Calcutta High Court (Appellete Side)
Gyan Sagar Sharma vs The State Of West Bengal on 12 August, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
2025:CHC-AS:1526-DB
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
&
The Hon'ble Justice Prasenjit Biswas
C.R.A.(DB) 114 of 2022
With
IA No: CRAN 1/2022
Gyan Sagar Sharma
-Versus-
The State of West Bengal
For the Appellants : Mr. Sandipan Ganguly, Sr. Adv.
Mr. Hafiz Ali, Adv.,
Ms. Manasurta Mukherjee, Adv.
For the State : Mr. Madhusudan Sur, Adv.,
Mr. Dipankar Pramanick, Adv.
Hearing concluded on : July 31, 2025
Judgment On : August 12, 2025
2025:CHC-AS:1526-DB
2
Prasenjit Biswas, J:-
1.
The impugned judgment and order of conviction and sentence
dated 06.05.2022 and 07.05.2022 passed by the learned Additional
Sessions Judge, Baruipur, South 24-Parganas in connection with
Sessions Trial No. 10(06)/2015 arising out of the S.T. (CIS) No. 125
of 2016 (G.R. No. 2884/2014) is assailed in this appeal.
2. By passing the impugned judgment and order this appellant
was found guilty for commission of offence punishable under
Sections 302 and 201 of the Indian Penal Code and was sentenced
to suffer rigorous imprisonment for life and to pay fine of Rs.
10,000/-, in default of payment of fine to undergo further rigorous
imprisonment of three months for commission of offence
punishable under Section 302 of the Indian Penal Code. This
appellant was further sentenced to suffer rigorous imprisonment for
five years and to pay fine of Rs. 2000/- and in default of payment of
fine to suffer further rigorous imprisonment of one month for
committing offence punishable under Section 201 of the Indian
Penal Code.
2025:CHC-AS:1526-DB
3
3. Being aggrieved by and dissatisfied with the said impugned
judgment and order of conviction, the present appeal is preferred at
the behest of the appellant.
4. The inception of the prosecution case is an extra judicial
confession made by a minor co-accused. The written complaint
lodged by Gautam Pandey (informant) at the exhumation place at
Rania with the I.C., Sonarpur Police Station is to the effect that the
informant and other local people came to know from other accused
Bablu Yadav that he along with others including this appellant
murdered one Madan Roy two years ago by firing a gun at him and
thereafter, this appellant along with others chopped the body of
Madan Roy into pieces and kept it into bags and then buried the
same near the house of the appellant.
5. It appears from G.D.E. No. 918 dated 08.06.2014 that the
Sonarpur Police Station received a telephonic message from an
unknown person stating that one person towards the close
associate of this appellant Gyan Sagar Sharma namely, Bablu
Yadav (other minor accused) of Rania disclosed that on 08.06.2014
this appellant murdered one Madan Roy about two years ago and
2025:CHC-AS:1526-DB
4
the dead body was kept concealed under the earth. Thereafter, I.C.
of the said Police Station gave a requisition to S.D.O., Baruipur to
depute an Executive Magistrate for digging the place for
exhumation of dead body. The land near the house of this appellant
was exhumed on 09.06.2014 in presence of the Executive
Magistrate (PW16) and exhumation was conducted with the
interference of the Sonarpur Police Station and in presence of local
people. On such exhumation two bags were recovered from
underneath the earth at the boundary of the land of this appellant
and the acquitted accused Debendranath Dwibedi and from that
two bags of skeleton of a human body, one mud-stained black pant,
one old sports shoe red and white colour mixed with mud, one key,
one black colour whistle with string were recovered. Just after
exhumation PW1 (Gautam Pandey) who remained present at the
spot lodged the written complaint on 09.06.2014 at the exhumed
place at Renia. The said written complaint was received by the
Officer-in-Charge. Thus, the criminal law was set in motion against
this appellant and the other accused persons on that date at
around 15.55 hrs. referring a G.D.E. No. 1035 on the day.
2025:CHC-AS:1526-DB
5
6. The G.D.E. No. 918 dated 08.06.2014 was not treated as
written information with the Police Station in view of Section 154 of
Cr.P.C. and the same was not considered as FIR for starting a
criminal case by the Police Station.
7. PW16, the Executive Magistrate has stated in his evidence that
as per order of S.D.O., Baruipur, he being the Executive Magistrate
performed magisterial duty of disinter of a dead body claimed to be
of one Sri Madan Roy of Renia under Sonarpur Police Station. It is
said by this witness that the process has been started at around
10.30 A.M. and at about 3 P.M. some disintegrated bones were
found in the bags at the courtyard of this appellant and during the
process of inquest at that place only 137 numbers of bones
(including disintegrated parts) were found which included the scalp,
lower jaw, ribs and other human bones. As per statement of this
witness the inquest was done at the spot in presence of witnesses
namely, Gautam Pandey (PW1), Bikram Pandey (PW10). On cross-
examination, this witness reiterated the same fact that the
exhumation was started at around 10.30 A.M. and it was continued
with spade and thereafter one JCP was used at around 2.30 P.M.
2025:CHC-AS:1526-DB
6
on that day for exhumation and the skeleton was found after
exhumation by JCP at around 3 P.M.
