Calcutta High Court (Appellete Side)
Surajit Das @ Narkel @ Surojit Das &Anr vs The State Of West Bengal on 18 August, 2025
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Rajasekhar Mantha
And
The Hon'ble Justice Ajay Kumar Gupta
CRA No. 519 of 2016
With
CRAN 2 of 2025
Surajit Das @ Narkel @ Surojit Das &Anr.
Versus
The State of West Bengal
With
CRA No. 608 of 2016
With
CRAN 1 of 2025
Tinku Naskar @ Poka
Versus
The State of West Bengal
For the Appellants : Mr. Sudipta Moitra, Sr. Adv.
Mr. Angshuman Chakraborty, Adv.
Mr. S. S. Sahu, Adv.
Mr. Saikat Ghosh, Adv.
For the State : Mr. Rana Mukherjee, Ld. A.P.P.
Mr. Sharequl Haque, Adv.
Hearing concluded on : 12th August, 2025
Judgment on : 18th August, 2025
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Rajasekhar Mantha, J.
THE APPEAL
1. The instant appeal is directed against judgment and order of conviction
dated 25th July, 2016 and 26th July, 2016 respectively, passed by the
Additional Sessions Judge, Fast Track, 2nd Court, Barrackpore, North 24
Parganas, in Sessions Trial No. 1(5) of 2013 arising out of Sessions Case No.
472 of 2012. The accused/appellants were convicted under Sections 302
and 34 of the IPC, as also under Sections 25 (1A) & 27 (2) of the Arms Act,
1959.
THE PROSECUTION CASE
2. The prosecution case is that on 16th July, 2012, the victim, Prosenjit Roy @
Rintu, while travelling on a motorcycle alone at about 06:15 am, was chased
by Tinku Naskar @ Poka, Surajit Das @ Narkel and Subrata Roy on another
motorcycle in a place called Kalitala, under Airport Police Station in Lake
Town Area.
3. The riders of the two motorcycles hit a bump and fell down. The victim,
Prosenjit Roy, started running towards the northern side of the road leading
to a vacant land. The aforesaid three accused persons were carrying 9mm
regular and improvised pistols, and shot the victim repeatedly on the back of
his head and the back of his abdomen. More shots were fired at the chest
and stomach of the victim after the accused collapsed on the road. The
victim died on spot. The aforesaid three accused persons thereafter climbed
onto the motorcycle and fled towards the southern side of the road towards
Bablatala. The incident occurred in front of Kali Park United Club, opposite
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the house of Ambar Nath Dutta, PW 6 and beside the house of Satrajit Sen,
PW 7.
4. The eyewitnesses to the incident were PW 10 Ahmed Ali @ Teni, an auto-
rickshaw driver and PW 11 Md. Iqbal, a mason. The police arrived upon
being informed, immediately after the incident. A formal complaint was
lodged by the wife of the deceased, Rakhi Roy (PW1), with the Airport Police
Station.
5. Inquest was conducted by PW 22 Subhasish Ghosh. The victim was
identified by PW1. PW 22 found the deceased had sustained bullet injuries
on the right side of his stomach, on the left side of his head, on the back
side of the left ear and on his back. The wearing apparel of the victim,
cartridges, a bullet head, a money bag and 2 mobile phones were seized in
the presence of 4 witnesses, including the wife and sister of the deceased.
The body was sent for post-mortem to R.G. Kar Hospital. The inquest officer
was also the investigating officer.
6. From the place of occurrence, three empty cartridges were seized along with
one bullet. The post-mortem report found 4 bullet injuries on the body of the
victim. The PM doctor found that the death was due to the effect of gunshot
injuries, ante mortem and homicidal in nature.
7. The seized bullets, cartridges, and weapons were sent for ballistics. After
completion of the investigation charge sheet was submitted against Tinku
Naskar @ Poka, Surajit Das @ Narkel, Debajoti Ghosh @ Babai, Surajit Das
@ Gourango, Sanjay Kumar Singh @ Pandit and Subrata Roy.
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THE TRIAL AND THE EVIDENCE THAT HAS COME ON RECORD
8. Charges were framed by the Sessions Court both under Sections 302 & 34,
Section 120 B of the IPC against all accused and under Section 25 (1A) and
27(3) of the Arms Act against the three accused Poka, Narkel and Subrata.
9. PW 1 was Rakhi Roy. She was the complainant who wrote the complaint in
her handwriting, and she identified the same. She deposed that her
husband left home for work, to a water pump in Teghoria, at around 6 am.
She received a phone call about the incident from the locals of Kali Park at
about 7:15 am. She identified her husband’s motorcycle and registration
number. She confirmed the inquest was done in her presence and put her
signature on the said report.
10. PW 2 was Ajit Sinha; he knew the deceased. He was not at the place of the
occurrence. He was informed over the telephone by accused Debojyoti
Ghosh @ Babai that the victim had been shot. PW 2 was at his house in New
Alipore at that time. He reached Babai at Baguihati at 8:30 am and went to
the hospital along with him, where the post-mortem was going on. He
returned to his flat after cremation.
