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Judgment
Joymalya Bagchi, J.
The appeal is directed against the judgment and order dated 5.12.2014 and 6.12.2014 passed by learned Additional Sessions Judge, Fast Track Court
No.II, Krishnanagar, Nadia, in Sessions Case No.82(06)2007 corresponding to Sessions Trial No.I(February)2008 convicting the appellants, namely,
Prosenjit Mondal alias Astam Mondal, Ratan Mondal and Amrita Mondal alias Amritan alias Tapas Mondal, for commission of offences punishable
under sections 302/34 of the Indian Penal Code (for short ‘I.P.C.’) and under sections 27/35 of the Arms Act and sentencing them to suffer
imprisonment for life each and to pay a fine of Rs.2000/- each, in default to suffer further rigorous imprisonment for one year more for the offence
punishable under section 302/34 of the Indian Penal Code and to suffer rigorous imprisonment for seven years each and pay a fine of Rs.1000/- each,
in default to suffer rigorous imprisonment for further six months each for the offence punishable under section 27/35 of the Arms Act. Both the
sentences are to run concurrently.
A fratricide committed by the absconding accused Sanjay Sarkar in association with the appellants is the gravamen of the instant case. The victim,
Shibananda Sarkar, who is the elder stepbrother of Sanjay Sarkar, had died due to gunshot injuries at around 02.00 a.m. on 13.5.2005 while he was
sleeping with his wife, Chandana Sarkar (P.W. 1) on the first floor of the house. Ground floor of the house was occupied by his stepbrother, Sanjay,
his mother (P.W. 4), sister (P.W. 5) and niece (P.W. 7). Immediately after his death, Sanjay lodged a written complaint at Kotwali police station
alleging that on the fateful night some unknown dacoits had raided their house and took away a watch, Rs.300/- and some money in a box from his
room.
Thereafter the miscreants took him to the first floor and knocked at his brother’s room. When his brother and sister-in-law opened the door the
miscreants shot at his brother and fled away. He described the features of the miscreants and stated that they were speaking in Bengali and that he
had seen the miscreants in electric light and could identify them. His brother unfortunately succumbed to his injuries at Saktinagar hospital.
On the aforesaid complaint Kotwali P.S. Case No.144/05 dated 13.5.2005 under sections 302/34/396 of I.P.C. and under sections 25/27 of the Arms
Act was registered for investigation. Investigation was taken up by P.W. 33 and P.W. 26 attached to Kotwali police station. Subsequently, the
investigation was transferred to C.I.D., Krishnanagar, Nadia, and was taken up by P.W. 29. In the meantime, on 10.9.2005 Chandana (P.W. 1), wife
of the victim, wrote a letter to D.D.I., Nadia, stating that it was Sanjay Sarkar, who along with the appellants had killed her husband. She clarified in
the letter that the delay in informing the correct state of affairs was due to her traumatic mental condition and as the earlier investigating officers were
not paying heed to her grievances while purporting to investigate the case on the false complaint of Sanjay Sarkar. Soon thereafter, on 13.9.2005 she
made a statement before the learned Magistrate under section 164 of Criminal Procedure Code and in December, 2005, she identified the appellants in
the course of Test Identification Parade (for short ‘T.I. Parade’).
In conclusion of investigation, charge-sheet was filed against Sanjay Sarkar, the absconding accused and the aforesaid appellants under sections
302/34 of I.P.C. and under sections 27/35 of the Arms Act. As Sanjay Sarkar had not been apprehended, he was declared a proclaimed offender and
the case was committed to the learned Additional Sessions Judge, Fast Track Court No.II, Krishnanagar, Nadia, for trial and disposal. Charges were
framed under sections 302/34 of I.P.C. and under sections 27/35 against the appellants. They pleaded not guilty and claimed to be tried. In the course
of trial, prosecution examined thirty-three witnesses and exhibited a number of documents. Defence of appellants is one of innocence and false
implication. In conclusion of trial, the trial Judge by judgment and order dated 5.12.2014 and 6.12.2014 convicted and sentenced the appellants, as
aforesaid.