8. Exhibit-13 is this sketch map prepared by the Investigating
Officer (PW17) which shows that the exhumation place was in the
boundary land of the wife of the acquitted accused Debendranath
Dwibedi.
9. In this case, an extra-judicial confession was made by the
minor accused Bablu Yadav before the informant, Gautam Pandey
(PW1), Gopal Das (PW2), Bholanath Mondal (PW3), Sanjab Dey
(PW4), Satyanarayan Prasad Shaw (PW5), Sunil Jha (PW6), Benod
Singh (PW7), Amit Shaw (PW9) and Bikram Pandey (PW10) and all
these witnesses have categorically stated in their evidences that
they heard the incident from the said Bablu Yadav when Bablu
went in Yubha Sangha Club and confessed that he along with other
accused persons including this appellant murdered the victim
Madan Roy. These witnesses heard the said incident from Bablu
Yadav wherein he disclosed that this appellant murdered Madan
Roy (victim) by gunshot injury.
2025:CHC-AS:1526-DB
7
10. Mr. Sandipan Ganguly, learned Senior Advocate for the
appellant said that the purported murder said to have taken place
in November, 2012 and suddenly two years later the co-accused,
Bablu Yadav is stated to have walked into a club and made the said
confession. The said delay creates a doubt about its credibility. It is
further said by the learned Advocate that there is discrepancy in
the evidences of those witnesses before whom the accused Bablu
Yadav made confession. PW6 and PW9 stated that they heard the
extra judicial confession of Bablu Yadav on 08.06.2014, whereas
PW1 and PW3 heard the extra judicial confession on 09.06.2014
and PW4, PW5, PW7 and PW10 had not stated specific date on
which the accused Bablu Yadav made extra judicial confession. It is
further assailed by the learned Advocate that the Investigating
Officer had prayed for showing Bablu Yadav as arrested in
connection with the case on 13.06.2014 and accordingly it becomes
impossible on the part of the accused Bablu Yadav to make any
extra judicial confession on 08.06.2014. As per submission of the
learned Advocate that if Bablu Yadav had already been in police
custody on 08.06.2014 in connection with Sonarpur P.S. Case No.
2025:CHC-AS:1526-DB
8
846/2014 dated 08.06.2014, then he could not possibly have made
the extra judicial confession either on 08.06.2014 or 09.06.2014
before these witnesses. It is said that it also does not transpire from
the evidences on record that Bablu Yadav was acquainted with any
of the witnesses who heard his confession. In support of his
contention on this point, learned Advocate has placed reliance upon
a decision rendered by the Hon’ble Apex Court in case of Pancho-
vs- State of Haryana reported in (2011) 10 SCC 165.
11. It is trite law that extra-judicial confession, if true and
voluntary, can be relied upon by the Court to convict the accused of
the commission of the crime alleged despite inherent weakness or it
can be used as an item of evidence and cannot be ignored when
shown that such confession was made before a person who has no
reason to state falsely and to whom it is made in circumstances
which tend to support the statement. In such situation, the Court
has to be satisfied that it is voluntary and is not the result of
inducement, threat or promise envisaged under Section 24 of the
Evidence Act or was brought about in suspicious circumstances to
circumvent Sections 25 and 26 and the Court is required to look
2025:CHC-AS:1526-DB
9
into the surrounding circumstances to find out as to whether such
confession is not inspired by any improper or co-lateral
consideration or circumvention of law suggesting that it may not be
true.
12. In this case, PW1 informant who lodged the complaint has
stated in his evidence that the minor accused Bablu Yadav
disclosed to him that Bablu along with this appellant and other
accused persons committed murder of Madan Roy (victim) and dead
body was cut into pieces and buried. It is further said by this
witness that at the time of digging, pant, shirt and one shoe of the
victim were also recovered from the place where exhumation was
done. This PW1 lodged a written complaint at the place wherefrom
skeleton was exhumed. The said written complaint was written by
the scribe Bikram Pandey (PW10) as per submission of this PW1.
The said FIR is marked as exhibit 1 in this case. This witness at the
time of giving deposition before the Trial Court identified the shoe of
the Madan Roy which is marked as MAT Exhibit-1 and stated that
he had seen the victim wearing that shoe. This PW1 identified the
mud-stained black pant, the plastic bag, body parts of the victim
2025:CHC-AS:1526-DB
10
which were recovered by police and two ‘cutteries’ by which the
body of Madan Roy was cut into pieces. This PW1 in his evidence
stated about motive of the murder and stated that the accused
Bablu Yadav disclosed before this witness that this appellant about
two years ago fired Madan Roy (victim) by gun as the appellant had
illicit relationship with the wife of Madan Roy, namely Sabitri Roy
(other accused). In course of giving deposition this PW1 has stated
that the skeleton of the victim was exhumed from the land of the
acquitted accused Debendranath Dwibedi which is situated just
adjacent to the house of the appellant. In cross-examination, this
PW1 stated that the victim Madan Roy was found missing since last
two years prior to his skeleton was exhumed.