11. He deposed that he was informed by Babai that on the latter’s instructions
Narkel, Poka, and Subrata had gone to Kali Park bylane in front of United
Club and shot the victim. He stated that Babai was present at Chinar Park
along with Sanjay Singh and Surajit Das where the conspiracy was hatched.
He further deposed that there was a dispute between the victim on the one
side and Babai, Sanjay and Surajit on the other in connection with land.
Babai also told PW 2 that had the first attempt by the appellants to
eliminate the victim, failed, one Sk. Anarul Islam @Khoka and one Mithun
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were waiting for Prosenjit at the victim’s place of work at the Pump House in
Baguihati, to kill him.
12. PW 2 identified all the accused persons in the Trial Court. He went to the
Airport Police Station on 7th August, 2012 and provided a statement under
Section 164 of the CrPC on 14th August, 2012. In cross-examination he was
confronted with having deposed in two trials, one in the Fast-track Court
no. 1 at Barasat, and in Bongaon in another case. He was also confronted
that he deposed in Sessions Trial before Fast-track Court No. 1 at Howrah
as also in connection with the English Bazar PS Case No. 526 dated
26.06.2010.
13. PW 3 was Balaka Das, sister of the deceased, who signed the inquest report.
14. PW 4 was Debasish Rakshit, who also signed the inquest report.
15. PW 5 was Indrani Paul, who was sweeping the floor in her uncle’s house
near Kali Park United Club at the place and time of occurrence. She saw one
person being chased by three other persons and saw someone firing. The
three persons sped away after shooting the victim hastily on a motorcycle.
16. PW 6 was Ambarnath Dutta, who saw the deceased lying on the ground
beside a lamp post in front of his house. He saw the three persons fleeing
away with a revolver in one of their hands on a motorcycle. He informed the
police over the telephone. He could not identify the accused.
17. PW 7 was Satrajit Sen. He lived opposite the United Club at Kalipark. He
was sleeping when the incident occurred and woke up on hearing the
commotion. He was declared hostile by the prosecution. He came to know
the identity of the deceased later. He deposed that the house of Ambar Dutta
(PW 5) was opposite his house and separated by a lane in the middle.
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18. PW 8 was Kamalika Paul, who is the granddaughter of PW 6. She was
plucking flowers in the garden of PW 6 at the time of the incident, and she
heard two to three sounds of a firecracker and heard the cry of ‘Bachao
bachao’ (save me, save me). She came out of her house and found many
others already gathered. She deposed that her house was opposite that of
PW 7, Satrajit Sen. She saw Prosenjit lying dead in front of her house.
19. PW 9 was Subrata Chowdhury. He was coming from Bablatala Bus Stop
after dropping his son in a bus. He heard sounds of firecrackers. He saw 3
persons speed away on a motorcycle.
20. PW 10, Ahmed Ali @ Teni, was an eyewitness to the incident. He
deposed that he was an auto-rickshaw driver on the route between
Narayanpur to Airport Gate No. 1. He resides at Kashipur. The owner of his
auto-rickshaw lived at Narayanpur and on the previous night, asked him to
bring a mason to work in his house. He had called PW 11 Iqbal, an
acquaintance of his, who was a mason. PW 11 lived in Park Circus and
came along with PW 10 on the date and time of occurrence. On the way to
Narayanpur, he got off the Bus near Kalitala, at Bablatala bus-stand, and
was going to Dhobiatala to collect money from a debtor. The I.O. (PW 22)
corroborated that PW 10 told him, in course of the investigation, that he was
walking through the said lane through Bablatala since it was also a shortcut
to go to Narayanpur.
21. PW10 further deposed that he got off at Kalitala Bus Stand and could see
United Club from a distance. He found two motorcycles thereat. The three
accused persons, namely Poka, Narkel and Subrata, were on one motorcycle
chasing the victim, who was on another motorcycle. The three persons had
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pistols in their hands. Both bikes fell down, hitting a bump. The victim was
running thereafter and dashed into a bi-cycle. The person on the bicycle
fled, and the aforesaid three accused shot the victim. The three accused
persons thereafter came back, picked up their motorcycle and fled away,
passing by PW 10.
22. PW 10 further deposed that he saw the faces of the accused and could
recognise them, and identified them in the Trial. He deposed that the
incident took place opposite the United Club, in between a cement light post
and an iron light post on 16th July, 2012, between 6 am and 6.15 am. He
thereafter went to the house of the owner of the auto-rickshaw at Naryanpur
to fetch his auto-rickshaw along with PW-11 and left the latter there. He
took the owner to the police station, where he narrated the entire incident.
He also deposed that he identified the three accused in a TI parade within
the Barrackpore Jail Premises.
23. In cross-examination, he reiterated the TI Parade. He stated that after the
incident and visit to the police station, he went about his usual work in the
day. He had breakfast at Narayanpur on that day and had dinner at his own
house. The entire incident that he saw happened in 5-7 minutes. His
evidence could not be shaken in cross-examination.
24. PW 11, Md. Iqbal, was the second eyewitness. He was a mason. He was
accompanying PW 10, his ‘Teni Chacha’, on the aforesaid date and time to
go to Narayanpur. He saw at the place and time of occurrence three persons
chasing another person in the direction in which they were walking. The
three fired gunshots at the victim, who had caught hold of the bicycle of a
vendor coming from the opposite direction. The vendor fled seeing the
8
incident. The two motorcycles were lying near the Club. The three
assailants, namely Subrata Roy, Tinku Naskar and Surojit Das, were
identified by PW 11 in the Trial Court. The assailants then shot the victim.