Mr. Bose, learned senior advocate with Mr. Banerjee, learned advocate, argued that the prosecution is a divided house. P.Ws. 4, 7, 9, 11 and 12 being
the relations of Sanjay Sarkar did not support the prosecution case and stated that Shibananda died in the course of dacoity. Neighbours of Sanjay
Sarkar, P.Ws. 2, 3 and 6 also claimed that there was a dacoity in the house and the victim had died. On the other hand, P.W. 1 after lapse of four
months came up with the story that the appellants along with Sanjay Sarkar had killed the victim. She was the sole eyewitness and her version in
Court is contrary to her previous statement to P.W. 33, the first investigating officer. Corroboration of her version from P.Ws. 10, 14 and 15 is not
reliable as P.W. 1 never claimed that she had narrated the incident to them. T.I. Parade report had not been proved in accordance with law and it is
of little value as P.W. 1 and others claimed that they knew the appellants as their neighbours. He relied on various authorities in support of his
submission and prayed for acquittal of the appellants.
On the other hand, learned advocates, Mr. Roychowdhury and Mr. Gupta, appearing on behalf of the State submitted that the theory of dacoity as
narrated by Sanjay Sarkar in the F.I.R. is patently absurd and inherently improbable. It is strange that Sanjay, whose room is alleged to have been
burgled, remained unscathed. It is also unclear why instead of assaulting or tying up Sanjay, the dacoits took him upstairs along with them to the room
of the victim as if he was their accomplice. Dacoits did not make any attempt to rob valuables from the room of the victim. On the other hand, they
shot at him as soon as he opened the door and ran away. Thereafter, Sanjay Sarkar raised hue and cry that dacoits had attacked their house. His
mother, P.W. 4 and his niece, P.W. 7, who were all along sleeping in the adjacent room of Sanjay Sarkar woke up only hearing the hue and cry. After
lodging F.I.R., Sanjay Sarkar absconded and has till date not been apprehended.
The aforesaid circumstances clearly portray that the plea of dacoity set up by Sanjay Sarkar in order to cover up his own misdeeds is clearly
improbable in the facts of the case. P.W. 1, the daughter-in-law of the family, initially kept quiet as she was mentally disturbed and was unable to
come out with the truth in the face of the falsehood propagated by her brother-in-law, Sanjay. Accordingly she reposed confidence only on her near
relations, namely, P.W. 10, father, P.W. 14, mother and P.W. 15, sister and no one else. Initially, police did not pay any heed to her grievances till she
reported the matter to the superior authority. Thereafter, she made statement before Magistrate and appellants were arrested. They have also been
identified in the course of T.I. Parade. The evidence of P.W. 1 receives corroboration not only from her relations, P.W. 10, 14 and 15 but also from
the medical report of the post-mortem doctor, P.W. 32. Hence, the appeal is liable to be dismissed.
From the tenor of the submissions of the parties it is clear that P.W. 1, Chandana, wife of the victim is the most vital witness in the instant case.
Admittedly, she was at the place of occurrence when her husband, Shibananda was gunned down. She deposed that she was sleeping in the room of
the first floor along with her husband on 13.5.2005. At that night her ‘devar’, Sanjay Sarkar called for her husband claiming that their mother
was ill. Her husband woke up and went towards the door. She asked her husband to wait for sometime so that she could arrange her clothes and
could accompany him. Thereafter, her husband opened the door and she saw Sanjay and four other persons at the spot. Her husband enquired as to
why they had come to the house. All of them started assaulting her husband with fists, blows and slaps. Then Sanjay shot at her husband. She
identified the other miscreants who were present at the spot with Sanjay as the appellants in Court.