13. In case of Pancho (supra) the Apex Court held that an extra-
judicial confession can be used against its maker, but as a matter
of caution, courts need to look for corroboration to the same from
other evidence on record. An extra-judicial confession, though weak
in nature, is not inadmissible in evidence, but if such a confession
is found to be voluntary, truthful, and made in a fit state of mind, it
can be relied upon and may even form the sole basis for conviction,
2025:CHC-AS:1526-DB
11
provided it inspires confidence and is corroborated by other
circumstantial or substantive evidence. It is the settled position of
law that conviction can be based on extra-judicial confession if it is
found to be voluntary and truthful.
14. In the present case, the accused Bablu Yadav made extra-
judicial confession before the witnesses, who are the independent
witnesses. The accused voluntarily confessed to having committed
the offence, without any threat, inducement, or coercion. The said
statement is corroborated by the recovery of the bones of a dead
body, clothes of the accused and the weapon of offence pursuant to
the disclosure made by the accused persons. The witnesses were
subjected to thorough cross-examination but nothing adverse could
be elicited to discredit the voluntariness or truthfulness of the
confession.
15. The witnesses like Gopal Das (PW2), Bholanath Mondal (PW3),
Sanjab Dey (PW4), Satyanarayan Prasad Shaw (PW5), Sunil Jha
(PW6), Benod Singh (PW7), Amit Shaw (PW9) and Bikram Pandey
(PW10) have stated in the evidence in the same voice of the
complainant/informant (PW1) that they heard from the accused
2025:CHC-AS:1526-DB
12
Bablu Yadav when he came in Yubha Sangha Club and confessed
that Bablu along with the appellant and other accused persons
committed murder of Madan Roy (victim). The witnesses before
whom Bablu Yadav had made extra-judicial confession amongst
them some of those witnesses said that they heard from Bablu
Yadav about the incident on 08.06.2014 and some of the witnesses
said that they heard it from Bablu Yadav on 09.06.2014. It is said
by the learned Advocate for the appellant that as there is
discrepancy about the date of extra judicial confession and as such,
the depositions made by these witnesses are not creditworthy. In
our opinion, for such discrepancy about the dates stated by these
witnesses, their depositions cannot be discarded and this may
happen at the time of giving deposition by the witnesses before the
Trial Court and such mistakes should be considered as minor
discrepancies. On the basis of such extra judicial confession made
by the accused Bablu Yadav, the concerned police station took
steps and on exhumation bones and other articles were recovered.
The Trial Court, upon due appreciation of the entire prosecution
evidences, is of the opinion that the same inspires confidence and is
2025:CHC-AS:1526-DB
13
corroborated by other prosecution evidences. The words of the
witnesses are clear, unambiguous and clearly convey that the
accused is the perpetrator of the crime. It does not suffer from
material discrepancies or inherent improbabilities and does appear
to be cogent as per the prosecution version. In such circumstances,
the trial court is fully justified in accepting such evidence.
16. PW13, Abhijit Roy, son of the victim is the only eye-witness to
the incident of murder of Madan Roy. This PW13 has stated in his
evidence that in the month of November, 2012, this appellant
Gyansagar Sharma committed murder of his father by inflicting
gunshot injury. The motive for murder as stated by this witness is
that the victim was an auto-rickshaw driver and took a loan of Rs.
20,000/- from this appellant and his father used to repay Rs. 300/-
per day. But, when the victim failed to make such payment on some
occasions, this appellant used to give threat after coming to their
house. This PW13 has further stated in his evidence that on the
date of incident at about 9.30/10.00 P.M. the accused came to their
house being accompanied by other accused persons and at that
time his father was standing outside their house. It is said that this
2025:CHC-AS:1526-DB
14
appellant and his companion started jostling with the victim and
this appellant Gyansagar Sharma fired at his father. This witness
has stated that being afraid he took back his mother (one of the
accused persons) to home and he heard from the accused Ranjit
Sharma, son of the appellant that the dead body of his father was
cut into pieces and was buried behind the factory of this appellant.
This PW13 disclosed at the time of giving deposition stated as to
why he could not report the matter to anyone and stated that the
accused Ranjit Sharma, son of this appellant threatened this
witness with dire consequences. In cross-examination, this PW13
stated that on the relevant date of the incident the victim returned
to home and was standing at the courtyard of their house after
refreshment. It was reiterated by this witness in cross-examination
that his father remained at the courtyard for about an hour and he
did not return into the house and then the incident of this case
took place.
17. It is assailed by the learned Advocate of the appellant that
delayed examination of eye witness is fatal and he placed reliance
upon a decision of the Apex Court in case of Joseph @ Jose Vs.