They then picked up their motorcycle and sped away in the direction
opposite to him.
25. He further deposed that he had gone to the police station in the evening at
7:30 on the same day, where his version was recorded by the IO.
26. PW 11 further deposed that after the incident, he went to the house of the
auto-rickshaw owner in Narayanpur and worked as a mason thereat for
most of the day. He returned home at about 11 pm. He stated that after the
incident, and before leaving him at Narayanpur, PW 10 told him that he
would come to Narayanpur to meet with him at 6 PM in the evening. He
deposed that he identified the accused in the TI Parade after the incident.
His evidence could not be shaken in cross-examination.
27. PW 12 was Dr. Somnath Das, who performed the post-mortem on the
victim. He reiterated his findings in the PM report and confirmed the same.
He also confirmed that the injuries sustained by the victim were 4 gunshot
wounds ante mortem and homicidal in nature. He confirmed that he had
preserved the blood, scalp hair, nail, skin around the injury and a bullet
head found inside the body of the victim for forensics. The injuries on the
victim found in the post-mortem were as follows:-
“Injuries: 1) one gunshot wound of entry 0.4″ by 0.3″, oval in shape,
irregular with inverted margins, with evidence of tattooing of gun
powder of a radius of 0.5″, placed obliquely over the right side of the
abdomenn7.5″ below the right nipple and 3” lateral to the midline o/d
and tracing the tract, it is seen to have pierced the skin, fascia muscles,
vessels nerves at the corresponding level then entered the abdominal
cavity traveling downward and backward it then pierced throughout
9the small intestinal loops, went out of the abdominal creating a wound
of exit 0.6″ by 0.4″ oval in shape irregular with everted margins 7″
vertically above the left anterior superior iliac spine
2) one gunshot wound of entry 0.4″ by 0.3″, oval in shape,
irregular with inverted margins, with evidence of tattooing of gun
powder of a radius of 0.5″, placed obliquely over the left side of the
back of the abdomen, 2″ above the left anterior superioir iliac spine and
5″ lateral to midline. o/d and tracing the tract, it is seen to have pierced
the skin, fascia muscles, vessels nerves at the corresponding level then
entered the abdominal cavity, it then pierced through the small intestine
loops, and then created a partial hole in the subcutaneous, pad of fat,
just beside the naval (inner aspect) from where a deformed bullet was
recovered. Direction of the track was upward and anteriorly and
divergent in nature.
3) one gunshot wound of entry 0.4″ by 0.3″, oval in shape,
irregular with inverted margins, with evidence of tattooing of gun
powder of a radius of 0.5″, placed obliquely over the left side of the
back of the abdomen, 6″ above the left anterior superior iliac spine and
5″ lateral to midline. o/d and tracing the tract, it is seen to have pierced
the skin, fascia muscles, vessels nerves at the corresponding level then
entered the abdominal cavity travelling almost horizontally and
forward. It then caused rupture of the loops of intestine and a deformed
bullet was recovered from inside of the body of the last lumbar vertebra.
4) one gunshot wound of entry 0.4″ by 0.3″, oval in shape,
irregular with inverted margins, with evidence of tattooing of
gunpowder of a radius of 0.5″, placed obliquely over the left mastoid
process. o/d and tracing the tract, it is seen to have pierced the skin,
fascia muscles, vessels nerves at the corresponding level then entered
the cranial cavity, caused lacerated injury of the inferior part of the
brain and finally it caused the fracture of the inner table of the middle
part of the right mastoid process, from where a deformed bullet was
recovered. No external injuries could be seen even after careful
examination under hard lens. All the injuries showed signs of vital
reaction.”
28. PWs 13 and 14 were Abul Kalam Molla and Saiful Laskar, respectively.
They were seizure witnesses of the 2 pistols, discovery whereof was made on
the basis of the leading statement of the accused Poka and Narkel. They
were randomly picked up by the police near their houses at Baguihati and
Lake Town, respectively. Pws 13 and 14 identified both Poka and Narkel in
Court. They also identified the pistols recovered from Poka and Narkel, as
10
shown by the latter in their respective houses. They signed the seizure list of
the weapons recovered. They were nowhere connected with the police or the
incident.
29. PWs 15 and 16 were Subhankar Mahesh and Pradip Chakraborty,
respectively, who were witnesses to the seizure of the earth, three empty
cartridges, one bullet head, one footwear, one necklace, one money bag, two
mobile phones and a black colored motorcycle, seized by the police at the
place of occurrence.
30. PW 17 was Bishal Mangrati, a Magistrate. He deposed that he conducted
the TI Parade of Poka, Narkel and Subrata at the Barrackpore correctional
home as per rules. They were identified by Md. Bahar Ali, PW 10, and PW
11, following due procedure. The TI report was exhibited in Court.
31. PW 18 was Kanchan Kumar Ghosh, who was the forensic expert who
performed the ballistic test on the 9mm pistol fitted with a magazine 7.5
inches long and identified the seized pistol.
