the offence punishable under Section 364/34 of Indian Penal code and sentenced them

WWW.LIVELAW.IN to suffer rigorous imprisonment for life and also fine at the rate of Rs.10,000/- each in default to suffer rigorous imprisonment for one year. However, Rakesh Barman alias Chote has been convicted for the offence punishable under Section 302/34 of Indian Penal Code and has been sentenced to suffer rigorous imprisonment for life with fine.

Four criminal appeals being no. CRA 350 of 2016, CRA 341 of 2016, CRA 342 of 2016 CRA 386 of 2016 and CRA 333 of 2016 have been filed by the appellants challenging the aforesaid order of conviction and sentence awarded by learned Additional District and Sessions Judge, Barasat.

We have decided to dispose of the aforesaid death reference as well as the criminal appeals by a common judgment.

The case of the prosecution in brief is that the appellants forcibly took away Sourav Chowdhury in the night of 4th July, 2014 and thereafter committed murder of Sourav Chowdhury near Duttapukur railway track. The further case of the prosecution is that after commission of such murder, the dead body of Sourav Chowdhury was kept on the railway line in order to conceal such offence and to project a police case to the effect that Sourav Chowdhury died of railway accident.

In fact the dead body of Sourav

Chowdhury was separated in various parts since the dead body was cut into pieces by the movement of railways on such railway track.

Sandip

Chowdhury, brother of Sourav Chowdhury reported the matter to police in

WWW.LIVELAW.IN black and white and accordingly Duttapukur police station case no.528 of 2014 dated 05.07.2014 under Section 364/302/201 of Indian Penal Code and 25/27 of Arms Act was started and the investigation ultimately culminated in filing of charge sheet. One Liton Talukdar though named in the charge sheet, could not be apprehended and accordingly the charge sheet was submitted showing him as absconder.

In order to bring home the case of prosecution charges under Section 364/302/201/120B/352/212/34 of Indian Penal Code read with Section 25/27 of the Arms Act were framed.

The prosecution has examined as

many as 40 witnesses and has also produced several documents and Articles vide exhibit 1 to 106 and material exhibit I to xlvi, to prove the case of prosecution.

Learned trial Court has convicted the appellants for the offence under Section 364 of Indian Penal Code read with Section 34 of Indian Penal Code and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/- each in default to suffer rigorous imprisonment for 1 year. The appellants have also been convicted for offence punishable under Section 302 of the Indian Penal Code read with Section 34 of Indian Penal Code and all the appellants were sentenced to death for the aforesaid offence and to pay a fine of Rs.20,000/- each in default to suffer rigorous imprisonment for 2 years. However, Rakesh Barman alias Chote has been sentenced to suffer rigorous imprisonment for life with fine for the offence

WWW.LIVELAW.IN under Section 302/34 of Indian Penal Code. Appellant Shyamal Karmakar has further been sentenced for the offence under Section 27 of the Arms Act.

Poly Maity, Ratan Das alias Tota alias Tofa, Sisir Mukherjee alias Sisir Mukhopadhyay

alias Sanku Mukherjee alias Sanku Mukhopadhyay have

been convicted for the offence under Section 212 of the Indian Penal Code read with Section 34 of Indian Penal Code and they were sentenced to suffer rigorous imprisonment for 5 years with fine. Poly Maity, Ratan Das alias Tota alias Tofa, Sisir Mukherjee alias Sisir Mukhopadhyay alias Sanku Mukherjee alias Sanku Mukhopadhyay have also preferred appeal.

It appears from the lower Court record that charges under Sections 364/302/201/120B/352/212/34 of Indian Penal Code were framed against Tapas Biswas, Ratan Samadder, Amal Barui alias Kuche, Tarak Das, Suman Das alias Bhuban, Somnath Sardar, Rakesh Barman alias Chote, Anup Talukdar and Sumar Sarkar. In addition to the aforesaid charges, charge under Section 25/27 of Arms Act was also framed against appellant Shyamal Karmakar.

Poly Maity, Sisir Mukherjee and Ratan Das were

charged for the offence under Section 364/302/201/120B/352/212/34 of Indian Penal Code.

Learned trial Court has convicted the appellants for the offence under Section 364/302/34 of Indian Penal Code but did not pronounce any judgment in respect of the offence under Sections 201/120B/352/212 in respect of the present appellants.

Learned trial Court also did not

WWW.LIVELAW.IN pronounce any judgment in respect of other accused persons with regard to the charges under Sections 364/302/201/120B/352 of Indian Penal Code.

It would not be out of place to mention in brief about the evidence on record. Prosecution witness no. 1 Sandip Chowdhury is a heresay witness and he simply identified the dead body of his brother Sourav Chowdhury lying on the railway track. He did not see the appellants/accused to take away Sourav Chowdhury.

Subsequently, he lodged the first information

report scribed by one Goutam Biswas. Prosecution witness no. 1 Sandip Chowdhury thereafter requested his father to inform the police over phone when he came to know about such occurrence from one Indrajit Kundu. That clearly goes to show that prosecution witness no. 1 Sandip Chowdhury has had no direct and personal knowledge about the occurrence.

Prosecution witness no. 2 Indrajit Kundu saw that Shyamal Karmakar being armed with one Machine (Pistol), Suman Sarkar, Amal Barui alias Kuche, Tapas Biswas, Uttam Sikari and others were taking away Sourav Chowdhury. He then informed Sandip Chowdhury about such occurrence. Subsequently, he was present at the time of recovery of the Bhojali, Pistol and Cartidges, check shirt of Shamal Karmakar and recovery of one Bhojali from the house of Suman Sarkar.

This witness has also identified such

articles in Court and his signatures on the seizure list. Indrajit Kundu was also present at the time of seizure of white handkerchief, two coloured buttons one black colour money bag and one mobile phone of Micromax company.

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On careful scrutiny of the evidence of prosecution witness no.2, we do not find any reason to reject such evidence on the ground of suspicion. The witness appears to be genuine and reliable witness.

He did not see the

occurrence. But as a good Samaritan he reported to prosecution witness no. 1 Sandip Chowdhury when he saw the appellants to take away

Sourav

Chowdhury on the point of gun.

Prosecution witness no. 3 Uttam Sikari is one of the accused and he became approver.

Evidence of Uttam Sikari reveals that he was given

adequate opportunity for his reflection towards the actual occurrence and he was made to understand the consequences of making such inculpatory statement. He was duly examined by learned Magistrate and he gave a true and full disclosure of his involvement in the commission of such offence along with other accused persons. He was extensively cross examined by all the accused persons. As per prosecution witness no. 3, he caught hold of the victim at the time of such occurrence with other accused persons and thereafter Shyamal Karmakar and Suman Sarkar assaulted Sourav Chowdhury with Bhojali repeatedly. It is also apparent from his statement that Suman Das alias Bhuban

and Amal Barui alias Kuche did not

participate in the commission of murder of Sourav Chowdhury. On the way to Duttapukur railway track, Suman Das alias Bhuban and Amal Barui alias Kuche went away from the road leading to Duttapukur railway track to a different direction and they were not at all present at the time of such murder of Sourav Chowdhury.

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Now, there is nothing on record to suggest that prosecution witness no. 3 did not take part in the crime of such offence. He gave a true and full disclosure of the offence committed by the accused.

This witness also

vividly described the role played by him in such commission of murder. There is absolutely nothing in the cross examination of this witness to show that he has been tutored or allured by interested party to falsely rope in the appellants in the case under reference.

Curiously enough learned trial Court has failed to consider that this witness has exonerated Suman Das alias Bhuban and Amal Barui alias Kuche.

The prosecution has also failed to prove anything against the

aforesaid two persons to show that they had the intention of committing murder of Sourav Chowdhury while Sourav Chowdhury was being taken away by other appellants to Duttapukur railway track.

