Calcutta High Court (Appellete Side)
Gobinda Saha & Anr vs The State Of West Bengal on 14 August, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CRA 336 of 2017
IA No: CRAN 1 of 2017 (Old No: CRAN 2382 of 2017)
CRAN 2 of 2017 (Old No: CRAN 4987 of 2017)
CRAN 5 of 2023, CRAN 6 of 2024
Gobinda Saha & Anr.
Vs.
The State of West Bengal
With
CRA 255 of 2021
IA No: CRAN 2 of 2022
Debasish @ Bapi Biswas & Anr.
Vs.
The State of West Bengal
With
CRA 294 of 2017
IA No: CRAN 5 of 2023
Pranab Bar
Vs.
The State of West Bengal
With
CRA 382 of 2017
IA No: CRAN 3 of 2024
Supriya Mallick @ Rana
Vs.
The State of West Bengal
For the Appellant No. 1 : Mr. Phiroze Edulji, Sr. Adv.
subha
In CRA 336 of 2017 Mr. Saryati Datta, Adv.
karmakar
Digitally signed by
subha karmakar
Date: 2025.08.14
15:27:14 +05'30'
2
For the Appellant No. 2 : Mr. Imtiaz Ahmed, Adv.
In CRA 336 of 2017 and Ms. Ghazala Firdaus, Adv.
Appellant in Mr. Mazhar Hossain, Adv.
CRA 382 of 2017 Mr. Sk. Saidullah, Adv.
Mr. Mithun Monda, Adv.
Mr. Md. Arsalan, Adv.
Ms. Zannat Haque, adv.
For the appellant in : Mr. Sandipan Ganguly, Sr. Adv.
CRA 294 of 2017 Ms. Priyanka Sarkar, Adv.
Mr. Mazhar Hossain, Adv.
For the Appellants in : Mr. Pabir Kumar Mitra, Sr. Adv.
CRA 255 of 2021 Ms. Subhasmita Ghosh, Adv.
For the State in : Ms. Anasuya Sinha, Ld. APP
CRA 255 of 2021 Ms. Rajnandini Das, Adv.
For the State in : Ms. Faria Hossain, Adv.
CRA 382 of 2017 Mr. Ejaj Aktar, Adv
For the State in : Ms. Amita Gaur, Sr. Adv.
CRA 336 of 2017 Ms. Paramita Sahu, Adv.
Hearing Concluded on : July 15, 2025
Judgement on : August 14, 2025
DEBANGSU BASAK, J.:-
1.
Four appeals have been heard analogously as they
emanated out of the same impugned judgement of conviction
and the order of sentence passed by the learned Additional
Sessions Judge, Chandernagore, in Sessions Trial No.
02/2008 arising out of Sessions Case No. 138/2007.
2. By the impugned judgement of conviction, learned
Trial Judge has convicted all the appellants before us under
sections 120B/396/201/412 of the Indian Penal Code, 1860
and sentenced all the appellants to life imprisonment,
3
amongst others. Learned Trial Judge has convicted and
sentenced 6 persons in aggregate.
3. One of the convicts, Pranab Bar (hereinafter referred to
as PB, for the sake of convenience) has filed CRA (DB) 294 of
2017. Gobinda Saha (GS) and Suklal Sen (SS) have filed CRA
(DB) 336 of 2017. Supriya Mallick (SM) has filed CRA (DB) 382
of 2017. Bapi Biswas (BB) and Tapash Karmakar (TK) have
filed CRA (DB) 255 of 2021.
4. Learned advocate appearing for PB has drawn the
attention of the Court to the case of the prosecution before the
trial Court. He has submitted that, on the basis of the written
complaint made by the prosecution witness (PW) No. 1 police
registered the first information report on February 6, 2007
under sections 302/201 of the Indian Penal Code, 1860.
Subsequently, another police station had registered a First
Information Report dated February 9, 2007 under section
302/201 of the Indian Penal Code, 1860. Subsequently,
Criminal Investigation Department, West Bengal had taken up
the investigation of both the police cases. As both police cases
arose out of same incident, the second police case had been
clubbed with the first one.
4
5. Learned advocate appearing for PB has contended
that, the prosecution relied upon the testimony of an approver
to bring home the charges. He has contended that, testimony
of the approver has to be corroborated in material particulars.
The statement of approver has to be proved to be a reliable
one and that, statement of the approver requires
corroboration in the form of independent evidence. In the
present case the same is absent for the Court to rely upon the
testimony of the approver and convict the appellants.
6. Learned advocate appearing for PB has contended
that, the approver being PW 8 was arrested on May 17, 2007.
PW 8 had been confined by the police for more than 4 days
without producing him before a judicial magistrate. PW 8 had
been produced before the Court on May 20, 2007. During the
period from May 17, 2007 till May 20, 2007, PW 8 had been in
4 different police stations. Therefore, according to him, the
possibility of PW 8 being tutored by the police cannot be ruled
out.
7. Learned advocate appearing for PB has contended
that, the strangulation of the victims was allegedly done by a
Gamcha (Indian towel). Such offending weapon was not
identified at the trial as the same had not been produced
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before the learned Trial Judge. No forensic examination had
been done on the alleged offending weapon.
8. Learned advocate appearing for PB has contended
that, the prosecution witnesses have made contradictory
statements about the seizure of various articles. He has
referred to the testimonies of PW 17 and 44 in this regard.
According to him, such seizure list witnesses have given
contradictory statements with regard to the place of seizure
also.
9. Learned advocate appearing for PB has contended
that, the prosecution cannot take advantage of Section 27 of
the Evidence Act, in the facts and circumstances of the
present case. He has relied upon All India Reporter 1947
Privy Council 67 (Pulukuri Kotayya and Others vs. King
Emperor) in support of his contention that, a statement that
the accused led the police and the witnesses to the place
where he had concealed the articles is not indicative of the
information given. According to him, prosecution has failed to
establish the link between the discovery of the material
objects and its user in the commission of the offence.
10. Learned advocate appearing for GS has referred to the
so-called evidence as against GS. He has contended that, the
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evidence of PW 8 clearly established that, GS never intended
to commit any murder. At best, GS can be said to have
planned a dacoity which never happened. He has contended
that, the initial plan of committing dacoity which was allegedly
communicated to PW 8 by GS did not happen. He has pointed
out that, the incident of murder has happened inside the
Scorpio vehicle when, GS was admittedly not in such vehicle,
but driving the Bolero vehicle. Therefore, according to him, the
charge of murder as against GS has not been proved. He has
contended that, GS cannot be convicted on the basis of
Section 120 B of the Indian Penal Code, 1860 in the facts and
circumstances of the present case.
11. Learned advocate appearing for GS has pointed out
that, no test identification parade was held. PW 33 had sought
to identify GS at the trial, one year after the alleged incident
without a test identification parade being held. He has
questioned the credibility of PW 33 in this regard.
12. Learned advocate appearing for GS has contended
that, at best, GS can be implicated under Section 399 of the
Indian Penal Code, 1860, since the initial plan for committing
dacoity did not fructify. The subsequent events have not been
established to be preplanned.
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13. Learned advocate appearing for the GS has relied upon
1940 SCC Online PC 27 (Mirza Akbar vs. The King-
Emperor), 1957 SCC Online SC 15 (Shardul Singh
Caveeshar vs. State of Bombay) and 1998 Volume 4
Supreme Court Cases 351 (State of Gujarat vs.
Mohammed Atik & Ors.).
14. Learned advocate appearing for SS and SM has
referred to the police complaint, investigation, chargesheet, as
well as the charges framed. He has also referred to the
evidence under Section 313 of the Criminal Procedure Code.
15. Learned Advocate appearing for SS and SM has
submitted that, prosecution witnesses were not eye-witness to
the murder. Testimony of PW 1, according to him is hearsay.
He has also referred to the testimonies of various prosecution
witnesses, and contended that, such prosecution witness
cannot be trusted.
16. Learned Advocate appearing for SS and SM has
contended that, there are serious doubts as to the purported
recovery of the seized articles. He has contended that, the
seizure lists were not made in accordance with law.
17. Relying upon 1975 Volume 3 Supreme Court Cases
742 (Ravinder Singh vs. State of Haryana) learned
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Advocate appearing for SS and SM has contended that, an
approver is an untrustworthy witness since, approver had
bargained for his immunity. He has contended that, an
approver has to establish his inculpability in the crime so as
to implicate him in a manner giving rise to a conclusion of
guilt beyond reasonable doubt. He has contended that, in the
facts of the present case, PW 8 has not crossed such test.
18. Learned Advocate appearing for SS and SM has drawn
the attention of the Court to Section 114 of the Evidence Act.
He has contended that, the ingredients of Section 114 and
133 of the Evidence Act, have not been fulfilled in the facts of
the present case. He has also referred to Section 138 of the
Bharatiya Sakshya Adhiniyam, 2003 and contended that,
there is a paradigm shift from the earlier provisions of the
19. Learned Advocate appearing for SS and SM has
contended that PW 22 who conducted the autopsy on one of
the victims stated that, the possibility of accidental death of
such victim cannot be ruled out. He has referred to the Post
Mortem Report of the other victim and submitted that, final
opinion with regard to the cause of death was kept pending.
9
20. Learned Advocate appearing for SS and SM has
contended that, the prosecution failed to prove the charges as
against his client beyond reasonable doubt. He has relied
upon AIR 1968 SC 832 (Haroon Haji Abdulla vs. State of
Maharashtra) and 1970 Volume 2 Supreme Court Cases
122 (Sheshanna Bhumanna Yadav vs. State of
Maharashtra) in this regard.