32. PW 19 was Dr. Shampa Dhabal. She was the assistant director of the FSL,
Ballistic Division. She examined the bullets. Two of the fired cartridges
seized were fired from improvised 9 mm pistols having a length of 7.65 mm,
and the third cartridge was fired from a 9mm pistol. She confirmed in her
report that the bullets and cartridges matched the weapons seized from the
accused persons. She further deposed that the cartridges and bullets were
fired from the three pistols recovered from the accused persons, Poka,
Narkel and Subrata.
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33. PW 20 was Parag Neogi, another Magistrate, who conducted the TI Parade
of Subrata Roy. He confirmed that PW 10 and 11 identified Subrata Roy in
course of the TI Parade.
34. PW 21 was Biswajit Ghosh, the SI of Police, who recovered the improvised
9mm pistol, one nylon bag and a black colour Pulsar motorcycle used in the
incident from the house of the accused, Subrata. PW 21 accompanied the
I.O., Subhasish Ghosh, to Subrata’s house, where recovery was made upon
disclosure/leading statement made by Subrata. He put his signature on the
seizure list of the improvised 9 mm pistol and black Pulsar motorcycle, and
nylon bag, along with PW 13 and 14.
35. PW 22 was Subhasish Ghosh, the I.O. He deposed about the incident as
indicated above. He recorded the statement of two eye witnesses, PW10 and
11, on the evening of the date of the incident, i.e. on 16th July, 2012. He
conducted the inquest at the PO and seized cartridges, bullets, a money bag,
2 mobile phones and wearing apparel of the victim. He arrested Poka and
Narkel on 6th August, 2012. Subrata was arrested on 22 nd September, 2012.
Debajyoti Ghosh, Surajit Das and Sanjay Singh were arrested 22 nd August,
2012 and made a request for the TI Parade for the three accused persons,
Narkel, Poka and Subrata. He recorded the leading statement under Section
27 of the Evidence Act of the accused persons and recovered the weapons
from under the quilt on the cot in the house of Tinku Naskar and behind an
iron box in a polythene packet in the house of Narkel.
36. PW 22 further deposed that he recorded the statements of the accused Poka
and Narkel, under Section 161 of the CrPC and came to know of the co-
accused persons on the basis of such statements. He seized the weapons
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based on the leading statements of Poka, Narkel and Subrata against the
seizure list signed by PWs 13, 14, and 21.
37. After receipt of the post-mortem Report and Ballistic report, he filed a charge
sheet against all the accused persons u/s 302 read with section 34 and
section 120B of the IPC. His evidence could not be shaken in cross-
examination.
38. The accused were examined under section 313 of the CrPC.
THE DECISION OF THE TRIAL COURT
39. Based on the evidence, the Trial Judge convicted three of the six accused,
namely Poka, Narkel, and Subrata Roy u/s 302 read with Section 34 of the
IPC. The other accused, Debajyoti Ghosh @ Babai, Surojit Das @ Gourango,
and Sanjay Kr. Singh @ Pandit were acquitted. The Trial Judge did not find
the evidence of PW 2, the sole witness who deposed about the alleged
conspiracy under 120B of the acquitted persons, along with the convicted,
to be corroborated by any other witness. He also did not find the evidence of
PW 2 reliable. The Trial Judge, however, found favour with the evidence of
PW 10 and 11, duly corroborated by the evidence of other witnesses and
directed the conviction of the Poka, Narkel and Subrata.
ARGUMENTS OF COUNSEL FOR THE APPELLANTS AND THIS COURT’S
ANALYSIS.
40. Mr. Sudipta Moitra, learned Senior Advocate for the appellant, argued that
the framing of charges, under sections 302, 34, and 120B by the Trial
Judge, are inconsistent with each other since the same are not alternative.
The framing of the charge itself, being defective, invalidates the conviction of
the appellants. Reliance is placed on the case of Ramnath Madhoprasad v.
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State of M.P. reported in (1953) 1 SCC 178, particularly paragraph 28
thereof.
41. The object of framing and explaining the charges to the accused is to let
him/her know why and for what purposes he/she has been brought before
the Court. Along that line, the Hon’ble Supreme Court in Willie (William)
Slaney v. State of M.P. reported in (1955) 2 SCC 340 held that an
irregularity simplicitor, without anything more in the framing of the charge,
will not vitiate the trial. The said irregularity has to be demonstrated to be
of the next level by proving that such an irregularity has misled the accused
and his counsel to believe in something which has deprived him of a fair
trial. When an accused is represented by counsel in the Trial, and no
objection as regards the framing of the charge is raised at the stage of the
trial, it shall be deemed that the accused understood the purport of the
charges. In this regard, paragraphs 42, 44, and 53 of Willie (William)
Slaney (Supra) are set out below:-
“42. In adjudging the question of prejudice the fact that the absence of a
charge, or a substantial mistake in it, is a serious lacuna will naturally
operate to the benefit of the accused and if there is any reasonable and
substantial doubt about whether he was, or was reasonably likely to have
been, misled in the circumstances of any particular case, he is as much
entitled to the benefit of it here as elsewhere; but if, on a careful
consideration of all the facts, prejudice, or a reasonable and substantial
likelihood of it, is not disclosed the conviction must stand;also it will
always be material to consider whether objection to the nature of the
charge, or a total want of one, was taken at an early stage.If it was not,
and particularly where the accused is defended by counsel [Atta
Mohammad v. King Emperor [Atta Mohammad v. King Emperor, 1929 SCC
OnLine PC 110 : (1929-30) 57 IA 71 at p. 76 : (1930) 31 LW 306] at p. 74] it
may in a given case be proper to conclude that the accused was
satisfied and knew just what he was being tried for and knew what was
being alleged against him and wanted no further particulars, provided
it is always borne in mind that: (Abdul Rahman case [Abdul
Rahman v. King Emperor, 1926 SCC OnLine PC 65 : (1926-27) 54 IA 96 at
p. 109] , SCC OnLine PC)
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“… no serious defect in the mode of conducting a criminal trial can be
justified or cured by the consent of the advocate of the accused.”