After the incident all of them went downstairs. She dragged her husband in the room and closed the door. After sometime, Sanjay came back and told
her from outside that he had not fired at her husband and not killed him. He requested her to open the door. Thereafter, Sanjay raised hue and cry and
upon hearing his hue and cry other member of the family woke up. Her husband was hospitalized where he died. She stated that she narrated the
incident to police but the police did not pay any heed to her grievances. On 10.9.2005 she wrote a letter to D.D.I., Krishnanagar, Nadia, expressing
her grievances. She proved the letter (Exbt.1). She made a statement under section 164 of the Code of Criminal Procedure to the Magistrate about
the incident. She proved her signature on the statement. She identified the accused persons in jail and at the time of Test Identification Parade. She
was cross-examined with regard to her previous statement to the first investigating officer, P.W. 33 attached to Kotwali police station as well as to
P.W. 29 attached to C.I.D., Krishnanagar, Nadia. She stated that her husband had six brothers including stepbrothers.
Her first mother-in-law had a son and a daughter and her second mother-in-law had one son. She used to live with her husband in the house where
Sanjay also stayed P.Ws. 10, 14 and 15 are the relations of P.W. 1. P.W. 10, Anath Bondhu Mondal is the father of P.W. 1. He deposed that her
daughter, Chandana (P.W.1) was married to Shibananda who was murdered on 13.5.2005 in his house at Kalirhat Setu, Shyamnagarpara. He
received a telephone call from his daughter at 03.00 a.m. and came to know about the incident. His daughter told him that his son-in-law was shot
dead by Sanjay and four others of the locality, whom she knew and another one whom she did not. On the next date she confided in him that the
appellants were with Sanjay. He, however, did not know them apart from Sanjay Sarkar. There was a dispute between Sanjay Sarkar and the victim.
He signed on the inquest report. In crossexamination, he stated that he narrated the incident to Kotwali police station stating the names of the
appellants but the police officer did not pay any attention to him. He was interrogated by C.I.D. officer.
P.W. 14, Smt. Charulata Mondal is the mother of Chandana (P.W.1). She deposed that she heard from her daughter that Sanjay Sarkar who was the
stepbrother of Shibananda had killed him and there were four persons along with Sanjay whom she could identify. There was a family dispute
between the step-brothers, Sanjay and Shibananda. In cross-examination, she stated that she went to the house of the victim after getting information
from her daughter. Her daughter narrated everything to her and after a week she brought back her daughter to her house. They stated everything to
Kotwali police station but the police officer did not pay any heed to them. Her husband had submitted a written complaint to the police station. She
stated to C.I.D. officer the names of actual persons who killed her son-in-law, Shibananda Sarkar on 8.9.2005.
P.W. 15, Jayasre Mondal is the sister of P.W. 1, Chandana. She deposed that she heard about the incident over telephone and went to the house of
her elder sister who told her that Sanjay and four others had killed her ‘jamaibabu’. Chandana (P.W. 1) also stated to her that she could identify
three of them but failed to identify the fourth assailant. In cross-examination, she stated that from her elder sister she came to know everything about
the incident.
On the other hand, the relations of Sanjay Sarkar, namely, his mother (P.W. 4), niece (P.W. 7), brothers (P.Ws. 9 and 11) and sister-in-law (P.W. 12)
deposed there was a dacoity in the night of 13.5.2005 when Shibananda died. P.W. 4, Binada Sarkar, is the mother of Sanjay Sarkar. She deposed
that Shibananda had died four years ago. He was killed by dacoits. Her house was a two storeyed building. There was grill gate in front of the house.
Shibananda used to live at the first floor. The incident occurred at 02.00 a.m. at night. The grill gate was locked. The dacoits entered the room of
Sanjay first. The room was closed from inside. The dacoits entered the room by breaking the latch of the door. There was a hue and cry. Her
daughter, Ganga Rani Sarkar (P.W. 5) and her granddaughter, Mira Sarkar (P.W. 7) were present in the room. She was sleeping in the room adjacent
to Sanjay. The dacoits took away radio, money from the box of Sanjay and also a torchlight and watch from the latter’s room.