21. Learned Public Prosecutor has contended that, the
prosecution was able to bring home the charges against the
appellants beyond reasonable doubt. He has contended that
the testimony of PW 8 is reliable. Other Prosecution Witnesses
have corroborated the testimony of PW 8. Other Prosecution
Witnesses have proved major portion of the incident. Some
portions of the incident have been supplied by PW 8. They
have corroborated each other.
22. Learned Public Prosecutor has contended that,
initially, there was a conspiracy for the purpose of committing
dacoity on a particular person. PW 8 has narrated about such
incident. Thereafter, since the targeted person did not turn
up, the appellants had gone ahead committed dacoity and
murdered two victims. He has contended that, the prosecution
witnesses cannot be said to be untrustworthy. Therefore,
10
according to him, the judgment of conviction and the order of
sentence should be upheld.
23. Police had received two written complaints which were
treated as First Information Reports by two different police
stations. The first written complaint had been lodged with
Singur Police Station on February 6, 2007 and the next one at
Dadpur Police Station on February 9, 2007. Criminal
Investigation Department of the Police of the State of West
Bengal had taken up the investigations of both the cases. On
completion of investigations, police had submitted a
chargesheet.
24. Learned Trial Judge had framed charges against PW 8
under Section 201/34/412 of the Indian Penal Code, 1860
while as against the appellants, charges were framed under
Section 120B/396/34/302/201/412 thereof.
25. In order to prove the charges, prosecution had
examined 50 witnesses at the Trial Court. Prosecution had
tendered various documentary and material evidences at the
trial which were marked as Exhibits. On completion of the
evidence of prosecution, all the appellants had been examined
under Section 313 of the Criminal Procedure Code where they
claimed themselves to be innocent and falsely implicated.
11
26. The person who discovered one of the dead bodies has
deposed as PW 1. He has described the manner in which, he
found the dead body. He has stated that, since he was
illiterate he took the help of PW 3 to file the written complaint.
He has identified his Left Thumb Impression on the written
complaint which he stated was drawn up under his
instructions. He has also witnessed a seizure conducted by
the police. He has identified his Left Thumb Impression on the
seizure list.
27. Another person who saw the other dead body lying on
the side of the bypass emanating from Durgapur Expressway
going towards Singur has deposed as PW 2. He has witnessed
a seizure conducted by the police, identified the seizure list as
also the seized articles at the trial which were marked as
Exhibits.
28. Scribe of the first complaint has deposed as PW 3. He
has described how he transcribed the written complaint on
the instructions of PW 1. Written complaint has been
tendered in evidence and marked as Exhibit 1.
29. A relative of one of the deceased has deposed as PW 4.
He has stated that, the deceased was an engineer by
profession. Deceased had gone for office work, and since the
12
deceased did not return, office of such deceased lodged a
missing diary with the police on February 7, 2007. He has
stated that, on February 8, 2007 he along with the police and
other relatives went to the Singur Police Station. At the Singur
Police Station they were informed that an unknown dead body
had been discovered on February 6, 2007. Singur Police
Station had shown the photograph of such dead body and the
wearing apparels of such deceased. He had identified the
photograph as well as wearing apparels as that of one of the
victims. He has identified such wearing apparels which were
marked as Material Exhibits at the trial. He has also identified
the footwear of the deceased.
30. An employee of the company in which, one of the
victims was working has deposed as PW 5. He has stated that,
such victim was working as an engineer. He has stated that,
on February 5, 2007, he has seen such victim to leave
Himadri Chemicals in a Scorpio vehicle which was green in
colour. He has stated that, such vehicle was driven by his
relative, another victim. He has stated that, both the victims
went towards Durgapur at about 5:45 PM.
31. A driver of the company in which, the victims were
working, has deposed as PW 6. He has stated that, he usually
13
drove the Scorpio vehicle used in the criminal cases. He has
stated that, on February 5, 2007, he did not drive that vehicle.
One of the victims had driven such vehicle on such date. He
has stated that, both the victims did not return on February
7, 2007. Subsequently on February 8, 2007 he along with the
family members of one of the victims had gone to the Singur
police station where they were shown the wearing apparels
and shoes of one of the victims which they identified.
Subsequently, on the Scorpio vehicle being recovered he had
gone to the police station where the same was recovered. He
did not see any number plate of the Scorpio vehicle either in
the front or on the back at that point of time. As he was the
driver of such vehicle, he had known where articles were kept
inside the vehicle. Police had opened the vehicle and on
examining it closely, he found the papers of that vehicle were
missing. A tape recorder, wiper, sound system and the AC
machine had also been found to be missing. Police had
thereafter summoned him to which he responded. He had
been shown the number plates of the Scorpio vehicle as well
as the reflector.
32. PW 6 has been re-examined subsequently. The number
plates of the Scorpio vehicle had been shown which were
14
identified by PW 6 and tendered in evidence and marked as
Material Exhibits. The reflector of the Scorpio vehicle being
shown to PW 6 he has identified the same and it was marked
as Material Exhibit.
33. Supervisor of the company in which, the victims were
working has deposed as PW 7. He has stated that, on
February 7, 2007 he was at Himadri Chemicals. On February
7, 2007, both the victims had come to Himadri Chemicals in
the Scorpio vehicle and after holding talks with him, both the
victims left at around 5:45 PM on such date. Subsequently, he
has learnt that, the victims were murdered.
34. PW 8 is one of the accused and has deposed as an
approver. He has stated that, he was in custody in such police
case and came to the Court from jail to depose. He has stated
that, he was a driver at IBM Call Centre, Salt Lake, Sector-5,
Kolkata. He has stated that he used to drive the Bolero car
and that, SS was his replacement driver of the Bolero car. He
has identified the owner of the Bolero.
35. PW 8 has identified all the appellants in Court. He has
stated that, save and except SM, all the accused persons were
from his village although, they were not relatives.
15
36. PW 8 has stated that, on February 4, 2007, between
7:30 PM and 8 PM, GS rang him over telephone and told him
that on February 5, 2007 GS required a vehicle.
37. PW 8 has stated that, GS insisted that PW 8 provide
GS with the Bolero vehicle. GS had told PW 8 that, an old man
of Nabadeep area would withdraw Rs. 5,00,000/- from his
account and that, they would snatch such money from such
old person over the bridge at Nabadeep. GS had offered PW 8
one fifth of the snatched money. PW 8 had told GS that PW 8
will not be giving the Bolero vehicle for such job. GS had told
PW 8 that since, PW 8 knew about the job if PW 8 did not
come with the vehicle, GS will render PW 8 in such a
condition that PW 8 would never be capable of driving.
38. PW 8 has stated in his testimony that, since his
financial condition was not good and being afraid, he agreed
to the proposal of GS. GS had rang PW 8 on February 5, 2007
at about 7.30 a.m to ensure that PW 8 would be with the
vehicle. PW 8 had then enquired of GS as to where PW 8
should go with the vehicle whereupon, GS told him to arrive at
Madhyam Gram Bridge at about 10 A.M on the same day.
39. PW 8 in his evidence has stated that after his
conversation with GS he went to the PW 27 and obtained the
16
Bolero car. PW 8 has stated that, the PW 27 had made over
the Bolero car and warned PW 8 that the owner of the car was
out for four days. Thereafter, PW 8 had taken the Bolero car to
the Arati Cinema Hall at Madhyam Gram within 10 a.m on
February 7, 2005. TK, GS, DS and SS had come to the spot at
about 10.30 a.m. They had boarded the Bolero car and
reached National Highway 34 and proceeded towards
Krishnanagar through that road. While proceeding towards
Krishnanagar GS had told PW 8 to stop the car at Hela
Battala under Barasat Police Station where, SM will board the
vehicle. SM had boarded the vehicle there and all of them
proceed towards Krishnanagar and ultimately towards
Nabadeep. After crossing Krishnanagar, they had stopped at a
hotel where PW 8, DS, SM and SS had Kachuri. GS had paid
the price.
40. PW 8 has stated that, after eating, they have proceeded
further and after crossing Nabadeep Bridge, they stopped at a
hotel at Bahadurpur. There TK and SS had rice and fish.
Since, the fish of TK was rotten, an altercation had taken
place with the owner of the hotel. GS had paid the price of
meal. PW 8 has stated that while waiting at that hotel, GS told
them that, since all of them were together, people may become
17
suspicious and that they should leave the hotel. Accordingly,
all of them had gone to Nabadeep Bridge and waited there.
They had reached Nabadeep Bridge at about 3 p.m and waited
there for about half an hour. Thereafter, two boys had come
with the bike and told GS that the person who was to
withdraw the money would not come today and told him to go
back. When such persons had left, GS told PW 8 to go back to
their house and so, he started proceeding towards their house
at that point of time. Thereafter, within 5/7 minutes GS had
received a phone call just after crossing Nabadeep Bridge. On
receiving such phone call GS had told PW 8 to stop the vehicle
whereupon, PW 8 stopped the vehicle at the side of the road.
GS had alighted from the vehicle and went in front of the
vehicle and talked in his mobile. GS had come back to the
vehicle and told them that, as PB is waiting at Memary Road
in front of Kristi Hall, they should go there.