But these are matters of fact which will be special to each different
case and no conclusion on these questions of fact in any one case can
ever be regarded as a precedent or a guide for a conclusion of fact in
another, because the facts can never be alike in any two cases “however”
alike they may seem. There is no such thing as a judicial precedent on facts
though counsel, and even Judges, are sometimes prone to argue and to act
as if there were.
44. This is not a case under Section 149 of the Indian Penal Code so the
question does not really arise but it is necessary to advert to the argument
because, on the view we take of Sections 225, 535 and 537, it is
immaterial what the offence is and whether there is a charge at all. The
only question is whether the irregularity occasioned prejudice.
53. We now turn to the question of fact: is there material in this case to
justify a finding of prejudice? that will turn largely on the differences
between Section 302 of the Indian Penal Code and Section 302 read with
Section 34 of the Indian Penal Code and on the measure of criminal liability
to which the appellant would be exposed in those two cases; and here
again, the matter must be viewed broadly and not in any technical or
pettifogging way.”
(Emphasis applied)
42. Paragraphs 55 to 57 of William Slaney (supra) held that it is only required
of the Court, framing the charge u/s 302 along with other sections relatable
to section 34 and section 120B, to indicate to the accused that he is being
tried for murder. The Court is not required to go a step further and inform
the accused that he is being tried for murder because he assisted the main
culprit. It is enough to inform the accused that he is on trial for murder.
The circumstances that have roped him into the crime are to be ascertained
by him. Paragraphs 55 to 57 are set out below:-
“55. It is clear from this that when the case is one of murder, the accused
is not entitled to be told in the charge how it was committed, whether
with a pistol or a lathi or a sword. He is not entitled to know from the
charge simpliciter any further circumstance. How then is he expected
to defend himself? He has the police challan, he has the evidence
recorded in the committal court, he hears the prosecution witnesses
and he is examined under Section 342 of the Code. It is these
proceedings that furnish him with all the necessary, and indeed vital
information, and it is his duty to look into them and defend himself. It
will be seen that if the logic of the appellant’s contention is carried to its
fullest extent, the accused could complain of prejudice because he was not
15told in the charge whether a pistol was used for the crime or a sword and if
a pistol, its calibre and bore and the type of cartridge.
56. Now when several persons join in the commission of a crime and share a
common intention, it means that each has the requisite intention in himself;
the fact that others share it does not absolve any one of them individually,
and when the crime is actually committed in pursuance of the common
intention and the accused is present at its commission, the crime becomes
the offence actually committed because of Section 114 of the Penal Code.
Section 114 does not create the offence nor does Section 34. These sections
enunciate a principle of criminal liability. Therefore, in such cases all
that the charge need set out is the offence of murder punishable under
Section 302 of the Penal Code committed by the accused with another
and the accused is left to gather the detailsof the occurrence as alleged
by the prosecution from other sources. The fact that he is told that he is
charged with murder committed by himself with another imports that every
legal condition required by law to constitute the offence of murder
committed in this way was fulfilled: Section 221(5) of the Criminal Procedure
Code.
57. Now what are those legal conditions? What is the effect of charging two
persons with a murder committed in pursuance of a common intention? It
means that the accused is unmistakably told that he participated in the
crime; exactly how, is no more a matter for the charge than it is to set out
the circumstances in which the murder was committed. It also means that
he is informed that it is immaterial who struck the fatal blow. The charges
here against the appellant and his brother Ronnie are identical. As there
was only one fatal blow and as only one person could have inflicted it and as
both are charged in this way, it can only mean that each is put on his guard
and made to realise that the prosecution allege that one of the two was
responsible for that and which must be discovered from the evidence and
not from the charge, just as surely as it must when the question turns on
who possessed or used a pistol and who a sword.
(emphasis applied)
43. The Appellant has not argued or stated in course of the trial that he was
misled by the procedure adopted for framing the charges. He has not
pointed out any prejudice caused to him as a result of the procedure in
question. The appellant has not challenged the framing of charges during
the Trial. Thus, the argument against the framing of the charge has no
substance.