The evidentiary value of an accomplice has been well explained by the Supreme Court in the decision reported in 2011 (9) SCC 479 (Mrinal Das and Ors. Vs. State of Tripura) in paragraph 17 and 25 of the said decision. Paragraph 17 and 25 of the said decision are being reproduced below:-

Para 17: Though a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an approver, yet the universal practice is not to convict upon the testimony of an accomplice unless it is corroborated in material particulars. The evidence of an approver

WWW.LIVELAW.IN does not differ from the evidence of any other witness save in one particular aspect, namely, that the evidence of an accomplice is regarded ab initio as open to grave suspicion. If he suspicion which attaches to the evidence of an accomplice be not removed, that evidence should not be acted upon unless corroborated in some material particulars; but if the suspicion attaching to the accomplice’s evidence be removed, then that evidence may be acted upon even though uncorroborated, and the guilt of the accused may be established upon the evidence alone.”

Para 25: Similar question again came up for consideration before this Court in K. Hashim V. State of T.N. and Sitaram Sao V. State of Jharkhand wherein this Court has held that K. Hashim case, SCC 247, para 26) 26. Section 133 of the Evidence Act expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on an uncorroborated testimony of an accomplice.

In other words, this section renders admissible such

uncorroborated testimony. But this section has to be read along with Section 114 illustration (b). The latter section empowers the court to presume the existence of certain facts and the illustration elucidates what the court may presume and makes clear by means of examples as to what facts the court shall have regard to in considering whether or not the maxims illustrated apply to a given case. Illustration(b) in express terms says that an accomplice is unworthy of credit unless he

WWW.LIVELAW.IN is corroborated in material particulars.

The statute permits the

conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration(b) to Section 114 of the Evidence Act strikes a note of warning cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration must be clearly present in the mind of the Judge.”

Uttam Sikari prosecution witness no. 3 has specifically stated that Suman Sarkar and Shyamal Karmakar sustained injury on their persons when they were assaulting Sourav Chowdhury with Bhojali. Suman Sarkar and Shyamal Karmakar were examined by Dr. Jayanta Kr. Maity prosecution witness no. 14 immediate after their arrest on 8th July, 2014 and 9th July, 2014 respectively. On examination the doctor found sharpcut injury over left arm above elbow of Suman Sarkar and the doctor also found sharpcut injury over left hand below elbow of Shyamal Karmakar. Therefore, the evidence of prosecution witness no. 3 to the effect that both the aforesaid persons sustained injuries on their persons at the time of commission of such offence has been corroborated by the evidence of prosecution witness no. 14.

Dr. Anindya Kr. Goswami prosecution witness no. 20 conducted post mortem examination on the dead body of Sourav Chowdhury and found 12

WWW.LIVELAW.IN post mortem injuries without any vital reaction and also found 7 ante mortem injuries on the dead body of Sourav Chowdhury. The post mortem examination report was prepared by the doctor in presence of Dr. Dipankar Guha Roy, Head of the Department of Forensic and State Medicine vide exhibit 31.

Dr. Guha Roy also concurred with the findings and result of

such post mortem examination conducted by prosecution witness no. 20 namely Dr. Anindya Kr. Goswami. The doctor has specifically opined that the death of Sourav Chowdhury was caused due to such ante mortem injuries and the remaining post mortem injuries were of without any vital reaction.

It is apparent from such evidence of prosecution witness no. 20 that the entire post mortem examination of the dead body of Sourav Chowdhury was conducted by two senior most medical officers and the entire process was videographed.

The specific opinion of the doctor is that Sourav

Chowdhury died of such ante mortem injuries.

Therefore, the evidence of

prosecution witness no. 3 Uttam Sikari is being further corroborated by such doctors.

Learned Advocates, appearing on behalf of the appellants,

have criticised the evidence of prosecution witness no. 3 on the ground that the manner of tendering pardon to Uttam Sikari was not in accordance with law and accordingly the said evidence of Uttam Sikari ought to be discarded. In support of their contentions learned Advocates have placed reliance on the following decisions reported in 2009(6) SCC 498(Santosh Kumar Vs. State of Maharashtra) and AIR 1998 (SC) 2821 (A Devendran Vs. State of T.N.). In Santosh Kr. Sashi Bhusan learned Sessions Judge allowed the

WWW.LIVELAW.IN application for granting of pardon filed by investigating officer after examination of the appellant and in terms of Section 307 of the Code of Criminal Procedure. The said decision is thus not applicable in the context of given facts and circumstances of this case.

In AIR 1998 SC 281 (A Devendran Vs. State of T.N.) the Hon’ble Supreme Court held that after commitment of the case to the Court of learned Sessions Judge the Chief Judicial Magistrate had had no jurisdiction to tender pardon to accused and such action on the part of learned Chief Judicial Magistrate does not come within the ambit of Section 460(g) of the Code of Criminal Procedure. The Apex Court refused to accept such tender of pardon.

The aforesaid decisions are thus in no way

applicable in the present case. Learned Public Prosecutor has relied on the following decisions:-

i.

2000(2) SCC 396(State of Himachal Pradesh Vs. Surinder Mohon)

ii.

AIR 2016 (SC) 2551 (State through CBI Chenni Vs. Arul Kumar).

In para 20 of Surinder Mohon’s case the Apex Court has observed as follows:-

WWW.LIVELAW.IN “para 20: The learned counsel for the accused submitted that Section 306(4)(a) is couched in mandatory term by using the word “shall” which indicates that if there is breach of the said mandatory provision further trial would be vitiated. In our view, this submission is without any substance.

We have pointed out earlier that by not

examining the approver, the trial would not get vitiated.

Such

evidence may have to be scrutinised with greater circumspection. If in such scrutiny the evidence is found reliable the Court cannot be inhibited from using the evidence.

In the result, the appeal is allowed and the impugned judgment of the High Court is set aside. The appeal filed in the High Court is remitted to the High Court for disposal afresh in accordance with law. Appeal allowed.”

In Kumar’s case (Supra) it has been observed by the Supreme Court that even if there be any such irregularity in recording such statement of the approver, under Section 306 of the Code of Criminal Procedure, the irregularity is saved by Section 460(g) of the Code of Criminal Procedure.

In the case under reference learned Magistrate duly authorised by the Chief Judicial Magistrate recorded the confessional statement of the approver and learned Chief Judicial Magistrate also directed the Magistrate to record the statement of the approver in terms of Section

WWW.LIVELAW.IN 306 of the Code of Criminal Procedure.

Learned Chief Judicial

Magistrate after perusing the statements and being satisfied about the authenticity there of has tendered pardon to prosecution witness no. 3 on condition that he would make a true and full disclosure of the occurrence before the trial Court.

Learned Magistrate prosecution witness no. 15 has proved such statement of Uttam Sikari in Court and no objection has been raised on behalf of the appellants at the time of marking such statements as exhibit in the trial Court. No objection has also been raised by the appellant at the time of examination of prosecution witness no. 3 Uttam Sikari as approver by the prosecution.

Technicalities of law shall not defeat the purpose of justice. There is absolutely nothing in the cross examination of Uttam Sikari to show that he has been tutored or allured by the interested party to falsely rope in the accused persons.

Mere raising the plea of prejudice is not sufficient to prove the prejudice by the appellants/accused. It is necessary to prove/show as to how the accused/appellants have been prejudiced by so called nonexamination of the approver by the Chief Judicial Magistrate.

The copies of such statement were supplied to the appellants prior to commitment of the case. The approver has also supported his

WWW.LIVELAW.IN statement in trial Court and did not deviate from his earlier statement, recorded by learned Magistrate.

The appellants had

enough opportunity to go through such statement before the cross examination of prosecution witness no. 3 and thus no prejudice has been caused to the appellants by the examination of witness no. 3 as approver. The decisions referred to herein above by the learned Public Prosecutor also support the aforesaid view and even if there be any irregularity in examination of the approver prior to commitment, the said irregularity is saved by Section 460(g) of the Code of Criminal Procedure.