Then the dacoits went upstairs to the first floor. They took Sanjay with them. Thereafter the dacoits called for Shibananda stating ‘your mother is
ailing’. Thereafter, they killed Shibananda. Sanjay could identify those persons among the dacoits. She did not know where Sanjay was presently
residing. She identified the appellants in Court. In cross-examination, she stated that she had no discussion with Chandana (P.W. 1) after the incident.
Chandana (P.W. 1) had not disclosed to her whom she had identified at that time. A few days later Chandana (P.W. 1) left her house and started
living with her parents. P.W. 5, Ganga Rani, the sister of Sanjay, claimed that Shibananda was killed by dacoits.
P.W. 7, Mira Sarkar is the niece of Sanjay. She deposed that the incident took place around 02.30 a.m. in the night when she was in the house of her
maternal uncle. At that time she was sleeping with her grandmother, Binada Sarkar (P.W.4) and her mother, Ganga Rani Sarkar (P.W. 5) in a room
adjacent to the room of her younger maternal uncle, Sanjay in the ground floor. She did not know when the dacoits entered the house. When her
younger maternal uncle shouted ‘dacoit dacoit’, she woke up. There was a grill gate at the entrance door of the ground floor. The dacoits had
entered the house by breaking the latch. She found that they were locked from outside. Her younger maternal uncle opened the door. She found
Shibananda was lying in a bleeding condition. Dacoits took away Rs.300/- from the room of her younger maternal uncle but did not take anything from
the room of Shibananda. She identified the accused persons who were present in Court. In cross-examination, she stated that she had not come to
know from Chandana (P.W. 1), who actually killed Shibananda. Chandana (P.W. 1) told her that she was unable to identify any of the dacoits.
P.W. 9, Ramananda Sarkar and P.W. 11, Bipad Bhanjan Sarkar are the brothers of Sanjay. They were not present at the place of occurrence. After
receiving information they came to the spot. Both of them were signatories to the inquest repot. P.W. 11 was a signatory in the seizure list relating to
the seizure of personal diary of Shibananda. Both the witnesses in cross-examination deposed that Chandana (P.W. 1) told them that she could not
identify the miscreants.
P.W. 12 Smt. Sandhya Sarkar is the wife of P.W. 11. She deposed that unknown miscreants entered the house and killed Shibananda. Police seized a
lock. She was a signatory to the seizure list. P.W. 2, Sentu Mitra, P.W. 3, Mahananda Mondal are the neighbours of Sanjay Sarkar. Both of them
stated that there was a dacoity in the house of Shibananda in the night when Shibananda was killed. They did not know who killed Shibananda. In
cross-examination they stated that Chandana (P.W. 1) told them that the faces of the miscreants were covered. P.W. 25, A.S.I. Prasanta Barman
was attached to Kotwali police station. He received written complaint from Sanjay Sarkar and drew up the formal F.I.R. (Exbt.7).
P.W. 33, Mrinal Kanti Mondal is the first investigating officer in the instant case. He was attached to Kotwali police station and commenced
investigation. He went to the place of occurrence where he found Inspector-in-Charge and other police officers of Kotwali police station were present
there. Mira Sarkar (P.W. 7) took him to the place of occurrence where Shibananda had been shot at. He found that the injured victim had been
shifted to the district hospital. Telephone line was disconnected at the place of occurrence. He prepared a sketch map with index of the place of
occurrence (Exbts.14 and 14/1 respectively). He collected blood stained bed sheet, blood stains from the floor of the room and the backside of a used
portion of cartridge (Exbt.15). He recorded the statements of local witnesses under section 161 of the Code of Criminal Procedure. He interrogated
the members of local R.G. party. He held inquest over the dead body of Shibananda and prepared papers for holding post-mortem examination. He
handed over the used portion of bullet to Dr. Sajal Kr. Nandy (P.W. 32). He arrested some persons out of suspicion. He collected report from
B.L.L.R.O., Santipur, Nadia, that the victim was the staff of that office. He collected postmortem report on 4.6.2005. He handed over the case to the
then I.C., Kotwali police station upon transfer. Subsequently, he heard that the case was endorsed to C.I.D. for investigation. In cross-examination, he
narrated the statement made to him by P.W. 1, Chandana.