41. PW 8 has stated that he knew PB as he was from the
same village as him. After hearing of the new assignment, PW
8 had told GS it was not within the agreement. Then, GS told
PW 8 that GS has nothing to do as PB called him and
therefore, they must go there. PW 8 had told GS that there
was insufficient fuel in the vehicle. GS had offered to purchase
18
the fuel. Thereafter, PW 8 was compelled to go towards Kalna
Road after crossing Nabadeep Bridge. After travelling for some
time towards Kalna Road, they had stopped at a petrol pump
under the name of Dhatri Petrol Pump where fuel was
purchased. GS had paid the price. After refueling, GS had told
PW 8 that since PW 8 was frightened and would not be able to
drive the vehicle smoothly, PW 8 should take a seat in the
vehicle and that GS would drive the vehicle. Accordingly, GS
had driven the vehicle from that point.
42. PW 8 has stated that, from such point, the vehicle took
the Burdwan-Memary road and proceeded towards the Krishti
Hall where PB was waiting. PB had boarded the vehicle and
took a seat beside PW 8. PB had a new gamcha (Indian towel)
with him.
43. PW 8 has stated that, PB told GS to go slowly towards
the Highway Road. On hearing Highway Road and on seeing
the Indian towel PW 8 had raised a suspicion in his mind and
asked PB as to what his plan was where upon, PB told PW 8
that he would snatch a vehicle from the Highway Road. PW 8
had told PB that it was not easy to snatch any car from the
Highway Road as there are many police patrol in all times and
that PW 8 was a man with his family. In reply PB had told PW
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8 that PB had done many severe crimes but the police could
not arrest him and that for such small job they will not be
able to arrest them. Then PB had GS to stop the vehicle.
Accordingly, GS had stopped the vehicle on the left side of the
Highway Road. PB had directed GS to come to the back seat
and directed PW 8 to drive the vehicle. Accordingly, PW 8 had
started driving the vehicle. PB had directed PW 8 to go
towards Durgapur. They had taken the Durgapur Road and
going further, they had found one green coloured Scorpio
vehicle to overtake them. PB had noticed that there were two
persons in such Scorpio vehicle. PB had directed PW 8 to
follow and chase such Scorpio vehicle. Accordingly, PW 8 had
started chasing the Scorpio vehicle. After driving for about 5
to 10 kilometers PW 8 had started driving the vehicle slowly.
PW 8 had told PB that the Scorpio vehicle had gone too far
and that it was not possible to catch the Scorpio vehicle after
chasing it.
44. PW 8 has stated that PB being angry brought out two
firearms from his waist and pointed it towards PW 8 and told
PW 8 that he must catch the Scorpio vehicle or else PW 8
would not be able to return. Thereafter, PB had kept those
firearms at the side of the seat of PW 8.
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45. PW 8 had thereafter, started chasing the Scorpio
vehicle and after travelling for about 30/40 kilometres
towards Durgapur he overtook the Scorpio vehicle. PB had
told him to stop the Bolero vehicle so as to guard the Scorpio
vehicle and on such direction PW 8 had stopped the Bolero
vehicle to guard the Scorpio vehicle.
46. PW 8 has stated that, thereafter, PB got down from the
vehicle and fixed his revolver at the driver of the Scorpio
vehicle. SM had also alighted from the Bolero vehicle and fixed
another revolver at the head of a person sitting beside the
driver of the Scorpio vehicle and compelled him to take a seat
in the middle seat of the Scorpio vehicle. Then PB had
compelled the driver of the Scorpio vehicle to take a seat in
the back seat of the Scorpio vehicle. PB had taken the seat at
the side of the person who was sitting in the middle seat of the
Scorpio vehicle. TK and DB had sat in the middle seat of the
Scorpio vehicle along with PB and one of the victims in the
back seat which the driver of Scorpio vehicle was compelled to
take. In the back seat of the Scorpio vehicle, SM had pointed
his fire arms at the head of the driver of the Scorpio vehicle.
SS had also sat on the back seat of the Scorpio vehicle.
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47. PW 8 has stated that PB then directed GS to drive the
Bolero vehicle and directed PW 8 to drive the Scorpio vehicle.
Thereafter, they had proceeded towards Dankuni. GS was
driving the Bolero vehicle behind the Scorpio vehicle which
was being driven by PW 8.
48. PW 8 has stated that coming towards Dankuni, the
Scorpio vehicle was in front of the Bolero vehicle. Before
approaching the toll-tax, GS had gone ahead with the Bolero
vehicle and arranged for the tickets of the toll-tax.
49. PW 8 has stated that, PB asked one of the victims,
namely Jyoti Prakash Biswas (for the sake of convenience
referred to as JPB) as to what such person does. JPB had
stated that he was an engineer. JPB then asked PB as to what
PB wanted from JPB. PB had told JPB to surrender everything
in the possession of JPB.
50. PW 8 has identified the place as Gurap as he saw a
writing on the side of the road. PW 8 has stated that TK and
DB took the wrist watch, mobile and the silver chain from
JPB. SM had snatched the mobile of Kanchan
Das (KD) who was the driver of the Scorpio vehicle. PB had
told JPB to surrender whatever more JPB KD had with him.
JPB had voluntary surrendered the money bag taking it out
22
from his pocket. PB had opened such money bag and counted
Rs. 1200/-. PB had then told JPB that since JPB was an
engineer why did JPB have a mere Rs. 1200/-. Thereafter, PB
had started assaulting JPB. JPB with folded hands had
repeatedly asked them not to kill him and take everything
from him. PB had told JPB that, if they did not kill JPB they
will be arrested by the police. PW 8 had told PB not to kill JPB
as he had already given everything. PW 8 had advised PB to
leave JPB on the side of the road after tying his hands and
feet and not to kill him. On hearing such request, PB had got
angry and directed PW 8 to drive the Scorpio vehicle and allow
them to do their jobs.
51. PW 8 has stated that JPB was compelled to lie down in
the middle of the Scorpio vehicle. TK, DB and SS had caught
hold of JPB forcibly. PB had used the Gamcha ( Indian towel)
to strangulate JPB for about 10-15 minutes through his neck.
JPB had become restless, hovered and died.
52. PW 8 has stated that, KD on seeing the incident of
murder of JPB burst into tears and prayed for his life. SM had
started assaulting KD as he was crying. Then, PB had said
that they will kill KD also.
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53. PW 8 has stated that, on hearing that they would kill
KD, PW 8 told PB to spare KD as KD was not their enemy,
did not do anything wrong and KD maintained his livelihood
by driving only. PW 8 had requested PB to spare the driver,
KD.
54. PW 8 has stated that the dead body of JPB was kept at
the down place in the middle seat where the passengers keep
their feet. Then KD was compelled to lie down on the middle
seat likewise as JPB. TK, DB, SM and SS had pressed KD in
the middle seat. KD was crying and had screamed for help. As
KD was crying PB had pressed his Gamcha (Indian towel) over
the nose and face of KD for 10-15 minutes. KD had hovered
and died. Dead body of the KD was laid over the dead body of
JPB.
55. PW 8 has stated that, since the height of the dead body
and height of the seat became parallel, others had sat over
such dead bodies while he was driving the vehicle.
56. PW 8 has stated that, going through Durgapur
Expressway they took a left turn as directed by PB. Such road
had gone towards Dantpur. After going a little bit on the road
with dead body PB had directed him to stop the vehicle beside
a small field. PW 8 had stopped the vehicle. PB had gone down
24
from the vehicle and took the seat beside PW 8 at the left side.
TK, DB, SS and SM had taken the dead body of the KD and
threw it. Dead body of KD went rolling into the field.
57. PW 8 has stated that thereafter, they came back to
Durgapur Expressway and proceeded towards Dankuni. After
travelling about 10-15 Kms again, they had taken a left turn
on to a road. Place was dark and PB had directed PW 8 to
avail that road. At that place, the shops were closed but from
a writing on the shops, PW 8 has stated that the place was
Singur. After going through that left side road, the dead body
of JPB was taken out of the Scorpio vehicle and thrown on the
side of the road. Thereafter, they had turned towards the
Durgapur Expressway and availed of the same and proceeded
towards Dankuni to Rathtala.
58. PW 8 has stated that at Dankuni, they had got another
toll tax, where, the Scorpio vehicle arrived first and then the
Bolero vehicle. From Rathtala, they had availed of the BT
Road and proceeded towards Sodepur. Just before
approaching Sodepur there had stopped at a petrol pump at
the left side of the road before Swadesi Bus Stand. From such
petrol pump, they had purchased fuel for the Scorpio vehicle
but no bill was accepted.
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59. PW 8 had stated that when they approached first at
the junction of Kalna Road from Sodepur PB had directed PW
8 to stop the vehicle there and so PW 8 stopped the vehicle.
PB had told PW 8 to go to his house with the Bolero vehicle
and that the others will go with the Scorpio vehicle. So, PW 8
had got down from the Scorpio vehicle and took the Bolero
vehicle. PB had given Rs. 500/- to PW 8. TK had given a wrist
watch and told PW 8 that the wrist watch was given as a gift.
PW 8 has identified the colour of the dial of the wrist watch as
golden and the colour of the belt to be brown. He has
identified such wrist watch at the time of trial which was
marked as Material Exhibit VII. He has identified his signature
on the seizure list dated May 19, 2007,
60. PW 8 has stated that, he came back to his house with
the wrist watch, Rs. 500/- and the Bolero vehicle at about
12.30 midnight. The appellants had gone with the Scorpio
vehicle. At about 6.30-7.00 am on February 10, 2007, PB had
contacted PW 8 on telephone. PB had told PW 8 that PB was
sending the Scorpio vehicle with GS. PB had directed PW 8 to
service the Scorpio vehicle, change the Registration number of
the Scorpio vehicle and resend the Scorpio vehicle. PW 8 had
denied to do so. PB however, had insisted to perform the job.