The Hon’ble Supreme Court in State of Rajasthan Vs. Balbir alias Bluli (criminal appeal no. 942 of 2006)--- disposed of on 31st Day of October, 2013) has also dealt with Section 306(4) of Code of Criminal Procedure.

In that case learned Magistrate recorded the

statement of the approver under Section 164 of the Code of Criminal Procedure and thereafter learned Chief Judicial Magistrate tendered pardon to the approver.

The Hon’ble Supreme Court has also

accepted the said tender of pardon as valid one.

In that view of this case we do not find any illegality in tendering pardon to Uttam Sikari by Chief Judicial Magistrate and we also do not find any illegality in examination of Uttam Sikari as approver in the trial Court.

WWW.LIVELAW.IN The evidence of approver has been materially corroborated by the evidence of prosecution witness no. 15 and 20.

Prosecution witness no. 4 Sandip Biswas has stated that he met Miss Poly Maity on 5th July, 2014 at about 10 a.m. while she was going towards Sikdeshpukuria from Kulberia on foot. Miss Poly Maity said something to Sandip Biswas in respect of holding of meeting by Shyamal Karmakar and others. The evidence of prosecution witness no. 4 Sandip Biswas cannot be accepted since Poly Maity has not been examined

as

prosecution

witness.

The

hearsay

evidence

of

prosecution witness no. 4 would not help the case of the prosecution. Thus, we may safely discard the evidence of prosecution witness no. 4.

Prosecution witness no. 5 Debnath Talukdar saw that Shyamal Karmar, Suman Sarkar, Tapas Biswas, Tarak Das, Suman Das alias Bhuban and Somnath Sardar were taking away Sourav Chowdhury in the night of 4th July, 2014 and at that time Shyamal Karmakar was armed with a “machine”. On the following day he came to know that Sourav Chowdhury was murdered. On 5th July, 2014 he divulged the entire fact to the police and his statement was recorded under Section 164 of the Code of Criminal Procedure by learned Magistrate.

The

witness has proved his signatures vide exhibit 8(a) and 8(b) appearing on the statement recorded by learned Magistrate. This witness has virtually corroborated the statement of prosecution witness no. 3 Uttam Sikari though this witness did not specifically named Uttam

WWW.LIVELAW.IN Sikari as the persons who were taking away Sourav Chowdhury. However, on scrutiny of the entire evidence of prosecution witness no. 5 we find that this witness was not present at the time of murder of Sourav Chowdhury. On the contrary this witness atleast supported the case of the prosecution that on the fateful date at about 11/11.30 p.m. the aforesaid persons were taking away Sourav Chowdhury towards Duttapukur railway track on the point of gun.

Prosecution witness no. 6 Debojit Das was returning home in the dead hours of intervening night of 4.7.2014/5.7.2014 and he found that Shyamal Karmakar, Suman Sarkar, Ratan Samaddar, Uttam Sikari, Tarak Das and others persons were returning from Duttapukur Bamongachi railway line and Shyamal Karmakar was saying to others that he gave a good lesson to Sourav Chowdhury by killing him. The statement of this witness has also been recorded by learned Magistrate under Section 164 of the Code of Criminal Procedure. On careful scrutiny of the entire evidence of prosecution witness no. 6 Debojit Das we do not find sufficient material in the deposition of Debojit Das so as to connect the appellants in the offence and the evidence of prosecution witness no. 6 would be of no help to the case of the prosecution.

Prosecution witness no. 7 Ajit Adhikary and prosecution no. 8 Ranjit Adhikary are two brothers and in the morning of 5th July, 2014 they were going towards Chotojagulia block development office in

WWW.LIVELAW.IN search of some work and at that time Shyamal Karmakar stopped them and told them that in the last night he along with Suman Sarkar, Ratan Samaddar, Amal Barui alias Kuche, Suman Das alias Bhuban, Rakesh Barman alias Chote, Tarak Das and Tapas Biswas had murdered Sourav Chowdhury and they had put the dead body of Sourav Chowdhury on the railway line.

Shyamal Karmakar also

requested the witnesses to provide him with some accommodation and money but they refused to do that.

The statements of both the

witness have been recorded by learned Magistrate under Section 164 of the Code of Criminal Procedure and the said statements have been exhibited. It is true that both the witnesses have stated that Shyamal Karmakar divulged about such occurrence before them and admitted that he along with some other persons had murdered Sourav Chowdhury and placed the dead body of Sourav Chowdhury on railway line. Learned Public Prosecutor has relied on such statements of prosecution witness no. 7 and 8 on the ground that such extra judicial confession of Shyamal Karmakar may safely be accepted. Curiously enough, there is absolutely no cross examination to show that such statements of the aforesaid witnesses are not correct or that the aforesaid witnesses have got some sort of enmity against the present appellants.

There is absolutely nothing in the cross

examination to show that prosecution witness no. 7 and 8 were interested in the conviction of the appellants for the murder of Sourav Chowdhury.

In that view of this case, it may safely be stated that

Shyamal Karmakar had made such statement before the witnesses

WWW.LIVELAW.IN voluntarily and without having any pressure from any quarters. Moreover, Shyamal Karmakar wanted to have accommodation and money from the witnesses so as to conceal himself from the consequences of such offence.

Prosecution witness no. 9 Chandan

Roy being a member of gram panchayat has issued a certificate vide exhibit 12.

Prosecution witness no. 10 Santu Das was a student on the date of occurrence. Prosecution witness no. 10 has stated that on 4th July, 2014 at about 11 p.m. while he was going to his house, he saw that some persons assembled at Banerjeebagan junction and Shyamal Karmakar, Suman Sarkar, Uttam Sikari, Ratan Samaddar along with 5/6 other persons were assaulting and abusing Sourav Chowdhury and they were forcibly taking away Sourav Chowdhury through the Dhalai Rasta. In the next morning he came to know that the dead body of Sourav Chowdhury was lying on Duttapukur railway station. Despite lengthy cross examination of this witness, we do not find any reason to disbelieve the statement of this witness. On the contrary this witness has virtually corroborated the case of the prosecution that in the intervening night of 4/5th July, 2014 Shyamal Karmakar, Suman Sarkar, Uttam Sikari, Ratan Samaddar along with 5/6 other persons forcibly took Sourav Chowdhury towards Duttapukur railway station.

WWW.LIVELAW.IN Prosecution witness no. 11 Tushar Majumdar is a witness of inquest and he has proved his signature thereon. He has also proved his signatures on the seizure list prepared by police.

Prosecution witness no.

11 is a formal witness.

Prosecution

witness no. 12 is also a formal witness and he has proved his signatures in the inquest report and other documents.

Prosecution witness no. 13 Debasis Pal was posted as assistant sub-inspector of police at Duttapukur police station on 5th July, 2014. He had received one written complaint from one Sandip Chowdhury and on the basis of that written complaint and as per the direction of the then inspector in charge of that police station, he started Duttapukur police station case no. 528 of 2014 dated 5th July, 2014 and recorded the said matter in the GD book of Duttapukur police station vide GD entry no. 223 dated 5th July, 2014. He has proved the formal FIR and the endorsement of the then inspector in charge of Duttapukur police station on the written complaint. We have already discussed the evidence of prosecution witness no. 14 Dr. Jayanta, who had examined Suman Sarkar and Shyamal Karmakar immediate after their arrest and found sharpcut injuries on their persons thereby confirming the statement of Uttam Sikari to the effect that both the aforesaid persons sustained sharpcut injuries on their persons while assaulting Sourav Chowdhury with bhojali vide exhibit 16 and 17. This witness has had no enmity with the appellants and has had no

WWW.LIVELAW.IN inclination in favour of the prosecution to manufacture a false medical certificate in respect of Suman Sarkar and Shyamal Karmakar. Therefore, we may safely rely on such documents and statements of prosecution witness no. 14.