P.W. 26, Chandra Sekhar Bhattacharya is the second investigating officer in the instant case, who was attached to Kotwali police station. He took up
the investigation of the case. He arrested Asit Biswas and other peoples and placed them in T.I. Parade in District Correctional Home. He made over
the case diary to S.I. Jitendra Nath Sarkar, D.D.I., Nadia. P.W. 29, Jitendranath Sarkar was attached to C.I.D., Krishnanagar, Nadia. On 8.7.2005 he
took over investigation of the case. During investigation he interrogated witnesses. He visited the place of occurrence and prepared a rough sketch
map with index (Exbt.8). He seized one seven lever lock (Exbt.5/1). He recorded statement of available witness under section 161 of the Code of
Criminal Procedure. He collected statement of Chandana Sarkar (P.W. 1) under section 164 of the Code of Criminal Procedure. He arrested the
accused persons. He signed on the seized articles for F.S.L. examination and collected F.S.L. report (Exbt.9). He handed over the case diary on
27.9.2006.
P.W. 28, S.I. Parimal Bhowmik who was attached to D.D.I., Krishnanagar, Nadia, took up investigation in the instant case on 11.10.2006. P.W. 32,
Dr. Sajal Kr. Nandi is the post-mortem doctor. He held the postmortem on the dead body of the victim. He stated that bullet was found and rigor
mortis was present. He found oval shaped penetrating wound with lacerated margins 1½†x 1†in size right side of chest below then nipple
areolar-area. Chest cavity deep, obliquely placed from right side to left side downwards. Bleeding was present. Upper margin was more black. Skin
margin was burnt. Sporadic burn around the injury 12†x 10†area. Chest, left side back and lower part reddish in color. The vertebra level more
black and haematoma below skin. Metallic bullet found below the skin. He further stated that death was due to shock, haemorrhage and also due to
aforesaid injuries which were ante-mortem and homicidal in nature. He proved the post-mortem report (Exbt.13).
From the evidence on record it appears that the version of P.W. 1 implicating the appellants as the associates of Sanjay Sarkar, the step brother of
Shibananda, in murdering the latter is supported by P.Ws. 10, 14 and 15 whereas P.Ws. 4, 7, 9, 11 and 12, relations of Sanjay Sarkar and his
neighbours P.Ws. 2, 3 and 6 claimed that there was dacoity in the night at the house when Shibananda died. However, none of the aforesaid
witnesses except P.W. 1 was present beside the victim when he was shot at. Although P.Ws. 4 and 7 were sleeping in the adjacent room of Sanjay
Sarkar they were unaware of the dacoity till they heard a hue and cry ‘dacoit dacoit’. Hence, their version of the incident is hearsay. It has also
come on record that their room was locked from outside. Hence, they were not eye-witnesses and had only been informed after the incident that there
was dacoity in house at the time when Shibananda suffered gunshot injuries.