44. This Court further notices that in the Ramnath decision (supra), the same
evidence under section 120B was applied for establishing the charge under
Section 34 of the IPC against the accused. The benefit of doubt in the said
case was given to the accused for several other omissions on the part of the
16
prosecution, and particularly the evidence of Dr. Tekchand. Serious doubts
were cast on the prosecution case since it was deposed by a witness that 4
persons fired from a single pistol. The said case is clearly distinguishable in
the facts of the present case.
45. In the case at hand, the charge u/s 302 read with section 34 of the IPC was
proved on the basis of the evidence of the eyewitness, i.e. the two chance
witnesses, PW 10 and 11. Their evidence was duly corroborated by several
other witnesses, namely, PW 3, 4, 5, 6, 7, 8, and 9. The charge u/s 302 and
34 has therefore been proved by independent and separate witnesses. PW 2
was the only witness whose evidence, if at all, could have been relied upon
for a charge under Section 302 read with Section 34 of the IPC. The Trial
Judge has rightly, in the opinion of this Court, disbelieved the evidence of
PW 2 for various reasons apart from the absence of due corroboration. The
evidence of PW 2 was not even considered for the purpose of proof of charge
under Section 302 and 34 of the IPC. The argument of Mr. Moitra,
therefore, cannot be accepted. The Ramnath (supra) decision is not
applicable in the facts of the present case.
46. It is next argued by Mr. Moitra that the place of occurrence differs between
the evidence of PWs 6 and 7. The sketch map prepared by the I.O. indicates
a third place. Since the actual place of occurrence is not clear, the same
constitutes a serious inconsistency in the prosecution case, and the
accused, therefore, could not have been convicted by the Trial Court.
Reliance in this regard is placed on a decision of a coordinate Bench of this
Court in the case of Mamfru Chowdhury v. Emperor reported in AIR
1924 Cal 323 at page 427.
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47. In the Mamfru Chowdhury case (Supra), there was no evidence to show
that the alleged incident happened at the time and in the place and under
the precise circumstances narrated by the witnesses for the prosecution.
There were several inconsistencies in the version of the witnesses. However,
in the instant case, the evidence of PWs 10 and 11 is clear and explicit that
the incident occurred in front of the Kalitala United Club. The said club is
situated near the houses of PW 5, 6, and 7. The evidence, that the body of
the deceased was found near a lamp post in front of the house of PW 6, is
corroborated by the evidence of PWs 4, 5, 6, 7, 8, and 9. A minor
discrepancy between the versions of PWs 5, 6, 7, 8, and 9 cannot be stated
to be so serious, moreso, when the same is duly corroborated by the
evidence of PWs 10 and 11. The Mamfru Chowdhury case (supra),
therefore, cannot come to the aid of the appellant.
48. It is next argued by Mr. Moitra that PW 11 initially deposed that he was not
interrogated by the police. He immediately thereafter corrected himself
when he said that he had gone to the police station at 7:30 pm on the same
day to lodge a diary. He must have given a statement to the Police u/s 161
of the Cr.P.C. on the same day in the evening. This is corroborated by the
I.O. (PW 22). He also identified the accused in the TI parade. The decision of
the Supreme Court in the case of Bimal Suresh Kamble v.
Chaluverapinake reported in (2003) 3 SCC 175 at paragraph 16, cited by
Mr. Moitra, cannot come to the aid of the appellants.
49. Mr. Moitra next argued that there is no evidence to show how PW 11 came
from Park Circus to meet PW 10 near Bablatala Bus Stand. The evidence of
PWs 10 and 11, being chance witnesses, and their presence at the place of
18
occurrence, must be explained properly. Reference in this regard is made to
the decision of Jarnail Singh v. State of Punjab reported in (2009) 9 SCC
719 paragraphs 20 to 23 thereof.
50. PWs 10 and 11 indeed happened to be at the place of occurrence by
chance. PW 10 has deposed clearly that he got off at Bablatala Bus Stand
to take a shortcut to Narayanpur, where his auto-rickshaw owner lived. He
also deposed that the owner of the auto-rikshaw wanted a mason to work
in his house and therefore he asked PW 11 to come. PW 11 has referred to
PW 10 as a chacha or uncle. The possibility of PW 10 coming over early in
the morning in search of work and the two meeting up at a particular place,
to go to the auto-rickshaw owner’s house via a shortcut, cannot be stated
as unusual or out of the ordinary. It is a common occurrence among daily
wage workers on building sites, to look for work and arrive thereat or at a
pickup point early in the day. The presence of PWs 10 and 11, i.e. the
chance witnesses, at the place of occurrence is clearly established.
51. In the Jarnail Singh case (supra), Gurcharan Singh (PW 18 therein) could
not explain under what circumstances he was present at the bus stand at
the time of the occurrence. In the said decision, caution was placed while
accepting the evidence of the chance witnesses.
52. As already seen above, the presence of PWs 10 and 11 has been sufficiently
explained by the prosecution. They have also explained what they did after
the incident. PWs 10 and 11 went to the house of the auto-rickshaw owner.
PW 10 took out the auto-rickshaw and went about running the auto-
rickshaw on the same route as he does every day, i.e., between Narayanpur
and Airport Gate No. 1. PW 11 has clearly deposed that he worked for most
19
of the day doing masonry work and laying bricks at the house of the auto-
rickshaw owner. Both PWs 10 and 11 deposed that they went to the police
station in the evening. PW 22 deposed that he recorded the statement of
two persons on the evening of the date of occurrence, 16 th July, 2012.