Debasis Santra prosecution witness no. 15 was posted as Judicial Magistrate, 1st Class in 1st Court at Barasat, North 24 Parganas.

He recorded the statements of witness Ajit Adhikary,

Ranajit Adhikary, Sandip Biswas, Debnath Talukdar, Debojit Das, Uttam Sikari.

On careful scrutiny of the evidence of prosecution

witness no. 15 we find that learned Magistrate has duly complied with all the legal formalities in recording the statements of witness as well as the statement of Uttam Sikari. Learned Magistrate has taken due care in recording such statements and there is absolutely nothing in the cross examination of prosecution witness no. 15 to reject the recording of such statements by learned Magistrate.

Prosecution witness no. 16 Raja Chatterjee was posted in the circle office of Idea Cellular Limited and he issued a certificate in respect of Mobile No. 9088117632 and supplied some documents to the investigating officer in course of his official duty and in terms of the requisition submitted by the investigating officer.

Necessary certificate in terms of Section 65B of the Indian Evidence Act was given by this witness while submitting call details of

WWW.LIVELAW.IN the aforesaid mobile number. The cross examination of this witness does not raise the confidence of the Court to discard such evidence. On the contrary, it may safely be stated that in due discharge of his official duty he has supplied such documents and he has duly certified the call details in terms of the provision of the Indian Evidence Act.

Prosecution witness no. 17 Miss Swapna Prakas also provided such information in respect of mobile no. 8981045858 in due discharge of her official duties. Therefore, there is absolutely no scope to discard the evidence of prosecution witness no. 17.

Prosecution witness no. 18 Arobindo Chatterjee produced the letter of sanction of District Magistrate of North 24 Parganas who after going through the materials on record and after being satisfied had sanctioned for prosecution for the offence under Section 25/27 of Arms Act.

Prosecution witness no. 19 Amarendra Nath Mondal was posted at Habra G.R.P. under Bangaon G.R.P.S at that point of time. On 5th July, 2014 he received information from Bangaon G.R.P.S that one dead body was lying in between two railway stations namely Bamongachi and Duttapukur. Prosecution witness no. 19 went to the spot along with witnesses and collected five parts of dead body and he wrapped the body parts in a polythin sheet with the help of ‘Domes’

WWW.LIVELAW.IN and prepared a report to that effect. He also collected some railway stonechips, prepared one draft sketch map and proceeded to J.R. Dhar State General Hospital but the doctor of the said hospital referred the matter to NRS Medical College and Hospital for post mortem examination.

The referral letter of the doctor has been

marked exhibit 24 at the instance of this witness. Ultimately on 6th July, 2014 he took such body parts to NRS hospital and thereafter the post mortem examination was conducted by the doctor. Admittedly, as per the direction of his superior prosecution witness no. 19 held inquest over the body parts of the dead body, collected some blood stained stonechips and thereafter took appropriate measures for post mortem examination of such body parts. Prosecution witness no. 19 is a formal witness and there is absolutely no reason to disbelieve such witness.

On the contrary the prosecution has relied on the

inquest report as well as the post mortem examination report collected by the investigating officer as well as by this witness.

It is true that the dead body was separated in some pieces since the dead body was kept on the railway track by the appellants so as to conceal the offence committed by them.

Prosecution witness no.20

Dr. Anindya Kr. Goswami conducted post mortem examination on the dead body of Sourav Chowdhury in presence of Head of the Department, Department of Forensic and State Medicine, Dr. Dipankar Guha Roy and has clearly opined that death of Sourav Chowdhury was caused by ante mortem injuries. The post mortem

WWW.LIVELAW.IN injuries were also found on the person of Sourav Chowdhury since the dead body was kept on the railway track after the death of Sourav Chowdhury.

It is crystal clear that two senior medical officers have conclusively

opined

that

Sourav

Chowdhury

sustained

severe

sharpcut injuries on his person and such injuries were the cause of his death and it was homicidal in nature.

There is absolutely no

doubt in view of such post mortem examination report as well as the evidences of the doctor concerned that Sourav Chowdhury was murdered. Therefore the evidence of Uttam Sikari and description of such murder by Uttam Sikari are being corroborated by the medical evidence adduced by the prosecution and supported by prosecution witness no. 20 Dr. Anindya Kr. Goswami. The dead body of Sourav Chowdhury was identified by his brother Sandip Chowdhury. Secondly, the forensic report also confirms the identity of such dead body as of Sourav Chowdhury.

Therefore, there is also no doubt

about the identity of such dead body and cause of death. The doctor has also stated that such ante mortem injuries on the dead body may be caused by the ‘Bhojalis’ recovered during investigation.

Prosecution witness no. 21 Sibasis Ghosh was posted as deputy superintendent of police, 9th battalion, State Arms force, Krishnanagar and he had been working as Arms Expert for last 13 years prior to the date of examination of the one country made improvised 7.65 mm

WWW.LIVELAW.IN semi - automatic pistol and 8 round 8 mm ammunition. As per the opinion of prosecution witness no. 21 the arm and ammunitions were in working condition and he has also proved his certificate.

The

witness however could not state whether such fire arm was used and at what point of time the said fire arm was used. The witness is a formal witness and he has simply proved that the fire arm and ammunitions were in working condition. The case of the prosecution does not depict that such fire arm was used by any of the appellants but the said fire arm and ammunitions were recovered from the possession of Shyamal Karmakar.

Admittedly, keeping of such fire

arms without having any valid license amounts to an offence punishable under Section 25 of the Arms Act.

Unfortunately, it

transpires from the judgement of learned trial Court that Shyamal Karmakar alone was convicted for the offence under Section 27 of the Arms Act instead of 25 of Arms Act. On scrutiny of the charge we find that no charge under Section 27 of Arms Act has been framed against Shyamal Karmakar but charge under Section 25 of the Arms Act was framed against Shyamal Karmakar. Presumably, due to typographical mistake conviction has been recorded under Section 27 of the Arms Act. In that view in this case we convert the conviction of Shyamal Karmakar under Section 25 of the Arms Act instead of 27 of the Arms Act maintaining the sentence imposed by a trial Court for having such possession of illegal arms and ammunitions.

WWW.LIVELAW.IN Prosecution witness no. 22 Soumya Chatterjee sub-inspector of police arrested Shyamal Karmakar and Ratan Das alias Tota alias Tofa from Rampurhat railway station in connection with this case in the night of 8th July, 2014. He has duly proved the arrest memo and relevant documents to that effect.

Prosecution witness no. 23

Jahangir Mandal being the owner of a motor garage had been to the police station on 3rd August, 2014 and took away his vehicle being no. WB- 02/8637 and its papers by executing one Zimmanama, which was seized by police during investigation. As per prosecution, some of the appellants fled away towards Rampurhat within Birbhum district by hiring the said car. Prosecution witness no. 24 is sub-inspector Tarun Das, who arrested accused Sisir Mukherjee alias Sanku Mukherjee alias Sisir Mukhopadhyay alias Sanku Mukhopadhyay on 14th July, 2014 near Sealdah GRPS taxi stand in connection with this case.

Prosecution witness no. 25 Bipul Bagchi was present at the time of holding inquest over the dead body of Sourav Chowdhury and he has proved his signatures on the inquest report.

Prosecution witness no. 26 Samit Mandal sub inspector of police, while assisting the investigating officer of the case under reference, arrested some of the appellants from ‘Anandam Lodge’ at Tarapith with the help of local police. requisition slip and other documents.

He has duly proved the

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Prosecution witness no. 27 Laltu Seikh was working under Jahangir Mondal (prosecution witness no. 23) as driver and he took some of the appellants in his vehicle from Bamongachi Chowmatha to Beleghata Joramandir.

He received Rs.1,000/- towards higher

charges from the said persons and thereafter returned to the garage.