Therefore, the sole eye-witness in the instant case is P.W. 1, Chandana, wife of the deceased. Her evidence has been severely criticized by the
learned senior advocate for the appellants on the score that she had not spoken of the roles of the appellants to her in-laws, that is, P.Ws. 4, 7, 9 and
12 or to the neighbours, P.Ws. 2, 3 and 6 immediately after the incident. In fact, P.Ws. 2 and 3 claimed that she had stated that the dacoits had
covered their faces. Other witnesses claimed that she told them that she could not identify the dacoits. P.W. 29, the first investigating officer stated
that upon interrogation P.W. 1 did not name the assailants and stated that the faces of the miscreants were covered. After a lapse of four months, she
disclosed the names of the appellants in the complaint (Exbt. 1) lodged by her with D.D.I., Nadia on 10.9.2005. Implication of the appellants in the
instant case is, therefore, an afterthought and ought to be discarded. Relying on AIR 1957 SC 614 learned senior advocate submitted the version of
P.W. 1 was clearly untrustworthy and, therefore, conviction of the appellants on her sole testimony ought not to be affirmed.
In the face of such criticism, I have examined the evidence of P.W. 1 with great care and circumspection. The incident occurred at 02.00 a.m. on
13.5.2005. P.W. 1 was the wife of the victim and her presence beside her husband when he was shot down on the fateful night is most natural. While
Sanjay Sarkar, the step brother of the victim, claimed that unknown dacoits had raided their house and had shot at the victim, P.W. 1 deposed that the
victim was shot at by Sanjay Sarkar himself and the appellants were present along with the latter and had also assaulted the victim. The conduct of
P.W. 1 in not disclosing the correct state of affairs to her in-laws, P.Ws. 4, 7, 9, 10, and 12 and to the other neighbors, namely, P.Ws. 2, 3 and 6 must
be assessed in the backdrop of the peculiar facts of the case. P.W. 1 had witnessed the brutal murder of her husband at the hands of his own
stepbrother who was seeking to cover up the crime by passing it off as a dacoity. Under such circumstances, it is all but natural that P.W. 1 was in a
state of deep mental shock and trauma and could not muster up courage and confidence to state the correct state of affairs to her in-laws who
presumably would side with her brother-in-law, Sanjay. Hence, she confided only to her closest relations, namely, her parents and sister, P.Ws. 10, 14
and 15 respectively.
This fact has been disputed on behalf of the appellants as it is claimed that P.W. 1 did not state that she had disclosed the incident to anyone. If one
reads the evidence of aforesaid witnesses as a whole it leaves no doubt in one’s mind that P.W. 1 who was in utter fear and mental trauma due to
the barbaric act of Sanjay and the appellants in murdering her husband that she disclosed the incident only to her closest relations and no one else. Her
situation was further jeopardized by the studied inaction of the police officers attached to Kotwali police station to her grievances. Although P.Ws.1,
10 and 14 unequivocally deposed that they named the appellants to the police, P.W. 33, the first investigating officer took no notice of such allegations
and merely persuaded the case of dacoity floated by Sanjay. In fact, P.W. 26, the second investigating officer for reasons best known to him sent up
one Asit Biswas as a suspect for identification in T.I. Parade. The aforesaid evidence on record leaves no doubt in one’s mind that the attitude of
P.Ws. 33 and 26, investigating officers attached to Kotwali police station were hostile towards P.W. 1. They did not pay any heed to the grievances
expressed by her. Subsequently, the investigation was transferred to C.I.D., Krishnanagar, Nadia and was taken up by P.W. 29. In the course of
further investigation, version of P.W. 1 implicating the appellants and Sanjay Sarkar was noted and her complaint was registered by D.D.I.,
Krishnanagar (Exbt.1). Thereafter, her statement was recorded under section 164 Cr.P.C. on 13.9.2005.