2025:CHC-AS:1526-DB
15
State of Kerala1. In the said report the conduct of the eye witness
who remained silent for a long time, and his failure to disclose the
facts to the persons who had gathered near the place where the
deceased lay injured, created a serious doubt about the
truthfulness of the witness. The facts of the present case are
different where PW13 stated reasons for remaining silent. This
witness stated in his evidence that he could not report the matter to
anyone immediate to the incident as the accused Ranjit Sharma
threatened him with dire consequence. It is trite law that the delay
in recording the statement of witnesses by itself cannot be a ground
to discard their testimony, especially when their presence at the
place of occurrence is established and their evidence is otherwise
found credible. Unless serious prejudice is shown to have been
caused to the accused or the delay is unexplained and unnatural,
mere delay in examination is not fatal. The explanation offered is
that the witness was in a state of trauma and fear. The witness (PW
13) has been subjected to detailed cross-examination. Nothing has
been elicited to discredit the version of the witness or to show that
1
(2003) 11 SCC 223
2025:CHC-AS:1526-DB
16
the delay in examination led to any prejudice or that the witness
had been tutored or planted. The testimony of PW-13 is found to be
cogent, consistent, and corroborated by other evidence such as
medical findings and the recovery of the weapon and other material
exhibits. In view of the settled position of law and the facts of the
case, this Court is of the considered opinion that the delay in
examining PW-13 is neither unexplained nor suspicious, and it
does not in any manner impair the credibility of the witness. The
testimony of a witness cannot be discarded solely on the ground of
delayed examination if it is otherwise found to be natural,
trustworthy, and corroborative of other circumstances. The
submission made by the learned Advocate for the appellant
regarding delayed examination of PW-13 is not sustainable. The
testimony is accepted as reliable and forms part of the basis for
conviction.
18. As per evidence of PW1, the minor accused Bablu Yadav
disclosed before that witness that this appellant about two years
ago fired Madan Roy by gun as he had illicit relationship with the
wife of the victim and this was the motive as this witness heard
2025:CHC-AS:1526-DB
17
from the accused Bablu Yadav. Whereas PW13, a son of the
appellant has stated in his evidence that the appellant murdered
his father as his father had taken a loan of Rs. 20,000/- from the
appellant and thereafter was unable to repay the same. As per
submission of the learned Advocate for the appellant that the
prosecution version as regards motive is thus diametrically opposed
to each other and the two versions in the instant case are
independently exclusive of each other and there is no other reliable
evidence on record by reference to which the truthfulness of either
version can be tested. As per submission of the learned Advocate for
the appellant that it is well settled that one piece of unreliable
evidence cannot be used to corroborate another piece of unreliable
evidence and accordingly, neither the extra judicial confession, nor
the evidence of eye-witness (PW13) is reliable.
19. No doubt it is a sound principle to remember that every
criminal act was done with the motive but its corollary is not that
no criminal offence would have been committed, if prosecution has
failed to prove the precise motive of the accused to commit it. When
the prosecution succeeded in showing the possibility of some ire for
2025:CHC-AS:1526-DB
18
the accused towards the victim, the inability to further put on
record the manner in which such ire would have swelled up in the
mind of the offender to such a degree as to impel him to commit the
offence cannot be construed as a fatal weakness of the prosecution.
Motive is helpful in understanding why a crime was committed, but
it is not a sine qua non (essential) for conviction, especially if the
eye-witness’s account is trustworthy. A contradiction between
witnesses only on motive, without affecting the core evidence
regarding who committed the offence, is generally not fatal to the
prosecution’s case. It is a settled legal proposition that even if the
absence of motive, as alleged, is accepted that is of no consequence
and pales into insignificance when direct evidence establishes the
crime. Therefore, in case there is direct trustworthy evidence of
witnesses as to commission of an offence, motive loses its
significance. Therefore, if the genesis of the motive of the
occurrence is not proved, the ocular testimony of the witnesses as
to the occurrence could not be discarded only on the ground of
absence of motive, if otherwise the evidence is worthy of reliance.
Discrepancy in motive among prosecution witnesses does not vitiate
2025:CHC-AS:1526-DB
19
the prosecution case when there is reliable and consistent direct
evidence proving the incident.
20. Learned counsel appearing for the appellant has contended
that the discrepancy as to motive creates a dent in the credibility of
the prosecution witnesses. However, we are not persuaded with this
submission since we observed hereinabove that the discrepancy in
the motive cannot be regarded as a ground for vitiating the
prosecution case and when there is reliable and consistent direct
evidence proving the incident. PW13 has stated before the learned
Magistrate at the time of recording his statement under Section 164
of Cr.P.C. that this appellant, Gyansagar Sharma and his associate
assaulted his father Madan Roy in his home on 09.11.2012 and
this appellant shot his father and stated therein that his mother
(another accused) had illicit relationship with the appellant but he
did not state said fact before this Court. It could be understood in
such a manner that being a son it became impossible for him to
disclose about the illicit relationship of his mother with the
appellant in open court during evidence taking process. He
disclosed about the illicit relationship of his mother before the
2025:CHC-AS:1526-DB
20
Magistrate, at the time of recording his statement. At that stage
there was no discrepancy between the extra judicial confession and
PW13.
21. It has been argued by the defence that the prosecution
witness, being the son of the deceased, did not speak about the
alleged illicit relationship between his mother and the accused
during his deposition, and hence, an adverse inference should be
drawn regarding the prosecution case. However, this Court is
unable to accept such an argument. It must be appreciated that
human relationships are complex, and in matters involving
allegations of an illicit or immoral relationship, particularly against
a mother, a son may experience emotional trauma, societal shame,
and inner conflict, making it extremely difficult for him to speak
openly in a public forum such as a courtroom. In the Indian social
and cultural context, a son may naturally refrain from making such
statements out of respect for the memory of his mother, concern for
family honour, or emotional distress, especially when such issues
involve sensitive and stigmatizing allegations.