Prosecution no. 28 Raju Roy was working as Manager of a hotel named ‘Anandam Lodge’ at the relevant point of time when police arrested some persons that is some of the appellants from his hotel. This witness has proved the relevant registers of the hotel and also identified some of the appellants.

Prosecution witness no. 30 Tapanjyoti Das was working as subinspector of police at Bongaon GRPS and he has proved some documents to show that on the basis of some information from the station master of concerned station, the inquest was conducted over the dead body of Sourav Chowdhury.

Prosecution witness no. 31 Goutam Biswas simply scribed the first information report as per the statement of Sandip Chowdhury and he has proved his signature and the written complaint.

Prosecution witness no. 32 Dr. Gopeswar Mukherjee was working at North 24 Parganas district hospital at Barasat as medical

WWW.LIVELAW.IN officer and he took blood sample of Shyamal Karmakar, Suman Sarkar, Saroj Chowdhury and Mita Chowdhury for DNA profile with the consent of the aforesaid persons. He has proved the necessary documents as well as the kit used for taking such blood sample. Thereafter the blood samples were sent to Central Forensic Science Laboratory for examination.

Prosecution witness no. 33 Sanat Kr. Roy was posted as station master of Duttapukur railway station at the relevant point of time. He gave some information to the police in terms of the requisition of investigating officer and he has proved such information.

On the

relevant date and time he came to know from gateman Bablu Gowala that some body parts were lying over the railway line and accordingly he sent necessary information to appropriate authority.

Prosecution witness no. 29 Dr. Chitrakshya Sarkar was posted as senior scientific officer at State Forensic Science Laboratory, Government of West Bengal on 14th July, 2014. As per the requisition of investigating officer he examined one rectangular shape cloth piece along with one red checked design with red, black, green and white colour, one pentagonal shape of white colour check cloth piece, two pieces of buttons with threads and one elastic fitted red, black, green and white colour checked design “Barmuda pant” and found that the left pocket of such Barmuda pant was missing from it’s place. Two pieces of buttons were missing from the place of the shirt having deep

WWW.LIVELAW.IN brown stains and the left side of chest pocket of such shirt was also missing. The witness has also identified such articles in Court and proved his report in that respect.

Prosecution witness no. 34 Dr. Anil Kumar Sharma was posted as Deputy Director Biology at Forensic Science Laboratory on 15th July, 2014 and he had received some items for examination through learned Chief Judicial magistrate, North 24 Parganas, Barasat which were marked as D, E, F, G, H, I, V and W. handkerchief with blood stained. brownish blood stains.

Exhibit D is one

Exhibit E is some stones having

Exhibit F is the blood sample of Shyamal

Karmakar. Exhibit G is the blood sample of Suman Sarkar. Exhibit H is two human molar teeth. Exhibit I is some bone pieces. Exhibit V and W were the blood sample of Saroj Chowdhury and Mrs. Mita Chowdhury.

As per the report of Dr. Anil Kumar Sharma prosecution witness no. 34 the blood sample of Shyamal Karmakar was matching with the blood stain found on exhibit D. Teeth were matching (exhibit H) with the DNA profile of the blood sample of Mrs. Mita Chowdhury and Mr. Saroj Chowdhury.

Mrs. Mita Chowdhury and Mr.Saroj Chowdhury

were found to be the biological parents of Samar Chowdhury.

Dr.

Sharma has also proved his reports and materials examined by him. The result of such scientific investigation has not been materially challenged in the cross examination by the appellants.

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Prosecution witness no. 35 Madan Mohon Das was working as caretaker of Anandam Lodge at the relevant point of time. He has also proved the factum of arrest of some of the persons during investigation.

He has identified appellant Shyamal Karmakar, Ratan

Das alias Tota alias Tofa and another convict Sisir Mukherjee alias Sisir

Mukhopadhyay

alias

Sanku

Mukherjee

alias

Sanku

Mukhopadhyay.

Prosecution witness no. 36 Sekhar Majumdar found that Shyamal Karmakar, Suman Sarkar, Uttam Sikari, Suman Das alias Bhuban, Amal Barui alias Kuche, Ratan Samaddar, Tarak Das, Somnath Sardar and some other persons were assaulting and taking away Sourav Chowdhury in front of Banerjeebagan at about 11 p.m. on 4th July, 2014. Out of fear he concealed himself in a place. He found that Suman Sarkar and Amal Barui alias Kuche were armed with bhojali. This witness has further stated that few days prior to such date Sourav Chowdhury and his associates assaulted Shyamal Karmakar and his team and thereafter Shyamal Karmakar was admitted in hospital in connection with a dispute of drinking liquor on the street.

He was also present when some articles including one

mobile phone, purse etc. were seized by the police. identified his signatures on the seizure list.

He has also

WWW.LIVELAW.IN Prosecution witness no. 37 also saw the appellants to take away Sourav Chowdhury in the night of 4th July, 2014 being armed with bhojali etc. and on the following morning he came to know that the body parts of Sourav Chowdhury were lying beside the railway line. He was present at the time of recovery of one ‘Barmuda pant’ from the house of Suman Sarkar, one shirt having check print without two buttons of Shyamal Karmakar, one bhojali from Suman Sarkar. He has proved his signatures on the seizure list and identified the article seized by police.

The articles were seized at the behest of Suman

Sarkar, Shyamal karmakar when they were in police custody and in terms of the Section 27 of the Indian Evidence Act.

Prosecution witness no. 38 Debnath Chakraborty was posted as Sub Inspector of police at Duttapukur police station on 4th July, 2014 and he had recorded GD entry no. 202 of 2014 on 4th July, 2014 on the basis of one phone call. He has specifically stated in his examination in chief that he recorded such GD entry over some phone call and due to disturbances in the line he could not correctly hear the entire conversation and that is why some mistakes cropped up in the said diary. However, he could say that the information was received with regard to missing of one person named after Sourav Chowdhury.

Prosecution witness no. 39 Soumen Pal actually investigated the case but before completion of investigation he was transferred to a different police station. During investigation this witness prepared draft sketch

WWW.LIVELAW.IN map of the place of occurrence, seized some articles beside railway track, viz. one torn pocket of a check shirt, one piece of cloth containing chain, one blood stained white colour handkerchief, two black colour small buttons, one black colour purse, having one voter identity card of Uttam Sikari and one 10 rupees therein, one black colour Micromax mobile set with sim card being no. 9088117632 under a proper seizure list in presence of witnesses and identified such articles in open Court which were marked material exhibit. The witness has also seized GD entry no. 202 dated 4th July, 2014, arrested Anup Talukdar, Uttam Sikari, Suman Das alias Bhuban, Tapas Biswas and Ratan Samaddar and thereafter took them to police custody. This witness also recovered Bhojali and some other articles during investigation pursuant to the statement of the accused under Section 27 of the Indian Evidence Act. Suman Sarkar and Shyamal Karmakar were also examined by doctor. This witnesses collected the video cassette relating to the post mortem examination of Sourav Chowdhury, three pieces of blood stained stonechips.

This witness

also examined available witnesses, sent the articles and blood sample of Shyamal Karmakar and Suman Sarkar for DNA profiling.

Prosecution witness no. 40 Soumen Pal also collected the supplementary case diary from sub inspector Samit Mondal of Madhyamgram police station including the GD entry no. 712 dated 10th July, 2014. Photocopy of voter identity card of Sisir Mukherjee and registers from ‘Anandam lodge’ and sent some articles namely

WWW.LIVELAW.IN white colour blood stained handkerchief, three pieces of stone with blood stain mark, blood of Suman Sarkar, tooth of deceased Sourav Chowdhury, upper end of tibia of deceased Sourav Chowdhury to Forensic Laboratory for examination. This witness also recovered at the behest of Shyamal Karmakar, one black colour Samsung mobile phone, one bhojali, one 7 mm pistol and 8 round 7 mm cartidges from the rented accommodation of Shyamal Karmakar in presence of witness, collected the report of Arms Expert, prepared seizure list, got the statements of witnesses recorded under Section 164 of the Code of Criminal Procedure by learned Magistrate, took sanction of the District Magistrate and after obtaining the report of the Arms Expert during investigation.