The aforesaid state of affairs clearly portray the distressed and pitiable condition of the aggrieved wife who due to mental trauma and fear was unable
to come out with the correct state of affairs to anyone apart from her own relations as she had witnessed with her own eyes that her husband was
brutally murdered by Sanjay, his stepbrother, and the appellants who were her neighbours at the matrimonial home. Her effort to communicate such
fact to the local police station also came at naught due to the insensitivity of the investigating agency who turned a deaf ear to her pleas against the
appellants and her brother-in-law, Sanjay. In order to assert her version of the incident, she had to overrule the theory of dacoity floated by her
brother-in-law, Sanjay. It is natural that she felt hesitant to do so before her in-laws or neighbors, whom she presumed would support Sanjay, her
brother-in-law. Hence, she confided the actual state of affairs only to her relations and did not protest against the false theory of dacoity floated by her
brother-in-law to her in-laws or outsiders. When her evidence is judged from this perspective her failure to disclose the real state of affairs before her
in-laws and outsiders is clearly understandable. The situation was made further complicated as the local police officers also refused to pay any heed to
her version. In the light of the afore said discussion, I am of the view that the evidence of P.W. 1 appears to be intrinsically truthful and her conduct
does not raise any impression of false implication of the appellants in the murder of the victim.
It has been argued although P.Ws. 4, 7, 9, 10 and 12 have not supported the prosecution case, they have not been declared hostile. Hence, the
appellants ought to be given the benefit of doubt. It is true if two views are possible from the evidence on record the benefit of doubt ought to be given
to the accused. However, a false plea of dacoity raised by one of the accused in order to cover up the real incident cannot be construed to be a
probable alternate view so as to derail the prosecution case. In order to plant a seed of doubt improbabilising the prosecution case, it must be shown
that such doubt is a reasonable one. Every fanciful hypothesis cannot masquerade as a reasonable doubt so as to throw out a credible prosecution. I
have examined the plea of dacoity raised by Sanjay Sarkar in the factual matrix of the case in order to test whether such plea can be treated as a
plausible one. I find that the plea of dacoity is patently absurd and does not appear to be credible when judged on the anvil of normal human conduct
and broad probabilities of the case.
Firstly, it is unclear as to why the dacoits did not either assault or tie up Sanjay when they allegedly committed dacoity in his room. On the other hand,
it appears Sanjay voluntarily accompanied the so-called dacoits to the first floor where his stepbrother and his wife (P.W. 1) were sleeping. The
conduct of the socalled dacoits in not assaulting or tying up Sanjay when they robbed him and that of Sanjay in voluntarily accompanying them to the
first floor of the room, runs counter to normal human conduct and gives rise to a serious doubt whether the incident occurred in the manner and course
as portrayed by Sanjay in the FIR. Secondly, the dacoits did not attempt to rob any article from the room of the victim, Shibananda but suddenly killed
him and left. This sequence of events give rise to irresistible conclusion that the miscreants along with Sanjay, had gone to the room of the victim to kill
him and not to commit dacoity, as alleged.
Thirdly, evidence of P.Ws.4, 5 and 7 who were sleeping at the adjacent room of Sanjay also improbabilises the case of dacoity. Although it is claimed
that the dacoits broke the lock on the grill gate and the latch on the door of Sanjay’s rom, the said witnesses did not hear any noise and were
woken up from their sleep hearing the hue and cry raised by Sanjay after the so-called dacoits had left. It is also strange that the dacoits did not enter
their room to commit dacoity and in an inexplicable way their door was found closed from outside till it was opened by Sanjay after the incident. These
circumstances wholly improbabilise the case of dacoity as portrayed by Sanjay in the F.I.R. On the other hand, his version that the miscreants could
be identified in the electric light probabilises the identification of the appellants as the miscreants who along Sanjay with had committed the murder of
the victim.
Evidence of P.W. 1 is, therefore, the most natural and convincing narration of the incident leading to murder of her husband. Her evidence is
corroborated by her relations, namely, P.Ws. 10, 14 and 15 and the peculiar circumstances of the case clearly explain her conduct in failing to disclose
the actual state of affairs to her in-laws and neighbours immediately after the incident. Indifference of the investigating officer (P.W. 33) is writ large
in the instant case. P.W. 33, the first Investigating Officer, not only refused to pay heed to the version narrated by P.W. 1 and her parents but sought
to discredit her by claiming that she had stated that the faces of the miscreants were covered. This version of P.W. 33 is out and out false as it is not
even supported by the narration of co-accused, Sanjay Sarkar in his purported FIR to the police wherein he claimed that the miscreants could be
identified in the electric light which was burning at the spot. Evidence of P.W. 1 with regard to the manner and course of the incident is also
corroborated by the post-mortem doctor, P.W. 32 who stated that the victim suffered gunshot injury resulting in his death.