53. The presence of PWs 10 and 11 at the place and time of occurrence and
their conduct thereafter has been sufficiently and clearly explained by their
evidence, duly corroborated by the evidence of PW 22. The events as
narrated by PWs 10 and 11 are, in substance, corroborated by the evidence
of PWs 4, 5, 6, 7, 8, and 9. The dicta in Jarnail Singh (supra) as regards
the evidence of chance witnesses, if applied to PWs 10 and 11, would make
their evidence wholly reliable.
54. The dicta in Rajesh Yadav and Another v. State of Uttar Pradesh
reported in (2022) 12 SCC 200 has dealt with and explained the conditions
and realities of our country. A common person may end up on a road, in
search of work, where he sees something that becomes relevant to a
criminal trial. The luxurious concept, where home is considered a castle,
may not apply in our country, where, to earn a livelihood and to sustain a
home, one may need to roam from one place to another in search of work.
Para no. 29 of Rajesh Yadav (supra) is set out below:-
“29. A chance witness is the one who happens to be at the place of
occurrence of an offence by chance, and therefore, not as a matter of course.
In other words, he is not expected to be in the said place. A person walking
on a street witnessing the commission of an offence can be a chance
witness. Merely because a witness happens to see an occurrence by
chance, his testimony cannot be eschewed though a little more
scrutiny may be required at times. This again is an aspect which is to
be looked into in a given case by the court. We do not wish to reiterate
the aforesaid position of law which has been clearly laid down by this Court
in State of A.P. v. K. Srinivasulu Reddy [State of A.P. v. K. Srinivasulu
Reddy, (2003) 12 SCC 660 : 2005 SCC (Cri) 817] : (SCC pp. 665-66, paras
12-13) “
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12. Criticism was levelled against the evidence of PWs 4 and 9 who are
independent witnesses by labelling them as chance witnesses. The
criticism about PWs 4 and 9 being chance witnesses is also without
any foundation. They have clearly explained as to how they
happened to be at the spot of occurrence and the trial court and
the High Court have accepted the same.
13. Coming to the plea of the accused that PWs 4 and 9 were “chance
witnesses” who have not explained how they happened to be at the
alleged place of occurrence, it has to be noted that the said witnesses
were independent witnesses. There was not even a suggestion to
the witnesses that they had any animosity towards any of the
accused. In a murder trial by describing the independent
witnesses as “chance witnesses” it cannot be implied thereby that
their evidence is suspicious and their presence at the scene
doubtful. Murders are not committed with previous notice to
witnesses; soliciting their presence. If murder is committed in a
dwelling house, the inmates of the house are natural witnesses. If
murder is committed in a street, only passers-by will be
witnesses. Their evidence cannot be brushed aside or viewed with
suspicion on the ground that they are mere “chance witnesses”. The
expression “chance witness” is borrowed from countries where
every man’s home is considered his castle and everyone must
have an explanation for his presence elsewhere or in another
man’s castle. It is quite unsuitable an expression in a country
where people are less formal and more casual, at any rate in the
matter explaining their presence.
(Emphasis Applied)
55. It is next argued by Mr. Moitra that there are inconsistencies between the
post-mortem report and the inquest report. According to Mr. Moitra, the
inquest report indicates that the victim sustained 7 injuries, whereas the PM
report indicates 4 gunshot wounds (GSW).
56. This Court, after a careful examination of the inquest report, finds only 4
injuries mentioned therein. Even assuming for the sake of argument that
there are some inconsistencies between the PM report and the inquest
report, it is quite possible that while examining a victim of several gunshot
wounds with clothes on, the inquest officer may not find all the wounds
sustained by the victim. He is not a medical doctor or a qualified medical
practitioner. The contention of Mr. Moitra is therefore not accepted by this
Court.
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57. The inquest report, as per the merit of section 174 of Cr.P.C., requires the
inquest officer to ascertain whether the death is natural or unnatural, not
the number of injuries caused with mathematical precision. The subjective
opinion is based on a non-expert but objective assessment of the nature of
injuries suffered by the deceased, and the attending circumstances of the
PO, whereas the post-mortem report is a scientific assessment of the
injuries suffered by the deceased. Reference in this regard is made to the
decision of the Hon’ble Supreme Court in Amit Kumar v. Union of India
reported in 2025 SCC OnLine SC 631, which is set out hereinbelow:-
“20. The pivotal question that falls for our consideration is whether the
Police was justified in closing the matter upon conclusion of the inquiry
under Section 174 of the CrPC? In other words, whether recourse to inquest
proceedings under Section 174 of the CrPC obviates the requirement of
registration of F.I.R.? To put it in a still lucid manner, whether an
inquest report discovering the cause of death would be good enough to
close the matter without registration of an F.I.R.?