This witness has categorically stated that Shyamal Karmakar, Suman Sarkar and others were notorious fellow of the locality and that is why no one from the locality agreed to witness against those persons. Only Indrajit Kundu, Sekhar Majumdar, Soumen Kar were agreed to cooperate with the investigation and as such they were only cited as seizure witness in different point of times. This witness also collected the tower location of the aforesaid mobiles from the concerned mobile company with the certificate as required under law. This witness has finally filed charge sheet for the offence under Sections 364/302/201/212/120B/34 read with 25/27 of the Arms Act against Shyamal Karmakar, Suman Sarkar, Tapas Biswas, Tapan, Amal Barui alis Kuche, Tarak Das, Somnath Sardar, Rakesh Barman

WWW.LIVELAW.IN alias Chote, Sisir Mukherjee alias Sisir Mukopadhyay alias Sanku Mukherjee alias Sanku Mukhopadhyay, Poly Maity, Ratan Das, Anup Talukdar and Liton Talukdar vide Duttapukur police station charge sheet no.353/14 dated 15th August, 2014 with the leave of the Court to file supplementary charge sheet of this case after receipt of the report from Central Forensic Science Laboratory.

Prosecution witness no. 40 Shib Sankar Singha being entrusted with the further investigation of this case, prepared sketch map and index, collected DNA profile report from the office of Central Forensic Science Laboratory and thereafter submitted supplementary charge sheet vide no. 880 dated 28th July, 2015. The evidence of prosecution witness no. 39 and 40 have been criticised by learned Advocates appearing on behalf of the appellants on the ground that the investigation has been conducted in a perfunctory manner and only on that sole ground, the entire case of the prosecution ought to be rejected.

We have minutely gone through the manner of investigation conducted by prosecution witness no. 39 and 40.

The purpose of

investigation has been dealt with by the Supreme Court in the decision reported in AIR 1955 SC 196 (H. N. Risbad and Anr. Vs State of Delhi). In the decision reported in AIR 1955 (H. N. Risbad and Anr. Vs. State of Delhi) it has been held that where the cognizance of the case has in fact been taken and the case has

WWW.LIVELAW.IN proceeded to the invalidity of the

investigation does not vitiate the

result, unless miscarriage of justice has been caused thereby.

Mere acceptance of the First Information Report does not vitiate the entire result of the trial. Moreover, the appellants have failed to show that by accepting such First Information Report or any lapse in the investigation has resulted in miscarriage of justice.

We have minutely gone through the evidence of prosecution witness no. 39 Soumen Pal and on sifting the of totality of such evidence we find that the investigating officer has indeed investigated the case in a scientific manner so as to raise the confidence of the Court to accept the result of investigation in its totality.

It transpires from the discussion of evidence on record that a dispute cropped up between Sourav Chowdhury and Shyamal Karmakar over the issue of drinking liquor and that is why Shyamal Karmakar was assaulted, even hospitalised by Sourav Chowdhury and his associates.

As a mark of retaliation Shamal Karmakar and his associates forcibly took away Sourav Chowdhury in the night of 4th July, 2014 and thereafter they committed murder of Sourav Chowdhury on Duttapukur railway track. The dead body of Sourav Chowdhury was kept on the railway track so as to conceal their guilt and that is why

WWW.LIVELAW.IN the dead body of Sourav Chowdhury was separated into pieces. Admittedly, there is no eye witness of the occurrence.

But for the

evidence of Uttam Sikari prosecution witness no. 3, the prosecution would not have been able to prove the case beyond all shadow of doubt. The tendering of pardon to Uttam Sikari has been challenged by learned Advocates of the appellants. We have already stated in the forgoing paragraphs that Uttam Sikari was validly tendered pardon by learned Chief Judicial magistrate and his statement was also recorded by learned Magistrate at the behest of learned Chief Judicial magistrate. Therefore, there was no illegality in tendering pardon to Uttam, who has been tendered pardon to be an approver of the case under reference.

Uttam Sikari has categorically stated the names of all the appellants. The statement of Uttam Sikari has been corroborated in material particulars by the doctors who have examined Suman Sarkar and Shyamal Karmakar. Secondly, the post mortem examination of dead body of Sourav Chowdhury was conducted by two senior doctors.

According to them the death of Sourav Chowdhury was

caused due to ante mortem injuries and the said injuries may be caused by bhojali.

During examination the doctor has opined that

such injuries on the person of Sourav Chowdhury may be caused by the Bhojalis, which were seized from the possession of Shyamal Karmakar and Suman Sarkar. As per the statement of Uttam Sikari, some articles viz. the purse of Uttam Sikari with his voter identity card

WWW.LIVELAW.IN there in, two buttons, one torn pocket of a shirt, blood stained stonechips were recovered from the place of occurrence.

The said

articles were sent for Forensic examination. Report reveals blood of Shyamal Karmakar and Suman Sarkar were found on such articles. Therefore, the evidence of prosecution witness no. 3 Uttam Sikari has been materially corroborated by the result of investigation and the result of investigation has been duly translated before the trial Court. Some of the witnesses have also stated that they saw the aforesaid appellants to take away Sourav Chowdhury on point of gun.

The

culmination of such occurrence has been vividly described by Uttam Sikari and his statement before the trial Court has been materially corroborated by the reports of Forensic Science laboratory, evidences of doctors and the articles seized from the place of occurrence.

Learned Advocates appearing on behalf of the appellants have also submitted that Uttam Sikari prosecution witness no. 3 did not state the names of all the appellants at the time of such occurrence and therefore the remaining appellants (except Shyamal Karmakar and Suman Sarkar) cannot be convicted with the help of Section 34 of Indian Penal Code. In support of their contention they have referred a decision reported in AIR 1963 SC 174 (Mohon Singh and Anr. Vs. State of Punjab). There is absolutely no dispute with regard to the proposition of law laid down by the Full Bench of the Apex Court. The difference between Section 149 and 34 of Indian Penal code has been explained by the Apex Court in the aforesaid decision. It has been

WWW.LIVELAW.IN observed by the Apex Court that the common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different, may vary in their character, but they are all actuated by the same common intention. Advocates

appearing

on

behalf

of

the

appellants

Learned

vehemently

contended that the approver Uttam Sikari did not name all

the

appellants and as such learned trial Court was not justified in holding all the appellants guilty for the offence under Section 34 of Indian Penal Code.

On scrutiny of the evidence of Uttam Sikari it transpires that all the appellants took Sourav Chowdhury to Duttapukur railway track and thereafter the fatal blows were given by Suman Sarkar and Shyamal Karmakar.

The remaining appellants at the time of such

occurrence caught hold of Sourav Chowdhury so that he could not escape. That clearly goes to show that the appellants took the Sourav Chowdhury in terms of a prearranged plan and there was definitely meeting of minds of all the appellants prior to such murder of Sourav Chowdhury.

In that view of this case we find no substance in the

submission of learned Advocates of the appellant.

WWW.LIVELAW.IN Learned Advocates appearing on behalf of the appellants have also criticized the acceptance of the written complaint as First Information Report on the ground that the GD entry no. 202 dated 4th July, 2014 ought to have been accepted as the First Information Report.

It is needless to say that First Information Report is not a

substantive piece of evidence but can only be used to corroborate or contradict the evidence of informant in Court.

Admittedly, the

recording officer could not record the entire contents of the information received over phone due to trouble in hearing and that is why there may be some mistakes in recording the GD no. 202 dated 4.7.2014. Mere discarding the written complaint as First Information report would in no way help the appellants since recording of First Information report by police is not a condition precedent to set the law in motion (1973 (3) SCC 114) (Arfan Joseph and Ors vs. state of Kerala)

On scrutiny of the materials on record we find that the maker of the First Information report is not a witness of the occurrence.