2025:CHC-AS:1526-DB
21
22. This PW13 had specifically stated before the Investigating
Officer (PW15) that on 09.11.2012 this appellant fired at his father.
Although, this witness failed to state the said date at the time of
giving deposition, it appears from the evidence of PW13 that at the
time of incident of this case he was a student of class-VII and after
the incident when he used to stay at his home he had no talk with
‘para’ people and this witness did not inform about the incident to
anyone of his relations, friends and teachers out of fear of his life.
One relevant fact which has emerged from the deposition of this
witness, where he stated that after the incident of this case till the
date of his giving deposition his mother dressed up like a married
woman which indicates that the wife of the victim knew about the
incident but he did not disclose the said fact to anybody. After
appreciation of the evidence of PW13, it can be said that he was the
witness to the incident of murder of his father. There is no evidence
brought on record by the side of the defence/appellant (herein) that
this witness had any hostile relation with the appellant or he was
tutored to say about the incident against the accused person. There
2025:CHC-AS:1526-DB
22
is no such reason for which it can be said that this witness
impleaded this appellant falsely with the offence.
23. PW7, Benod Singh has stated that this appellant was residing
with the wife of the victim in his house. This witness is one of the
persons before whom the minor accused Bablu Yadav made extra-
judicial confession about the murder of the victim Madan Roy by
this appellant and others including him. It further appears that at
the time of incident PW13 was aged about 15 years and as such,
reliance can be made upon his testimony and the reason for not
disclosing the incident to anybody out of fear. This witness along
with his mother, are the only person who witnessed the incident.
So, there is no question of citing any other person as witness to the
incident. The learned Advocate has said that DNA examination of
the bones recovered did not tie it to that of the deceased. It is
further said by the learned Advocate that although it could be
ascertained to DNA examination that the bones belonged to a
member of the male gender but mere result of DNA examination to
the effect of sex determination of the bones cannot give rise to an
inference that the bones were of the deceased Madan Roy.
2025:CHC-AS:1526-DB
23
24. PW18 (Dr. Mrs. Soma Roy), who is an Assistant Director and
Scientist at CFSL, Kolkata has stated in her evidence that as per
her observation no proper amplifications of the autosomal STRs, the
genetic profile could be done due to highly degraded DNA. But sex
determination marker was amplified successfully and the result
showed that it belonged to a male individual.
25. We are of the opinion that where there is consistent evidence,
including recovery of skeleton of dead body and wearing apparels,
shoes etc., the absence of conclusive forensic identification does not
negate the prosecution case. It is true that the identity of the dead
body could not be established by the forensic expert, however, the
overwhelming evidence including recovery of wearing apparels and
the ocular evidence (PW13) as well as extra judicial confession
made by the other accused Bablu Yadav before the witnesses
clearly establishes the identity of the deceased. Absence of
conclusive DNA evidence is not fatal where there is cogent eye-
witness pointing to the identity of the deceased. It is true that the
forensic examination has affirmed that the recovered bones remains
are of a male individual. However, the said examination does not
2025:CHC-AS:1526-DB
24
conclusively establish the identity of the deceased as the victim in
the present case. The absence of direct forensic identification, such
as DNA matching with known samples, does not necessarily render
the prosecution case doubtful, especially when there exists strong
evidence pointing toward the identity of the deceased. It is a settled
position in law that identity of a deceased may also be established
through evidence in the absence of conclusive medical or forensic
identification. Hence, while the forensic expert could not definitively
identify the skeletal remains as belonged to the victim, the
cumulative effect of the surrounding circumstances, including
evidence of PW13 and the confession made by the accused Bablu
Yadav before the witnesses and recovery of wearing apparels, shoes
etc. sufficiently establishes the identity of the deceased. It is not be
out of place to mention that it is true that the identity of the dead
body could not be conclusively established by the forensic expert.
The report of the forensic science laboratory merely opined that the
bones recovered belonged to a male individual by the process of sex
determination marker. However, the prosecution in this case is not
solely depended on the forensic confession of identity. In the
2025:CHC-AS:1526-DB
25
present case, the ocular evidence (PW13) and the evidences of PW2,
PW3, PW4, PW5, PW6 and PW7 formed a consistent, coherent and
unbroken chain that unerringly points towards the identity of the
deceased. Furthermore, recovery of the choppers by which the dead
body of the victim was cut into pieces was effected at the instance of
the accused and the same were identified by the witnesses.
26. The hand sketch map with index shows that the place of
exhumation is at the boundary of the land of the appellant
Gyansagar Sharma and the acquitted accused Debendranath
Dwibedi. PW2, Gopal Das stated in his cross-examination that there
is an iron grill factory near the place of occurrence which belonged
to this appellant.