26
Accordingly, GS had brought the Scorpio vehicle and waited at
the junction of Kalna Road of Sodepur and called PW 8. On
receiving such telephone, PW 8 had gone to the Scorpio
vehicle when GS gave PW 8 Rs. 300/- and keys of the Scorpio
vehicle.
61. PW 8 has stated that, when he entered the Scorpio
vehicle he could not see the CD player. PW 8 had enquired
about the same from GS who answered that, PB removed the
CD, woofer, audio system set and the A.C machine of the
Scorpio vehicle. PW 8 had stated that after leaving GS he went
with the Scorpio vehicle through VIP Road via Airport. PW 8
had stated that since he was a driver, he knew various service
centers of Salt Lake so he wanted to go to one of such service
centers. When he was going towards such service center, he
saw police at the Baguihati crossing, checking vehicles. On
seeing the police, PW 8 had thought that the Scorpio vehicle
did not have any number plate and that the vehicle was of
another person and the two victims were killed in the Scorpio
vehicle so being afraid, he left his Scorpio vehicle on the side
of the road and fled away. He has described the spot of his
fleeing as just before approaching Baguihati towards Kolkata.
27
62. PW 8 has stated that he was thinking about
surrendering before the police and not to flee away. So, on
May 17, 2007 while he was going to Barasat from Belgharia
for surrendering, police had arrested him at Belgharia Bazar.
He has stated that after arrest police interrogated him. He had
told the police about the wrist watch. He had also confessed to
the police about the entire incident. Police had reduced his
statement in writing. He has identified such recorded
statement which was marked Y for identification at the trial.
He has stated that, the wrist watch was seized by the police
from his house. He has identified his signature on such
seizure list. He has also said that, he disclosed an intention to
state every incident before a judicial magistrate and that,
when he was so produced, he reduced his statement in
writing. He has tendered such statement which was marked
as Exhibit 3 series.
63. Defence has cross-examined PW 8 extensively.
However, defence has not been able to extract anything
favourable to them by way of such cross-examination.
64. The supervisor of the company at which both the
victims were working has deposed as PW 9. He has identified
the wrist watch of JPB which was already marked as Material
28
Exhibit VII. He has identified the silver chain fitted with locket
of JPB which was tendered in evidence and marked as
Material Exhibit VIII. He has stated that, the investigating
officer of the case came to the office and asked for papers in
connection with the Scorpio vehicle which he supplied. He has
identified his signature on the seizure list which was marked
as Exhibit 4. He has identified his signature on the invoice of
the Scorpio vehicle which was marked as Exhibit 5.
65. Another supervisor of the company where the victims
were working has deposed as PW 10. He has stated that, the
company was executing a contract to excavate and fill up the
earth by Himadri Chemicals of Singur. He has stated that,
JPB was the engineer of the company and that JPB used to
look after the work of Himadri Chemicals. He has stated that,
on February 5, 2007 JPB went out of their office to look after
their work at Himadri Chemicals. He had come with KD and
the green colour Scorpio vehicle. JPB had a black office bag
when he came out of the office on February 5, 2007. He has
stated that both JPB and KD did not return and as such they
searched for them. When they could not find out about JPB
and KD they had informed Arabinda Police Station on
February 7, 2007. He has stated that, the owner of the
29
company, PW 12, had also informed the incident to the police
station. On February 8, 2007 he along with the police officer
went to Singur when they had come to learn about an
unknown dead body lying at the morgue of Serampore Walsh
Hospital. Singur Police had shown the wearing apparels of
JPB which he identified as that of JPB. He has stated that, on
February 9, 2007 they had come to know that in the Dadpur
Police Station area an unknown dead body was recovered.
They had gone to Dadpur Police Station along with the
brother-in-law of KD. There, police had shown the wearing
apparels of KD and that the same were identified as that of
KD. He has stated that, PW 4 submitted a prayer for the dead
body of JPB. As a seizure list witness, he has identified his
signature on the seizure list. He has identified the bag of JPB
which was marked as Material Exhibit IX. He has identified
two number plates and the reflector of the Scorpio vehicle
which was marked as Material Exhibits.
66. The police officer who arrested PB has deposed as PW
11. He has stated that, after arrest, PB was interrogated
when, PB disclosed that there were two murder cases against
PB. He has identified his signature on the seizure list.
30
67. The owner of the company at which the two victims
worked has deposed as PW 12. He has stated that, JPB was
an engineer of his company. JPB used to look after the work
at Himadri Chemicals. He has stated that, on February 5,
2006 JPB had gone to Himadri Chemicals along with KD by
the Scorpio vehicle bearing No. WB 40 F 9963 and they did
not return on the same day. So, on the next date they had
searched for JPB and KD and could not find them. He has
stated that, he caused a General Diary to be entered.
Subsequently, he had come to learn that both were murdered.
68. The police officer who seized the Scorpio vehicle has
deposed as PW 13. He has stated that he seized an unclaimed
Scorpio vehicle on February 10, 2007, green in colour and
without any number plate in front of a showroom of Windsor
Honda of Baguihati Kai Khali at VIP road on the airport flank.
After seizing, he had brought the unclaimed vehicle to the
Baguihati IC and informed the IC of Rajarhat Police Station
and the Officer-in-charge of Baguihati Police Station about the
same. He has also furnished a message to all police station in
West Bengal. Subsequently, CID Officer had come with regard
to the seized unclaimed vehicle.
31
69. A seizure list witness who saw the seizure of the Bolero
vehicle has deposed as PW 14. He has been declared hostile
by the prosecution. He did not add any value to the case of the
prosecution or the defence.
70. A Technical Inspector of the Department of Motor
Vehicle under the R.T.O Durgapur has deposed as PW 15. He
has stated that, he inspected the Scorpio vehicle bearing
police registration No. WB-40F-9963 at the investigation
center of Baguihati. He has tendered the report of such
inspection in evidence which was marked as Exhibit X.
71. The police officer who entered the General Diary on
February 7, 2007 with regard to JPB and KD not returning to
their office has deposed as PW 16. He has stated that, he
registered a General Diary of such missing persons. He has
also stated that, subsequent to discovery of the dead body, the
relatives had come and identified the same.
72. A police officer who was present during seizure of
various articles on May 19, 2007 has deposed as PW 17. He
has stated that, a tape recorder was seized from DB. He has
identified such tape recorder which was marked as Material
Exhibit X/1. He has also identified various other material
exhibits which were tendered in evidence and marked
32
Exhibits. He has identified his signatures on the label of such
material exhibits. He has stated that, PB brought out a plastic
bag from the south-western corner of the tile roof of his house
which contained two pipe guns and two live cartridges. He has
stated that, such articles were also seized. He has identified
his signature on such seizure list.
73. PW 17 has stated that, PB brought out a silver chain
fitted with the locket from beneath the Cot. He has witnessed
the seizure. He has tendered such seizure list which was
marked as an exhibit. The seized silver chain fitted with the
locket was identified by him.
74. PW 17 has stated that, thereafter, the police party
went to the house of PW 8 when PW 8 brought out a Timex
wristwatch from the table inside his room which was also
seized by a proper seizure list. He has identified his signature
in such seizure list. He has stated that, an AC compressor
was seized from the house of DB which he identified at the
trial and the same was marked as a material exhibit. He has
also identified his signature on the label as also on the seizure
list with regard thereto. He has stated that after the firearms
were seized from DB the same were kept with Ghola police
33
station. He has identified the seized pipe guns and live
cartridges.
75. The police officer who had made over the General Diary
entry in relation to the police cases has deposed as PW 18. He
has tendered his signature in the seizure list in evidence.
76. Another police officer who had witnessed the seizure of
another General Diary Entry in relation to the police case has
deposed as PW 19. He has tendered his signature on such
seizure list which was marked as an exhibit.
77. The judicial magistrate before whom, PW 8 had
recorded a statement under section 164 of the Criminal
Procedure Code has deposed as PW 20. He has stated that, on
the strength of the order passed by the then Additional Chief
Judicial Magistrate, PW 8 was produced before him with the
direction to record his statement under section 164 of the
Criminal Procedure Code. He has stated that, on May 22,
2007, he sent PW 8 for segregation with the direction to
produce PW 8 on May 23, 2007. Accordingly on May 23, 2007
PW 8 was produced before him from jail custody and identified
by a constable. PW 8 had made a statement before him on
May 23, 2007 which he recorded complying with all requisite
formalities. He had noted such fact in the order dated May 23,
34
2007. He has stated that the statement of PW 8 was recorded
in question-and-answer form. Before recording the statement,
he had ascertained on putting question to PW 8 whether he
would make the statement voluntarily or not. He had assured
PW 8 that, PW 8 can give his statement voluntarily. He has
tendered the statement of PW 8 recorded on May 23, 2007 in
evidence and the same was marked as Exhibit 3A.
78. A police personnel then posted at Dadpur police
station has deposed as PW 21. He has stated that, on May 24,
2007 officers of CID came to the police station and directed
him to hand over the two General Diary Entries bearing No.