In Arfan Joseph (supra) it has been observed by our

Supreme Court that statute does not provide that such information can be made only by eye witness. Therefore, non-examination of the father of Sandip Chowdhury has had no bearing in the merit of the instant case.

WWW.LIVELAW.IN The initial sketch map was prepared by the police officers of Bangaon G.R.P.S and subsequently sketch map has been prepared by investigating officers.

Therefore, there may be some sort of

discrepancies in between the said sketch maps but the entire case of the prosecution cannot be outrightly rejected on the ground of some discrepancies in the sketch map.

The dead body of Sourav

Chowdhury was separated into various parts and accordingly it was difficult on the part of the person conducting inquest over such body parts to exactly describe the injuries on such body parts.

On the

contrary, the post mortem examination over the dead body of Sourav Chowdhury has been conducted by two senior medical officers who have clearly stated the differences between ante mortem and post mortem injuries found on such dead body and which was accordingly identified by his own brother Sandip Chowdhury. In that view of this case mere absence of any injury in the inquest report will not nullify that there was no injury on the person of Sourav Chowdhury at the time of inquest or at the time of post mortem examination.

The

investigating officer prosecution witnesses no. 39 has also stated that all the local witness did not cooperate with the investigating agency and that is why the witnesses, who had cooperated were only cited as witness in the seizure list and at the time of recovery of such articles from the possession of the appellants. It is well settled principle of law that the evidence of the investigating officer is sufficient to accept the seizure of articles.

In our conservative society due to lack of

awareness, the people are not willing to be witness in criminal cases.

WWW.LIVELAW.IN As per the investigating officer the antecedent of the appellants were not good and that is why out of fear the local people did not turn up to help the investigation. In that view of this case and in absence of any such cross examination, we have no hesitation to say that no suspicion can be raised against the result of investigation conducted by the investigation officers simply on the ground that only three witnesses were cited as witness in the seizure list and at the time of recovery of such article from the possession of the appellants. Sufficient reasons have been assigned by the investigating officer as to why the local witnesses did not turn up and did not help the investigation.

The dead body was found in highly decomposed condition and as such it was not possible on the part of the doctor to ascertain the actual time of death. DNA test of blood sample of such dead body was only conducted by the prosecution in order to remove the confusion that it was the dead body of Sourav Chowdhury. Learned Advocates appearing on behalf of the appellant vehemently contended that in absence of specific finding with regard to the time of death, the prosecution has failed to establish the actual occurrence in terms of the statement of Uttam Sikari.

Therefore, the entire case of the

prosecution ought to be viewed with suspicion. Prosecution witness no. 20 Dr. Anindya Kr. Goswami has explained in his evidence that decomposition of the dead body will start after the state of Rigor Mortis and such decomposition may start early due to various

WWW.LIVELAW.IN reasons, due to seasonal variation, packaging of the body temperature and condition of the body, etc. As per prosecution witness no. 20 the body parts were found in pieces and those body parts were packed in a plastic jacket and that is why the early decomposition of the body parts were started. The reason for early decomposition of the dead body or the body parts of the deceased have been well explained by the Assistant Professor of Department of Forensic and State Medicine, NRS medical college and hospital. Therefore, there is absolutely no doubt with regard to the reason for such early decomposition and the doctor having no concern with any of the parties case has clearly explained the cause of such early decomposition of the body parts of the deceased. On scrutiny of the entire lower Court record we find that the statement of Uttam Sikari was duly recorded by learned Magistrate and thereafter the statement of Uttam Sikari was further recorded by learned magistrate at the direction of learned Chief Judicial magistrate, Barasat. Learned Chief Judicial Magistrate being satisfied about the statement of Uttam Sikari, tendered pardon to Uttam Sikari on condition to make true and full disclosure of the occurrence in the trial Court.

We have already stated that any

irregularities committed by learned Magistrate in recording the statement of Uttam Sikari may safely be cured under Section 460(g) of the Code of Criminal Procedure. We have also pointed out that the extra judicial confession made by Shyamal Karmakar

before

prosecution witness no. 7 and 8 is also supporting the case of the

WWW.LIVELAW.IN prosecution. confession

The appellants never challenged such extra judicial made by Shyamal Karmakar before prosecution witness

no. 7 and 8 in their cross examination.

The witnesses including

Uttam Sikari have clearly stated the names of the appellants who took away Sourav Chowdhury on the point of gun to Dutapukur railway station and thereafter Sourav Chowdhury was murdered. At the time of such occurrence Uttam Sikari and other appellants caught hold of Sourav

Chowdhury and the fatal blows were given by Shyamal

Karmakar

and Suman Sarkar.

Buttons of shirt, one torn pocket,

blood stained stonechips, mobile phone, purse of Uttam Sikari with voter identity card therein were recovered from the place of occurrence and the Forensic reports have confirmed the relation of such articles with the appellants and Uttam Sikari.

As per Uttam Sikari (PW3), Shyamal Karmakar, Suman Sarkar, Tapas Biswas, Ratan Samaddar, Suman Das alias Bhuban, Amal Barui alias Kuche caught hold of Sourav Chowdhury.

Shyamal

Karmakar snatched the mobile phone from the hand of Sourav Chowdhury and kept the same in his pocket. Thereafter, they started assaulting Sourav Chowdhury and took him to Dhalai road towards Natunbazar.

At Natunbazar, Suman Das alias Bhuban and Amal

Barui alias Kuche assaulted Sourav Chowdhury by bamboo stick and thereafter they left from that place. Thereafter Shyamal Karmakar left that place and brought Tarak Das, Somnath Sardar and Rakesh Barman alias Chote. That clearly goes to show that Suman Das alias

WWW.LIVELAW.IN Bhuban and Amal Barui alias Kuche left the company of Uttam Sikari at Natunbazar and did not return to the place. On the contrary one Tarak Das, Somnath Sardar and Rakesh Barman alias Chote joined with them.

At first scuffling took place in between Sourav

Chowdhury, Shyamal Karmakar and Suman Sarkar. Due to the said scuffling the pocket of the shirt of Shyamal Karmakar and the pocket of Barmuda of Suman Sarkar were torn apart. Then Uttam Sikari and others who were present there namely Tapas Biswas, Ratan Samaddar, Tarak Das, Somnath Sardar and Rakesh Barman alias Chote caught hold of Sourav Chowdhury, overpowered him and Shyamal and Suman murdered Sourav by bhojali. Uttam Sikari never stated that

Suman Das alias Bhuban and Amal Barui alias Kuche

were present at the time of murder of Sourav Chowdhury or that they subsequently joined with them near Duttapukur railway track.

In

that view of this case, it may safely be stated that learned trial Court ought to have acquitted Suman Das alias Bhuban and Amal Barui alias Kuche from the aforesaid charges.

They could have been

convicted for the offence under Section 323 of the Indian Penal Code. In the mean time they have suffered sufficient imprisonment and accordingly we have no hesitation to set them free from the aforesaid charges in view of the discussions of the evidence on record in the forgoing paragraphs. In that view of this case Suman Sarkar, Ratan Samaddar, Tarak Das, Somnath Sardar, Tapas Biswas, Shyamal Karmakar and Rakesh Barman alias Chote have been rightly convicted for the offence under Section 364/302/34 of the Indian

WWW.LIVELAW.IN Penal Code. Therefore, we find sufficient reason to allow the appeal of Suman Das alias

Bhuban and Amal Barui alias Kuche and

accordingly the appeal in respect of Suman Das and Amal Barui alias Kuche is allowed.

Suman Das alias Bhuban and Amal Barui alias

Kuche are found not guilty to the charges framed against them and they are accordingly acquitted. Both the aforesaid appellants be set at liberty forthwith, if not required to be detained in connection with any other case.