27. PW7, Benod Singh stated that the accused Bablu Yadav
disclosed that he (Bablu) along with this appellant and other
accused person brought the dead body of Madan Roy near the
house of this appellant and cut the dead body into pieces and
buried in nearby land. This witness said that the police was
informed about the matter by PW2 and that place which is nearby
to the house of this appellant was excavated by the police in
2025:CHC-AS:1526-DB
26
presence of the Magistrate and this witness and on excavating two
bags were recovered. This witness at the time of giving deposition
before the Trial Court identified the recovered black pant and shoe
and he could identify the same as he had seen the victim while
wearing said pant and shoe. It appears from the evidence on record
that the prosecution proved that the articles have been recovered on
exhumation from the exhumed place which is near to the grill
factory to the appellant. The recovery has been made within the
boundary of the land of the accused Debendranath Dwibedi. It is
not the case of the defence that those articles were not recovered
from the place during exhumation. So, it is proved that the pant,
shoe etc. along with bones had been recovered from the said
exhumed place.
28. PW11, Kanai Nayak, the seizure witness has stated in his
evidence that on 19.08.2014 a little after 10 P.M. the police along
with this appellant came to village Renia and recovered one chopper
from jungle besides house of this appellant in his presence and
seized the same by preparing a seizure list and this witness put
signature on the seizure list.
2025:CHC-AS:1526-DB
27
29. PW12, Manik Sanfui, the witness to the seizure of another
chopper as shown by the appellant and the minor co-accused Ranjit
Sharma. It is said by this witness that on 19.08.2014 at about
10.05/10.00 P.M. when he was sitting in Yuba Sangha Club at
Rennia Arabindranagar, then the police came there and asked him
to accompany them for recovery of chopper from jungle and they
accompanied the police personnel and then police recovered two
choppers from jungle as shown by this appellant and the other
accused Ranjit Sharma from back side of the house of this
appellant which was seized by the police personnel by taking his
signature on the said list.
30. It is contended by the learned Advocate that there is doubt
about the recovery of choppers as shown by the accused and it is
contrary to the provision of Section 27 of the Evidence Act and
cannot be relied upon to be a circumstance against the appellant
because of the fact that the said recovery was made after two years
and recovered from an open space which turns the recovery vitiated
and this recovery is not on the basis of previous statements made to
the police by the appellant. Moreover, there is discrepancy with
2025:CHC-AS:1526-DB
28
regard to the recovery. There are two different versions of the
independent witnesses amongst whom PW1 stated that a chopper
was recovered at the instance of the appellant from a jungle behind
the house of the appellant on 19.08.2014 and on the other hand
PW12 has stated about the recovery of two choppers as shown by
this appellant and the other accused Ranjit Sharma. Whereas PW17
(I.O.) has contradicted the two independent witnesses and stated
that the recovery was made from the house of the appellant. It is
said by the learned Advocate that the recovery was made on the
basis of a leading statement given by the other accused Ranjit
Sharma as per evidence of PW17. As per submission of the learned
Advocate that the pivotal fact is making of the statement of the
police which it leads to the recovery but in this case there is no
statement discloses the fact/material to be discovered in record
which indicates a serious lacking in the prosecution case. The
recovery is not on the basis of a previous statement made to the
police by the appellant. Moreover, said recovered choppers were not
sent for FSL examination to prove that the choppers recovered at
2025:CHC-AS:1526-DB
29
the instance of the appellant was used in the commission of the
crime.
31. In support of his contention, learned Advocate placed reliance
upon the decisions of the Hon’ble Apex Court rendered in case of
Boby -vs- State of Kerala2 and in the case of Nikhil Chandra
Mondal -vs- State of West Bengal.3
32. In this case, undoubtedly two choppers have been recovered
by leading discovery of this appellant and the accused Ranjit
Sharma. It is trite law that leading to the recovery of the weapon
was recovered while the accused was in custody and recovery
thereof is a fact which is admissible in evidence under Section 27 of
the Indian Evidence Act. The basic idea embeded in Section 27 of
the Indian Evidence Act is the doctrine of the confirmation by
subsequent offence and the doctrine was founded on the principle
that if any fact is discovered in search made on the strength of any
information obtained from the prisoner then such discovery is the
information which is to be treated as true. The information might be
2
(2023)15 SCC 760
3
(2023) 6 SCC 605
2025:CHC-AS:1526-DB
30
confessional in nature but discovery in fact becomes a reliable
evidence. So, in this case the recovery of the choppers is relevant in
view of Sections 8 and 27 of the Evidence Act and can form the
chain of evidence.
33. There is nothing in Section 27 of the Evidence Act which
renders the statement of the accused inadmissible if recovery of the
articles was made from any place which is open or accessible to
others. It is a fallacious notion that when recovery of any
incriminating article was made from a place which is open or
accessible to others, it would vitiate the evidence under Section
27 of the Evidence Act. Any object can be concealed in places which
are open or accessible to others. The person who hid it alone knows
where it is until he discloses that fact to any other person. Hence
the crucial question is not whether the place was accessible to
others or not but whether it was ordinarily visible to others. If it is
not, then it is immaterial that the concealed place is accessible to
others. It is now well settled that the discovery of fact referred to
in Section 27 of the Evidence Act is not the object recovered but the
2025:CHC-AS:1526-DB
31
fact embraces the place from which the object is recovered and the
knowledge of the accused as to it.