294 dated February 6, 2007 and 446 dated February 9, 2007.
He had produced those two General Diary Entries before such
officers who seized the same in his presence. He has identified
his signature on such seizure list. He has also tendered such
General Diary Entries in evidence which were marked as
Exhibit 24 and 25.
79. The medical officer who had performed the post-
mortem on the dead body of KD has deposed as PW 22. He
has described the apparent external injury which he found on
the dead body. He has stated that in his opinion the death of
KD was due to the effect of intra-cranial haemorrhage. He has
35
tendered his post-mortem report in evidence which was
marked as Exhibit 26. He has stated that on April 17, 2007
the investigating officer had raised queries with regard to the
cause of death. He has stated that, he answered such queries
in writing. He has tendered enquiries received by him in
evidence which was marked as Exhibit 27. He has stated that,
the death of KD was homicidal.
80. The police personnel who was present during the
seizure of the Bolero vehicle has deposed as PW 23. He has
stated that, officers of the CID requested for assistance on
March 14, 2007. He has stated that, he was on mobile patrol
duty on the night of March 13, 2007. He has stated that, CID
officers came along with 3 accused persons when, as per the
identification of such accused persons, a Bolero vehicle was
seized. He has tendered his signature on the seizure list in
evidence which was marked as an exhibit.
81. The first investigating officer of the Dadpur police
station case No. 20/07 dated February 9, 2007 under section
302/201 of the Indian Penal Code, 1860 has deposed as PW
24. He has stated that, on February 6, 2007, one of the
Assistant Sub-Inspector of police of Dadpur Police station
received a telephonic information that an unknown dead body
36
was found in the field at the eastern side of the highway
towards Kolkata in the area near the village Ayma under the
police station. Such assistant sub- inspector had in turn
informed him. As such, he had gone to such place along with
force. He had found the dead body lying there and there was
an assembly of persons. He had taken photographs of the
dead body through the digital camera of a local cameraman.
He has tendered 7 photographs which were taken by such.
Such 7 photographs were tendered in evidence and marked as
Material Exhibit XIX series. He had registered an unnatural
death case. He had made an inquest over the dead body and
prepared a report with regard thereto which was tendered in
evidence and marked as Exhibit 28. He has stated that, after
making the inquest, he sent the dead body through a
constable to the hospital along with relevant papers for post-
mortem examination. He has tendered the dead body challan
which was marked as Exhibit 29. He has stated that on
February 6, 2007 he seized articles which were found lying
nearby the dead body by a seizure list which he tendered in
evidence and the same was marked as Exhibit 30. He has
identified the articles seized and the same were tendered in
evidence and marked as Material Exhibits. He had flashed a
37
message to all the officer-in-charge of the police stations in the
State.
82. PW 24 has stated that, on February 7, 2007 he
received the wearing apparels of KD which he seized by
preparing a seizure list. He has tendered the seizure list in
evidence which was marked as Exhibit 31. He has stated that
on February 9, 2007 officers of Durgapur police station along
with some persons visited his police station. He had shown
the seized garments in the photos of the dead body when, the
brother-in-law of KD had identified the dead body as that of
KD. Such brother-in-law of KD had lodged a written complaint
on the basis of which, Dadpur police station case No. 20/07
dated February 9, 2007 under sections 302/201 of the Indian
Penal Code, 1860 was instituted. He has stated that, during
investigations, he examined those persons who came to visit
the police station and recorded their statements. He had
visited the place of occurrence along with those persons and
prepared a rough sketch marked with the index thereof. He
has tendered the rough sketch map and the index in evidence
which was marked as Exhibit 32. He has stated that on
February 12, 2007 he went to Himadri Chemicals to verify as
to whether, the victims visited such place on February 5, 2007
38
or not. He had collected the post-mortem report of KD. He had
handed over the case to the CID on the order of his superior
officer.
83. An official of the National Highway Authority has
deposed as PW 25. He has stated that, upon the request of
CID officers, the Project Director of National Highway
Authority directed him to supply information of vehicles
passing through the toll plaza. Accordingly, he had supplied
such information in writing. Such writing has been marked as
Exhibit 33. He has stated that he is the person who maintains
the system record at both the toll plazas.
84. The doctor who performed the post-mortem on the
dead body of JPB has deposed as PW 26. He has stated that,
in his opinion the time of death was 36 hours from the time of
autopsy. He had conducted the autopsy on February 6, 2007.
He has stated that, the death was due to asphyxia due to
strangulation by ligature, ante mortem and homicidal in
nature. He has tendered the post-mortem report of JPB which
was marked as Exhibit 34. He has stated that, the injuries he
found on dissection of the dead body may be caused if
anybody is strangulated by means of soft articles like cloth,
39
gamcha (Indian towel) and napkin. Defence had declined to
cross examine PW 26.
85. A person who worked as a driver of the Bolero vehicle
has deposed as PW 27. He has identified the owner of the
vehicle and its police registration number which was WB 25B
3561. He has stated that PW 8 also used to drive the same
vehicle on shift. He has corroborated the statements of PW 8
relating to the events of February 5, 2007 when, PW 8 took
the vehicle from him.
86. PW 27 has stated that, on February 5, 2007, PW 8
called him over mobile phone and asked him to go to the over
bridge of Sodpur and informed him that PW 8 purchased a
Scorpio vehicle which was seized by the finance company. PW
8 had also stated that, TK, DB, SM, GS and SS were also with
him. He has stated that, he knew them since they were from
the same village. He has stated that, he went to the over
bridge and waited till 11:30 PM but PW 8 did not turn up. He
had gone there to bring the Bolero vehicle back. Since PW 8
did not turn up, he had returned to his house. On the next
day at about 7 AM, PW 8 had returned the Bolero vehicle with
the vehicle keys and relevant papers to him. On February 7,
40
2007 at about 11 AM he had seen PW 8 to drive a green colour
Scorpio vehicle.
87. In cross-examination, PW 27 has stated that, police
detained him for about 3 days in connection with the case out
of which 2 days were at Dunlop police station and one day at
Serampore police station.
88. A relative of the owner of the Bolero vehicle has
deposed as PW 28. He has identified his signature on the
seizure list which was tendered in evidence and marked as
exhibit.
89. An employee of Dhatri Gram Automobile Petrol Pump
has deposed as PW 29. He has described the location of the
petrol pump. He has stated that, on February 5, 2007 the
petrol pump was open and that it is now closed. On March 15,
2007 police had come to the petrol pump and seized the cash
memo book by a seizure list in his presence. He has identified
his signature on such seizure list. He has also identified a
carbon copy of the receipt in the cash book which was
tendered in evidence and marked as Exhibit 36. He has stated
that on March 15, 2007 police had brought 3 accused persons
to the petrol pump. He has stated that, such 3 accused
persons had put their signatures on Exhibit 36.
41
90. In cross-examination, PW 29 has stated that, the
receipt issued on February 2, 2007 stated that, the fuel was of
Rs. 500/-. He has identified the scribe of such receipt.
91. Another employee of such petrol pump has deposed as
PW 30. He has stated that, he along with another person used
to sit at the counter and issued receipts to persons who
purchased fuel from the petrol pump. He has identified the
handwriting on the subject receipt as written by his co-
employee. He has stated that, on such receipt, the vehicle
number being WB 25B 3561 was written and that, diesel for
the value of Rs. 500 was purchased. The receipt had been
tendered in evidence and marked as Exhibit 37. He has
identified his signature on the seizure list dated March 15,
2007. He has corroborated PW 29 with regard to the police
coming to the petrol pump on March 15, 2007 and bringing 3
accused persons. He has stated that, the co-employee and he
put their respective signatures on Exhibit 37. He has also
corroborated PW 29 that the 3 accused persons had signed
the seizure list.
92. In cross-examination, PW 30 has stated that, he had
no personal knowledge in the matter of selling fuel on the
strength of Exhibit 37. He has also stated that, the vehicle
42
number was not mentioned in Exhibit 37 and subsequently,
the vehicle number was mentioned when police told them to
do it. He has however denied the suggestion that the entire
receipt was prepared at the request of the police.
93. The owner of the Bolero vehicle has deposed as PW 31.
He has stated that, the vehicle was hired by the call centre of
IBM at sector 5 of Salt Lake. He has stated that on February
5, 2007 he had 2 drivers for that vehicle namely PW 8 and PW
27. He has identified PW 8 in Court. He has stated that on
January 26, 2007 he went to Bihar and came back on
February 12, 2007. He has stated that, his vehicle plied for 24
hours by those 2 drivers alternatively. As the owner he had
kept information as to which driver plied the vehicle at what
point of time. He has also stated that on February 5, 2007, his
vehicle did not go to the call centre and that on such date, PW
8 had the duty to drive that vehicle. On such date, PW 8 had
taken the vehicle from PW 27 along with the vehicle keys and
relevant papers.
94. In cross-examination, PW 31 has stated that, he came
to learn that the vehicle did not go to the call centre on
February 12, 2007 and when he called PW 27 about the same,
43
he was informed that, PW 8 had taken the vehicle on February
5, 2007.
95. An employee of Bharti Airtel Limited Company has
deposed as PW 32. He has stated that, on the letter received
from the investigating officer, the company had provided the
call details recording of mobile phone number belonging to
KD. He has tendered the response letter of the company in
evidence which was marked as Exhibit 38. He has tendered
the call details record which was marked as Exhibit 39.