Sisir Mukherjee and Poly Maity were convicted for the offence under Section 212/34 of the Indian Penal Code. Section 212 of the Indian Penal Code may be reproduced below for proper appreciation of the case of the appellants. “Harbouring offender – Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment; If a capital offence – Shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine: If punishable with imprisonment for life, or with imprisonment – and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence is punishable with imprisonment which

WWW.LIVELAW.IN may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both. Offence in this section includes any act committed at any place out of India, which, if committed in India, would be punishable under any of the following sections, namely, 302, 304, 382, 392, 393, 394, 395, 397,398, 399, 402, 435, 437, 449, 450, 457, 458, 459 and 460; and every such act shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in India. Exception – This provision shall not extend to any case in which the harbour or concealment is by the husband or wife of the offender.”

In order to bring home the charge under Section 212 of the Indian Penal Code the prosecution is required to prove the following ingredients 1. The offence must have been committed and there must be “offender”. 2. There must be harbouring or concealment of a person by the accused. 3. The accused knows or has reason to believe that such harboured or concealed person is the offender. 4. There must be an intention on the part of the accused to screen the offender from legal punishment. The specific case against the present appellants Poly Maity and Sisir Mukherjee, is that they gave shelter in their respective houses to Shyamal Karmakar and other appellants immediate after commission of such offence and they also provided them with money for their transportation from Beleghata to Tarapith and thereby they have harboured the offenders knowing fully well

WWW.LIVELAW.IN that

Shyamal karmakar and other appellants had committed murder of

Sourav and were engaged in various others illegal activities. Section 52-A of the Indian Penal Code has defined the meaning of “harbour” which may be set out here under.

“Section 52A: Harbour.- Except in section 157, and in section 130 in the case in which the harbor is given by the wife or husband of the person harboured, the word “harbour” includes the supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means, whether of the same kind as those enumerated in this section or not, to evade apprehension.”

It is therefore apparent from the aforesaid definition of harbour that harbour “includes the supplying a person with shelter, food, drink, money, cloths, arms, ammunitions or means of convenience or the assisting a person by any means, whether all the same kind as those involved in this section or not to evade apprehension. Mere assisting any person to evade apprehension amounts to harbour within the meaning of Section 52 –A of the Indian penal Code.

Prosecution witness no. 3 Uttam Sikari has categorically stated that immediate after such occurrence prosecution witness no. 3, Shyamal Karmakar, Suman and Tapash took shelter in the house of elder sister of Shyamal karmakar namely Poly Maity.

In the next morning he left the

house of Poly Maity and went to Choto Jagulia and arranged a hired car

WWW.LIVELAW.IN there. They went to the house of Sanku at Beleghata and Sanku paid the hired charge of the vehicle and also gave their fooding charge. They stayed in the place of Sanku till evening and thereafter they left towards some unknown destination if not towards Tarapith. On scrutiny of the evidence of prosecution witness no. 3 we find that the evidence of prosecution witness no. 3 in respect of harbouring of the offenders by Poly Maity and Sisir Mukherjee remain unshaken. On the other hand it has been elicited in the cross examination that they stayed in the house of Poly Maity and Sanku. The evidence of prosecution witness no. 4 also reveals the extra judicial confession of Poly Maity made before prosecution witness no. 4 Sandip Biswas. The statement of Sandip Biswas recorded under Section 164 of the Code of Criminal Procedure has been accepted and admitted by prosecution witness no. 4. Curiously enough there was absolutely no cross examination with regard to such extra judicial confession made by Poly Maity. The shirt and button of Shyamal Karmakar were seized from the house of Poly Maity. The pocket of that shirt was found from the place of occurrence. Prosecution witness no. 23 Jahangir Mondal is owner of the vehicle. Prosecution witness no. 27 Laltu Seikh took the other appellants from Bamongachi stand to Beleghata, Jora Mandir. Prosecution witness no. 27 has admittedly identified atleast three appellants who hired his vehicle and went to Beleghata from Bamongachi Choumatha. Rupees 1,000/- was paid as hired charges to prosecution witness no.27. Prosecution witness no. 28 being manager of Anandam Lodge has identified Sisir Mukherjee and has categorically stated that Shyamal Karmakar and Ratan were accommodated in his hotel at the instance of Sisir Mukherjee in disguise in the name of

WWW.LIVELAW.IN Tarak Kundu and Kartick Mondal.

Prosecution witness no. 35 Madan

Mohon Das caretaker of Anandam Lodge has also identified Shyamal Karmakar and Ratan who were accommodated at the said lodge at the behest of Sisir Mukherjee.

Sisir Mukherjee was also identified by the

witness. It is apparent from the aforesaid evidences that the rooms were booked by Sisir and Shyamal karmakar and Ratan Das were accommodated in the said room at the behest of Sisir Mukherjee. Therefore it is crystal clear from the aforesaid discussions that Poly Maity and Sisir Mukherjee harboured the offenders in the terms of Section 52-A read with Section 212 of the Indian Penal Code. In the premises set forth above we do not find any merit in respect of the appeal preferred by Poly Maity and Sisir Mukherjee.

The appeals in respect of Shyamal Karmakar, Suman Sarkar, Tarak Das, Somnath Sardar, Ratan Samaddar and Tapas Biswas are dismissed. The appeal in respect of Poly Maity and Sisir Mukherjee is also dismissed.

Learned trial Judge has awarded death punishment to 8 of the appellants for the offences punishable under Section 302 of Indian Penal Code read with Section 34 IPC. On scrutiny of the materials on record we find that the case under reference is simply a case of retaliation and in that view of this case, we are not in a position to accept the case as one of rarest of rare cases. Admittedly, we answer the death reference in negative. All the appeal are accordingly disposed of in terms of the aforesaid order and death reference is also answered accordingly.

WWW.LIVELAW.IN

Learned trial Judge has awarded death punishment to eight appellants for the offence punishable under Section 302 of the Indian Penal Code read with Section 34 of Indian Penal Code. We have already acquitted Suman Das alias Bhuban and Amal Barui alias Kuche from the charges framed against them.

However, Shyamal Karmakar, Suman Sarkar, Tarak Das,

Somnath Sardar, Ratan Samaddar and Tapas Biswas are sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.20,000/- each in default to suffer imprisonment for one year. We do uphold the conviction and sentence awarded to Sisir Mukherjee and Poly Maity.

Amal Barui alias Kuche and Suman Das alias Bhuban are thus found ‘not guilty’ of the charges framed against them and they are acquitted from this case. They be released from the custody forthwith if not required to be detained in any other case. We do maintain the conviction and sentence of the aforesaid persons except Suman Das alias Bhuban and Amal Barui alias Kuche for the offence under Section 364/34 of the Indian Penal Code. However all the sentences shall run concurrently.

It may be mentioned here that Shyamal Karmakar is not at all repented, as it appears from the lower Court record.

This appellant has

even abused the trial Court on the date of delivery of judgment saying that Court would not do anything to him though he had committed such offence. In that view of this case we find it convenient to direct that Shyamal Karmakar shall not be released from custody till completion of his 30 years

WWW.LIVELAW.IN imprisonment towards the sentence of life imprisonment.

We have been

fortified with the judgment of the Apex Court reported in (2008) 13 SCC 765 (Swami Shraddananda Vs. State of Karnataka, (2012) 8 SCC 537 (State of Uttar Pradesh Vs. Sanjoy Karmakar) and (2013) 2 SCC 713 (Gurnail Singh @ Gola Vs. State of Punjab) in awarding such punishment to Shyamal Karmakar. Let a copy of this judgment be forwarded to the Court below for issuance of fresh jail warrant in terms of the directions given in the foregoing paragraphs. Urgent certified Photostat copy of the judgment be given to the parties, if applied for, upon compliance of all the formalities, as per usual terms and conditions.

(Nadira Patherya, J.)

(Debi Prosad Dey, J.)