34. In the case at hand, the fact discovered by the police with the
help of the disclosure statements and the recovery of incriminating
articles on the strength of such statements is that it was the
appellant who concealed those choppers at the hidden places. It is
immaterial that such statement of the accused is inculpatory
because Section 27 of the Evidence Act renders even such
inculpatory statements given to a police officer admissible in
evidence by employing the words: “Whether it amounts to
confession or not”.
35. In the present case, the recoveries have been effected upon the
statement of the accused. These recoveries, in our view, were made
in furtherance to the statement of the accused who were in police
custody and in the presence of independent witnesses. The aspect
which the Court has to consider in the present case is whether
these recoveries have been made in accordance with law and
whether they are admissible in evidence or not, and most
importantly, the link with and effect of the same vis-à-vis the
2025:CHC-AS:1526-DB
32
commission of the crime. We find nothing irregular in recovery of
choppers leading to the statement made by the accused when they
were in police custody. In case of Boby (supra) the Apex court held
that that basic idea embedded in Section 27 of the Evidence Act is
the doctrine of confirmation by subsequent events. The doctrine is
founded on the principle that if any fact is discovered as a search
made on the strength of any information obtained form a prisoner,
such a discovery is a guarantee that the information supplied by
the prisoner is true. The information might be confessional or non-
inculpatory in nature but if it results in discovery of a fact, it
becomes reliable information.
36. PW13, the witness to the incident has stated in his evidence
that he heard from the accused Ranjit Sharma that the dead body
was cut into pieces and was buried behind the factory of the
appellant.
37. It is well settled that recovery of articles/choppers by leading
discovery of the appellant and the accused can form an important
link in the chain of evidence when corroborated by other
circumstances such as forensic reports; eye-witness and it can
2025:CHC-AS:1526-DB
33
significantly continue to prove the guilt of the accused. So, the
recovery of choppers which relates to the fact discovered becomes
relevant and admissible. It is said by the learned Advocate for the
appellant that there is no evidence that the appellant had a gun
licence, nor was any gun seized from his possession and the post-
mortem report; the bones recovered do not bear any gunshot injury.
38. In this case, PW13 son of the victim is the solitary eye-witness
to the incident. It is well-settled that even evidence of sole eye
witness can be sufficient to give conviction, if the witness is found
to be wholly reliable. In this case, PW13 has inspired the confidence
of the Court. His testimony is found to be clear, cogent and
convincing and he said that this appellant fired at his father (victim)
in his presence. There is no material discrepancy that would cause
any doubt of the veracity of the evidence. The post-mortem doctor
opined that the death of the subject was not natural. So, it could be
said that the death of the victim was not natural because the body
was cut into pieces. So, there is no confusion that the exhumed
bones are the bones of human being and the subject was caused
homicidal. We have already stated that it has come out that the
2025:CHC-AS:1526-DB
34
skeleton of the bones was of male person and the victim was a
male. After appreciation of the evidences on record it cannot be
denied that the exhumed bones are not of the deceased Madan Roy.
During exhumation, a full black pant stained with mud had been
recovered and it is marked as Material Exhibit-II in this case and it
is said by these witnesses that the said black full pant used to wear
by the deceased Madan Roy. The said description of the black full
pant as recovered on exhumation matches with the description of
the black full pant wore by the deceased which is appeared from the
missing diary caused by the wife of the deceased (another accused).
39. It is said by the learned advocate for the appellant that PW16,
Executive Magistrate has stated in his evidence that he did not see
any black full pant etc. at the exhumation place but only with said
evidence of PW16, the entire evidences brought on record, it cannot
be thrown away. In examination of the accused under Section 313
of Cr.P.C. this appellant and the acquitted accused Debendranath
Dwibedi could not explain why the said human bones in two bags
along with pant and other ‘alamats’ were recovered from the place,
which is within the boundary of the land of the wife of
2025:CHC-AS:1526-DB
35
Debendranath Dwibedi and near to the grill factory owned by this
appellant. It is trite law that where the accused being asked offers
no explanation or the explanation offered is found to be false, then
it has formed an additional link and the chain of circumstances to
point out the guilt. In the case in hand the incident of murder was
happened on 09.11.2012 and the dead body was engraved in the
buried place and it was done with clear notice and the assistance of
the appellant and this accused person could not explain how the
dead body was buried in that land.
40. It is a well-settled principle of criminal jurisprudence that non-
recovery of the weapon of offence is not fatal to the prosecution
case, if there is reliable and convincing ocular evidence. The
absence of the weapon may create a gap in the chain of evidence,
but it does not, in itself, nullify the entire case–particularly when
there is a trustworthy eyewitness account of the crime. While the
recovery of a weapon is useful in strengthening the prosecution
case, it is only corroborative in nature. If recovery fails due to any
reason (in this case the gun by which the deceased was shot dead),
but the eyewitness account (PW13) is clear and trustworthy, the
2025:CHC-AS:1526-DB
36
court is not legally bound to acquit. The non-recovery of the
offending weapon, such as a gun, does not by itself weaken the
prosecution case to the extent of acquittal. PW13 who is the son of
the deceased is a truthful and reliable eyewitness, who has seen the
commission of the offence and whose testimony withstands
scrutiny; conviction can be safely based on such evidence. The
absence of recovery cannot override reliable direct evidence, and the
focus must always remain on the credibility of the testimony
presented before the court.