96. The owner of the hotel at Bahdurpur has deposed as
PW 33. He has described the location of his hotel. He has
stated that in the month of February 2007 he was at his hotel.
He has stated that, 6/7 persons in the age group of 21 to 27
years came in an ash coloured vehicle and enquired as to
whether there was rice in his hotel or not, at about 2/2:30
PM. He told them that, rice for all of them could not be
available and that it can be for two persons only. Accordingly,
two of them had lunch in his hotel consisting of rice, dal and
fish. After taking their lunches, they told him that, the fish
was not good so he did not take the price for the fish. They
had given a Rs. 50 note as the price for the two dishes. He had
taken Rs. 28/- and returned Rs. 22/-. He had identified all the
44
accused in Court. In cross-examination, he has stated that, it
is possible for him to state which customer takes food of bread
and which customer takes food of rice at his hotel. In cross-
examination he has also stated that, he can say which of the
two accused had taken rice from his hotel on that date.
97. An employee of the IBM Call Centre has deposed as
PW 34. He has witnessed the seizure made by the police. He
has tendered the seizure list in evidence which was marked as
Exhibit 40 and his signature as Exhibit 40/1. He has
identified the paper made over to the police which was marked
as Exhibit 41. He has also tendered the computer statement
as to the movement of a particular vehicle which was marked
as Exhibit 42. He has stated that Exhibit 42 contains
information of the movement of the Bolero vehicle for the
period from February 1, 2007 till February 26, 2007. He has
stated that, Exhibit 42 would show that, the Bolero vehicle did
not come to their office on February 5, 2007. He has identified
PW 8 in Court.
98. A seizure list witness of seizure made on March 18,
2007 has deposed as PW 35. He has tendered the seizure list
which was marked as Exhibit 43. He has identified his
signature and tendered another seizure list of the same date
45
which was marked as Exhibit 44. In cross-examination he has
stated that, police recovered number plate, reflector and one
red triangle shaped reflector, and a bag containing some
papers.
99. A sub- inspector of police of Khardah police station
has deposed as PW 36. He has stated that, TK and GS were
arrested on April 3, 2007. He had taken both of them in police
custody for 3 days in connection with Khardah police station
case No. 69/07 dated March 12, 2007 under section 379 of
the Indian Penal Code, 1860. He has stated that, he recovered
various articles and a motorcycle from GS and TK.
100. A sub- inspector of police of Jagaddal police station
has deposed as PW 37. He has spoken about the complaint
being lodged by him against GS with regard to seizure of
Ganja from him on March 4, 2007. He has spoken about the
seizure made by the investigating officer in the present case.
He has tendered the seizure list which was marked as Exhibit
46. He has identified GS in Court.
101. Prosecution has tendered PW 38 without putting any
question to him. Defence has declined to cross-examine him.
102. A constable has deposed as PW 39. He has stated that,
on February 6, 2007 he was posted at Dadpur police station
46
as a constable. On such date, he had carried the dead body of
KD for post-mortem. After post-mortem examination, he had
received the wearing apparels and the viscera of the deceased
along with other post-mortem articles from the doctor and
deposited the same with the police station. He has identified
the seized articles which were tendered in evidence and
marked as material exhibit. He has described the place where
dead body of KD was found.
103. A seizure list witness has deposed as PW 40. He has
stated that, on June 8, 2007 he was requested by CID officials
to assist with regard to search of SM. He had agreed to render
assistance. He has stated that, SM was searched in his
presence. He has identified the articles recovered from SM
including the firearms. He has tendered the seizure list which
was marked as Exhibit 47. He has identified the seized articles
which were marked as material exhibit. He has identified the
signatures on the labels of the seized articles which were
marked as Exhibits 50 and 51. He has also tendered another
seizure list which was marked as Exhibit 52. He has identified
SM in Court.
104. The judicial magistrate before whom, PW 27, PW 31
and another person recorded their statements under section
47
164 of the Criminal Procedure Code has deposed as PW 41.
He has stated about the manner and method by which such
statements were recorded. He has tendered such statements
in evidence which were marked as exhibits.
105. The assistant sub- inspector of police who prepared
the seizure list in respect of the wearing apparels and the
viscera of KD has deposed as PW 42. He has identified the
seizure list Exhibit 31 as also the seized articles which were
already marked as material exhibits.
106. A police constable attached to Singur police station
has deposed as PW 43. He has stated that on February 6,
2007 he escorted one male dead body to the hospital for post-
mortem examination. He has tendered the carbon copy of the
dead body challan in evidence and the same was marked as
Exhibit 56. He had identified the dead body to the autopsy
surgeon at the hospital. He was made over the wearing
apparel and the viscera of the deceased which in turn he had
made over to the Assistant Sub-Inspector of Police.
107. A Sub-Inspector of Police of Ghola police station has
deposed as PW 44. He has stated that on May 19, 2007 he
was a part of the raiding party. He has stated that, initially,
DB led to his house where, one tape recorder, one remote
48
control and one amplifier, one music divider were seized. He
has identified his signature on the seizure list dated May 19,
2007. He has stated that, the accused held out that the seized
alamat were part of the stolen Scorpio vehicle. He has stated
that PB took the raiding party to his house and one packet
was seized containing 2 pipe guns and two live ammunitions.
He has identified his signature on the seizure list which was
marked as Exhibit 14/1. He has stated that, another seizure
was made comprising of one AC compressor machine and the
accessories of such machine, one silver chain with a locket
which he stated to belong to the murdered engineer. He has
identified his signature on such seizure list dated May 19,
2007 which was marked as Exhibit 15/A. Thereafter PW 8
had taken the raiding party to his house where, the Timex
branded wrist watch and the belt of such wristwatch were
seized. PW 8 has stated that the same belonged to the
deceased engineer. He has identified his signature on the
seizure list dated May 19, 2007 which was tendered in
evidence and marked as Exhibit 16/A. He has identified the
seized articles as also the signature of his on the labels.
108. PW 45 has stated that, the company at which the
victims worked, purchased 3 handsets of Nokia 1110 model
49
and that, JPB, one of the victims, used one of the 3 handsets
of Nokia 1110. He has identified one of the 2 handsets as
belonging to the company which was tendered in evidence and
marked as material exhibit.
109. The salesman of the dealer of the Scorpio vehicle has
deposed as PW 46. He has stated that, he sold the Scorpio
vehicle bearing police registration number WB 40 F 9963. He
has stated that, police of CID seized various documents. He
has identified the seizure list and his signature therein which
were tendered in evidence and marked as Exhibit 16.
110. A police personnel who formed part of the raiding team
for the raid conducted on June 8, 2007 has deposed as PW
47. He has submitted that one person was arrested in front of
Ananya Cinema from whom a mobile phone was seized. The
arrested person had disclosed that the mobile phone belonged
to JPB. He has tendered the seizure list in evidence which was
marked as Exhibit 52. He has stated that, a pipe gun was
recovered from the arrested person on the same date along
with ammunition. He has identified the firearms and
ammunition which were marked as exhibits.
111. The first investigating officer of Singur police station
case No. 27/07 has deposed as PW 48. He has described the
50
manner of his investigation. He has tendered various
evidences which were marked as exhibits. He has also
tendered various material evidences which were marked as
material exhibits. He has stated that, he commenced his
investigation on February 6, 2007 and continued till February
12, 2007. On such date, he had made over the case diary to
the CID. Subsequently, CID officer had interrogated him and
recorded his statement. He has stated that he took
photographs of the deceased in his personal mobile phone
which was seized by the CID and subsequently returned to
him.
112. The additional Chief Judicial Magistrate before whom
accused persons in the Singur police station case No. 27/07
were produced has deposed as PW 49. He has stated that, he
considered the bail applications of the accused from time to
time. He has stated that PW 8 was produced before him. PW 8
had preferred a petition dated June 6, 2007 through the
Superintendent of the Correctional Home where he was
lodged. Previously, investigating officer of such case had
prayed for recording of the statement of PW 8 under section
164 of the Criminal Procedure Code on May 20, 2007. He has
stated that, such statement was recorded on May 23, 2007 by
51
the learned Magistrate. He had identified the learned
Magistrate. He has stated that, the petition dated June 6,
2007 of PW 8 was disposed of on June 8, 2007. In his petition
dated June 6, 2007, PW 8 had prayed that he may be treated
as an approver in the case. In the order dated June 8, 2007 he
had tendered pardon to the PW 8 as approver subject to the
condition of his true disclosure of facts. He has tendered the
order dated June 8, 2007 which was marked as Exhibit 66.
113. The second investigating officer has deposed as PW 50.
He has stated that on February 16, 2007 he received a
message from the DIG, CID dated February 13, 2007 for
taking up the investigations of the two police cases. He had
received the case diary of both the cases on different dates
comprising of investigation done by the other investigating
officers of the respective police stations. He has described the
manner and method of his investigations subsequent to him
taking charge of the investigations. He has tendered various
material and documentary evidences at the trial which were
marked as material exhibits and exhibits respectively.
114. Defence had cross-examined all the investigating
officers in extenso and failed to elicit anything favourable from
such cross-examination.
52
115. On conclusion of the evidence of the prosecution, each
of the appellants had been examined under Section 313 of the
Criminal Procedure Code where, they claimed that they were
falsely implicated and innocent. They had declined to adduce
any defence witnesses.