22. The proceedings under Section 174 of the CrPC should be kept more
distinct from the proceedings taken on the complaint. Investigation under
Section 174 is limited in scope and is confined to the ascertainment of
the apparent cause of death and should not be equated with
investigation into cognizable offences under Sections 160 and 161 of
the CrPC respectively. The procedure under Section 174 of the CrPC is for
the purpose of discovering the cause of death and the evidence taken is
very short. Sub-section (4) of Section 174 empowers any District
Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate
specially empowered in this behalf by the State Government or the District
Magistrate to hold inquest. The inquest held by the magistrate under
Section 174 is distinct from an inquiry under Section 202.
23. The inquest proceedings are concerned with discovering whether
in a given case the death was accidental, suicidal, homicidal, or
caused by an animal and in what manner or by what weapon or
instrument the injuries on the body appear to have been inflicted,
therefore, the evidence taken is very short. (See : Chaman
Lal v. Emperor, AIR 1940 Lah 210, at 214)
26. In contrast, an investigation under Section 174 of the CrPC focuses on
ascertaining the apparent cause of death in cases of unnatural or
suspicious deaths. This position has been well explained by this Court
in Pedda Narayana v. State of Andhra Pradesh, (1975) 4 SCC 153. The
proceeding under Section 174 is limited in scope and fundamentally distinct
from investigations aimed at prosecuting offences. Inquest proceedings are
conducted by the police or a Magistrate and conclude with the filing of an
inquest report before the Sub-Divisional Magistrate (SDM), District Judge,
or Magistrate as the case may be. The relevant observations are reproduced
herein below:
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11. A perusal of this provision would clearly show that the object of
the proceedings under Section 174 is merely to ascertain whether a
person has died under suspicious circumstances or an unnatural
death and if so what is the apparent cause of the death. The question
regarding the details as to how the deceased was assaulted or
who assaulted him or under what circumstances he was
assaulted appears to us to be foreign to the ambit and scope of
the proceedings under Section 174.In these circumstances,
therefore, neither in practice nor in law was it necessary for the
police to have mentioned these details in the inquest report. […]”
(Emphasis applied)
58. The next argument by Mr. Moitra is by reference to the case of
Subhramaniam v. State of Karnataka reported in (2023) 11 SCC 255 at
paragraphs 69 and 78 and the case of Pulukuri Kottaya v. King Emperor
reported in AIR 1947 Privy Council 67, particularly paragraph 10 thereof.
It is submitted that the requirements of section 27 of the Evidence Act
mandate the recording of the leading statement of the accused in the
presence of two witnesses in the custody of the police. The same two
witnesses must accompany the accused to discover the weapon, apparel or
other evidence used for committing, in course of and after, the offence.
59. This Court, however, refers to the decision of the Hon’ble Supreme Court in
the case of State Govt. Of NCT of Delhi v. Sunil reported in (2001) 1 SCC
652, particularly paragraph 20, which is set out hereinbelow:-
“20. Hence it is a fallacious impression that when recovery is effected
pursuant to any statement made by the accused the document prepared by
the investigating officer contemporaneous with such recovery must
necessarily be attested by the independent witnesses. Of course, if any such
statement leads to recovery of any article it is open to the investigating
officer to take the signature of any person present at that time, on the
document prepared for such recovery. But if no witness was present or if
no person had agreed to affix his signature on the document, it is
difficult to lay down, as a proposition of law, that the document so
prepared by the police officer must be treated as tainted and the
recovery evidence unreliable. The court has to consider the evidence of
the investigating officer who deposed to the fact of recovery based on the
statement elicited from the accused on its own worth.”
(Emphasis applied)
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60. Reference may also be made to the decision in Perumal Raja v. State,
reported in 2024 SCC OnLine SC 12, wherein it was held as follows:-
“30. However, evidentiary value to be attached on evidence produced before
the court in terms of Section 27 of the Evidence Act cannot be codified or
put in a straightjacket formula.Itdepends upon the facts and
circumstances of the case. A holistic and inferential appreciation of
evidence is required to be adopted in a case of circumstantial
evidence.”
(Emphasis applied)
61. It is therefore clear and explicit from the above dicta that the procedure
followed in the instant case i.e. recording the statement of Poka, Narkel and
Subrata in the Police Station, allowing them to lead the police to their
houses where the three pistols were recovered and seized along with the
black Pulsar motorcycles, duly witnessed by one independent person and
one police personnel, are sufficient to prove due compliance of section 27 of
the Evidence Act and the lawful discovery of the weapons and the motor
cycles used by the accused persons in killing the victim.
62. The prosecution has not relied upon the three pistols discovered based on
the leading evidence of Poka, Narkel and Subrata alone. They have
supported the charge against the accused based on the account of the two
eyewitnesses, PWs 10 and 11. The evidence of PWs 10 and 11 is duly
corroborated by the evidence of PWs 4, 5, 6, 7, 8, and 9. The decision of
Mustaqeem v. State of Rajasthan reported in (2011) 11 SCC 724, cited
by Mr. Moitra, cannot be applied to the facts of this case.
63. In view of the above, this Court finds that the convictions of the appellant
and two others, namely, Narkel and Subrata, call for no interference at all.
CRA 519 and 608 of 2016 stand dismissed. There shall, however, be no
order as to costs.
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64. Urgent certified photocopy of this judgment, if applied for, be supplied to the
parties upon completion of all requisite formalities.
(Rajasekhar Mantha, J.)
I Agree
(Ajay Kumar Gupta, J.)