In view of the fact that the appellants were known to P.W. 1 and had been named by her in the complaint lodged with D.D.I. on 10.9.2005, I fail to
understand why T.I. Parade was at all held in the instant case. However, the conduct of the police officers in the investigation of the instant case
leaves much to be desired. P.W. 33, first investigating officer, did not pay any heed to the grievances of the unfortunate wife, P.W. 1 and her parents
with regard to the actual offenders. On the other hand, P.W. 26, second investigating officer attached to Kotwali police station, proceeded to arrest
one Asit Biswas and had put him up in T.I. Parade for reasons best known to him. Callous indifference to pursue the real offenders in the instant case
is evident in the aforesaid steps taken by the investigating agency. In this backdrop, one is hardly surprised at mindless exercise of holding T.I. Parade
when P.W. 1 had categorically named appellants as the assailants in her complaint to D.D.I., Nadia. Accordingly, failure to exhibit the T.I. Parade
examination report and the arguments with regard to delayed examination of the appellants in the T.I. Parade are of little impact in the instant case. In
this backdrop, the authorities, namely, JT 2017 (1) SC 148, 2017 (3) ECN SC 1046 and 2017 (1) AI CLR (SC) 506 relied on behalf of the appellants in
connection with delayed examination of the accused in Test Identification Parade are clearly of no assistance to the appellants.
The obstinate resistance of P.W. 33, the first investigating officer, to record the version as narrated by P.Ws. 1, 10 and 14 with regard to the role of
Sanjay Sarkar and the appellants in the murder of the victim and the fact that their grievances were given credence for the first time after the
investigation was shifted to the hands of C.I.D., clearly explains why there was delay in examination of P.W. 1 with regard to the actual state of
affairs. The peculiar facts of the case, therefore, clearly render the authorities, namely, (2015) 2 Cal CLR Cal 882, AIR 1971 SC 804, (2016) 4 SCC
96 and AIR 1976 SC 2488, relied on behalf of the appellants relating to belated examination of witnesses factually distinguishable from the present
case. In none of the aforesaid authorities the Court was dealing with the case where the investigation by an earlier investigating agency was found to
be motivated and biased and hence, the said authorities have no manner of application to the facts of the case.
For the aforesaid reasons, I conclude that the evidence of P.W. 1 is wholly reliable and has not only been corroborated by her parents and relations,
namely, P.W.s 10, 14 and 15 but also gains credence from the gross improbability and/or absurdity in the false plea of dacoity raised by the absconding
accused, Sanjay Sarkar in his earlier complaint. Medical evidence of P.W. 32 also corroborates the version of the said eye-witness.
Hence, I uphold the conviction and sentence imposed on the appellants, namely, Prosenjit Mondal alias Astam Mondal, Ratan Mondal and Amrita
Mondal alias Amritan alias Tapas Mondal for commission of offence punishable under sections 302/34 of the Indian Penal Code. Although it is clear
from the evidence of P.W. 1 that the appellants had accompanied Sanjay Sarkar to the spot and had shared the common intention to murder the
victim, there is no evidence on record that they were in possession of and had used any illegal fire arms. Hence, I am inclined to acquit the appellants
of the charge under sections 27/35 of the Arms Act.
Accordingly, the appeal is disposed of. The period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from
the substantive sentence imposed upon them in terms of Section 428 of the Code of Criminal Procedure. A copy of the judgement along with L.C.R.
be sent down to the trial Court at once for necessary action. Urgent Photostat certified copy of this order, if applied for, be given to the parties on
priority basis upon compliance of all formalities.