116. Out of the 50 prosecution witnesses examined at the
trial, one of them, that is, PW 8 has given evidence as an
approver. He had applied to become an approver by a petition
dated June 6, 2007 which was allowed by an order dated
June 8, 2007 being Exhibit 66. None of the appellants had
challenged the order of conditional pardon granted by the
jurisdictional Court to PW 8 on June 8, 2007,
contemporaneously.
117. Mirza Akbar (supra) has held that, a common
intention is said to exist at the time when the thing was said,
or written by one of the conspirators. It has observed that, a
statement of confession made by one of the conspirators to a
3rd party after the common intention for conspiracy was no
longer operating and had ceased to exist, is not admissible
against another. Similar view has been expressed in Sardul
Singh Caveeshar (supra). Mohd. Atik (supra) has
considered a confessional statement recorded under Section
53
15 of the Terrorist and Disruptive Activities (Prevention) Act,
1987. It has held that, when the requirement stipulated in
section 15 (1) of the Act of 1987 are satisfied, the confession
becomes admissible in evidence and that it is immaterial
whether the confession was reported in one particular case or
in a different case.
118. Pulukuri Kotayya and Others (supra) has dwelt on
section 27 of the Evidence Act. It has observed that Section 27
of the Evidence Act is based on the view that if the effect is
actually discovered in consequence of information given, some
guarantee is afforded thereby that the information was true
and accordingly it can be safely allowed to be given in
evidence. However, the extent of the information admissible
must depend on the exact nature of the fact discovered with
which such information is required to relate.
119. In the facts and circumstances of the present case,
several articles belonging to the two deceased and the Scorpio
vehicle have been recovered on the showing of the appellants
and PW 8. Recovery of those articles therefore, which were
within the knowledge of the appellants and PW 8 stands
established.
54
120. Haroon Haji Abdulla (supra) has noticed section 133
of the Evidence Act and illustration (b) of section 114 thereof.
It has observed that, cautionary provision of illustration (b) of
Section 114 of the Evidence Act incorporates a rule of
prudence because an accomplice, who betrays his associates,
is not a fair witness and it is possible that he may, to please
the prosecution, give false details of those which are true and
his whole story appearing true, there may be no means at
hand to severe the false from that which is true. It is for this
reason that courts, before they act on accomplice evidence,
insist on corroboration in material respects as to the offence
itself and also implicate in some satisfactory way, however
small, accused named by the accomplice. In this way, the
commission of the offence is confirmed by some competent
evidence other than the single or unconfirmed testimony of
the accomplice and the inclusion by the accomplice of any
innocent person is defeated. This rule of caution of prudence
has become so ingrained in the consideration of accomplice
evidence that it has become almost the standing of a rule of
law.
121. Sheshanna Bhumanna Yadav (supra) has held that,
the first test of reliability of approver and accomplice evidence
55
was for the Court to be satisfied that there was nothing
inherently impossible in evidence. After that conclusion is
reached as to reliability, corroboration is required. The rule as
to corroboration is based on the reasoning that there must be
sufficient corroborative evidence in material particulars to
connect the accused with the crime.
122. Ravinder Singh (supra) has observed that, every
approver who comes to give evidence in some manner is
seeking to purchase his immunity and that is why to start
with he is an unreliable person and the rule of caution calling
for material corroboration is constantly kept in mind by the
Court. It would be apposite to set out paragraph 12 thereof
which is as follows: –
“12. An approver is a most unworthy friend, if at all, and
he, having bargained for his immunity, must prove his
worthiness for credibility in court. This test is fulfilled,
firstly, if the story he relates involves him in the crime and
appears intrinsically to be a natural and probable
catalogue of events that had taken place. The story if
given of minute details according with reality is likely to
save it from being rejected brevi manu. Secondly, once
that hurdle is crossed, the story given by an approver so
far as the accused on trial is concerned, must implicate
him in such a manner as to give rise to a conclusion of
guilt beyond reasonable doubt. In a rare case taking into
consideration all the factors, circumstances and situations
56governing a particular case, conviction based on the
uncorroborated evidence of an approver confidently held
to be true and reliable by the Court may be permissible.
Ordinarily, however, an approver’s statement has to be
corroborated in material particulars bridging closely the
distance between the crime and the criminal. Certain
clinching features of involvement disclosed by an approver
appertaining directly to an accused, if reliable, by the
touchstone of other independent credible evidence, would
give the needed assurance for acceptance of his testimony
on which a conviction may be based.”
123. Independent of the evidence of PW 8, prosecution has
been able to establish various facts at the trial. We have to
evaluate as to whether or not, such evidence would be
sufficient to convict the appellants or any of them.
124. The following have been proved at the trial without the
testimony of PW 8: –
(i) Testimonies of PW 27 (one of the drivers of the
Bolero vehicle), PW 31 (owner of the Bolero vehicle)
and PW 34 (employee of IBM call centre) have proved
that, the Bolero vehicle was given on hire to IBM call
centre and that, the Bolero vehicle did not report for
duty on February 5, 2007.
(ii) Testimony of PW 27 corroborated by PW 31 has
established that, the Bolero vehicle was given to PW
8 on February 5, 2007.
57
(iii) Testimonies of PW 5, PW 6, PW 7, PW 9, PW 10
and PW 12 have established that, both the victims
were working with the company owned by PW 12.
The victims had proceeded to Himadri Chemicals
from Durgapur on February 5, 2007 by a green
colour Scorpio vehicle driven by KD. They were
supposed to return on the same day and not having
returned, General Diary were lodged with the police.
(iv) Police had received and recorded General Diaries
with regard to the 2 victims missing since February
5, 2007 on February 7, 2007 as appearing from the
testimony of PW 16.
(v) PW 24 has deposed that, police received a
telephonic information that an unknown dead body
was found in the field at the eastern side of the
highway towards Kolkata in the area near the village
Ayma under the Dadpur police station.
(vi) Such dead body had been identified as that of KD
by the brother-in-law of KD who lodged the written
complaint with Dadpur police station.
(vii) PW 1 had discovered the dead body of JPB which
was identified by PW 4 as that of JPB. PW 1 had
58
lodged a written complaint. PW 1 had discovered the
dead body lying on the side of the bypass emanating
from Durgapur Expressway going towards Singur.
PW 2 had also witnessed the dead body of JPB at the
same location.
(viii) Post-mortem reports being Exhibit 26 and 27 of
the dead bodies of the 2 victims have established
that, both were murdered. The post-mortem reports
of the 2 victims have been Exhibits 26 and 27 have
described the nature of injuries found on the dead
body of the 2 victims.
(ix) PW 26, the autopsy surgeon who had performed
the post-mortem on the dead body of JPB has opined
that, JPB was strangulated. Strangulation had been
done by a soft cloth such as gamcha (Indian towel).
(x) Prosecution has established that, the Bolero
vehicle and the Scorpio vehicles had crossed the toll
plaza on the Durgapur Expressway through the
evidence of one of the employees of the toll plaza
being PW 25 and Exhibit 33.
(xi) Through PW 29 and PW 34, employees of a
particular petrol pump, prosecution has established
59
that, fuel was purchased for the Bolero vehicle on
February 5, 2007 from that particular petrol pump.
(xii) Prosecution has established through PW 33 who
is the owner of hotel at Bahdurpur, that PW 8 and
the appellants had come to his hotel on February 5,
2007 and two of them had fish and rice as meals at
his hotel around 2:30 PM.
(xiii) PW 27 had seen PW 8 to drive the Scorpio vehicle
at 11am on February 7, 2007.
(xiv) PW 9 had identified Material Exhibit VIII as the
locket belonging to JPB which was seized on the
showing of PB.
(xv) Wrist watch belonging to JPB had been found
from PW 8.
(xvi) PW 13 has deposed that Scorpio vehicle was
seized by the police in an abandoned condition on
February 10, 2007 opposite Honda showroom.
125. Prosecution has therefore, independent of the
testimony of PW 8, established that, the two victims were
murdered. Prosecution has through the testimonies of the
employees of the petrol pump and the owner of the hotel
placed PW 8 and the appellants together on February 5, 2007
60
at the two diverse locations. That apart, PW 27 in his
deposition has stated that, PW 8 told him that, PW 8 was with
the appellants on February 5, 2007. PW 27 had seen PW 8
with the Scorpio vehicle.
126. These evidences as has been noticed in the preceding
two paragraphs although raises strong suspicion of the
involvement of the appellants and PW 8 in the murder of the
two victims, are not sufficient to convict them. It is in this
factual matrix that, the evidence of PW 8 has to be evaluated.
127. Although, law does not bar reliance on the testimony of
an approver to convict an accused, Courts have however
evolved a rule of caution and seek corroboration from other
evidence before relying upon the testimony of an approver.
The Court has to find the testimony of the approver reliable. It
has to arrive at a finding that, there was nothing inherently
impossible in the evidence of the approver. Thereafter, Court
has to arrive at a finding that there is sufficient corroborative
evidence in material particulars to connect the accused with
the crime.
128. PW 8 has described how GS got him to obtain the
Bolero vehicle on February 5, 2007. He has described how
such a vehicle was used in the commission of kidnapping,
61
dacoity, murders and destruction of evidence. Testimonies of
PW 27, PW 31 and PW 34 have corroborated the fact that, the
Bolero vehicle was with PW 8 on February 5, 2007 till its
return to PW 27 subsequently.
129. PW 8 has stated that, TK and SS had taken rice and
fish at a hotel at Bahadarpur. The hotel owner of the hotel
where TK and SS had taken rice and fish, being PW 33, has
corroborated PW 8 in this regard. PW 33 had placed PW 8
along with the other appellants at his hotel on February 5,
2007 at about 2:30 PM.
