Being aggrieved by and dissatisfied with the judgment and order of
conviction dated 29.06.2015 and 30.06.2015 passed by the Learned
Additional Sessions Judge (In-Charge), Fast Track, 4th Court, (Barrackpore)
in Sessions Trial No. 2(2) of 2010 [arising out of Sessions Case No. 413 of
2009] convicting the appellants under Section 302/34 of the Indian Penal
Code, the instant criminal appeal has been preferred on the grounds, inter
alia, that the Learned Trial Judge did not consider the evidence on record in
its proper perspective and further the learned Trial Judge did not consider
the fact that though there was no whisper in the FIR and inquest report
regarding dying declaration of the victim, the Learned Judge has relied upon
an afterthought oral dying declaration of the victim beyond authority. The
PW1, the defacto-complainant is an interested witness and he was in
custody in connection with another case for murdering one Mahendra
Chowdhury and, therefore, reliance upon the evidence of PW1 by the
Learned Trial Judge, is a misplaced one. The deposition of PW2, an alleged
eye witness, cannot be relied upon in view of contradiction taken in the
deposition of the investigating officer. Though there was sufficient departure
from the initial case in the FIR and subsequent material improvement in the
prosecution case, the Learned Trial Judge did not consider the anomalies.
There are sufficient vital witnesses who ought to have been examined but
actually they were kept outside the process of investigation and trial of the
case. Therefore, for non-production of such vital witnesses, adverse
2025:CHC-AS:1328-DB
presumption is to be drawn against the prosecution case. There are multiple
laches in investigation and further, there are ample deficiencies in the
prosecution case and, therefore, the judgment and order of conviction as
aforesaid is liable to be set aside. Mr. Rahman, learned counsel for the
appellants has further submitted that PW3 Babujan Ansari who allegedly
took the victim with bleeding injuries to hospital was unable to show that
his wearing apparels were blood stained at the relevant time. Moreover, the
concerned auto driver in whose auto the victim was allegedly taken to
hospital was not examined. The doctor who examined the victim first was
also not called on as a witness.