41. So, recovery of the weapon is not a sine qua non for
conviction. It is only a corroborative piece of evidence, and the
absence of such recovery cannot be treated as fatal to the
prosecution if the substantive evidence, particularly the ocular
testimony of witnesses, is found to be credible and consistent. In
the present case, the prosecution has examined an eyewitness
PW13, whose presence at the place of occurrence has been
established and whose testimony is natural, coherent, and inspires
confidence. No material contradiction or infirmity has emerged in
cross-examination to discredit this witness. The ocular version is
2025:CHC-AS:1526-DB
37
also consistent with the Post Mortem Report which is marked as
Exhibit in this case.
42. Therefore, the non-recovery of the weapon of offence does not,
in any manner, dilute the strength of the prosecution case. When
the testimony of a reliable witness is available and is sufficient to
establish the guilt of the accused beyond reasonable doubt,
conviction can be based solely on such testimony without insisting
upon the recovery of the weapon. The defence argument on this
count is, accordingly, rejected.
43. A criminal trial is primarily meant to ascertain the truth and
determine whether the accused is guilty of the alleged offence.
While a fair, impartial, and competent investigation is essential to
uphold the rule of law, it is equally important that an accused is
not acquitted solely due to lapses or irregularities in the
investigation, if there is independent, credible, and trustworthy
evidence available to prove guilt. There may be some minor defect in
the investigation process and in the case of a defective investigation
the court has to be circumspect in evaluating the evidence. But it
would not be right in acquitting an accused person solely on
2025:CHC-AS:1526-DB
38
account of the defect; to do so would tantamount to playing into the
hands of the investigating officer. It is trite that if the lapse or
omission is committed by the investigating agency or because of
negligence the prosecution evidence is required to be examined
dehors such omissions to find out whether the said evidence is
reliable or not, the contaminated conduct of officials should not
stand in the way of evaluating the evidence by the courts; otherwise
the designed mischief would be perpetuated and justice would be
denied to the complainant party. If substantive evidence exists and
is found credible, conviction can be sustained despite lapses in
investigation, ensuring that justice is not derailed due to procedural
irregularities.
44. It is trite that before appreciating evidence of the witnesses
examined in the case, it would be instructive to refer to the criteria
for appreciation of oral evidence. While appreciating the evidence of
a witness, the approach must be whether the evidence of witness
read as a whole appears to have a ring of truth. Once that
impression is found, it is undoubtedly necessary for the Court to
scrutinize the evidence more particularly keeping in view the
2025:CHC-AS:1526-DB
39
deficiencies, drawbacks and infirmities pointed out in the evidence
as a whole and evaluate them to find out whether it is against the
general tenor of the evidence and whether the earlier evaluation of
the evidence is shaken as to render it unworthy of belief. Minor
discrepancies on trivial matters not touching the core of the case,
hyper-technical approach by taking sentences torn out of context
here or there from the evidence, attaching importance to some
technical error committed by the investigating officer not going to
the root of the matter would not ordinarily permit rejection of the
evidence as a whole. If the court before whom the witness gives
evidence had the opportunity to form the opinion about the general
tenor of the evidence given by the witness, the appellate court
which had not this benefit will have to attach due weight to the
appreciation of evidence by the Trial Court and unless the reasons
are weighty and formidable, it would not be proper for the appellate
court to reject the evidence on the ground of variations or
infirmities in the matter of trivial details.
45. In this case, learned Advocate for the State submitted that
there is no material in the record for which the impugned judgment
2025:CHC-AS:1526-DB
40
and order passed by the Trial Court may be interfered with. The
prosecution has proved the case by cogent and satisfactory
evidences that this appellant murdered the victim.
46. We have heard the learned counsels for the parties and
considered their rival submissions made hereinabove and also went
through the record with utmost circumspection. We have
sufficiently examined the evidence of the material witnesses. We do
not want to dilate further and to deal with each and every argument
canvassed by the learned counsel for the appellant. Almost all these
contentions were canvassed before the learned Trial Court and were
rightly negatived.
47. In view of the above facts and circumstances and discussion
made above we are of the opinion that there is nothing on record for
which the judgment of the learned Trial Court is to be interfered
with.
48. Accordingly, the instant appeal be and the same is hereby
dismissed.
49. The impugned judgment and order of conviction passed by the
learned Trial Court dated 06.05.2022 and 07.05.2022 passed in
2025:CHC-AS:1526-DB
41
connection with Sessions Trial No. 10(06)/2015 arising out of the
S.T. (CIS) No. 125 of 2016 (G.R. No. 2884/2014) is hereby affirmed.
50. Consequently, the application if any filed in connection with
this appeal is hereby rejected.
51. Let a copy of this order along with the Trial Court Record be
sent down to the Trial Court immediately.
52. Urgent Photostat certified copy of this order, if applied for, be
given to the parties on payment of requisite fees.
[PRASENJIT BISWAS, J.]
53. I Agree
[DEBANGSU BASAK, J.]