130. PW 7 has stated that, both the victims left Himadri
Chemicals at about 5:30 PM on February 7, 2007 by the
Scorpio vehicle and went towards Durgapur. PW 8 has stated
that, appellants and PW 8 chased the Scorpio vehicle, stopped
it, and kidnapped the two victims at about the time on
February 5, 2007 when the two victims were travelling
towards Durgapur in the Scorpio vehicle.
131. PW 8 has described the dacoity committed on the two
victims prior to their murder. He has also described the
manner in which, the two victims were murdered.
132. Injuries suffered by the two victims prior to their death
described in Exhibits 26 and 27 as also the testimonies of the
62
post-mortem doctors being PW 22 and PW 26 corroborate PW
8 as to the manner in which, the two victims were murdered
by the appellants.
133. PW 8 has described the two places where, the dead
bodies of the two victims were thrown by the appellants on
February 5, 2007. Dead bodies of the two victims had been
discovered at such places on February 6, 2007 by
independent persons.
134. Transit of the two vehicles through the toll plaza on
February 5, 2007 has been established at the trial. Purchase
of the fuel for the Bolero vehicle has been established at the
trial through the evidence of PW 29 and PW 30.
135. PW 8 has described the manner in which, the Scorpio
vehicle in which, the two victims were travelling was
intercepted, the two victims were kidnapped, dacoity
committed, and they were murdered. PW 8 has also described
how, the two dead bodies were disposed of and the Scorpio
vehicle as also the Bolero vehicle dealt with.
136. Independent prosecution witnesses have corroborated
PW 8 with regard to material particulars of the events
occurring on February 5, 2007 onwards. In the facts and
circumstances of the present case, it would be nearly
63
impossible for a tutored witness to speak in such minute,
great and vivid details with regard to the commission of such
crimes over such period of time. PW 8 has by this testimony,
established his involvement in the crimes that the appellants
stood charged with at the trial.
137. Such detailed and vivid description of the crimes
committed by the appellants and PW 8 could not have been
stated by PW 8, if he was a tutored witness and did not
partake in the crimes himself. Materials established at the
trial and the testimony of PW 8 cannot be said to be
inherently impossible or contradict each other. His testimony
has been corroborated in substantial portion linking him and
the appellants to the crimes committed.
138. It has been contended that, testimony of PW 8 was
exculpatory in nature and therefore, no reliance should be
placed thereon. From the tenor of the testimony of PW 8, we
are unable to arrive at a finding that, such testimony of PW 8
was exculpatory in nature. PW 8 has described the
commission of the crimes and his involvement therein. Had he
not been an approver, he would have been convicted and
sentenced.
64
139. Role of GS as appearing from the facts established vis
a vis the conviction and sentence awarded by the learned Trial
Judge requires consideration. Contention on behalf of GS is
that, although, a dacoity was planned, the same never
occured. The subject murders were not pre planned and that
it happened at the Scorpio vehicle while GS was driving the
Bolero vehicle. Therefore, GS cannot be convicted for murder
or under section 120 B of the Indian Penal Code, 1860.
140. Section 396 of the Indian Penal Code, 1860, under
which, GS has been convicted, falls under Chapter XVII of the
Indian Penal Code, 1860 which deals with offences against
property. Section 378 has laid down that, whoever intending
to take dishonestly any movable property out of the
possession of any person without that person’s consent,
moves that property in order to such taking, is said to commit
theft. Section 390 of the Indian Penal Code, 1860 has
stipulated that, in all robbery there is either theft or extortion.
It has specified that, if, in order to committing of theft, or in
attempting to commit the theft, or in carrying away or
attempting to carry away property obtained by theft, the
offender, for that end voluntarily causes or attempts to cause
to any person death or hurt or wrongful restraint, or fear of
65
instant death or of instant hurt, or of instant wrongful
restraint then theft is robbery.
141. Robbery becomes dacoity in terms of Section 391 of
the Indian Penal Code, 1860 when five or more persons gets
involved. Section 391 has stipulated that, when five or more
persons conjointly commit or attempt to commit a robbery, or
where the number of persons conjointly committing or
attempting to commit a robbery, and persons present aiding
such commission or attempt amounts to five or more, every
person so committing, attempting or is said to commit dacoity.
142. Dacoity complied with murder is dealt with in Section
396 of the Indian Penal Code 1860 which has stipulated that,
if anyone or five or more persons, who are conjointly
committing dacoity, commits murder in so committing
dacoity, every one of those persons shall be punished with
death or imprisonment for life or rigorous imprisonment for a
term which may extent to ten years and shall also be liable to
fine.
143. Murder used in Section 396 has the same meaning as
that of Section 300 of the Indian Penal Code, 1860. Under
Section 396 of the Indian Penal Code, 1860, if anyone of the
five persons involved in dacoity, commits murder, while
66
committing the dacoity, then every person involved in the
dacoity is to be punished in accordance with the provisions of
such section.
144. Section 396 of the Indian Penal Code, 1860 has
created a legal fiction that when in the commission of the
dacoity, which necessarily involves five or more persons,
anyone of such persons involved, commits a murder, then, the
legal liability for commission of such murder, shall befall all of
the persons involved in the dacoity and be punished in
accordance with Section 396 of the Indian Penal Code, 1860.
145. Therefore, under Section 396 of the Indian Penal Code,
1860, the prosecution has to establish there is a murder
within the meaning of Section 300 of the Indian Penal Code,
1860 and that, the murder was committed is an incident
involving dacoity. In other words, prosecution has to establish
that the murder occurred during dacoity and that they are not
two separate incidents.
146. The test, therefore, which a Court needs to apply
under Section 396 of the Indian Penal Code, 1860 is whether
the murder occurred during a dacoity or are the two incidents
separate.
67
147. In the facts and circumstances of the present case, GS
was present in the Bolero vehicle when, the appellants
including GS and PW 8 had decided to commit dacoity in
respect of a vehicle from the highway. In pursuance to such
criminal conspiracy, the Scorpio vehicle had been stopped
containing the two victims with the object of committing
dacoity of such Scorpio vehicle. GS had participated in the
commission of dacoity in respect of the Scorpio vehicle.
Appellants including GS had taken possession of the Scorpio
vehicle from the lawful occupants thereof. GS had taken the
wheels of the Bolero vehicle in order to aid and facilitate the
proceeds of the crime that is the Scorpio vehicle to continue to
remain with the appellants including GS. GS had facilitated
the passage of the Scorpio vehicle through the toll-tax. GS had
boarded the Scorpio vehicle later at Kolkata when, PW 8 was
given the Bolero vehicle. GS had brought the Scorpio vehicle
to PW 8 subsequently on February 10, 2007.
148. Murder of the two victims had been committed in the
Scorpio vehicle when, GS was driving the Bolero vehicle.
Commission of the murders as transpiring from the evidence
on record was to ensure that the two victims did not stay alive
to implicate the appellants in the dacoity. Appellants had
68
murdered the victims in aid of the dacoity. Although, GS was
not physically present within the Scorpio vehicle when the
murder had been taking place, nonetheless, GS was a part of
the congregation of more than five persons while the dacoity
was committed. GS had continued to aid the other appellants
and PW 8 in dealing with stolen Scorpio vehicle subsequent to
the murders.
149. In the facts and circumstances of the present case, we
are not in a position to segregate the act of murders from the
act of dacoity in order to arrive at a finding that GS was not
involved in the two murders committed during dacoity.
150. In our view therefore, the learned Trial Judge, after
noting that GS was not in the same vehicle in which, the
murders took place, had rightly proceeded to convict the
appellants including GS, inter alia, under Section 396 of the
Indian Penal Code, 1860.
151. Notably learned Trial Judge has not sentenced any of
the appellants for murder under Section 302 of the Indian
Penal Code, 1860 in view of Section 71 thereof.
152. Learned Trial Judge has discussed the quantum of
punishment to be imposed after taking note of the fact that,
Section 396 of the Indian Penal Code, 1860 permitted death
69
sentence also. Learned Trial Judge has noted the aggravating
circumstances as against the appellants including, the
existence of criminal cases against some of the appellants.
Learned Trial Judge has however found mitigating
circumstances so as not to impose the death penalty.
153. We do not find that, the quantum of sentence imposed
by the learned Trial Judge suffers from the vice of perversity
or can be classified as excessive or not proportionate to the
crimes established at the trial.
154. In such circumstances, we uphold the judgement of
conviction and the order of sentence impugned before us.
155. Sentences awarded by the learned Trial Judge and as
upheld by us, will run concurrently. Period of detention
suffered by the appellants, at the time of investigation, trial,
and post-conviction shall be set off against the substantive
sentences awarded.
156. Bail granted to the appellants or such of them, as the
case may be, during the pendency of the appeals stand
cancelled. Such appellants shall surrender forthwith to
undergo the remainder of the sentences. In default of any of
the appellants on bail not surrendering, jurisdictional Court
will take appropriate steps.
70
157. A copy of this judgement and order along with the Trial
Court records be transmitted to the appropriate Court
forthwith.
158. CRA 294 of 2017, CRA 336 of 2017, CRA 382 of 2017,
and CRA 255 of 2021 along with all connected application
stands disposed of accordingly.
[DEBANGSU BASAK, J.]
159. I agree.
[MD. SHABBAR RASHIDI, J.]